OPPORTUNISTIC CAUSES

We are referring here to the fact that soon after the surfacing of the Digest in northern Italy advocates and judges began quoting from it in order to win their cases or to justify their judgements.

We shall now present some north Italian cases from the last quarter of the eleventh and the first half of the twelfth century, where rules or terms from the Corpus iuris, which betrayed some degree of acquaintance with its norms and terminology, were quoted. We naturally open the series with the famous judgement of Marturi (near Poggibonsi) of AD 1076, conserved in a con­temporary brevis recordationis, a rather informal written record. We shall strictly limit ourselves to the features that are rele­vant here, and not enter into the numerous intricacies of what Bruno Paradisi has called �una pagina tormentatissima della sto­ria giuridica’. In March 1076 in a court of Beatrix, countess of Tuscany, a lawsuit was conducted concerning some land and a church in a place called Papaiano between the advocate and the provost of the monastery of St Michael in Marturi, plaintiffs, and one Sigizo of Florence, defendant. The plaintiffs claimed the land on the ground of an ancient donation, but the defen­dant said that he was entitled to it by a forty years’ prescription.

The plaintiffs replied that during that time they had tried in vain to gain access to a magistrate in order to suspend the run­ning of the prescription, whereupon the judge gave sentence in their favour and ordered, as a temporary measure, the restitutio in integrum (full restitution). He did this on the basis of a passage in the Digestum vetus (the oldest part of the Digest known in the West), to which a lawyer, referred to as a legis doctor, had drawn his attention and which said that the praetor promised restitu­tio in integrum to people who had not been able to gain access to a magistrate.^[106] Consequently the defendant, in a separate document, gave up his claim. The case is rightly famous as it was the first time for centuries that the Digest was quoted in an Italian lawsuit. The Digest had been copied in southern Italy and soon afterwards became known in the north. Although this case and the following are still quite exceptional, they highlight the appearance of the Corpus iuris in the law courts some time before Irnerius and the other Doctors started their research and teaching.^[107]

Our next example comes from Garfagnolo where, in AD ι 098, in another lawsuit opposing local laymen to a monastery, in this case St Prospero in Reggio Emilia, the advocate of the church quoted from Justinian’s Code (7, 37, ι -3) and Institutes (2, 6, 14). A few years later, in a lawsuit in Rome, in AD 11 07, be­tween one Cintius, dispenser of the monastery of Saints Cosmas and Damian, and one Peter, concerning the rent of some land, reference was made to the Institutes (4, 6, pr.), the Digest (4, 3, 7, 8 and 44, 7, 51) and the Code (7, 39, 3).^[108]

In the first half of the twelfth century several legal terms from the Corpus iuris which had previously been unknown made their appearance in the city registers of Milan, as was the case in other regions of Italy.^[109]