The contribution of the canon lawyers
But be that as it may, the existence of "naked", non-enforceable pacta had for a long time been attacked on a more fundamental level by the canon lawyers. In the Middle Ages, contracts were usually confirmed by oath.
This gave the Church the opportunity to assert its jurisdiction over disputes arising in these matters;"21 for a breach of contract, under these circumstances, necessarily involved laesio fidei—breach of a pledge of faith—and this amounted to the sin of perjury. However, before God there is no difference between an informal promise and one confirmed by oath, between a simple lie and perjury. Jesus Christ had even gone one step further; in the Gospel according to St. Matthew he is quoted in the following terms: "But I say unto you, Swear not at all.... But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil. 1,222 In a society where the oath played such a central role, this passage could not be taken to impose a blanket ban on iuramenta.223 The least one could do, however, to bring the law into line with Christ's commandment was to insist that informal promissiones had to be kept in the same manner as an oath: "Promissio simplex obligat sicut et iuramentum. Nee inter haec Deus facit differentiam, cum uterque contraveniendo peccet mortaliter.1,224 This was already reflected in the so-called canon Quicunque225 of the Decretum Gratiani, the oldest compilation of canon law which was to form, eventually, the first part of the Corpus Juris Canonici. But it only dealt with (informal) unilateral promissiones. The locus classicus on the enforceability of consensual pacta was contained in the Decretals of Gregor IX, the Liber Extra of the Corpus Juris Canonici:” Cf. W. Kunkd fed."). Quellen ãèã neueren Privatrechtsgeschichte Deutschlands, vol.
I. 1 (1936), p. 254. The Stadtrecht was drafted by Ulrich Zasius. On the passage quoted in the text and on Zasius' view on the matter in general, cf. Seuffert, op. cit., note 31, pp. 96 sqq.; Feenstra/Ahsmann, op. cit., note 205, p. 16; but also Theo Mayer-Maly, "Die Bedeutung des Konsenses in privatrechtsgeschichtlicher Sicht", in: G. Jakobs (ed.), Rechtsgeltung und Konsens (1976), pp. 101 sq. On forms of obligational transactions and on the question of contractual fidelity in the old German law prior to the reception of Roman law, see Rudolf Huebner. A History of Germanic Private Law (4918). pp. 490 sqq.; Nanz. Vertragsbegriff, PR; 24 sqq-Cf. e.g. Winfried Trusen. "Die gelehrte Gerichtsbarkeit der Kirche", in: Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte (1973"). p. 486; Berman. Law and Revolution, p. 261.
“ St. Matthew 5. 34 and 37. Cf. also Epistula Jacobi 5. 12.
23 Mayer-Maly. Rechtsgeltung und Konsens, op. cit.. note 220. p. 101.
21 Albericus de Rosate. Dictionarium iuris tarn civilis quam canonici, s.v. promissio. Cf. also St. Thomas Aquinas. Summa theologiae, Secunda Secundae. q. 110. art. 3. 5 ("mendacium est. si quis non impleat. quod promisit"'). and Secunda Secundae. q. 88. art. 3.
25 Secunda pars. Causa XII. Quaest. II. ñ. åå.
"Aut inita pacta suam obtineant firmitatem, aut conventus, si se non cohibuerit, ecclesiasticam sentiat disciplinam. Dixerunt universi: Pax servetur, pacta custodiantur."[2789]
This text originally related to a dispute between two bishops about the boundaries of their dioceses which was decided at the first council of Carthage in the year A.D. 348 (hence: ex concilio Africano). In the Decretals of Gregor IX this same text was severed from its original context[2790] and stated as a general rule. The intention of the compilers becomes abundantly clear when one looks at the heading under which the text appears (within the title "De pactis"); it is the famous adage "pacta quantumcunque nuda servanda sunt", formulated in pointed allusion to the legistic distinction between pacts which are "naked" and others which are "dressed", but also subtly reminiscent of the praetors' promise of "pacta conventa servabo".
In the course of the 14th century it became the prevailing opinion among canonists that all informal contractual agreements were directly enforceable by means of a condictio ex canone[2791] [2792] [2793] (so named in imitation of the Roman condictio ex lege), that is, not merely protected indirectly through the procedure of denuntiatio cvangclica· ex nudo pacto oritur actio.-30 But whether this rule of canon law could (or should) also be applied in foro civili remained disputed over the centuries.[2794] On the one hand it could be argued that canon law had to be recurred to "ratione peccati"; for since the days of Bartolus and Baldus it had, generally speaking, been accepted that the law of the Church enjoyed precedence even in the secular sphere, where this was necessary in order to avert or prevent sinful behaviour.[2795] On the other hand, however, the sources contained in the Corpus Juris Canonici did not make it entirely clear whether an abrogation of the Roman law had been intended in this instance.[2796] But it is indisputable, in any event, that recognition of the principle of ex nudo pacto oritur actio in the canon law contributed considerably to its general acceptance "usu".5.
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