The distinctions of the ins commune
Not surprisingly, therefore, this topic became the subject of an intense and controversial discussion among the medieval lawyers. Since the
days of the glossators, the threefold subdivision of the possible contents of an obligation as contained, for instance, in D, 44, 7, 3 pr.
("Obligationum substantia... in eo consistit... ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum"),174 provided the generally accepted starting point for this debate.175 But even within these categories, further subtle distinctions were drawn in order to provide some sort of systematic framework for the rich casuistry of the Corpus Juris.[3968] Thus, by the end of the Middle Ages, cases where the creditor could insist on specific performance were recognised within all three groups of obligations; but they stood side by side with other instances where the debtor could be forced only to pay the equivalent in money. Generally speaking, though, there was a continuing trend towards condemnation in specie: "praecise tenetur" is what was said about the debtor in these cases. Most of the dare obligations fell into this category,[3969] and so, according to the majority view[3970] and because it so closely resembled a dare obligation, did the actio empti. Other tradere obligations (as far as they were discussed at all) were usually subjected to the regime of condemnatio pecuniaria. With respect to facere obligations, Azo, Accursius and many other glossators, by giving the creditor the choice,[3971] in fact recognized the possibility of a condemnation in specie. The commentators were at first reluctant to accept this. "Nemo potest praecise cogi ad factum" was the view they tended to adopt, but in the course of time more and more exceptions came to be identified.[3972] [3973] Petrus de Bellapertica (Pierre de Belleperche) accepted condemnation in specie in the case of a scriptor; Jacobus de Ravanis (Jacques de Revigny), wherever services (operae) were owed; Johannes Faber, whenever the debtor was insolvent; Bartholomaeus Salicetus (and others), in cases where the obligation had been confirmed by oath; and Yason de Mayno, in a sweeping statement, "quando est tale pactum, quod faciliter et de levi potest expediri".5.
More on the topic The distinctions of the ins commune:
- The position under the ins commune
- Breach of contract under the ins commune
- The boni mores and the ins commune
- The notion of impossibility under the ins commune
- Actio empti and aedilitian remedies in the ins commune
- I. FUNDAMENTAL DISTINCTIONS
- Fundamental Concepts and Distinctions
- Some distinctions between the academic study and the practice of law
- Chapter Three Defending the View that Moral Distinctions are Projected, Subjective Sentiments
- Besides these internal distinctions, principles must also be distinguished, so to speak, externally, from other standards of behaviour that can be part of a legal system.
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Requirements of mora debitoris (ius commune)
- lus Commune
- Impossibilium nulla obligatio est under the (earlier) ius commune