1. The older ius commune

Any more than a superficial or impressionistic assessment of the approach to the interpretation of contracts during the various phases of the ius commune would require a thorough analysis of the decisions of the courts: a task which has yet to be undertaken.

Questions of interpretation are (or can be) dependent upon so many different circumstances that it is particularly difficult to say whether the abstract formulations, the rules and guidelines found in contemporary literature do in fact reflect the actual jurisprudentia forensis, the law in action.⁸⁸ As far as the textbooks, the commentaries and the academic treatises are concerned, a subjective approach is prevalent throughout the centuries.⁸⁹ Papinian's statement to the effect that the will of the parties must be considered rather than the words'* was quoted over and over again, and thus examination of the common intention of the parties was the primary objective of the interpreter.⁹¹ "Quod actum est" was still an oft-quoted phrase, but it was now usually understood to refer to "id, de quo contrahentes senserunt".⁹² The supremacy of subjective criteria was endorsed by humanists as well as by the writers of the usus modernus, and it found, of course, its culmination in the 19th century. For the pandectists, it became a natural consequence of private autonomy and of the "will theory" of contract. If contractual obligations are by definition self-imposed, it follows that the exclusive task of the courts is to discover what the parties have agreed upon and to give effect to this, their true intention.

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. The older ius commune

More on the topic 1. The older ius commune: