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The Creation of the Ius Commune
EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board David L Carey Miller (University of Aberdeen) George L Gretton (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max-Planck-Institute of Comparative and International Private Law, Hamburg) Volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and S ociety in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History: Selected Essays (2007) Kenneth G C Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (2009)
EDINBURGH STUDIES IN LAW VOLUME 7
The Creation of the Ius Commune From Casus to Regula Edited by John W Cairns and Paul J du Plessis
EDINBURGH UNIVERSITY PRESS
© The Edinburgh Law Review Trust and the Contributors, 2010 Edinburgh University Press Ltd 22 George Square, Edinburgh www.euppublishing.com Typeset in New Caledonia by Koinonia, Manchester, and printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne A CIP record for this book is available from the British Library ISBN 978 0 7486 3897 0 (hardback) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.
Contents
Preface List of Contributors List of Abbreviations
vii ix xi
Introduction John W Cairns and Paul J du Plessis
1
1 The Sources of Medieval Learned Law Harry Dondorp and Eltjo J H Schrage
7
2 The Infrastructure of the Early Ius Commune: The Formation of Regulae, or its Failure Kees Bezemer 3 Ius Quaerens Intellectum: The Method of the Medieval Civilians James Gordley
57 77
4 Medieval Family and Marriage Law: From Actions of Status to Legal Doctrine Laurent L J M Waelkens
103
5 The Roman Concept of Ownership and the Medieval Doctrine of Dominium Utile Thomas Rüfner
127
6 Succession to Fiefs: A Ius Commune Feudorum? Magnus Ryan
143
7 Towards the Medieval Law of Hypothec Paul J du Plessis
159
8 The Ignorant Seller’s Liability for Latent Defects: One Regula or Various Sets of Rules? Jan Hallebeek 9 The Glossators’ Monetary Law Wolfgang Ernst
175 219
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10 Citations and the Construction of Procedural Law in the Ius Commune Richard H Helmholz
247
11 Doctoribus bona dona danda sunt: Actions to Recover Unpaid Legal Fees James A Brundage
277
295
Index
Preface
The papers collected in this volume were originally delivered on 12-13 December 2008 at a conference organised in Old College by the Centre for Legal History of the University of Edinburgh and the Edinburgh Roman Law Group. It is worth remembering that the Edinburgh Roman Law Group was established by the late Professor Peter Birks – sometime Professor of Civil Law in the University of Edinburgh – as an interdisciplinary forum dedicated to the study of Civil law and the Civilian tradition in its broadest sense. Its regular meetings attract a wide audience of students, specialists, and members of the public interested in its aims. Usually meeting three times each academic year, it is addressed by distinguished scholars in the field. The conference out of which this volume has grown was entitled “From Casus to Regula: The Creation of the Ius Commune”. All the papers delivered are included here in a revised form. The conference allowed fruitful discussion between the speakers and between the speakers and the audience, and this discussion is reflected in the versions of the papers presented as chapters here. The theme of the conference was chosen because there is little detailed work published in English on the development of the historical ius commune beyond grand narratives of considerable generality. If there are valuable individual studies and even monographs in English, the conference and consequent volume allowed a more general detailed assessment, and an assessment that involved proper consideration not only of the interpretation of the Roman-law texts, but also of those of canon law and feudal law, ranging over a wide area of legal practice and scholarship in the Middle Ages. The results allow and encourage development of a more nuanced account of how the medieval jurists took the texts of the Roman and canon laws and moved from casuistic jurisprudence towards the development of what would now be recognised as legal doctrine.
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The conference of December 2008 was the second mini-conference of those planned by the Roman Law Group and Centre for Legal History on a roughly four-year cycle. The first conference, held in 2005, led to the publication of J W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) [= Edinburgh Studies in Law III]. That publication promised (at vii-viii) that the “next gathering will focus on the development of the ius commune in its historical sense in the period 1100-1400 and the rise of legal doctrine” and that “the collection of papers from this conference will form the second volume produced by the ERLG”. This volume fulfils that promise. The third mini-conference will be devoted to humanism and law. This volume, and the conference that preceded it, would not have been possible without the generous financial support of the Edinburgh Legal Educational Trust and the School of Law of the University of Edinburgh. The Edinburgh Roman Law Group and the Centre for Legal History thank both for their generosity and commitment to legal history. The School of Law’s Research Office, in particular Mrs Alison Stirling and Mrs Myra Reid, worked hard to make the conference happen and deserve our gratitude. Finally, the editors of this volume wish to thank the Editorial Board of the Edinburgh Studies in Law in general and Ms Elspeth Reid in particular for accepting this volume. JWC PJduP Old College, Edinburgh October 2009
List of Contributors
kees bezemer is Associate Professor, Faculty of Law, University of Leiden. james a brundage is Ahmanson-Murphy Distinguished Professor Emer itus of History and Law, University of Kansas. john w cairns is Professor of Legal History, University of Edinburgh. harry dondorp is Associate Professor, Faculty of Law, VU University Amsterdam. wolfgang ernst is Professor of Roman Law, University of Zurich. james gordley is W R Irby Professor of Law, Tulane University School of Law. jan hallebeek is Professor of European Legal History, VU University Amsterdam. richard h helmholz is Ruth Wyatt Rosenson Distinguished Service Professor of Law, University of Chicago School of Law. paul j du plessis is Senior Lecturer in Law, University of Edinburgh. thomas rüfner is Professor of Law, University of Trier, Judge, Higher Regional Court at Koblenz. magnus ryan is Fellow of Peterhouse, and University Lecturer in History, Cambridge. eltjo j h schrage is Honorary Professor, Nelson Mandela Metropolitan University, Port Elizabeth and sometime Professor of Law, University of Amsterdam. laurent l j m waelkens is Professor of Roman Law, Catholic University of Leuven.
List of Abbreviations
Auth BamSB BIDR BIMAE
Authenticum Staatsbibliothek Bamberg Bulletino dell’Istituto di diritto romano Bibliotheca iuridica medii aevi: Scripta anecdota glossatorum, ed A Guadenzi, G B Palmieri et al 3 vols (1888-1901; 2nd edn 1913; repr 1962) BMCL Bulletin of Medieval Canon Law BML Bibliotheca Medicea Laurenziana (Florence) BN Bibliothèque Nationale; Biblioteca Nacional; Biblioteca Nazionale BSB Bayerische Staatsbibliothek (Munich) BV Biblioteca Vaticana (Rome) c contra c. capitulum C Code (of Justinian) C. causa ca circa CGIC Corpus Glossatorum Iuris Civilis, Curante Juris Italici Historiae Instituto Taurinensis Universitatis (1966–1973) CIC Corpus iuris canonici Clem Constitutiones Clementis V Coing, Handbuch H Coing (ed), Handbuch der Quellen und Literatur der neueren Europäischen Privatrechtsgeschichte, 3 vols (19731988) Coll Collatio Comp. Compilatio CTh Codex Theodosianus d died d. dictum
xii
D D. DDC Dec DEC
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Digest Distinctio R Naz (ed), Dictionnaire de droit canonique, 7 vols (1935-1965) Decisio G Alberigo et al (eds), Decrees of the Ecumenical Councils, trans N P Tanner et al, 2 vols (1990) d.p.(a.) dictum post (ante) EdTh Edictum Theodorici fl floruit Gai Inst Institutes of Gaius gl gloss Glos ord Glossa ordinaria i.f. in fine i.m. in medio J Inst Institutes of Justinian 2 Kaser, RPR M Kaser, Das römische Privatrecht. 1. Das altrömische, das vorklassische unde klassische Recht, 2nd edn [= Handbuch der Altertumswissenschaft, ser 10, Rechtsgeschichte des Altertums, part 3, vol 3] (1971 and 1975) 2 Kaser, ZPR M Kaser, Das römische Zivilprozessrecht, 2nd edn, rev by K Hackl [= Handbuch der Altertumswissenschaft, ser 10, Rechtsgeschichte des Altertums, part 3, vol 4] (1996) Lange, RRM H Lange and M Kriechbaum, Römisches Recht im Mittelalter, 2 vols (1997-2007) LF Libri feudorum LMA Lexikon des Mittelalters vol. I (München: Deutscher Taschenbuch Verlag, 2002) LQR Law Quarterly Review Meijers, Études E M Meijers, Études d’histoire du droit, ed R Feenstra and H F W Fischer, 4 vols (1956-1966) MGH Monumenta Germaniae Historica MIC Monumenta iuris canonici NJW Neue Juristische Wochenschrift Nov Novels of Justinian OIR Opera Iuridica Rariora, selecta cura et studio Domenico Maffei et al, (1967- ) Part Las Siete Partidas del Don Alfonso el Sabio (cited by individual Partida) q. quaestio
list of abbreviations
QGRKP
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Quellen zur Geschichte des römisch-kanonischen Prozesses im Mittelalter, ed L Wahrmund (1905-1931; repr 1962) r reigned RHD Revue historique du droit français et étranger RIDA Revue internationale des droits de l’antiquité RIDC Rivista internazionale di diritto commune RO Record Office RSDI Rivista del storio del diritto romano SDHI Studia et Documenta Historiae et Iuris Sext Liber Sextus SG Studia Gratiana sv sub voce TUJ Tractatus universi juris, ed Franciscus Zilettus, 22 vols in 28 (1584-1586) TvR Tijdschrift voor Rechtsgeschiedenis X Liber Extra (Decretales Gregorii IX) Zimmermann, Obligations R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990; repr with rev 1996) ZRG, GA Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung ZRG, KA Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung ZRG, RA Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Römanistische Abteilung
Introduction John W Cairns and Paul J du Plessis The jurist Paul wrote: “The law may not be derived from a rule, but a rule must arise from the law as it is.”1 This fragment is found in D 50.17, entitled De diversis regulis iuris antiqui, which consists of 211 such rules or regulae culled from the works of jurists of the classical era. The quotation from Paul emphasises the extent to which the Roman lawyers thought that regulae were extrapolated from cases, casus or causae. When the medieval jurists were confronted by the Roman texts, with their concrete discussion of particular cases, they looked at this title and this text for guidance and started to develop the casuistic Roman jurisprudence found in the Digest, Code, and Novels into more general rules or regulae. In the English-language literature Peter Stein explored this in his 1966 study, which focused on the general trends.2 Stein thereby contributed to a larger, well-known narrative about the development of a pan-European ius commune or universal common law, ca 1100-1400. Though there are antecedents, this grand narrative can for our purposes be dated to the epochal and brilliant work of Savigny on the medieval rediscovery of Roman law.3 What made Savigny’s study particularly valuable was his discussion of individual jurists and their works, bringing to light once more the significance of these early scholars. He did not especially focus on the juristic content of their labours. This set the agenda for much future scholarship, and the history of European law has tended since then to be told as the story of succeeding schools of jurists and their differing approaches to the texts without paying much attention to the details of their work. For an Anglophone audience, the short work of Vinogradoff, Roman Law in Medieval Europe (reprinted as recently as 1968) provided an influential account.4 Vinogradoff’s study was first published in 1909. Scholarship has developed considerably since then, retelling, refining and developing this traditional narrative. In particular, research started to take new directions, in important 1 D 50.17.1. 2 P Stein, Regulae Iuris: From Juristic Rules to Legal Maxims (1966) 131-152. 3 F C von Savigny, Geschichte des römischen Rechts im Mittelalter, 6 vols (1815–1831). 4 P Vinogradoff, Roman Law in Medieval Europe, with a new foreword by P Stein (1968).
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works such as Paul Koschaker’s Europa und das römische Recht (1947), developing – broadly speaking – two branches of literature in this area of legal history. First, much more refined versions of the traditional narrative, sometimes with a national focus, appeared. Examples of this genre include Franz Wieacker’s highly influential Privatrechtsgeschichte der Neuzeit: unter besonderer Berücksichtigung der deutschen Entwicklung, 2nd ed (1967); Manlio Bellomo’s polemical The Common Legal Past of Europe 1000–1800 (translated from the Italian by Lydia Cochrane) (1995); and Peter Stein’s short but elegant Roman Law in European History (1999). It is perhaps fair to say that, despite the focus on Germany, Wieacker has provided a particularly seductive and powerful version of the grand narrative that still dominates modern thinking. The second type of literature has been much more focused on particular and specialised issues, such as canon law, the sources of law, political theory and the like. In the English-language scholarship, the work of Joseph Canning, for example, has been especially prominent in pursuing the impact of the learned laws on the political thought of the Middle Ages,5 a topic made prominent in the United Kingdom in the second half of the twentieth century by Walter Ullmann.6 The field in which the most important and profound work has been done, however, is that of canon law. Charles Donahue in 1984 explained why “the history of medieval canon law is not written”. In particular, he focused on the lack of study of the application of canon law in the courts.7 In the twenty-five years since, there has been significant scholarship in the English language on this and other aspects of canon law. This has recently been surveyed and assessed by Wolfgang Müller in his introduction to the Festschrift for Kenneth Pennington.8 The issue raised particularly by Donahue has been covered by Dick Helmholz in his study of the spiritual jurisdiction in England.9 Donahue 5 See, e.g., Joseph Canning, The Political Thought of Baldus de Ubaldis [= Cambridge Studies in Medieval Life and Thought VI] (1987). 6 See, e.g., Walter Ullmann, Law and Politics in the Middle Ages (1975). See also K Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (1993). 7 C Donahue, Why the History of Canon Law is Not Written [= Selden Society Lecture 1984] (1986). 8 W P Müller, “Introduction: Medieval Church Law as a Field of Historical Inquiry” in W P Müller and M E Sommar (eds), Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington (2006) 1. 9 R H Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s [= The Oxford History of the Laws of England I] (2004).
introduction
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has himself edited volumes dealing with court.10 One may suspect that the emigration of Stephan Kuttner to the USA has played a prominent part in the development of such studies. If canon-law scholarship is strong – indeed flourishing in the English language – the same is not true (at least to the same extent) for the study of medieval Roman and learned feudal law. Much of what has been published in English has been written by Continental scholars. Examples would include Kees Bezemer’s studies of Jacques de Revigny and Pierre de Belleperche, and Tammo Wallinga’s edition of the Casus Codicis of Wilhelmus de Cabriano.11 To these could be added the published proceedings of the Danish Carlsberg Academy conferences on medieval legal history. These, however, are studies very much aimed at a specialist audience coming from a scholarly tradition going back to, for example, Emil Seckel in Germany and E M Meijers in the Netherlands. They can pose difficulties for the novice. The aims of this volume are therefore twofold: first, to flesh out the grand narrative with detailed studies covering the learned laws – Civil, canon and feudal; and secondly, to provide greater access to the sources and conventions of this field of study. The volume opens with Harry Dondorp and Eltjo Schrage’s introduction to the sources and editions of medieval learned law. As well as guidance on the texts, this provides advice on how to approach the study in more general terms. This is of profound importance. There is no comparable account available in the English language. It draws on and updates an earlier introductory booklet which appeared in Dutch and German under the title Utrumque Ius.12 The next two chapters focus in broad terms on issues of methodology. Kees Bezemer explores how and why the medieval jurists developed regulae, and assesses the central importance of the term in medieval legal thought. The broad sweep of Jim Gordley’s chapter allows the reader to appreciate 10 C Donahue (ed), The Records of the Medieval Ecclesiastical Courts: Reports of the Working Group on Church Courts Records [= Comparative Studies in Continental and Anglo-American Legal History VI and VII] (1989-1994). 11 K Bezemer, What Jacques Saw: Thirteenth-Century France through the Eyes of Jacques de Revigny [= Studien zur europäischen Rechtsgeschichte xcix] (1997); K Bezemer, Pierre de Belleperche: Portrait of a Legal Puritan [= Studien zur europäischen Rechtsgeschichte CXCIV] (2005); T Wallinga, The Casus Codicis of Wilhelmus de Cabriano [= Studien zur europäischen Rechtsgeschichte CLXXXII] (2005). 12 E J H Schrage and J H Dondorp, Utrumque ius: Een inleiding tot de studie van de bronnen van het middeleeuwse geleerde recht [= Juridische Reeks Vrije Universiteit 4] (1987); E J H Schrage and J H Dondorp, Utrumque ius: eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts [= Schriften zur Europäischen Rechts- und Verfassungsgeschichte VIII] (1992).
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the different methods that medieval jurists used to understand and interpret the texts. Sometimes, their deductive approach can seem modern; but he identifies a very different sensibility in the way they linked texts together to form a pattern. The remainder of the chapters fall into four groups. Laurent Waelkens provides a challenging account of how the medieval scholars created a law reflecting their Judeo-Christian ideas of family and marriage out of Roman legal texts which were founded on uniquely Roman ideas of marriage and the family. He shows how important medieval theology and canon law were in this process. A second group is constituted by the chapters of Thomas Rüfner, Magnus Ryan, and Paul du Plessis. Rüfner analyses Bartolus’ definition of ownership in context showing the anachronism of many modern interpretations of it. He makes it clear that, properly understood, Bartolus’ definition is perfectly compatible with feudal realities and the medieval concept of dominium utile. He concludes that the path of medieval scholarship was from regula to casus. In an exploration of succession to fiefs, Ryan explores the way in which the ius commune feudorum became recognised and discussed as a significant category of its own leading the glossators to develop the concept of the natura feudi. Du Plessis analyses the problems the medieval jurists faced in dealing with the inconsistencies of the Roman texts in discussing the law of pignus and hypothec. The chapters of Jan Hallebeek and Wolfgang Ernst focus on commercial issues. Hallebeek, in a substantial piece, discusses the liability of the ignorant seller for latent defects in the object sold. The differing remedies in the Roman texts allowed the medieval jurists to develop contrasting solutions to complex intellectual problems as they weighed up alternate advantages and disadvantages. The problems posed by the Roman texts’ references to money and payment are the subject of Ernst’s chapter. The glossators operated in a world of metal currency and bullion where currency could be devalued through reduction of its silver content. They used a variety of Roman- and canon-law texts to resolve the problems posed. The fourth group examines the learned procedure of the ius commune and the actions of the lawyers needed to operate it. Through a discussion of citation in the ius commune, Dick Helmholz shows how the jurists drew on Roman- and canon-law texts to develop a working system. Securing payment of fees for legal work done often proves tricky for lawyers. Jim Brundage’s elegant chapter shows how the medieval lawyers negotiated the quicksand to develop actions for payment of fees based on Roman legal foundations.
introduction
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In 1938, Hermann Kantorowicz observed that: “There is scarcely any type of legal literature, any legal method, any legal doctrine or concept, that was not created or foreshadowed in the successive medieval law schools.” He also pointed out that the school of glossators, “though the most famous, [is] the least known and the most difficult to know, for in this case, and in this case alone, many of its most valuable works are still hidden in the manuscripts”.13 As Dondorp and Schrage show, modern technology is making manuscripts much easier to access; but although great progress has been made since 1938, much remains to be done. The chapters in this book show the rich possibilities of detailed study. Further development of our understanding of this central area of European legal history will be dependent on an iterative process as focused, detailed research refines grand narratives and is in turn refined by them.
13 H Kantorowicz, Studies in the Glossators of the Roman Law (1938) 1.
1 The Sources of Medieval Learned Law Harry Dondorp and Eltjo J H Schrage* A. PROLOGUE (1) Websites (2) New bibliographical tools (3) A short guide B. THE TEXT OF THE CORPUS IURIS CIVILIS (1) Digest (2) Codex Justinianus (3) Justinian’s novellae (4) Volumen (5) References to Roman law texts C. TEACHING AND WRITING (1) Glossae (2) Disputationes (3) Apparatus (4) Summae (5) Commentum and lectura (6) Repetitio (7) Consilia D. ROMAN AND CANON LAW E. THE CORPUS IURIS CANONICI (1) Gratian’s Decretum (a) Palea (b) System of citation (c) Recensions (d) Roman law in the Decretum Gratiani (2) Early glosses to the Decretum (3) Early summae
* We would like to thank our friends and colleagues (in alphabetical order) Kees Bezemer (Leiden), Gero Dolezalek (Aberdeen) and Olivia Robinson (Glasgow) for their numerous valuable remarks. Olivia Robinson even took upon herself the tedious task of correcting the English.
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(4) Ius novum: decretals (a) System of citation (5) Compilationes antique (a) System of citation (6) Liber Extra (a) System of citation (7) Liber Sextus, Clementinae, and Extravagantes (a) System of citation F. PROCEDURAL LAW G. FEUDAL LAW H. A STRATEGY FOR RESEARCH I. CONCLUSION A. PROLOGUE More than twenty years have passed since we published in Dutch an introduction to the foresta selvatica of the medieval learned law. A German edition followed in 1992,1 and the book is still in print. During the years that have passed, however, an important number of new developments have taken place, speci fically the expansion of the number and quality of the bibliographical tools available. This expansion is due partly to the appearance of a great number of new important books and partly to the growth of the internet. We will discuss these bibliographical tools more fully, but before doing so we will mention a few useful websites. (1) Websites There exist nowadays a number of very useful websites. For Roman law by far the best portal is www.iuscivile.com, maintained by the Glasgow scholar Ernest Metz ger. It not only includes a directory of historians of ancient law (which is useful in itself), but also a unique collection of links to sources of Roman law (in the proper sense of the word: le droit romain romain) available on-line, and a list of emendations to the Watson-edited translation of the Digest. The most comprehensive set of on-line Roman legal texts is maintained by Alexandr Koptev, partly on his Russian Roman law-library site, partly on the now more extensive Grenoble site.2 These include most of the Justinianic and 1 E J H Schrage and J H Dondorp, Utrumque Ius. Eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts [= Schriften zur Europäischen Rechts- und Verfassungsgeschichte VIII] (1992). 2 www.ancientrome.ru/ius/library or: http://web.upmf-grenoble.fr/Haiti/Cours/Ak/index.htm
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pre-Justinianic texts.3 For the student of medieval ius commune, however, a caveat is necessary, which will be discussed more fully below. It is not selfevident (or rather, it is unlikely) that these modern editions of the texts are identical with the texts used by the medieval scholars. Texts, commentaries and the like of the glossators are not to be found on these web sites. References to older editions of law books are indeed, generally speaking, very rare. Moreover, they also require specialised knowledge of the field. The personal website of Otto Vervaart, because it contains several pages devoted to both medieval Roman and canon law, is, however, very helpful, particularly for beginners.4 For medieval canon law the website of the Kuttner Institute, maintained by Jörg Müller, should be mentioned.5 The website of Kenneth Pennington not only gives access to many of his own publications, but also a “Guide to Medieval Canon Law Jurists and Collections” up to 1500.6 (2) New bibliographical tools During the past two decades many new bibliographical tools have seen the light, some in print, some on the internet. The Bulletin of Medieval Canon Law seems to have ceded its place to the Rivista internazionale di diritto comune, but the Tijdschrift voor rechtsgeschiedenis continues to publish valuable bibliographic al surveys. At www.bautz.de/bbkl the German Kirchenlexikon gives detailed information about the life and works of many canonists and legists; hence, it can be used to supplement the bio-bibliographical Guide of Pen nington mentioned above. Hermann Lange and Maximiliane Kriechbaum have published Römisches Recht im Mittelalter, their magnum opus in two volumes.7 The book provides many prosographical details and bibliographies on the glossators (vol 1) and commentators (vol 2), and is indispensable to any modern legal historian. When confronted with the richness of data contained in these two volumes, the reader should nonetheless take care to retain a critical sense. Verification of the data may be necesssary. Additional material concerning French and Spanish jurists can 3 Apart from the late antique codifications, Koptev covers republican material such as the Twelve Tables and Cicero’s De Legibus as well as major surviving legal works from the second to the sixth century ce. These works are of very limited use for the Middle Ages, but the Grenoble site also offers some trans lations in English, among which S P Scott, The Civil Law Including ... the Enactments of Justinian and the Constitutions of Leo, 17 vols in 7 (1932; repr 1973), also accessible via www.constitution.org/sps/sps.htm 4 http://home.hetnet.nl/~otto.vervaart/medieval_law.htm 5 www.kuttner-institute.jura.uni-muenchen.de 6 http//faculty.cua.edu/Pennington 7 Lange, RRM.
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be found in the Dictionnaire historique des juristes français and in Juristas universales.8 Among these bibliographical tools Douglas Osler’s forthcoming bibliography of European legal literature to 1800 deserves special mention. The project, pursued at the Max Planck Institut für europäische Rechtsgeschichte in Frankfurt, aims to establish a databank in which surviving copies of an individual printed edition are recorded in a census on a strictly systematic basis. The catalogues Osler has made of the holdings of an important number of libraries9 have laid the foundation for the whole project. His forthcoming survey will show that the works of the Italian jurists had already been printed many times before 1520. The database will describe these editions in detail and, as a bibliographical tool for scholars with an interest in the works concerned, will surpass all hitherto known. In this context the website of the Bibliothèque Nationale in Paris deserves to be mentioned, since it makes some 80,000 (!) old editions freely available via the internet: www.gallica.bnf.fr. Some additions can be found in the Bibliotheca Glossatorum.10 Though the website of Gero Dolezalek at the website of the University of Leipzig was last updated in 2002, it is, nonetheless, still a useful bibliographical tool.11 It contains an important number of references to manuscripts of both medieval canon and Roman law, including a link to the list of incipits of legal literature in manuscript, compiled by Giovanna Murano, and a link to Dolezalek’s comprehensive cumulative inventory of all manuscripts of canon and Roman law which have so far been mentioned in catalogues or in legalhistorical publications.12 It will eventually replace the famous Handschriftenverzeichnis and Repertorium;13 and will tell who published what on which manuscript, and where. That bibliographical file will soon comprise all the data on manuscripts until now compiled from periodicals such as the Bulletin of Medieval Canon Law, the Archiv für katholisches Kirchenrecht, the Österreichisches Archiv für Kirchenrecht, the Zeitschrift der Savigny-Stiftung für 8 P Arabeyre et al (eds), Dictionnaire historique des juristes français, XIIe-XXe siècle (2007) gives bio- and bibliographical details about 1,278 French jurists from the middle ages onwards; R Domingo (ed), Juristas universales (2004) I, 239-562 (Juristas Antiguos). 9 Max Planck Institut in Frankfurt, Biblioteca di Giurisprudenza of the University of Florence; Biblio teca Volterra in the École Française in Rome; Robbins Collection of the University of California at Berkeley; and the Van Zyl Collection of the University of Cape Town. 10 See www.labinf-digips.unisi.it/glossatorum 11 See www.uni-leipzig.de/~jurarom 12 Murano’s list of incipits and Dolezalek’s database are made accessable via http://www.uni-leipzig. de/~jurarom/manuscr/index.htm 13 G Dolezalek and H van der Wouw (eds), Verzeichnis der Handschriften zum römischen Recht bis 1600 (1972); S Kuttner, Repertorium der Kanonistik. Prodromus corporis glossarum (1937).
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Rechtsgeschichte (kanonistische Abteilung), and the Proceedings of the International Congress of Medieval Canon Law. Furthermore, important textbooks have been published. Ennio Cortese produced a second edition of his classic, Il diritto nella storia medievale, under the amended title Le grandi linee della storia giuridica medievale (2000). Earlier Manlio Bellomo made his work accessible to the Englishspeaking reader as The Common Legal Past of Europe, 1000-1800 (1995). Two introductions to medieval canon law have ap peared. That by Jim Brundage also contains valuable bibliographical data on the main canonists.14 In 1996 Richard Helmholz published his Spirit of Medieval Canon Law.15 In 2008 the long-awaited History of Medieval Canon Law in the Classical Period was published, with superb contributions from Peter Landau, Rudolf Weigand, Charles Duggan and Kenneth Pennington on Gratian’s Decretum and the commentaries thereto, the early decretal collections, the compilationes antique and the works of the decretalists up to 1234.16 (3) A short guide Despite the existence of these aids, the editors of this volume expressed the view that a short introduction to the sources of the medieval learned law might be useful for the legal historian who is making first steps in this field. Such a legal historian will need answers to questions as to which texts should be consulted and how to find details about their origins and their connections. What specific knowledge will be needed to interpret the medieval texts? Which traps will need to be avoided? This chapter provides instructions on where to find the medieval source material, which kind of source to select and to use, and for which purpose. We have chosen a practical approach that also outlines the relationship between this survey and the older literature. It goes without saying that what is contained in the older literature retains its value and its study should not be omitted. We thus have made extensive use of the immensely rich documentation and information enclosed in the various contributions to the first volume (“Mittelalter (1100-1500)”) of Helmut Coing’s Handbuch,17 but we will not repeat the basic information it contains in the contributions by Peter Weimar on the works of the glossators, by Norbert Horn on the works 14 J A Brundage, Medieval Canon Law, 3rd impr edn (1997). 15 R H Helmholz, The Spirit of Classical Canon Law (1996). 16 W Hartmann and K Penning ton (eds), The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX (2008). 17 Coing, Handbuch.
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of the commentators, and by K W Nörr on the works on legal procedure. With regard to the text of law books, modern scholars face a specific problem: they have to make sure that they are dealing with the same text as the medieval scholars had on their desks. We will go into further detail when dealing with the various parts of the Corpus iuris civilis and the Corpus iuris canonici. Similar difficulties are on hand when it comes to Latin dictionaries. Heumann-Seckel18 is the product of nineteenth-century scholarship and stands in the German pandectistic tradition. Useful as it is, it might sometimes miss the point as far as medieval learning is concerned. There exist a number of very early vocabularies, which are very useful. One of the oldest is the Vocabularius utriusque iuris. The first printed edition was published in 1474, but its content is based on much earlier material. It went through more than seventy editions in the next 150 years. The Vocabularius was reputedly compiled by a jurist of Erfurt University, named Jodocus, who signed some manuscripts of the text.19 More easily found – because a reprint of the Venice 1571 edition ap peared in 1971 – is Albericus de Rosate (1290-1360), Dictionarium juris (1st edn, Bologna, 1481). Also useful are the humanist vocabularies of Jacob Spiegel,20 Calvinus (Johan Kahl),21 and Brissonius (Barnabe Brisson).22 B. THE TEXT OF THE CORPUS IURIS CIVILIS The Corpus iuris civilis, as the medieval jurists knew and read it, differed in many respects – division, content, textual tradition – from Justinian’s legislation as found in the editions used today. The latter are based upon the Krüger-Mommsen edition, a nineteenth-century reconstruction of the original Justinianic text.23 This edition is easily accessible on the internet as a fully-searchable text.24 There is a recent English translation of the Digest edited by Alan Watson, and two translations of the Institutes: one by J A C 18 Heumanns Handlexikon zu den Quellen des römischen Rechts neubearbeit von E Seckel (1914). 19 For ample data about the Vocabularius and related legal encyclopedias of the Middle Ages, see E Seckel (ed), Beiträge zur Geschichte beider Rechte im Mittelalter (1898). 20 J Spiegel, Lexicon iuris civilis, 1st edn (1538). 21 J Kahl (Calvinus), Lexicon juridicum: Juris Caesarei simul et Canonici: feudalis item, civilis, criminalis, theoretici, ac practici, 1st edn (1600). 22 B Brisson (Brissonius), De verborum quae ad ius civile pertinent significatione, 1st edn (1557). 23 P Krüger, Th Mommsen, R Schöll and G Kroll (eds), Corpus iuris ciuilis, 3 vols (1872-1895); there are many re prints, the most recent being, 2000-2005. The merits (and deficiences) of this edition are discussed in F Wieacker, “Mommsens digestorum editio maior. Aspekte und Aporien”, in E Spagnesi (ed), Le Pandette di Giustiniano. Storia e fortuna di un codice illustre. Due giornate di studio, Firenze 23-24 giugno 1983 (1986) 199-214. 24 www.upmf-grenoble.fr/Haiti/Cours/Ak/corpjurciv.htm (also as pdf); www.archive.org provides a reprographical edition of the 1872-1895 edn.
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Thomas, the other by Peter Birks and Grant McLeod.25 S P Scott’s 1932 translation of Roman law texts is faulty in many ways, but it contains the only printed English translation of the Code and Novels and is available on the internet.26 Good translations into English of the Code and Novels by F H Blume, as well as of the rest of the Corpus iuris civilis, are available on-line at the website of the University of Wyoming’s College of Law.27 (1) Digest With regard to the text of the Digest the central question is the relationship between the Florentina and the vulgata–tradition. The Littera Florentina (or Codex Florentinus) has since the sixteenth century been the name given to a manuscript in two volumes, 907 leaves in total, which were written in the Byzantine-Ravenna uncials, characteristic of Constantinople, Alexandria and the Levant.28 Recent research dates the manuscript to between 533, when the Digest was officially promulgated, and 557.29 It is noted in a margin of the manuscript that in 1135 it was robbed from Amalfi – which was then still part of the Byzantine territory – by the citizens of Pisa: hence its older name, Littera Pisana. There it was looted and brought to Florence after the war of 1406, where it is still kept in the Biblioteca Medicea Laurenziana. Nowadays two reprographical editions of the manuscript exist.30 It is the oldest manuscript of the Digest known; the humanists therefore considered it the best, and editions from the seventeenth century onwards are accordingly based mainly upon it,31 as indeed is the modern Krüger-Mommsen edition. 25 P Krüger and Th Mommsen (eds), trans A Watson (ed), The Digest of Justinian, 4 vols (1985); J A C Thomas, The Institutes of Justinian, Text, Translation and Commentary (1975); Justinian’s Institutes. Translated with an Introduction by P Birks and G McLeod (1987). 26 Scott, Civil Law (n 3). 27 http://uwacadweb.uwyo.edu/blume&justinian/default.asp 28 See A Belloni, “Un’ipotesi per le Pandette fiorentine”, in V Colli and E Conte (eds), Iuris historie: Liber amicorum Gero Dolezalek (2008) 1. 29 M Cavallo, “Libri e scritture del diritto nell’età di Giustiniano” (1987) 15 Index 103; B Stolte, “The Partes of the Digest in the Codex Florentinus” (1984) 1 Subseciva Groningana 69. D Osler, “Flash light on the Florentine” (1984) 3 Rechtshistorisches Journal 18 provides critique. See also W Kaiser, “Zur Herkunft des Codex Florentinus. Zugleich zur Florentiner Digestenhandschrift als Erkentnisquelle für die Re dak tion der Digesten”, in A Schmidt et al (eds), Sachsen im Spiegel des Rechts (2001) 39. 30 Iustiniani Augusti Digestorum seu Pandectarum codex Florentinus olim Pisanus phototypice expressus (1902-1910); A Corbino and B Santalucia (eds), Justiniani Augusti Pandectarum Codex Florentinus, 2 vols (1988). 31 For example, the Torelli edition (1553), the unfinished Brenkman edition and the proposed Cunningham edition. See G C J J van den Bergh and B H Stolte, “The Unfinished Digest Edition of Henrik Brenkman” (1977) 45 TvR 227; J W Cairns, “Alexander Cunningham’s Proposed Edition of the Digest. An Episode in the History of the Dutch Elegant School of Roman Law (Part II)” (2001) 69 TvR 307 at 340-347; H E Troje, “Ubi in libro Florentino duae lectiones
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The first generation of glossators already knew of the existence of the Florentina, as the textual variations they mention prove. It is speculated that a copy of the Florentina saw the light in the course of the twelfth century. This (now lost) copy is generally called the Codex secundus, which laid the foundat ion of a very rich tradition of manuscripts of the Digest, generally referred to as the Littera Bononiensis or Vulgata. How ever, no real facts are known. It may well be that non-Florentine readings derive from several other old manuscripts, each comprising only parts or fragments of the Digest. This tradition is of Bolognese origin and was the text the glossators and their successors taught and commented upon. It is trans mitted in more than 1,000 manuscripts (with parts or fragments of the Digest) and in numerous printed editions of the sixteenth and seventeenth centuries. The medieval system of reproduction of these manuscripts was strictly re gulated and stood under university control.32 Nevertheless, within the tradition of the vulgate textual variations are far from rare. Specific features which distinguish this tradit ion from the Florentina immediately stand out: for example, the vulgata lacks Greek quotations and replaces them sometimes with a translation from the hand of Burgundio of Pisa (d 1193),33 but mostly by the words “Graeca, non leguntur”. The Littera Bononiensis or vulgata is the text which is found in the manuscript and earliest printed editions of the Corpus iuris civilis.34 There is no modern critical edition.35 The most accessible older prints are those published by Hugo à Porta in Lyon between 1538 and 1627. Earlier editions are printed in a gothic font, which those who are unfamiliar with its forms can inveniuntur ... Zur Geschichte der Digesteneditionen (16.–19. Jh.)” (2004) 72 TvR 61; H E Troje, Graeca leguntur: Die Aneignung des byzantinischen Rechts und die Entstehung eines humanistischen Corpus Iuris Civilis in der Jurisprudenz des 16. Jahrhunderts [= Forschungen zur neueren Privatrechtsgeschichte XVIII] (1971). 32 F P W Soetermeer, De pecia in juridische handschriften (1990). His Leiden dissertation is translated into Italian and German: Utrumque jus in peciis. Aspetti della produzione libraria a Bologna fra Due e Trecento [= Orbis Academicus VII] (1997); Utrumque ius in peciis. Die Produktion juristischer Bücher an italienischen und französischen Universitäten des 13. und 14. Jahrhunderts [= Ius Commune Sonderhefte CL] (2002); there are additions in G Murano, Opere diffuse per exemplar e pecia (2005). On related problems, see F P W Soetermeer, Livres et juristes au moyen âge [= Bibliotheca eruditorum XXVI] (1999). 33 P Classen, Burgundio von Pisa: Richter – Gesandter – Übersetzer [= Sitzungsberichte der Heidelberger Akademie IV] (1974) 39-50. 34 For a chronological survey of the printed editions, see E Spangenberg, Einleitung in das römischJustinianeische Rechtsbuch oder Corpus Iuris Civilis romani (1817; repr 1970) 650-926. His work will be superseded by the forthcoming bibliography of Osler. 35 There exists an older critical edition of the first four titles of the Digest, with the gloss, by J G Claussen, Denuo edendae Accursianae glossae specimen (1828 or 1829). On the website of the University of Saarbrücken there is an edition of D 1.1.1 and D 12.1.1 with the gloss (maintained by Thomas Rüfner): http://archiv.jura.uni-saarland.de/Rechtsgeschichte/Ius.Romanum/english.html
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find difficult to read. Furthermore, the texts of the early editions are full of special abbreviations. Consequently these early editions are rather difficult to use, as consultation of the 1969 reprint of the 1488 edition with the Accursian gloss will demonstrate.36 There is, however, a tool to decipher these abbreviations – the famous lexicon by Adriano Cappelli, nowadays accessible through the internet.37 The seventeenth-century editions are much more accessible than the older ones. The 1627 edition is the last printed edition to include the complete Accursian gloss.38 Several reprints of it have been published, most recently in Osnabruck (1965-1966) and Frankfurt (2000-2005). The sixth volume of this edition is particularly important as it contains Dayoz’s index to the Corpus and gloss. The easiest way to get a reasonably reliable impression of the variations between the Florentina and the Vulgata is by consulting the critical apparatus of the Gebauer-Spangenberg edition, which stands in the humanistic tradition.39 Humanism placed considerable emphasis on the philological aspects of the text. A specific feature of the medieval manuscripts and early printed editions is the partition into three parts of the Digest: Digestum Vetus (D 1.1-D 24.2), Infortiatum (D 24.3-D. 38.17), and Digestum Novum (D 39.1-D 50.17). In early manuscripts the Infortiatum ends abruptly in D 35.2.82; the rest (called the Tres Partes) was then added to the Digestum Novum. The text and its divisions had reached their final form by the end of the thirteenth century.40 (2) Codex Justinianus In the medieval editions of the Corpus iuris in manuscript, the first nine books of the Code were published as one volume. The last three books 36 In CGIC VII-IX. 37 www.hist.msu.ru/Departments/Medieval/Capelli/index.html gives a reprograhical copy of A Capelli, Lexicon abbreviaturarum: dizionario di abbreviature latine ed italiane, 6th edn (1929; many repr). Additions in A Pelzer, Abréviations latines médiévales, supplément au ‘Dizionario di abbreviature latine ed italiane’ de Adriano Cappelli, 2nd edn (1966; repr 1982, 1995, 2002). 38 Regarding the text of the gloss, however, the 1627 edition has some disadvantages, as the ordinary gloss is printed with later additions. While additions bearing the name of Bartolus or Cujacius are easily recognised as not belonging to the gloss, some of the additions are much less obvious. 39 Corpus Iuris Civilis, ed G Ch Gebauer and G A Spangenberg I (Institutiones et Digesta) (1776); ed G A Spangenberg II (Codex, Novellae et Consuetudines Feudorum) (1797). Useful additional remarks are found in P Pescani, “Origine delle lezioni della Litera Bononiensis superiori a quelle della Litera Florentina” (1982) 85 BIDR 283. For criticism of the quality of the apparatus criticus, see Van den Bergh and Stolte, “Unfinished Digest Edition” (n 31) 244. 40 J Q Whitman, “A Note on the Medieval Division of the Digest” (1991) 59 TvR 269; J A C J van de Wouw, “Zur Textgeschichte des Infortiatum und zu seiner Glossierung durch die frühen Bologneser Glossatoren” (1984) 11 Ius Commune 231; W P Müller, “The Recovery of Justinian’s Digest in the Middle Ages” (1990) 20 BMCL 1.
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contained public law and were included in another volume (Volumen) under the title, Tres Libri Codicis. The problem of the relationship between the Littera vulgata and the Florentina is perennial in studies involving the Digest; there is no equivalent for those of Justinian’s Code. Promulgated in 534, the Code re mained well known, even in the West after the fall of that part of the Empire. Copies were already produced as early as the sixth and seventh centuries, though sometimes in abbreviated form. The subscriptiones, which gave the origin and date of the various constitutions, were omitted; so too were the constitutions in Greek. From the twelfth century onwards the glossators added abbreviat ions of Justinian’s novellae, known as autenticae, on the same subject in the margin of the Code.41 In time they became inserted in the text. The collection itself, called the Authenticum, from which they took the autenticae, was included in the fifth volume of the Corpus iuris civilis, the Volumen. Three enactments of the medieval Holy Roman emperors were also inserted: Habita of 1155 was inserted after C 4.13.5;42 Sacramenta puberum, also of 1155, was inserted after C 2.27 (28).1;43 and Ad decus of 1220 – divided into eleven parts – was inserted at various places.44 Since Paul Krüger – with his aims of approaching the original text as far as possible – eliminated the autenticae, it is necessary to consult an older printed edition than the Krüger-Mommsen to read the text of the autentica that the medieval jurists had on their desk. (3) Justinian’s novellae There was no official and definitive collection of the legislation Justinian promulgated after 534. Only a number of private collections existed. One of them, known as the Authenticum from the twelfth century onwards, was 41 An analytical description of all known manuscripts of Justinian’s Code is given by G Dolezalek, Repertorium manuscriptorum veterum Codicis Iustiniani, 2 vols [= Ius Commune Sonderhefte XXIII] (1985). The books also contain a critical edition of the glosses to C 1 and C 5.1 and of the lecturae and commenta on C 2.1. See further on the Code, C Tort-Martorell, Tradición textual del Codex Iustinianus. Un estudio del libro 2 [= Ius Commune Sonderhefte XLV] (1989); on the Tres Libri, see n 49 below. 42 Edition in W Stelzer, “Zum Scholarenprivileg Friedrich Barbarossas (Authentica Habita), mit einer Edition der ältesten Überlieferung nach Hs. Harvard Law School Library 64” (1978) 34 Deutsches Archiv für Erforschung des Mittelalters 123. There is further literature in C Arnold (ed), Bibliographie zur Geschichte Kaiser Friedrichs II. und der letzten Staufer [= MGH Hilfsmittel VIII] (1986); and there are additions in F Martino, Frederico II: il legislatore e gli interpreti (1989). 43 Edition in L Sorrenti, “L’Autentica ‘Sacramenta puberum’ nell’esegesi dei dottori bolognesi del Duecento: Guizzardino e Iacopo Baldovini” (1991) 2 RIDC 69. On its content, see J J Hallebeek, “A Commentary of Azo upon Authentica Sacramenta puberum” (1992) 60 TvR 289. 44 The constitution itself found a place in the Libri Feudorum.
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used by the glossators. This collection consisted initially of 134 novellae (Greek novellae in translation), but the glossators omitted a quarter of them. Following the example of the nine books of the Code, they divided the remaining 97 into nine parts, collationes, in order to facilitate quotations. This collection is published in another volume, the Volumen, of the manuscript and early printed editions of the Corpus iuris civilis. From this collection, known as the Autenticum, the glossators inserted abstracts, called autenticae, in the Code, initially in the margin.45 Another collection, the Epitome Iuliani, was also known to the glossators and canonists, but became obsolete in the fourteenth century. Around 50 re ferences to texts of this collection are found in the ordinary gloss.46 (4) Volumen Bound together in a separate volume of the manuscript and early printed editions of the Corpus iuris civilis are the Institutes, Authenticum, Tres Libri (the last three books of the Code) and (from the middle of the thirteenth century) often also the Libri Feudorum. The original text of the Institutes remained, generally speaking, unaltered throughout the ages. Its text presented neither the problems arising from different textual traditions that affected the text of the Digest nor those from the epitomisation that the Code and Novels had suffered.47 The date of birth of Authenticum remains uncertain; but the glosses of Irnerius prove that from the early days of the school of Bologna a good manu script had circulated there. The influence of other collections of Justinian’s novellae (such as the Epitome Juliani) remained very limited. A critical edition of the Authen ticum was produced by G E Heimbach.48 The Tres Libri Codicis, the tenth to twelfth books of the Code, belonged, 45 See section B(2) above. 46 See W Kaiser, Die Epitome Iuliani. Beiträge zum römischen Recht im frühen Mittelalter und zum byzantinischen Rechtsunterricht (2004). 47 There is a trial edition of the Institutes with the gloss in the Bologna-published Accursii Florentini glossa ad Institutiones Justiniani imperatoris Liber I, Corpus Juris Civilis cum glossa magna Accursii Florentini auspiciis et consilio Regiae Academiae Italicae editum [1939]; pre-Accursian glosses are published in P Torelli, “Glosse preaccursiani alle Istituzioni” (1942) 15 RSDI 3. For the older textual tradition of the Institutes, the following older works are indispensable: Th von Dydynski, Beiträge zur handschriftlichen Überlieferung der justinianischen Rechtsquellen (1891); E Schrader, Prodromus corporis juris civilis (1823); P Krüger, Geschichte der Quellen und Litteratur des römischen Rechts (1912). 48 G E Heimbach (ed), Authenticum. Novellarum constitutionum Justiniani versio vulgata, 2 vols (1851; repr 1974). For bibliography and historiography, see F A Biener, Geschichte der Novellen Justinians (1824; repr 1970). There are use ful additions in G Lanata, “Le Novelle giustinianee e la traduzione dell’autentico” (1979) 49 Byzantion 239.
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according to med ieval opinion, in the Volumen, not in the Code.49 Since these books cover mostly issues of public law they have an intrinsic unity. The genesis of the Libri Feudorum is complicated.50 The early glossators sometimes referred to feudal law, but it was the legists of the thirteenth century who inserted feudal law into the Corpus iuris, adding a collection of the feudal laws of Lombardy to the Authenticum: a letter from bishop Fulbert of Chartres on the oath of fealty (ca 1020); a compilation of Lombard customary law compos ed in 1155 by Obertus de Orto; and imperial constitutions. The last to be incorp orated was the constitution Ad decus of 12 December 1220, issued at the coronation of Frederick II and confirmed by pope Honorius III. Some sixteenth-century editions of the Corpus iuris with the Glossa ordinaria include the Lombarda with the gloss of Carolo de Tocco.51 The Lombarda or Leges Longobardorum is a collection of Lombard laws.52 These were taught in Pavia and Naples (whether or not they were taught in Bologna is disputed); but their gloss by Carolo de Tocco, completed around 1215, was known in Bologna. While Accursius sometimes referred to these laws,53 the medieval jurists never considered them to be part of the Corpus iuris civilis. (5) References to Roman law texts The modern mode of referring to specific sources within the Digest, Institutes and Code is by (the number of) book, title, lex (constitutio) and paragraph (of which the first one is called “pr” for “principium”; counting starts from then on). Numbers appeared for the first time in an edition of 1510. Before 49 On the Tres Libri before Accursius, see E Conte, Tres Libri Codicis. La ricomparsa del testo e l’esegesi scolastica prima di Accursio [= Ius Commune Sonderhefte XLVI] (1990). He first analyses, on the basis of the eldest manuscripts, the division into two parts, then gives a survey of the manuscripts of the Tres libri with glosses, and eventually he edits for the first time some 561 glosses of Iacobus, Cyprianus, Rogerius, Placentinus, Pilius, Hugolinus, dating back to the twelfth and early thirteenth centuries. 50 See section G. below. 51 A critical edition of the Lombarda is lacking; an accessible old one is that of Frankfurt 1613 (by Lin den berg) or of Venice 1537 with the gloss of Carolus de Tocco: Leges Longobardorum cum argutissimis glosis Caroli de Tocco (1537; repr 1964) (with an introduction by G Astuti). The first edition of the Corpus iuris to include the Lombarda is that of Lyon, 1656. 52 The Lombarda is an eleventh-century merger of two collections (the Liber Papiensis and the Capitulare Italicum) with laws of the Lombard kings (643-755) and their successors. For editions, see F Bluhme (ed), Leges longobardorum libri tres [MGH Legum sectio VI] (1868); reprinted in G Pade letti (ed), Fontes iuris italici medii aevi (1877) I. On Lombard law, see G Diurni, L’Expositio ad Librum papiensem e la scienza giuridica preirneriana [= Biblioteca della Rivista di storia del diritto italiano XXIII] (1976); G d’Amelio, “Una fal sa continuità: il tardo diritto longobardo”, in Per Francesco Calasso. Studi degli allievi (1978) 369. 53 For references in the ordinary gloss, see C Lefebvre, “La glose d’Accurse, le décret et les décretales”, in Atti Studi Accursiani (1968) I 257 note 54; LF 1.10, LF 2.22 and LF 2.58 also refer to the Lombarda.
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that date, references were built up as follows: citations in glosses began (if referring to texts in other parts of the Corpus iuris) with the letters which stood for Digest, Institutes or Code. Novellae were not referred to as such.54 Around 1140 the note for the Digest was a capital “D” with a line through the centre of the letter. By the late-twelfth century jurists and scribes uniformly used “ff.” to signal a reference to the Digest.55 “C.” for Code and “Inst.” for Institutes speak for them selves. Numbers being unknown, the name of the title gives a necessary refer ence, followed by the first words (incipit) of the lex and paragraph. Thus, “ff. loc. (l.) Si merces, Qui fundum” stands for D 19.2.25.1: “ff.” being read as Digest, “loc.” standing for the title locati conducti, “Si merces” for lex 25, and the paragraph “Qui fundum” being the first one after the principium. There is also a title in the Code which pertains to the contract of lease: C 4.65. Consequently “C. loc. Emptorem” stands for the lex Emptorem in the title locati conducti and refers to C 4.65.9. For the last or penultimate paragraph or lex, one sometimes finds in place of the incipit the abbreviation “ult.” or “fin.”, respectively “pe.”, “penult.” or even “antepenult.”. Since these words stand in the ablative case their meaning is ultima/ultimo (viz lege or paragrapho), finali, (ante)penultima/o. If the title contains a single lex, then the in dication is often una or un(ica). Books thirty to thirty-two of the Digest bear the same title de legatis et fideicommissis. The medieval reference is de leg. i., ii., or iii., immediately followed by the incipit of the lex and (if necessary) of the paragraph. References to the Institutes (and the other parts of the Volumen) are similar. Slightly different are the references to the autenticae inserted in the Code. Modern quotations consist of “C” (for Code), the number of the book and the title, followed by “aut. Post” and then the number of the constitution after which the autentica found its place. If there are more autenticae after the same con stitution, they are numbered “C 1.3 aut. 3 post 33” (or: “aut. 3 post C 1.3.33”, alternatively “aut. Statuimus post C 1.3.33”) which means: the third autentica inserted after the 33rd constitution in the third title of the first book of the Code. For the convenience of the reader a reference to the novella is added.56 The medieval reference would be: “aut. Statuimus, C. de episc. et cler”.57 54 References to a “novella” occur sometimes, but seldom. What was meant was a text from the Epitome Iuliani. 55 G Dolezalek, “A Series of Papal Decretals from the Late Twelfth Century and its Usefulness for the Dating of Manuscripts of Roman Law” (2004) 15 RIDC 77 at 79-81. 56 These may be found through the indices of Nicolini and d’Amico or Ochoa and Diez: see n 59 below. 57 H U Kantorowicz, “Die Allegationen im späteren Mittelalter” (1935) 13 Archiv für Urkundenforschung 159; repr in E J H Schrage (ed), Das römische Recht im Mittelalter. [= Wege der Forschung DCXXXV] (1987) 71.
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When transcribing such a citation (allegatio) the modern reader will write the whole title with small letters and start the lex and the paragraph with a capital, even when the scribe used another type of writing. Abbreviations of the title remain unaltered. Where the medieval scribe erred and wrote “ff.”, instead of “C.” (or vice versa), the modern reader corrects this in his transcription.58 The transposition tables in the indices of Nicolini and d’Amico or Ochoa and Diez are indispensable for the solution of the references of the medieval jurists.59 C. TEACHiNG AND WRiTiNG The revival of Roman law in Italy in the course of the twelfth century is intimately connected with the rise of universities, and scholarship with that of teaching.60 The reliability of the stories told by Odofredus de De nariis (d 1265) about Pepo, his successor Irnerius, and the Four Doctors (Quattuor Doctores: Bulgarus, Martinus, Iacobus and Hugo)61 and the origins of the Bolognese law school will not be further considered here.62 The accuracy of these thirteenth-century accounts is, of course, questionable. They have all the hallmarks of the typical stories that students have been telling about 58 See S Kuttner, “Notes on the presentation of text and apparatus in editing works of the Decretists and Decretalists” (1959) 15 Traditio 452; R Feenstra and G Rossi, Index abbreviationum et de modo citandi fontes [= Ius romanum medii aevi I.1c] (1961). 59 H Nicolini and F S d’Amico, Indices corporis iuris cvilis iuxta vetustiores editiones cum criticis collatas [= Ius romanum medii aevi, Subsidia 1] 4 vols (1964-1970). Slightly shorter but also useful is X Ochoa and A Diez, Indices titulorum et legum Corporis iuris civilis [= Universa biblioteca iuris Subsidia II] (1965). For the index to the Authenticum, see [S Kuttner], “Index titulorum Authentici in novem collationes digesti” (1944) 2 Seminar, Annual extraordinary number of The Jurist 82; repr (1963) 75 Studi Senesi 191. Humanist editions of the Corpus iuris civilis with the Gloss (the last one, Lyon,1627) also contain indices. 60 An easily accessible introduction is O F Robinson, T D Fergus and W M Gordon, European Legal History. Sources and Institutions, 3rd edn (2005) ch 3. See furthermore P Landau, “The Development of the Law”, in The New Cambridge Medieval History (2004) IV 113. 61 A detailed bibliography of these jurists appears in Lange, RRM I 151-192; a brilliant analysis of the Bolognese school of law is given by E Cortese, Le grandi linee della storia giuridica medievale (2000) 251-344. Some additions appear in F Roversi-Monaco, “Il’Circolo giuridico di Matilde, da Bonizone a Irnerio”, in O Capitani (ed), Bologna nel Medioevo [= Storia di Bologna II] (2007) 387-409. 62 Traditionally Pepo’s and Irnerius’ teaching is dated 1075-1125. Recently Winroth suggested that the teaching of Roman law was in its infancy in the 1130s. Gouron and Pennington opposed this view. Cf A Winroth, The Making of Gratian’s Decretum (2000) 173; A Winroth, “The Teaching of Law in the Twelfth Century”, in M Münster-Swendsen (ed), Law and Learning in the Middle Ages [Proceedings of the Second Carlsberg Academy Conference on Medieval Legal History 2005] (2006) 41; A Gouron, “Sur un moine bénédictin en avance ou en retard sur son temps” (2007) 85 RHD 315; A Gouron, “Le droit romain a-t-il été la ‘servante’ du droit canonique?” (2007) 12 Initium: Revista catalana d’història del dret 231; K Pennington, “The Big Bang, Roman Law in the Early Twelfth Century” (2007) 18 RIDC 43.
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their teachers and their teachers’ teachers from the time of the Talmud to the present day, as the Harvard professor Charles Donahue has put it.63 After the thorough research done by Weimar there is no doubt left that the writings of the glossators mirror the structure of their lectures.64 An introductory survey of the various types of literature is given by Bellomo. He also describes the differences between glossa, lectura, summa, repetitio, and so on.65 In class the libri legales were read. First, before the individual constitutions of the Code (or leges of the Digest) were explained, the content of the title was introduced (materia tituli or continuatio tituli). Thereupon followed a short de scription of the case discussed in the individual constitution or lex (casus). Then the text was read (lectio), difficult words were explained (expositio verborum) and texts of similar (similia) or opposite content (contraria) were mentioned. The disciplines of trivium (grammatica, dialectica and rhetorica) were helpful for harmonising the texts, which led to distinctiones and brocardica (generales or notabilia), legal arguments or rules deduced from the casuistic texts. Eventually the teacher tested the student’s understanding by asking questions. These related to the interpretation of the leges in the Corpus iuris (questiones legitime) or to the technique of pleading (questiones disputate). The latter were discussed out side the lectures: disputations were held on Friday, Saturday or Sunday. Hence, these questions were also called questiones veneriales, sabbatine, or dominicales. The works of the early glossators consist mainly of glosses added to the text of the Corpus iuris, and summaries of Justinian’s Institutes and Code, which circulated separately. About 170 manuscripts of the Digest, Code and Institutes with pre-Accursian glosses exist, but there are no printed editions – except for some trial editions.66 Printed editions of almost all summae exist: from the anon ymous summa “Iustiniani est in hoc opera” up to the famous summa aurea of Azo, completed around 1210. (1) Glossae Glossae are short elucidations attached to important words in the text. The theologians glossed the Bible, the jurists the law books. The first medieval 63 C Donahue, Book Review (2007) 25 Law and History Review 401. 64 P Weimar, “Die legistische Literatur und die Methode des Rechtsunterrichts der Glossatorenzeit” (1969) 2 Ius Commune 43; Coing, Handbuch, 140-146. 65 M Bellomo, The Common Legal Past of Europe (1000-1800), trans. L G Cochrane (1995) 129-148. See also K Pennington, “The Decretists. The Italian School”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 161. On the glossators, see Lange, RRM I 118-150; on the commentators, see Kriechbaum in Lange, RRM II 355-434. 66 See the references in notes 2, 6 and 7 above. S Caprioli et al (eds), Glosse preaccursiani alle Istituzioni. Strato azzoniano libro primo (1984).
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jurists thus derived their name “glossators” from the dominant form of their literary work: glosses to the individ ual leges and constitutions. Brief notes were inserted between the lines and added in the margin. Later on they became copious enough to form a framework within which the original text was enshrined. The glosses explain difficult words, refer to similar and conflicting texts, add distinctiones to solve the contrarieties, pose questions, and note notabilia or brocardica. Distinctions, notabilia and questions contained in the manuscripts with glosses were also collected and published separately. The first collections date back to the period of the Four Doctors; Azo Porcius (d ca 1230) and Hugo linus com posed the last. Two early collections with distinctions have been edited, small parts of those of Pilius, Azo and Hugolin.67 Otto Papiensis composed a collect ion of notabilia (brocardica), which Azo later revised and abridged.68 Many questions of the Four Doctors (Bulgarus, Jacobus, Hugo and Mar tinus) have been published. The collections not only contain quaestiones legitimae,69 but some quaestiones disputatae as well: five of Jacobus and fourteen of Hugo. They pose a case, give arguments pro and contra, and propose a solution.
67 Still fundamental is E Seckel, “Distinctiones glossatorum, Studien zur Distinktionenliteratur der ro ma nistischen Glossatorenschule”, in Festschrift der Berliner Juristischen Fakultät für Ferdinand von Martitz (1911; repr 1956) 277; important additions are in G Pesca tore, Book Review (1912) 33 ZRG, RA 519. There are editions by G B Palmerio (ed), Scripta anecdota glossatorum (1892; repr 1962) II 139-174; G Pescatore (ed), Die Distinctionensammlung des Ms. Bonon. Colleg. Hisp. Nr. 73 (1913; repr 1968). 68 On brocardica, see P Weimar, “Brocarda, Brocardica”, in LMA (1980) 707-708; D V Dal brenta, Brocardica. Un’introduzione allo studio e all’uso dei brocardi. Principì di filosofia forense (2007). Several printed editions exist of the collection of Otto Papiensis, revised and abridged by Azo (with the additions of his student Cacciavillanus). The Naples, 1568 edition was reprinted in 1967: Azonis Brocarda (CGIC IV.3). For the relationship between the work of Otto Papiensis’ and Azo, see M Schwaibold, “Wer such, der findet” (1985) 4 Rechtshistorisches Journal 202. Whether the oldest part of this collection – beginning with: dolum per subsequentia purgari – is written by Pa piensis, is uncertain. See M Schwaibold, Brocardica “Dolum per subsequentia purgari”. Eine englische Sammlung von Argumenten des römischen Rechts aus dem 12. Jhdt. [= Ius Commune Sonderhefte XXV] (1985). 69 Two anonymous twelfth-century collections with quaestiones legitimae are: H Fitting (ed), Quaestiones de iuris subtilitatibus des Irnerius (1894; repr 1977), and E Seckel (ed), Die summa Vindocinensis, aus dem handschriftlichen Nachlass herausgegeben von E Genzmer (1939). The first col lection is erroneously attributed to Irnerius by its editor. The second collection is wrongly characterised as summa. A Padoa Schioppa published sixty questions of Pilius in his “Le quaestiones super Codice di Pillio da Medicina” (1973) 39 SDHI 262.
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(2) Disputationes In the 1190s, using older material,70 Pilius Medicinensis com posed a collection of questions discussed at disputations that was to be used for centuries.71 Of the fifty-nine questions of Azo preserved in manu scripts, forty-one have been edited by Ernest Landsberg and Annalisa Belloni.72 Roffredus Beneventanus published a collection of quaestiones de facto emergentes around 1220, which was printed in the sixteenth century under the title Quaestiones sabbatinae.73 The advantage of his collection, as Roffredus point ed out in his preface, was that, while Pilius had used fictitious or hypothetical cases, his questions derived from practice. Disputations were a regular academic exercise in the thirteenth and four teenth centuries. Statutes prescribed that they were put in writing, and the station ers lent out quires with questions.74 The professors referred to them in their lectures as, for example, Jacques de Revigny did.75 Fourteenthcentury col lections composed by Jacobus Butrigarius, Albericus de Rosate and Bartolus were printed in the fifteenth and sixteenth centuries. Many of the cases posed concern ecclesiastical and feudal matters. Thus, Roffredus’ collection opens with a question concerning the election of a canon to the chapter of a cathedral church. (3) Apparatus Deciding when glosses have reached the density that justifies their characterisation as an appar atus is an issue of judgement and terminology. In any case, in recent times, apparatus written by the Four Doctors have been identified, such as, for example, that of Bul ga rus on the title D 50.17 (de regulis iuris). Beckhaus published it in 1856, together with additions made 70 See U Nicolini, Pilii Medicinensis Quaestiones sabbattinae. Saggio di edizione [= Pubbl. della Facoltà di Giurisprudenza della Università di Modena LXVII] (1946). Parts of the early collections of Bulgarus, Martinus, Hugo and Johannes Bassianus have been edited in Scripta anecdota glossatorum (1892; repr 1962) I 235-266; II 195-209; H Kantorowicz, Studies in the Glossators of Roman Law (1938; repr 1969) 246-263; E Seckel, “Die Quaestiones Vindobonenses des Johannes Bassianus” (1935) 55 ZRG, RA 338; and A Belloni, Le questioni civilistiche del secolo XII. Da Bulgaro a Pilio da Medicina e Azzone [= Ius Commune Sonderhefte XLIII] (1989). 71 The edition of Rome, 1560, has been reprinted: Pilei Medicinensis quaestiones aureae (1967). 72 E Landsberg, Die Quaestiones des Azo (1888); Belloni, Questioni (n 70) 125-172. For a comp arison with Pilius’s questions, see Belloni, Questioni (n 70) 173-208. 73 The edition Lyon 1500 was reprinted in 1968 (CGIC VI). 74 Still fundamental is H Kantorowicz, “The quaestiones disputatae of the glos sators” (1939) 16 TvR 1, repr in H Kantorowicz, Rechtshistorische Schriften (1970). On disputations, see now M Bellomo, I fatti e il diritto tra le certezze e i dubbi dei giuristi medievali (secoli xiii-xiv) [I libri di Erice XXVII] (2000). 75 The questions referred to in his works are edited in C H Bezemer, “Les quaestiones disputatae Orléanaises dans les commentaires de Jacques de Révigny” (1990) 58 TvR 5 at 18-38.
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by Placentinus.76 Martinus glossed the Digest (Digestum novum) so densely, that it became characterised as his apparatus to this particular volume of the Corpus iuris civilis.77 Glosses of Rogerius and Placentinus have been preserved in manu scripts, but they have left no apparatus. Bulgarus’ pupil Johannes Bassianus (d 1197) composed a gloss-appa ratus to the Institutes, Digest and Code, which his pupil Azo used and abridged. Severino Caprioli has edited Johannes Bassianus’ commentary to D 50.17, which was thought to have been lost.78 Of the apparatus on the Institutes, Digest and Code composed before the Glossa Ordinaria, however, the only one available in print is Hugolinus’ apparatus to the Tres Libri (books ten to twelve of the Code).79 By far the most important gloss-apparatus was composed by Accursius (1185-1263), a student of Azo (d 1230). His work – in total 96,940 glosses – covers all parts of the Corpus iuris. It achieved a uniquely important status, because it was added to the standard manuscripts of the Corpus iuris used in the universities, 1,200 of which still exist. Numerous printed editions appeared in the sixteenth and seventeenth centuries, of which the Venice, 1487-1489, and Lyon, 1627, editions have been reprinted recently.80 On the one hand, it is the product of two centuries of teaching, because Accursius inserted an abundance of glosses of earlier glossators. On the other hand, it laid the foundation for future developments, since it became in its turn the basis of interpretation by later jurists. It immediately superseded the ap paratus of Azo – because it was a revision thereof according to H H Jakobs81 – and around 1350 also those of Hugolinus and Jacobus Balduinus. Many manuscripts contain additions to the gloss. Some of them have been published separately, namely those of Jacobus de Arena, who taught in Padua, and of Dinus de Mugello, who taught in Bologna from 1284.82 The casus in 76 F C G Beckaus (ed), Bulgarus ad Digestorum titulum de diversis regulis iuris antiqui commentarius et Placentini ad eum additiones sive exceptiones (1856; repr 1967). On regulae iuris, see P G Stein, Regulae iuris. From Juristic Rules to Legal Maxims (1966) 132-137. 77 G Dolezalek, “Der Glossenapparat des Martinus zu Digestum novum” (1967) 84 ZRG, RA 245. 78 S Caprioli (ed), “Quem Cuiacius Johanni tribuerat” (1963) 7 Annali di Storia del diritto 133. 79 In the printed editions of Azo’s lectura codicis it supplements the lectures on to C 1-C 9. The edition Paris, 1577 was reprinted in 1966 (CGIC III). 80 Compared with the Venice edition (repr 1967), the text of the gloss in the Lyon edition (repr 1965-1966 and 2000-2008) is mingled with additions of a later date. For a survey of the printed editions, see Spangenberg, Einleitung (n 34). 81 H H Jakobs, Magna Glossa, Textstufen der legistischen glossa ordinaria [= Rechts- und Staatswissen schaft liche Veröffentlichungen der Görres Gesellschaft NF CXIV] (2006). 82 Jacobus’ Commentarii in universum ius civile (1541; repr 1967) contains his ad ditions to the gloss to the Digest – with further additions by later authors deriving from references to later commentators – and a lectura codicis. Dinus’ additions to the Infortiatum and Digestum Novum were printed in Lyon 1514 (repr 1971); a few manuscripts contain his additions to the Digestum Vetus. He also wrote the first collection of Consilia, of which several printed editions appeared.
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the printed editions of the Glossa ordinaria are com posed by Accursius’ sons Francis and William, by Vivianus Tuscus, Guido de Cumis and others. In about forty years Accursius managed to compose a gloss to the whole of the Corpus iuris, in which hardly any internal contradictions could be found. In 1515 Antonio Nicelli found only 121.83 Accursius began his work before 1220; it still contains some references to decretals in collections before the 1234 Liber Extra of pope Gregory IX.84 Accursius’ gloss to the Digestum Vetus first circulated in 1235, but he kept improving and revising his work until his death. In all parts one finds cross-references to glosses in other parts.85 (4) Summae These discuss the content of a book – such as the Institutes, the Code (C 1–C 9) – in the order of its titles, preceded by a general introduction (materia codicis).86 Of the Digest, only certain titles have been summarised. The early summae of the Institutes and Code were written outside Bologna. The anonymous summa, Justinianus est in hoc opere, written in southern France, follows the order of the Institutes.87 André Gouron has recently suggested a French origin for the summa Trecensis,88 which follows the order of the Code, written in 1140-1160, again certainly outside Bo logna.89 The summa adopts some material from both Bulgarus and Martinus (e.g. Martinus’ distinction Interesse quandoque in VII.31).90 It is the basis for Rogerius’ 83 Antonio Nicelli, De concordia glossarum seu de glossis contrariis et de eorum concordantiis (1515), also printed in TUJ XVIII 187-211. 84 See Ch Lefebvre, “La glose d’Accurse, le décret et les décretales”, in Atti Studi Accursiani (1968) I 282-284. He counted 260 references to canon law (in 96,940 glosses). They occur where questions of criminal law, the law of procedure, marriage, interest and pre scription are discussed. 85 There is a scholarly discussion as to whether Accursius wrote two successive re cens ions of his work, the first before 1235. In 1939 Nicolini distinguished between them in his critical edition of the gloss to Inst 1. Cf P Torelli, Accursii Florentini glossa ad Institutiones Justiniani imperatoris Liber I (n d). This does not apply to the Codex, Digestum Vetus and Authenticum, as Feenstra, Dolezalek and Martini established. Weimar distinguishes two recensions of the gloss to the Libri Feudorum. See the reference in note 188 below. See also F P W Soetermeer, “L’ordre chronologique des apparatus d’Accurse sur les libri ordinarii”, in M J Peláez (ed), Historia del derecho privado. Trabajos en homenaje a Ferran Valls i Taberner (1989) 28; G Diurni, “La Glossa accursiana: stato della questione” (1991) 64 RSDI 341; F Mancuso, “Per la datazione e l’ordine di realizzazione degli apparati accursiani. Due testimonianze” (2000) 112 Studi Senesi 350. 86 Analysis of the development of this genre of medieval legal literature appeares in: L Loschiavo, Summa Codicis Berolinensis. Studio ed edizione di una composizione ‘a mosaico’ [= Studien zur europäischen Rechtsgeschichte LXXXIX] (1996). 87 P Legendre (ed), La Summa Iustiniani est in hoc opere [= Ius Commune Sonderhefte II] (1973). 88 A Gouron, “L’auteur e la patrie de la Summa Trecensis” (1984) 12 Ius Commune 1; repr in his Études sur la diffusion des doctrines juridiques médiévales (1987) III. 89 Because Fitting (erroneously) attributed the Summa Trecensis to Irnerius, the edition is entitled H Fitting (ed), Summa Codicis des Irnerius (1894; repr 1971). 90 It also adopted Martinus’ Tractatus de iure dotium in V.8. Kantorowicz’s ascription of the title
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unfinished summa codicis (until C 4.58).91 In the 1170s, when he taught in Montpellier, Placentinus supplemented Rogerius’ summa. He subsequently wrote a summa institutionum,92 and then revised Rogerius’ work, so that he would be remembered for his own summa of the Code.93 The early glossators in Bologna had only written on certain topics (summulae): Bulgarus, for instance, on de iure et facti ignorantia.94 Johannes Bassianus wrote a summa of the Authenticum, which in its revised version (by Accursius) is printed together with Azo’s Summa Aurea of the Code.95 For the composition of his summae, Azo used material drawn from his teacher Johannes Bassianus – how much is, however, debated. As Azo intended, his Summa of the Code soon superseded the older ones; its authority equalled that of the Accursian gloss. Many editions of it were published in the course of the fifteenth and sixteenth centuries, often in one and the same binding with a summa institutionum, also by Azo, a summa of the Tres Libri (by Placentinus and Pilius),96 and a summa of several titles of the Digest.97 (5) Commentum and lectura These terms refer to lecture notes edited by the professor himself or to an account of his lectures written by a student. It is difficult to distinguish be tween the two, but a commentum is also used to describe a commentary written by someone who did not teach. The emphasis shifted in the course of the thirteenth century from gloss-apparatus copied in the margins of the text of the Corpus iuris civilis to commentaries published separately. The later legists also derive their name “commentators” from these, but the earliest commenta or lecturae date back to the twelfth century.98 Lecture notes of Johannes Bassianus’ reading (lecturae) of the Instide acquirenda uel amittenda possessione to Martinus has been put in doubt by Gouron. See his “L’élaboration de la Summa Trecensis”, in V Giuffrè (ed), Sodalitas. Scritti in onore di Antonio Guarino (1984) VIII 3681; repr in Gouron, Études (n 88). 91 G B Palmerio (ed), Scripta anecdota glossatorum, 2nd edn (1914; repr 1962) II 47-233. From C 5.1 on, the anonymous author of the Summa Tubigensis sup plemented his own text (ad C 5.1 de sponsalibus), parts of the Summa Trecensis, and some of the summa codicis of Placentinus. 92 Summa Institutionum (1535; repr 1973) (CGIC I). 93 Placentini Summa Codicis (1536; repr 1962) (with a preface taken from another edition). 94 Edited by Kantorowicz, Studies (n 70) 245-246. 95 Azo, Summa Codicis, many editions. A good one is that printed in Pavia in 1506, Azonis summa super codicem (repr 1966) in CGIC II; or that of Lyon, 1557 (repr in 1968): Azonis summa aurea. 96 Summa C. 10.1-C. 10.37 is written by Placentinus, C 10.38-C 11.40 by Pilius. 97 Parts are additions of Hugolinus. Cf P Weimar, “Zur Entstehung der Azoschen Digestensumme”, in J A Ankum et al (eds), Satura Roberto Feenstra sexagesima quintum annum aetatis complenti ab alumnis collegis amicis oblata (1985) 371. 98 F P W Soetermeer, “Une catégorie de commentaires peu connue. Les commenta ou lecturae inédits des précurseurs d’Odofrède” (1991) 2 RIDC 47.
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tutes and of several titles of the Code and Digest have been preserved in manu scripts.99 These were written by Nicolaus Furius, one of his students. In 1557 Contius discovered a manuscript with a report of Azo’s lectures on the Code, written around 1220 by Alexander de Sancto Aegidio. Together with the gloss-apparatus of Hugolinus to the Tres Libri (the final three books of the Code) they appeared in print in 1577 under the title Azonis ad singulas leges xii librorum Codicis Justinianei commentarius.100 Notes of Accursius’ lectures have not survived. An unknown student – or students, because the manuscript copies vary from each other – “reported” the lectures of Odofredus de Denariis (d 1265), Accursius’ contemporary and rival in Bologna. His lectura reportata covers all parts of the Digest and Code. A few manuscript and printed editions exist. One of them (Lyon, 1550-1552) has been reprinted, 1967-1969.101 (6) Repetitio In the course of the thirteenth century it became obligatory that the lectures reached a certain point in the Digest or Code every twelve days (fifteen in winter), and covered all the leges that had been selected by the professor and his students. As a consequence, there was no longer time to expound all the texts. Once a week, however, from St Luke’s Day (18 October) to Christmas, and from Easter to August, the university organized a repetitio, a lecture outside the normal curriculum. It was obligatory to give one repetitio each year on one of the leges of the Digest or Code. The structure differed little from a lecture, but as such the repetitiones laid the foundation for later treatises and monographic studies on specific subjects of law. The lectura of Jacobus de Arena, who taught in Padua, of Jacques de Revigny and Pierre de Belleperche, who lectured in Orleans, of Guillaume de Cunh, professor in Toulouse, and of Bartolus and Baldus contain many of their repetitiones, but not all.102 99 Two early lectures on the Institutes have been published. The first is the In nomine domine composed in England, ed with trans by F de Zulueta and P Stein, The Teaching of Roman Law in England in 1200 (1990) [= Selden Society Supplementary Ser VIII]. The other, the Lectura Vindobonensis, is probably of French provenance; edn in G B Palmerio, Scripta anecdota glossatorum, 2nd edn (1914; repr 1966) I. His attribution to Irnerius is no longer accepted. 100 The Paris edition of 1577 was reprinted in 1966 (CGIC III). 101 In OIR II-V; VI contains the index. 102 Still known are 130 repetitiones of Jacques de Revigny, 125 of Pierre de Belleperche, fifty-eight of Bar tolus, several of Raimund de Forlivio, and numerous of Baldus. See C H Bezemer, Les répétitions de Jacques de Révigny (1987). Forty-nine repetitones of Pierre de Belleperche are printed (1571; repr 1968): see note 105 below. See E M Meijers, “L’université d’Orléans au xiii siècle”, in Meijers, Études III 128 and C Bezemer, Pierre de Belleperche. Portrait of a Legal
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Of the lectures Jacques de Revigny gave between 1260 and 1280, only his lectura codicis has been printed – under the name of Pierre de Belleperche103 – and parts of his lectura institutionum.104 The lectures on the Code of Pierre de Belleperche are only preserved in manuscript. Of his lectures on the Digestum novum, one printed edition exists: Frankfurt, 1571. It contains a commentary on D 43-46 and 49.105 A “report” written by William de Brandestone on his lectures on J Inst 4.6 (De actionibus) forms the main part of his lectura institutionum.106 There also exists a report (made by an unknown student) of the lectures Guillaume de Cunh gave in Toulouse in 1315/1316 and 1316/1317.107 This lectura reportata was known to Cinus da Pistoia in Bologna, and to Rainerius de Forlivio in Pisa. Jacobus Butrigarius’ lectures – he began to teach in Bologna around 1307 – on the Digestum Vetus and Code were printed in the sixteenth and seventeenth centuries.108 In his lectures on the Digestum vetus, written about 1325, Cinus da Pistoia frequently cited the French professors Jacques de Revigny and Guillaume de Cunh; Pierre de Belleperche is mentioned in the additions made by Rainerius de Forlivio. The printed editions also contain his commentary on the Code, written between 1312 and 1314.109 His lectures on the Digestum vetus only
103
104
105 106
107 108
109
Puritan (2005) 171-180. On Bartolus’ repetitiones see S Lepsius, “Bartolus de Saxoferrato”, in Compendium Auctorum Latinorum Medii Aevi (2004) II.1 101-156. See H Kiefner, “Zur gedruckten Codexlectura des Jacques de Revigny” (1963) 31 TvR 5. The Paris 1519 edition was reprinted in 1967 and 1968. On the relationship be tween the manuscript and printed editions, see Bezemer, Répétitions (n 102) 159-163. Wael kens has established that the lectura super C 8.53 derived from his master Simon de Paris. Cf L Waelkens, La théorie de la coutume chez Jacques de Révigny (1984). For an edition of his lectura super Inst 4.6, see L J Van Soest-Zuurdeeg, La lectura sur le titre De actionibus (Inst. 4.6) de Jacques de Révigny (1989). The Paris 1514, and Lyon 1536 (repr; 1972) editions of the lectura institutionum of Pierre de Belleperche contain Jacques’ lectures on J Inst 3.14, 3.15, 3.21, 3.23, 3.24, 3.25 and on J Inst 4.3-4.5. See P Weimar, “Die Erstausgabe der so ge nann ten Lectura Institutionum des Pierre de Belle perche” (1967) 35 TvR 284. Meijers attributed the lectura Institutionum of Bartolus to Jacques de Revigny, Waelkens to his pupil Raoul d’Harcourt. See L Waelkens, “La lectura institutionum de Raoul d’Harcourt” (1992) 3 RIDC 79. Reprinted in Bologna in 1968 in OIR X, together with his repetitiones. The first edition was printed in Paris in 1512; the Lyon edition of 1536 was reprinted in 1972. The lectura covers J Inst 1.1-1.10. Several lectures on J Inst. 3 and 4 were adopted from Jacques de Revigny (see n 104). Guillelmus de Cugno, Lectura super codice (1513; repr 1968) in OIR VIII. There is no printed edition of his lectures on the Digestum novum, given in 1315/1316. Both lectures are short in length, covering only parts of the Digestum vetus and the Code. The first, originally printed in Rome, Jacobi Butrigarii in primam e secundam veteris digesti partem (1606) was reprinted in 1978 in OIR XIV; the latter, first printed in Paris (1516), was reprinted in 1973 in OIR XIII. The Frankfurt edition of 1578 was reprinted in 1964. On Cinus and Jacques de Revigny see C H Bezemer, “Word for Word or Not. On the Track of the Orléans Sources of Cinus’ Lecture on the Code” (2000) 68 TvR 433.
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cover some titles; he began writing another, very elaborate commentary, but left it unfinished when he died in 1336.110 About 1340, Albericus de Rosate, an ad vocate and judge in Bergamo, finished his commentary on the Code – which he entitled lectura although he never lectured at a university – and subsequently a commentary on all parts of the Digest.111 Bartolus’ works are numerous and extensive, including commentaria on all parts of the Digest and of the Code.112 A commentary on the Institutes has been printed under his name, but the attri bution is incorrect.113 Baldus de Ubaldis (1327-1400) wrote a volum inous com mentary on the Code and on the first part of the Digest. His com mentaries on the other parts of the Digest (Infortiatum and Digestum novum) and the Tres Libri are short and patchy.114 The printed editions of Baldus’ work include a commentary on the Institutes, which in fact is written by Bartolomeus de Novara.115 (7) Consilia The earliest glossator whose consilia have survived is Johannes Bassianus. His advice in a feudal law case, published by Eduard Meijers in 1934, is well known. Five more of his consilia have recently been published by Belloni.116 Luigi Chiapelli edited one of Azo from 1205.117 The archives in Bologna contain numerous consilia of Odofredus, very few of which have been published. Of the commentators’ collections, those of Dinus, Oldradus de Ponte, Bartolus and Baldus were printed in the sixteenth and seventeenth century.
110 See D Maffei, La lectura super digesto veteri di Cino di Pistoia (1963). 111 The Venice edition of the 1585 edition was reprinted in 1974-1982 in OIR XXI-XXIX. 112 There are numerous printed editions of his commentary on all parts of the Corpus iuris. The edition of Venice, 1525, was reprinted in 1996 (9 vols). The attribution to Bartolus of the commentary on the Institutes is incorrect (see n 113 below), that of the commentary on the Authenticum is disputed. Bartolus left his commentary on the Tres Libri unfinished (it ends at C 11.34; the repetitio on C 12.1.1. is also his). It is supplemented with a commentary by Contes de Perusio, a contemporary of Baldus. 113 It is disputed whether this commentary is written by Jacques de Revigny or Raoul d’Harcourt. See n 104 above. The commentary on J Inst 3.21 is written by Guido de Cumis. See E M Meijers, “La théorie des ultramontani concernant la force obligatoire et la force probante des actes sous seing privé” (1931) 12 TvR 38 at 40 (repr Meijers, Études IV). 114 On the early printed editions, see V Colli, Incunabula operum Baldi de Ubaldis [= Ius Commune Son derhefte XXVII] (2000). The Venice, 1599 edition of the works of Baldus was reprinted in 2004 (8 vols). 115 See D Maffei, “Bartolomeo de Navarra (d 1408) autore della lectura institutionum attribuita a Baldo degli Ubaldi” (1990) 63 RSDI 5. 116 Meijers, Études III 273; A Belloni, “Giovanni Bassiano Consulente” (1994) 21 Ius Commune 78. 117 L Chiapelli and L Zdekauer (eds), Un consulto d’Azzone dell’anno 1205 (1888).
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D. ROmAN AND CANON LAW The glossators viewed Justinian’s codification as sufficient in itself to solve all legal problems.118 The canon lawyers, however, though their interests were mostly ecclesiastical, could not ignore Roman law, for the Church itself laid claim to be governed by Roman law. Roman law was ap plied in questions for which no rules of canon law existed. Differences between the two laws were listed in differentiae legum et canonum.119 Of course, many canons dealt with subjects of religious and family life, not covered by Roman law. Rules regarding baptism and penitence, for instance, had no counterpart in Roman law. There were also contradictions. Thus, Roman law allowed consensual divorce. Some of these contradictions have been decisive in the development of private law. The famous adage pacta sunt servanda, for instance, derives from a canon of the Council of Carthage (348). Sometimes, the differences between the leges and canones were less obvious. An example thereof is the phrasing of an oath, “I promise to you and through you to St Peter to henceforth follow the teachings of the Church”, which the canonists considered contrary to privity of contract. How can one be bound to St Peter, a third party, who is not present at the moment the contract is concluded? Hence, to find out whether on a specific subject the teaching of the canon lawyers varied from the glossators, one should not only consult the text of the Corpus iuris canonici, but also the commentaries of the canonists. For the twelfth century the first work that should be consulted is the summa of Simon de Bisignano, of which a searchable full text is available on the internet.120 Thus, especially when dealing with Gratian’s Decretum, the first part of the Corpus iuris canonici, other texts may prove a better starting point.
118 Lange, RRM I 102-103 gives a detailed survey of the use of Gratian’s Decretum and the decretals by the various glossators. See also, for the commentators, Lange, RRM II 205-207. 119 Hieronymus de Zanetti (d 1493) listed 356 differences; his Contrarietates inter ius civile et canonicum are printed in TUJ I 197. See, for an extensive list of the differences, J Portener, Recherches sur les differentiae iuris civilis et canonici au temps du droit classique de l’Eglise (1946) 136-151. Lange, RRM II 216-218 gives several examples; see also H Mohnhaupt, “Die Differentienliteratur als Ausdruck eines metho dischen Prinzips frü her Rechtsvergleichung”, in B Durand and L Mayali (eds), Excerptiones iuris: Studies in Honor of André Gouron (2000) 439. 120 See www.unifr.ch/cdc/summa_simonis_de.php
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E. THE CORPUS IURIS CanOnICI In 1500 Jean Chappuis published “the body of canon law” – a counterpart of the Corpus iuris civilis. As collections, however, they vary in many respects. The first part of the Corpus iuris canonici, Gratian’s Decretum, is quite different in character. Justinian had aimed at codifying Roman law, and the compilers tried to avoid internal contradictions. The Decretum, on the other hand, is a twelfth-century collection of often contradictory ecclesiastical texts on legal issues, which Gratian sought to reconcile through his dicta. The texts date from ancient Rome to the Second Late ran Council of 1139. The second part of the Corpus iuris canonici consists of the ius novum, twelfth- and thirteenth-cen tury papal decretals. Private and authorised collections followed. While the body of civil law was firmly established in the twelfth century, that of canon law only attained its final form in the fourteenth century. (1) Gratian’s Decretum In Bologna, at roughly the same time as the Four Doctors taught Roman law, Gratian composed a textbook of canon law that was to become fundamental for the teaching of canon law in the Middle Ages. Gratian entitled his work Concordia discordantium canonum – “The Harmony of Conflicting Canons”. It soon became generally known as the Decretum Gratiani. Gratian’s title indicates that he intended, through his dicta, a reconciliation of the different canonical rules into an intellectually consistent system. Thus his work was more than a compilation of the various legal norms in church matters, retrieved from patristic texts, papal letters and conciliar canons, although such compilations (made by Ivo of Chartres, Anselm of Lucca and others) were his primary sources. The most complete critical edition of Gratian’s Decretum appeared in 1879 as the first volume of E Friedberg (ed), Corpus Iuris Canonici (reprinted in 1955). The Bayerische Staatsbibliothek has now put a searchable full text on the internet.121 The con cordance to Gratian’s Decretum, published in 1990, is also based upon the Fried berg edition.122 This work represents the vulgate recension of the Decretum with additions (paleae) that were later inserted. The edition is based upon a small number (eight) of several hundred medieval manuscripts. Anders Winroth has recently esta blish ed that four of
121 At http://mdz.bib-bvb.de/digbib/gratian/text 122 T Reuter and G Silagi (eds), Wortkonkordanz zum Decretum Gratiani [= MGH Hilfsmittel X] (1990).
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these contain an earlier and shorter version of Gratian’s Decretum.123 The great majority of the manuscripts, however, that were used in the schools of canon law contain the second or vulgate recension, which includes the canons of the Second Lateran Council of 1139, and have a varying number of additions (paleae) that were inserted circa 1150-1180 by later canonists. The number of these additions varies. Thus, several manuscripts of French origin contain paleae that are not found in the printed editions of Gratian’s Decretum.124 It is clear that the transmontane manuscript-tradition differs from that of Bologna. Since the first incunabula appeared in Strasbourg in 1471, the Decretum has been printed frequently, either on its own or as part of the Corpus iuris canonici. In 1566 pope Pius V appointed a commission to correct and emend the printed text of the Corpus iuris canonici. The result of their work, the editio Romana, appeared in 1582 as the official edition of the Roman Catholic Church. It was reprinted many times and editions deviating from it were excluded from the courts and univers ities of the Catholic church. The first editor to go back to the manuscript tradition was Just Henning Böhmer, a German protestant. The four manuscripts he used for his edition, published in Halle in 1747, are, however, not always reliable. Emil Richter returned in 1839 to the editio Romana for his edition, which is easily available, because it was reprinted in the Patrologia latina (vol CLXXXVII). The Young Research Library (UCLA) has put a photographic reproduction of its set of the 1582 edition on the internet.125 The first two volumes contain Gratian’s Decretum, together with the Glossa ordinaria (as revised by Bartholomew of Brescia). Because the correctores aimed, in editing the canons, to reproduce the original text (not that found in the compilations Gratian used, such as the Panormia and Collectio tripartita of Ivo of Chartres) the text varies from the Decretum of the manuscript tradition. Gratian’s Decretum is divided into three principal parts. The individual sections contain two kinds of texts: the canons and Gratian’s comments, dicta Gratiana. 123 A Winroth, The Making of Gratian’s Decretum (2000). The first recens ion is preserved in MSS: Florence BN MS Conv Soppr A.1 402 (from D.28 d. p. c13); Admont Stiftsbibliothek MSS 23 and 43; Barcelona Arch C de Aragon MS Ripoll 78 (until C.13); Paris BN MS nouv acq lat 1761 (until C.12 q.2 c.39). 124 On the paleae, see J Rambaut-Buhot, “Les paleae dans le Décret de Gratien”, in S Kuttner and J J Ryan (eds), Proceedings of the Second International Congress of Medieval Canon Law: Boston 1963 [= MIC Ser C Subsidia I] (1965) 23; R Weigand, “Versuch einer neuen, differenzierten Liste der Paleae und Dubletten im Dekret Gratians” (1999) 23 BMCL 114; J Buchner, Die Paleae im Dekret Gratians, Untersuchungen ihrer Echtheit (2000). 125 http://digital.library.ucla.edu/canonlaw
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Pars I is a treatise on the ordination and election of clerks. The division into 101 distinctiones was not made by Gratian himself. The medieval canonists ascribe this division, which was already common in the 1160s, to Paucapalea.126 The first twenty distinctions deal with the sources of law. They have recently been trans lated (together with the ordinary gloss) by Augustine Thompson and James Gordley as The Treatise on the Laws with the Ordinary Gloss (1993). Their translation is based upon the text of the editio Romana. Pars II consists of thirty-six moot cases. In each causa Gratian outlined a case and various legal questions evolving from it; he then discussed each question separately, citing the authorities pro and contra.127 Causa 33, quaestio 3 is a treatise on penance, known as De paenitentia. Pars III was added in the second recension of Gratian’s Decretum. It deals primarily with sacramental and liturgical law. (a) Palea This term signifies either that Gratian adopted the canon twice from his sources, or that the canon has been added to the Decretum after its completion. Until around 1180 numerous texts were inserted in manuscripts with Gratian’s work. Jacqueline Rambaud listed 149 of them, Rudolph Weigand 169. Many of these paleae are earlier canons that Gratian himself had not adopted. D.5 c.1 for instance is a papal letter of 601. Some paleae are texts of Roman law. In several manuscripts of French origin decretals written after 1150 were also inserted. Thus, the decretal Relatum (JL 7793; X 3.26.11) of pope Alexander III was attached to C.13 q.2 d.p.c.7. (b) System of citations Nowadays the individual canons are referred to by their number in the Friedberg edition. The citation does, however, vary from part to part of the Decretum, because the causae of the second part are subdivided into questiones. Canons in the first part, which contains 101 distinctions, are cited as, for instance, “D.1 c.1”. This is the first capitulum (c.1) of the first distinction (D.1). Canons in the second part are cited as, for instance, “C.2. q.6 c.40”. This is the fortieth canon (c.40) in the sixth question (q.6) of Causa 2 (C.2). The canons of C.33 q.3, however, are referred to differently. They are cited as canons of a treatise on penance divided into distinctions, for instance 126 See T C McLaughlin, Summa Parisiensis (1952) x-xv. 127 Their content is described (shortly) by Peter Landau in P Landau, “Gratian and the Decretum Gratiani”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 22 at 36-37.
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“D.3 de pen. c.24”. The canons in the third part, a treatise on consecration, are cited in a similar way, for instance “D.2 de cons. c.82”. The comments of Gratian (dicta) are cited according to their place in the Friedberg edition, thus before (ante) or after (post) an individual canon, for instance: “D.76 d. post c.8”. This is a dictum of Gratian (d. or dict. or d.G.) after D.76 c.8. This citation system only became common in the twentieth century. From the seventeenth century onwards citations began with the number of the canon, for instance, “c.1 D.I and c.40 C.II q.6”. Gratian’s dictum after D.76 c.8 was cited as “dictum post c.8 D.LXXVI”. The numbering of the canons, however, only became uni form in Renaissance editions. Hence, until relatively recently the canons and dicta of Gratian were generally cited by their opening words, the first canons of a distinction or question also by number (“i.”, “ii.”, “iii.”), and the last two canons as next to last (“pen.” or “penult.”) and last (“ult.”). Hence, D.1 c.1 was cited as “di.i. c.i” (or simply “i. c.i”). Similarly, C.2 q.6 c.40 was cited as “ii. q.vi. c. Si quando”. Gratian’s dicta were also cited by their opening words. A paragraph sign was used to distinguish them from a canon/capitulum. D.76 p.c.8 was referred to as “di. lxxvi § necessario ergo”. (c) Recensions Until recently, the date of completion of Gratian’s Decretum was set around 1140, because the latest sources he used were the canons of the Second Lateran Council of 1139. It is now generally accepted, however, that (at least) two vers ions should be distinguished, since Anders Winroth has established that four manu scripts contain a reference to this council (“sicut in generali sinodo Innocentii pape Rome habita”), but not the canons themselves. The authorities cited in this earlier version all date from before 1120. A description of the contents of this earlier recension is given in the appendix to his The Making of Gratian’s Decretum (2000). A summary of recent scholarship on this subject with a complete biblio graphy until 2006 is given by Winroth.128 Additional literature can be found on his website Domus Gratiani.
128 A Winroth, “Recent work on the making of Gratian’s Decretum” (2004-6) 26 BMCL 1. Recently Pennington adhered to Larrainzar’s proposal that St Gallen Stiftsbibliothek MS 673 contains an even earlier version, a first draft of Gratian’s work. Winroth characterises the work as an abbreviation of Gratian’s Decretum. Larrainzar dates this draft to 1142, Pennington to much earlier (1120s). See K Penning ton, “The Big Bang, Roman law in the early twelfth century” (2007) 18 RIDC 43.
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(d) Roman law in the Decretum Gratiani More than 200 texts of Roman law were added to the Decretum in the second recension. Some of them were adopted from earlier canonical collections and contain pre-Justinianic law: for example, the source of C.2 q.1 c.2 is the collection of Anselm of Lucca. The vast majority, however, of these texts was directly taken from the Digest and Code of Justinian.129 Also, around fifteen of the later additions to the Decretum consist of texts of Roman law. Various manuscripts of French provenance, for instance, insert Code 1.3.30 at the end of C.1 q.7 c.26. Weigand has noted them in his list of paleae.130 The first recension contains only three passages with quotations from Justinian’s codification. In C.2 q.6 c.28 Gratian cited a Novel of 523, in which Justinian allowed ten days for appeal.131 In C.15 q.15 c.2-3 and in c.4 he included seven fragments from the Code and Digest, which permitted women to accuse someone of specific crimes. (2) Early glosses to the Decretum From the 1150s onward Gratian’s Decretum became the central text in the canonists’ teaching. Its first glosses not only ex plained words in the text, but also quoted parallel or contrary texts. There were few references to Roman law in these early glosses. Guibert de Bornado was an early jurist who, more than his contemporaries, applied Roman law to problems of canon law; he also functioned as a judge in the court of Frederick Barbarossa between 1159 and 1178. In 1983, Weigand edited thirty of Guibert’s glosses.132 There is even occasional reference to individual glossators, as in an early anonymous gloss on D.84 c.5: “contra Martinus papa supra Lector si uiduam (D.34 c.18)”.133 As with many glosses written in about 1150, it does not yet use the division of the first part of Gratian’s Decretum into distinctions. The work of Weigand has established that there are various “gloss-compositions”, that is groups of glosses transmitted in several manu scripts which only partially or sporadically explain the text. This partial nature dis tinguishes 129 See A Vetulani, “Gratien et le droit romain” (1945/47) 24/25 RHD 11, repr in A Vetulani, Sur Gratien et les decrétales (1990); S Kuttner, “New Studies on the Roman law in Gratian’s Decretum” (1953) 11 Seminar 12, repr in S Kuttner, Gratian and the Schools of Law, 1140-1234 (1983); J M Viejo-Ximénez, “La ricezione del diritto romano nel diritto canonico”, in La cultura giuridico-canonica medioevale: Premesse per un dialogo ecumenico (2003) 157. 130 Weigand, “Liste der Paleae und Dubletten” (n 124) 126-128. 131 Nov 23.1; Authenticum Coll 4.2. The glossators inserted parts of the novel after C 7.62.5. 132 R Weigand, “Romanisierungstendenzen im frühen kanonischen Recht” (1983) 69 ZRG, KA 200 at 202. 133 R Weigand, “Glossen zum Dekret Gratians” (1992) 26 SG 750 note 11.
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them from a gloss-apparatus, such as Ordinaturus magister, composed shortly after 1180 in the school of Huguccio and revised at the end of the 1180s. The majority of these gloss-compositions originate in Bologna, but one is characterised by Weigand as being of French provenance and another of AngloNorman pro venance.134 The manuscripts contain glosses of many decretists, among them Paucapalea, Rolandus, Rufinus, Stephan of Tournay, Cardinalis, Gandulf and John of Faenza. A list of the sigla used in the manuscripts has been published by Weigand.135 He has also given a cumulative edition of early glosses on a section of Gratian’s Decretum and published several glosses of individual authors.136 The vast majority of the early glosses are, however, not available in a modern edition. The same holds true for the first glossapparatus Ordinaturus magister, composed in the school of Huguccio. (3) Early summae The earliest works on the Decretum fall mainly into two types: glosses and summae.137 The canonists combined both elements in their summae. Several that circul ated in Bologna were published in the nineteenth century. The first summa to the Decretum, composed by Paucapalea ca 1150, was published by J F von Schulte in 1890 (reprinted in 1963). In this short and descriptive summa, Paucapalea fre quently made use of Roman law, for instance to explain the concept of prescription (D.1 c.12). In his commentary to Causa 2-7, he laid out the basics of judicial procedure in ecclesiastical courts. The works of Roland and Rufinus were the most influential of those of the Bolognese teachers in the 1150s. In 1874 Friedrich Thaner published a summa of Roland (reprinted in 1962), of which the third part (C.27-C.36) is now considered to have been a separate tract on marriage. Weigand’s analysis in 1980 revealed that the manuscripts contain several recensions, written in the 1150s. The edition follows the last (fifth) recension, finished in around 134 For a detailed description of which gloss-composition can be found in which manuscript, and whose glosses they contain, see R Weigand, Die Glossen zum Dekret Gratians: Studien zu den frühen Glossen und Glossenkomposition, 2 vols [= (1991-92) 25-26 SG] (1991) I 393; R Weigand, “The Development of the Glossa ordinaria to Gratian’s Decretum”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 55. 135 Weigand, “Development of the Glossa ordinaria” (n 134) 95-97. 136 D.11 pr.-c.6; D.12 pr.-c.6; C.1 q.3 c.4, 13-15; C.27 q.2 pr.-c.11; C.30 q.4 and de cons. D.4 c. 1-5 are edited in Weigand, Glossen zum Dekret Gratians (n 134) I 1-392. An edition of a number of glosses of in divid ual authors is given at Weigand, Glossen zum Dekret Gratians (n 134) I 569-659 and in R Weigand, Glossatoren des Dekret Gratians (1997). 137 The canonists also adopted other genres of the glossators – distinctiones, notabilia and brocardica. Most of these collections are anonymous and short. Modern editions exist of the Distinctiones Monacensis (see n 142 below) and Ricardus Anglicus’ distinctions: G Silano, “The ‘distinctiones decre to rum’ of Richardus Anglicus” (unpubl PhD diss, University of Toronto 1981).
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1160. In around 1164 Rufinus finished a summa, which in length and detail surpassed the earlier works. Singer published this summa, which became the most influential commentary on Gratian’s Decretum in the 1170s, in 1902 (repr 1963). Rufin’s student Stephan of Tournay – so designated because he became bishop of Tournay in 1191, having actually been born in Orleans – wrote a summa to Gratian’s Decretum between 1165 and 1167 after he had return ed to France. Schulte published this summa in 1892, but left out the parts Stephan had borrowed from Paucapalea, Roland and Rufin. His work was not only influential in France, but also in Bologna, where it was used by John of Faenza, whose summa was a compilation of those of Rufin and Stephan. This summa has, however, never been printed. Even though Bologna set the standard, both Roman and canon law were taught very early in southern France.138 An abbreviation of Gratian’s Decretum was composed in Provence as early as 1150.139 Stephan of Tournay, Raymond Arène (Cardinalis), and perhaps also Roland, worked in southern France. In the early 1160s, Gerard de Pucelle taught in Paris and he later taught in Cologne (1165-1168 and 1180) and England. Only three works of the early, northern canonists have yet been published. In 1952 T P McLaughlin published the French summa, Magister Gratianus in hoc opere, composed in Paris in the late 1160s.140 Stephan Kuttner and Gérard Fransen edited the summa Elegantius in iure divino, composed about 1169 in Cologne. Its author, probably Bertram of Metz, only loosely fol lowed the general pattern of Gratian’s Decretum.141 The third work, a collection of distinctiones, is of minor value.142 The majority of the canonists’ works composed in 1160-1180, however, can only be consulted in manu scripts.143 (4) Ius novum: decretals Like the Roman emperor in antiquity, the pope was consulted by judges on matters of law, and clerks and private persons would turn to the pope as 138 See A Gouron, “Die Entstehung der französischen Rechtschule” (1976) 93 ZRG, RA 138; repr with additions in A Gouron, La science du droit dans le Midi de la France au moyen âge (1984). 139 See R Weigand, “Die Dekretabbreviatio Quoniam egestas und ihre Glos sen”, in W Aymans et al (eds), Fides et ius: Festschrift Georg May (1991) 249. 140 T P McLaughlin, The summa parisiensis on the Decretum Gratiani (1952). 141 See P Landau, Die Kölner Kanonistik des 12. Jahrhunderts: Ein Höhepunkt der europäischen Rechtswissenschaft [= Kölner Rechtsge schicht liche Vorträge I] (2008). 142 Two editions exist: A J de Groot, Distinctiones ‘Si mulier eadem hora’ seu Monacensis (1996); and R Sorice, Distinctiones ‘Si mulier eadem hora’ seu Monacensis [= MIC series A Corpus Glossatorum IV] (2002). 143 See, for a detailed account of the works of the schools in France, Germany and England, R Weigand, “The Transmontane Decretists”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 174.
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Roman citizens had appealed to the emperor. His written answers, decretales, though not meant as legislation, were authoritative statements of law, and were for this reason collected by canon lawyers. First, they occur in some appendices to Gratian’s Decretum. In the 1170s the new law – papal letters and canons of the recent council of Tours (1163) – was compiled independently.144 Bernard Balbi – later bishop of Faenza (1191) and Pavia (1198) – composed the first sys tematic collection, known as the Breviarium extravagantium (survey of authoritative texts outside Gratian’s Decretum), which he finished between 1177 and 1179.145 His com pilation does not include the canons of the Third Vatican Council of 1179. He revised and updated his collection in the late 1180s – three recensions have been pre served in the manuscripts, two of Italian provenance completed in 1187 and 1191, and a northern European recension, which includes decretals of 1193.146 Bernard arranged his Breviarium in five books, divided into titles, arranged after the order of the Digest and Code. Other collections cir culat ed, but his Breviarium was used in the law schools. The summary of this col lect ion, which he composed as bishop of Faenza, was published by Ernst Laspeyres, Bernardi papiensis summa decretalium (1860; repr 1956). Simon de Bisignano was the first canonist to make extensive use of texts outside Gratian’s Decretum. In his summa, written at the end of the 1170s, he cited extravagantes on some 175 occasions, amounting in all to about eighty decre tal letters.147 In the 1160s, Rufin, Stephan of Tournay and the anonymous author of the summa Parisiensis had referred to only one. In 2007, P V Aimone put his edition on the internet.148 Parts of three related summae have recently been printed: a third of the summa, Et est sciendum, written in the province of Sens around 1182, and the first part (until C.1) of two summae written in Paris around 1186 by two Anglo-Norman canonists, Honorius and an unknown author.149 Modern editions of the other works of French and 144 On the decretal collections, see G Fransen, Les décrétales et collections de décrétales [= Typ ologie des sources du moyen âge occidental II] (1972); P Landau, “Die Entstehung der systematischen Dekretalen sammlungen und die europäische Kanonistik des 12. Jahrhunderts” (1979) 65 ZRG, KA 120, repr in P Landau, Kanones und Dekretalen (1997); C Duggan, “De cretal Collections from Gratian’s Decretum to the Compilationes Antique”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 246. 145 Several other systematic collections of decretals are known. One of them is the French Collectio francofurtana, published by P Landau and G Droschbach (2007). 146 G Fransen, “Les diverses formes de la Compilatio Prima”, in Scrinium Lovaniense: Mélanges historiques Etienne van Cauwenbergh (1961) 235. 147 See T P McLaughlin, “The Extravagantes in the Summa of Simon de Bisignano” (1958) 20 Medieval Studies 167. 148 http://www.unifr.ch/cdc/summa_simonis_de.php 149 F Gillman, “Die Dekretglossen des Codex Stuttgart Hist. f.419” (1927) 107 Archiv für
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Anglo-Norman provenance are lacking. Only the first twenty distinctions of Huguccio’s summa – the culmination of fifty years of Bolognese learning since Gratian – have yet been published.150 Huguccio left his work unfinished when he became bishop of Ferrara in 1190 – just before the introduction of Bernard’s Breviarium into the canonistic curriculum. He wrote his summa in five stages: first pars I (D.1-D.101), Causa 2-22 and 27-36 except De penitentia (C.33 q.3), subsequently Causa 1, then pars III (on the sacraments) and C.33 q.3, finally C.23-C.23 q.4 c.33. Several manuscripts contain passages from other summae to supplement the text of the first stage. Wolfgang Müller has described in detail which summae were used.151 As Kuttner pointed out, the intense activity of interpreting the Decretum came to a standstill in about 1190.152 Study of the papal decretals took its place. (a) System of citation The canonists of the twelfth century referred to the papal letters and conciliar canons outside Gratian’s Decretum (known as extravagantes) by their opening words, as, for instance, “ut in Extra. Sicut dignum”. Many, but not all, of these decretals and canons are also included in the Corpus iuris canonici. Some of them were only included in the compilationes antique (the old compilations used in the law schools) of which Bernard’s was the first; a few were excluded from both. In works composed before 1190, the canonists seldom quoted extravagantes by title. It is therefore not always certain which collection of decretals an author used. Simon de Bisignano probably used a primitive Italian collection (without a division in titles);153 Honorius certainly used the Appendix concilii Lateranensis, because he used its titles in his citations.154 Nowadays
150 151 152 153
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katholische Kirchenrecht 192; repr with additions in Gesammelte Schriften zur klassischen Kanonistik von Franz Gillman (1988); R Weigand, P Landau et al (eds), Magistri Honorii summa ‘de iure canonico tractaturus’ [= MIC series A Corpus Glossatorum VIII] (2004) I; R Weigand, P Landau et al (eds), Summa ‘omnis qui iuste iudicat’ sive Lipsiensis [= MIC series A Corpus Glossatorum VII] (2007) I. O Přerovský (ed), Huguccio Pisanus summa decretorum [= MIC Series A Corpus Glossatorum VI] (2006) I. W P Müller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (1994) 76-80. S Kuttner, “Bernardus Compostellanus: A Study in the Glossators of Canon Law” (1943) 1 Traditio 283. See W Holtzmann, “Zu den Dekretalen bei Simon von Bisignano” (1962) 18 Traditio 451 at 453. Holtzmann listed four ma nu scripts belonging to the group of the Collectio Berolinensis, ed by J Juncker, “Die Collectio berolinensis” (1924) 13 ZRG, KA 284. See Duggan, “De cretal Collections” (n 144) 268-269. See S Kuttner and E Rathbone, “Anglo-Norman Canonists of the Twelfth Cen t ury” (1949-1951)
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the decretals are cited with their number as found in Philip Jaffé, Regesta pontificum romanorum, 2nd edn by S Löwenfeld et al (1885-1888). When the decretal is included in one of the Compilationes Antique or the Liber Extra, this is also mentioned. Nowadays the decretal Sicut dignum, mentioned above, would be cited as JL 12180 (= 1Comp. 5.10.7; X 5.12.5). (5) Compilationes antique The five collections that form the basis for the codification of pope Gregory IX in 1234 are known as the Compilationes antique – the old compilations. They were edited by Emil Friedberg as Quinque compilationes antique nec non collectio canonum Lipsiensis (1882; repr 1952). This edition contains the decretals that are not included in the Corpus iuris canonici. For the numerous decretals that were adopted, Friedberg referred to his edition of the Liber Extra. The compiler of the Liber Extra re-edited the text, but these changes are not marked. The parts of the text in the old compilations that were left out, Friedberg has added, written in italics, and marked with “†”. Because he aimed to reconstruct the original text of the decretal, he also added material that is not found in the compilationes antique. This is text, written in italics, that he placed between parenthesis: “[ ]”. Bernard’s Breviarium is the first collection, or Compilatio prima, a compilation of conciliar canons and papal letters until 1190. Early papal letters, which had not been entered in Bernard’s collection, and decretals issued between 1190 and 1200 form the Compilatio secunda. They were compiled by Johannes Galensis in around 1212 after pope Innocent III had promulgated a collection of his decretals in 1210. Canonists began to put together collections of Innocent’s decretals early in his pontificate. In 1203, Rainer of Pomposa selected 123 of Innocent’s decretals from the papal registers. During his stay in Rome in 1208, Bernardus Compostellanus had also consulted the registers. His collection, however, contained some decre tals that the Bolognese schools attributed to Innocent. These could not be found in the papal registers and thus were rejected by the curia. Two years later, Petrus Beneventanus compiled a collection of which the pope approved. Innocent accordingly sent it to Bologna with a letter of approval. This is known as the Compilatio tertia (though, in fact, it was the second to be compiled). Sixteen decretals, which Petrus and Innocent knew not to have been registered, were added to the registers in 1210. The wording 7 Traditio 279 at 283-284; repr in Kuttner, Gratian and the Schools of Law (1983). The collection is published in J D Mansi, Sacrorum conciliorum nova et amplissima collectio (1767; repr 1962) XXII.
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of the text of these sixteen decretals varies between the Compilatio tertia and the registers. This implies that the entries in the registers were not made to secure the correct text, but to prevent forgeries entering the decretal collections. In the fourth collection, Compilatio quarta, Johannes Teutonicus combined the canons of the Fourth Lateran Council of 1215 with decretals, from the last years of Innocent’s pontificate, that circulated outside the Compilatio tertia. An English translation of the canons of the Fourth Lateran Council can be found on the internet.155 Though this new compilation failed to get the papal authentication that Johannes had sought, it was used in the schools of canon law around 1220. The fifth collection, Compilatio quinta, is the last compilation before the Liber Extra. It contains decretals of pope Honorius, at whose request the collection had been assembled by Tancred. With the pontificate of Innocent III (1198-1216), who had studied theology in Paris and law in Bologna, the focus of the canonists shifted definitively towards the ius novum, contemporary papal letters and conciliar canons. Pope Celestin (1191-1198) did not issue many decretals, and the canonists used the time of his pontificate to consolidate their teaching. Along with Gratian’s Decretum, Bernard’s Breviarium now became the standard textbook in the schools of law. None of the main works on the Decretum written around 1200 by the canonists in Bologna has been printed. Even the gloss of Johannes Teutonicus (Johann Zemecke), the Glossa ordinaria, has only been printed in the revised version necessitated by the publication in 1234 of the Liber Extra of Gregory IX. It was edited by Bartholomew of Brescia (Bartolomeus Brixiensis) who incorporated refer ences to new decretals and offered new solutions to old questions. He thus thoroughly updated the 1217 version of Johannes Teutonicus, correcting or modifying Johannes’ positions.156 Also available only in manuscript are the main sources used by Johannes Teutonicus – the Glossa Palatina of Laurentius Hispanus (who in turn took many glosses from Ordinaturus Magister) and the summa of Huguccio. The same is true for the works of the other Bolognese and northern canonists of that time.157 Ricardus Anglicus (Richard de Mores), who taught in Bologna from 1191 155 www.papalencyclicals.net/councils 156 See J F Schulte, Glosse zum Dekret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben (1872) 79-82; R Weigand, “The glossa ordinaria”, in Hartmann and Pennington (eds), History of Medieval Canon Law (n 16) 82. 157 A beginning has been made with the edition of the Paris apparatus, Animal est substantia, which has a strong romanising tendency. Coppens published his edition of D.1-D.29: http://web.mac. com/eccoppens/Animal_est_ substantia/Introduction.html
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to 1202, was probably the first to use Bernard’s Breviarium as a textbook. He composed the first casus decretalium, a résumé of the decretals that Bernard used in writing his own. The edition by Ernst Laspeyres of Bernardi Papiensis summa decretalium (1860; repr 1956) 327-357 contains excerpts of both casus. Richard’s apparatus, written when he taught in Bologna (11911202) was very influential, as was the commentary composed between 1202 and 1210 by his compatriot Alanus. Other canonists, like Petrus Hispanus and Bernardus Compostellanus, also glossed the first compilation. None of these apparatus is printed. Two of the commentaries to the Compilatio tertia (1210), however, were recently printed. Laurentius Hispanus’ apparatus was edited in 1991 by Brendan McManus.158 A critical edition of the first two books of Johannes Teutonicus’ commentary appeared in 1981, edited by Kenneth Pennington,159 who has supplemented this with three further books available on the internet.160 Glosses to the compilatio secunda (1212) are only preserved in manuscript. Antonio García y García published a critical edition of the canons of the Fourth Lateran Council (1215) together with the gloss-apparatus of Johannes Teutonicus, Vincentius Hispanus, and Damasus Hongarus.161 Johannes Teutonicus was the only canon ist who wrote an apparatus to his Compilatio quarta.162 It was edited in 1576 by Antonio Agustín in his Antique decretalium collectiones commentarii (also in his Opera omnia, published in Paris, 1621). Tancred did not gloss the collection he made in 1227 of Honorius’ decretals in 1227. Tancred, who learned Roman law from Azo and canon law from Laurentius, changed the style of apparatus to the decretals. He incorporated the glosses of other canonists with little change, providing the sigla of their authors. Until then canonists had incorporated glosses of others in their own commentary. Consequently, his apparatus functions as a survey of opinions. His apparatus to the compilatio prima–tertia, written between 1210 and 1215, and revised in the 1120s, became the Glossa ordinaria to these collections. It has, however, never been printed. 158 B J McManus, “The Ecclesiology of Laurentius Hispanus (ca 1180-1248) and his Contri bu t ions to the Romanization of Canon Law Jurisprudence: With an Edition of the Apparatus glos sa rum Laurentii Hispanii in com pi la tionem tertiam” (unpubl PhD diss, University of Syracuse 1991). 159 Johannes Teutonicus, Apparatus in Compilationem tertiam, ed Kenneth Pennington [= MIC, Corpus glossatorum III] (1981) I. 160 http://faculty.cua.edu/pennington 161 A García y García (ed), Constitutiones Concilii quarti Lateransis [= MIC series A Corpus Glossatorum II] (1981). 162 He used his own and Vincentius’ glosses to the Canons of the Fourth Lateran Council for his ap pa ratus to the Compilatio quarta. Many of his glosses are the same; some are changed or augmented.
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(a) System of citation Around 1200, the canonists referred to the extravagantes by giving the number of the compilation, then the title in an abbreviated form, followed by the opening words of the capitulum, for instance “(extra) ii. de elect. Suffrageneis”. This chapter in the third title of the Compilatio secunda is now cited as “2Comp. 1.3.1” with an added reference to its place in the Liber Extra in parenthesis: “(X 1.6.11)”. A chapter not found in the Liber Extra is cited as: “1Comp. 2.20.34 (X -)”. (6) Liber Extra The Liber Extra or Decretales Gregorii IX is a collection of almost 2,000 chapt ers that includes all relevant papal and conciliar law since Gratian. In 1230, pope Gregory IX (1227-1241) commissioned Raymond of Peñafort to com pose a col lection that would replace the various decretal collections in circulation. The collection is arranged according to the pattern of the compilationes antique that Bernard of Pavia had invented. The collection is divided into five books and each book into titles. To memorise the subjects of the books, the students used the fol lowing verse: “iudex, iudicium, clerus, connubia, crimen” (“judge, judgement, cler gy, marriage, crime”). The chapters in each title are placed in chronological order: thus, the oldest papal letters and canons come first. Raymond used the material of the compilationes antique, but not all. He eliminated many of the letters of Honorius III (1217-1227) – about 40% of the compilatio quinta. Following the example of the compilers of the older collections, he re-edited the text of the papal letters he used, he shortened or deleted the description of the facts of the case, and changed the wor ding when needed. He also included papal letters from the beginning of Grego ry’s pontificate and phrased new rules, for instance chapter X 5.36.9: “If damage or injuries are inflicted through your fault, either through your incompetence or negligence, you have to make satisfaction...”163 Pope Gregory IX promulgated this collection in September 1234 and sent it to the law schools in Bologna and Paris, to be taught as the law of the Church. It re placed all earlier collections of decretals. The old universal law of the church, namely the canons until Gratian’s Decretum – whether Gratian had included them in his work or not – were abolished insofar they conflicted with the new law. The ius novum – papal decretals and conciliar 163 “Si culpa tua datum est damnum or iniuria irrogata, seu aliis interrogantibus opem forte tu listi, aut haec imperitia tua siue negligentia evenerunt: iure super his satisfacere te oportet...”
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canons of the period between Gratian’s Decretum and the Liber Extra – was abolished, even when in con form ity with the Liber Extra. Therefore, though pope Gregory spoke of this work as a collection (compilatio nova), it can nonetheless be properly characterised as a codification.164 The modern edition of the Liber Extra appeared in 1881 as the second vol ume of the Corpus iuris canonici (reprinted in 1955), edited by Emil Friedberg. The text is the same as in the editio Romana of 1582. Variations from the text of Raymond de Peñafort of which Friedberg was sure are marked with “*”. The text written in italics is not part of the Liber Extra. It is a reconstruction of the original text of the decretal. The Law Faculty of the University of Catania has put a full searchable text of the Friedberg edition on the internet.165 As already noted, the editio Romana is made available for viewing on the UCLA Library website.166 The index to the decretals (Margarita) is published along with an index to the gloss by Andy Kelly on his website.167 William Naso’s lectures on the new Liber Extra date back to around 1234. It is the earliest set of lectures that has been preserved. Like the other commentaries writ ten during Gregory’s pontificate, it is only available in manuscript. The new codification prompted Bartholomew of Brescia (Brixiensis) to revise the ordina ry gloss to the Decretum. Bernard of Parma published a first recension of his ap paratus (which would in its final form become the ordinary gloss) in 1241, the year of Gregory’s death. Goffredus Tranensis, auditor litterarum contradictarum under Gregory IX and Innocent IV, wrote a summa decretalium (1241-1243) after he completed his apparatus. This influential summa achieved many manuscript and printed editions. The Lyon 1519 edition was reprinted in 1968. Bernard revised his gloss at the beginning of the pontificate of Innocent IV (1243-1254), and did so again after the Council of Lyon (1245), where thirty-eight new constitutions were issued. Sinebald Fliscus, who was elected to the papacy in 1243 as Innocent IV, comple ted his gloss-apparatus to the codification of his predecessor, and also glossed his own Novellae. The Frankfurt 1570 edition of his apparatus was reprint ed in 1968. Bernard of Parma continually revised his gloss until his death in 1266.168 Henry of Susa (1194-1271) – known as Hostiensis as 164 M Bertram, “Die Dekretalen Gregors IX (1234): Kompilation oder Kodifikation?”, in Magister Raymundus: Atti del Convegno per il IV centenario della canonizzazione di san Raimondo de Penyafort (2002) 61. 165 www.lex.unict.it/liber/accedi.asp 166 http://digital.library.ucla.edu/canonlaw 167 http://www.english.ucla.edu/faculty/kelly 168 See S Kuttner and B Smalley, “The Glossa ordinaria to the Gregorian Decretals” (1945) 40 English Historical Review 97; repr in S Kuttner, Studies in the History of Medieval Canon Law (1990).
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he became cardinal-bishop of Ostia in 1262 – updated his commentary on the decretals until 1270. By chance, a manuscript of the first recension, composed between 1254 and 1265, has been preserved in Oxford.169 The printed editions contain the version of 1270.170 Two indep endent printed first editions appeared in 1512, one in Paris, the other in Strasbourg. His Lectura super quinque libros decretalium is vast, but later jurists praised its clarity. According to Hostiensis, no one would have understood him, if he had written tersely. Both editions included his commentary on the Novellae of pope Innocent IV of 1251 to 1253. Around that time he also completed his Summa aurea, which follows the order of the Liber Extra.171 Hostiensis mentions that he had to rewrite his summa because the first version went up in flames. The first printed edition appeared in 1473. Bernard’s gloss became the Glossa ordinaria to the Liber Extra.172 (a) System of citation The citation form is similar to those used for the compilationes antique. Until the nineteenth century, canonists cited decretals in the Liber Extra with: X or Extra (within the Liber Extra with supra and infra), the title (in an abbreviated form), followed by the beginning words of the chapter. An example is: “ut X de appel. Super eo”. Nowadays the number of the book, of the title, and of the chapter are given: “X 2.28.10”. (7) Liber Sextus, Clementinae, and Extravagantes Pope Gregory did not stop writing papal letters on questions of law in 1234, nor did his successors. The canonists collected these extravagantes and referred to them in their commentaries. The popes promulgated several collections them selves, pope Innocent IV (1243-1254) published Novellae (1245, 1247, 1253) and pope Gregory X (1271-1276) published Novissimae (1276). After a request from the law school in Bologna, pope Boniface VIII (1294-1303) replaced these decretals with a new exclusive collection, the Liber Sextus. The Liber Sextus incorporates the canons of the Council of Lyon (1245 and 169 K Pennington, “An Earlier Recension of Hostiensis’ Lectura on the Decretals” (1987) 17 BMCL 77; M Bertram, “Hand schrif ten und Drucke des Dekreta len kommentars (sog. Lec tura) des Hostiensis” (1989) 75 ZRG, KA 177. 170 For the manuscript and printed editions, see M Bertram, “Handschriften und Drucke des De kre ta len kom mentars” (n 169). 171 On the medieval editions, see F P W Soetermeer, “Summa Archiepiscopi alias summa copiosa” (1999) 26 Ius Commune 1. 172 On the editions of his apparatus, see S Kuttner, “Notes on the Glossa ordinaria of Bernard of Parma” (1981) 11 BMCL 86.
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1274) and most of the decretals prom ulgated by his predecessors combined with some of his own. It follows the struct ure of the Liber Extra: both the order of the books and of the titles. Early in the fourteenth century, pope Clemens (1305-1314) ordered the compilation of the canons of the council of Vienne (1311-1312) and some of his decretals. His successor, pope John XII, sent this collection, the Constitutiones Clementinae, to the law schools. Unlike the Liber Extra and the Liber Sextus, the new collection was not given a sole exclusive authority. Papal letters written after 1298 could still be used in court to argue a case. Several private collections were made, of which the correctores Romani in 1580 authenticated two: a collection of twenty decretals, the Extravagantes Joannis XXII composed in 1325,173 and a collection of sixty-nine (or seventy-four) decretals, entitled the Extravagantes communes. These were divided into titles at the end of the fifteenth century by Jean Chappuis when he prepared them for the Paris edition of the Corpus iuris canoni that appeared in 1500. Johannes Monachus wrote the first apparatus on the Liber Sextus, of which the Paris 1535 edition was reprinted in 1968. Johannes Andreae, his pupil Guido de Baysio, and Zenzelinus de Cassanis also glossed the Liber Sextus. The apparatus of Guido de Baysio was printed several times in the sixteenth century. The apparatus of Johannes Andreae became the ordinary gloss. The sixteenth-century editions of the Corpus iuris canonici with the ordinary gloss contain the apparatus of Johannes Andreae to the Liber Sextus (1306) and to the Clementinae (1326), together with the glosses of Zenzelinus de Cassanis to the Extravagantes Joanni XXII. The 1582 editio romana with the ordinary gloss is available on the web,174 as is the index to the gloss.175 Glosses of Johannes Andreae to decretals of Johannes XXII can be found as additiones in his gloss to the Liber Sextus. (a) System of citation The Liber Sextus is designated as VI and the Clementinae as Clem. The citation forms are similar to that of the compilationes antique and the Liber Extra. The medieval and renaissance canonists gave the title and the beg inning of the decretal. In the editions of the sixteenth century and later, decretals in both collections of extravagantes are cited as, for instance, “c.1 de conces. preb. tit. IV. in Extravag. Jo. XXII”, and nowadays as “Extrav. Jo. 4.1”. 173 J Tarrant, Extravagantes Iohannis XXII [= MIC Series B Corpus Collectium VI] (1983). 174 http://digital.library.ucla.edu/canonlaw 175 http://www.english.ucla.edu/faculty/kelly
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F. PROCEDURAL LAW In the twelfth century neither the Corpus iuris civilis nor Gratian’s Decretum provided a consistent description of procedure. The question of how a trial must be conducted was, however, of great importance for the Church, because a holder of a church-office could not be deposed without an orderly trial. The first works on the ordo iudiciarius (or ordo iudiciorum) were written by legists – at the request of Church prelates.176 The Roman concept of a trial con ducted by a single judge, if necessary assisted by professionals, had the advant age that it strengthened their powers. Until Roman law was revived, ecclesiastical councils rendered judgment. The early ordines iudiciarii were based upon the Corpus iuris civilis, but the use of canon law increased in the course of the twelfth century. The anonymous French ordo Tractaturi (1160s), for instance, adopted parts of the Code-summa Trecensis, parts of the Decretum-summa of Stephan of Tournay (on ap peal and prescription), and perhaps made use of Rogerius’ lectures on actions.177 The English ordo Quia iudiciorum (1180s) was the first to list differences be tween Roman and canon law in procedural matters. Like other works of English provenance, it regularly referred to decretals of Alexander III. Such citations were sparse in Italian works.178 A copy of an Anglo-Norman ordo, which the canonist Richard de Mores (Ricardus Anglicus) wrote shortly before 1190, circulated in Bologna.179 Tancred remarked that it was one of the two works he had on his desk when he was writing his Ordo iudiciorum (on the basis of notes he made in 1210-1215). The other he erroneously attributed to Pilius.180 Bartholomeus Brixiensis revised his ordo after the promulgation of the Liber Extra. Many copies circulated, but his ordo was superseded by Guillaume Durand’s Speculum iudiciale. This work, completed around 1290 (the earlier 1275 recension contains some variations), was to become the 176 With the exception of a work on criminal trials: Rhetorica ecclesiastica / Tam veteris quam novi (ca 1160), ed L Wahrmund [= QGRKP I pt 4] (1906; repr 1962). 177 See L Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius [= Ius Commune Sonderhefte XIX] (1984) 58-64 and 173. On both the summa Trecensis and Stephan of Tournay, see section C.(3) above. 178 The reason was probably that his decisions were often taken from Roman law or from the writings of legists. See K W Nörr, “Päpstliche Dekretalen und römisch kanonischer Zivilprozess”, in W Wilhelm (ed), Studien zur europäischen Rechtsgeschichte (1972) 60. 179 Ed L Wahrmund [= QGRKP II pt 3] (1915; repr 1962). 180 This was the ordo known as Invocato Christi nomine, dependent on Pilius, but written shortly after 1198 by Ben ci venne of Siena, ed L Wahrmund [= QGRKP V pt 1 1935; repr 1962). Tancred’s ordo has been published in Pilli, Tancredi, Gratii libri de iudiciorum ordine, ed F Bergmann (1842; repr 1965) 89-314. This edition also contains two French (Parisian) revisions (1225, 1234) called Reformatio I and II.
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standard work on the Roman-canon law of procedure. Important additions – with references to the opinions of later legists and canonists – were made around 1350 by Johannes Andreae, and later by Baldus de Ubaldis. Many printed editions include these additions, as for instance the edition of Basel 1574, reprinted in 1975. The glossators and canonists not only published ordines iudiciarii on civil procedure, they wrote treatises on specific questions as well. They dealt with delays and contumacy, declinatory exceptions and the refusal of judges, proof and witnesses, sentences and appeal and the like. Very influential were two works on claims: a summa de varietate actionum, written by Placentinus during his stay in Mantua, and the arbor actionum of Johannes Bassianus.181 All ordines and procedural treatises until 1234 are described extensively with a list of all manuscript and printed editions by Linda Fowler-Magerl.182 She con sequently uses the incipit of these works instead of the title given by the sixt eenth-century printers. Placentinus’ work is, for instance, listed under Cum essem Mantue, Tancred’s work is listed under Assiduis postulationibus. Recently the Polish scholar Wiesław Litewski published in two volumes a German translation of his textbook on the law of procedure until 1234: Der römisch-kanonische Zivilprozess nach den älteren ordines iudicarii (1999). The book provides detailed information on all aspects of the law of procedure and the references to the sources are very specific. It is an indispensable tool for those who are interested in procedural matters. Litewski rightfully emphasises the importance of Si considerarum ingenium that Roffredus Beneventanus published in the 1230s. Printed under the title Libelli iuris civilis,183 it provides examples for all kinds of petitions and discusses many procedural details. From the Authenticum had derived the rule that in trials before a judge ordinary – who had jurisdiction because of his office – the plaintiff had to prepare a libellus describing his complaint. Early ordines had not yet phrased a claim; the plaintiff simply requested that justice be done. Separate treatises on libelli, which began to appear in the early thirteenth century, also discussed what is claimed: damages or specific performance. The models Roffredus published were 181 Placentinus, Summa de varietate actionum, ed L Wahrmund [= QGRKP IV pt 3] (1925; repr 1962): Rhodius’ edition of Mainz 1530 and its many reprints are unreliable. A von Brinz edited Johannes Bassianus’ Arbor actionum (1854). 182 L Fowler-Magerl, Ordines iudiciarii and libelli de ordine iudiciorum from the Middle of the Twelfth to the End of the Fifteenth Century [= Typologie des sources du moyen âge occidental LXIII] (1994); L Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius [= Ius Commune Sonderhefte XIX] (1984). 183 The edition of Avignon, 1500, has been re printed in CGIC VI in 1968 along with his Libelli de iure canonico.
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popular among practitioners and remained in use well into early modern times. He structured his work according to the arbor actionum of Johannes Bassianus. Roffredus also referred to this work, but a source he may have concealed is the first treatise on libelli, written by Bernard Dorna in 1213.184 G. FEUDAL LAW Around 1020, Guillaume V, count of Poitou and duke of Aquitaine, asked Fulbert, bishop of Chartres, what duties the vassal owed to his lord. In his reply Fulbert described six duties as being central to the oath of fealty: to keep his lord safe, to protect him from harm, to preserve the lord’s justice, to prevent damage to his possessions, and not to prevent the lord from carrying out his duties. Gratian in cluded Fulbert’s letter in his Decretum (C.22 q.5 c.18), where it became the starting point for the decretists to discuss the relationship between a vassal and his lord.185 Around 1155 Obertus de Orto, a judge in Milan at the time that a compilation of customary law was undertaken by the city’s commune, described Lombard feudal law – in the form of two letters to his son, a student in Bologna who had reported (he said) that feudal law was not taught. These two letters, together with imperial statutes of the emperors Conrad II (10241039) and Lothair II (1125-1135), form the first recension, called recensio antiqua or Obertina, of a collection of feudal laws that entered into the Corpus iuris civilis in the thirteenth century.186 Early manuscripts contain as additions various imperial statutes of the emperors Frederick I (1152-1190) and Henry VI (1190-1197). Some com pilers also included Fulbert’s letter. Until ca 1250 there was no standard collection of the Libri feudorum. This collection of feudal law gradually entered into the schools of law. Early glossators discussed feudal matters;187 but the first to gloss this collection was 184 Published by L Wahrmund in QGRKP I pt 1 (1905; repr 1962). 185 On Fulbert’s letter, see G Giordanengo, “Epistula Philiberti”, in G Giordanengo, Féodalités et droits savants dans le Midi médiéval [= Collected Studies Series CCCLXXIII] (1992). On the feudal oath of fealty, see M Ryan, “The Oath of Fealty and the Lawyers”, in J Canning and O G Oexle (eds), Politisches Denken und die Wirklichkeit der Macht im Mittelalter (1998) 211, criticised in K Pen ning ton, “The Formation of Jurisprudence and the Feudal Oath of Fealty” (2004) 15 RIDC 57. 186 See E A Laspeyres, Über die Entstehung und älteste Bearbeitung der Libri feudorum (1830). The collection ends at LF 2.24; it includes the Capitula Ugonis de Gambolado (after LF 2.2) but ex cludes Fulbert’s letter (LF 2.6 in the recensio vulgata and LF 2.7pr). An edition with apparatus criticus is K Leh mann, Consuetudines feudorum [Libri feudorum, Ius feudale Langobardorum], Compilatio antiqua (1892) I, reprinted in K Lehmann (ed), Consuetudines feudorum editio altera, curavit K A Eckhardt (1971). 187 See E M Meijers, “Les glossateurs et le droit féodal” (1934) 13 TvR 129; repr in Meijers, Études III with an edition of a consilium of Johannes Bassianus.
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Pilius, who, from around 1182, worked and taught in Modena. Six manu scripts contain his (unfinished) gloss-apparatus, written in the 1190s. It gets as far as LF 2.38. The text of one of those manuscripts has been edited.188 Pilius glossed the collection in its second stage, known as the recensio Ardizona – so called because it was supposed to be the collection Jacobus Ardizone had on his desk while writing his summa feudorum between 1220 and 1240.189 His summa is preserved in seven manuscripts, and the edition published in Asti in 1518 has recently been reprinted.190 About twenty manuscripts contain the recensio Ardizona, all with additional imperial laws.191 In the course of the thirteenth century the collection of feudal laws reached its final version and entered into the manuscript and printed editions of the Corpus iuris civilis: the vulgata-recension. The recensio Ardizona was enlarged with constitutions which the jurists had till then characterised as extravagantia: a constitution of Henry III (1039-1056); three of Lothair III (1125-1137); and three promulgated by Frederick I at Roncaglia in 1158. The collection ends with the constitution Ad decus. Fulbert’s letter (already incorporated in Gratian’s Decretum) became part of the Libri feudorum as well.192 The collection of feud al law then also acquired its place in the manuscripts of the Corpus iuris.193 The genesis of the ordinary gloss is as complicated as the history of the Libri feudorum. On the one hand, it is said that Accursius plagiarised the 188 A Rota, “L’apparato di Pillio alle Constitutiones Feudorum e il Ms. 1004 dell’ Archivio di Stato di Roma”, in Studi e memorie per la storia dell’ Universita di Bologna (1938) XIV 1. The glosses to LF 2.27 (nos 202-204), LF 2.54 (nos 245-255), and LF 2.55 are later additions. See P Weimar, “Die Handschriften des Liber Feu dorum und seiner Glossen” (1992) 1 RIDC 72. Alvarot tus (d 1453) asserted that Pilius also wrote a summa feudorum. This summa, which has not been preserved, is probably revised and enlarged in the summa edited by Palmerio (see n 197 below). 189 Weimar’s research has established that Jacobus’ summary is also based upon an additonal collection of feudal laws (extravagantia) he had compiled. See Weimar, “Handschriften” (n 188) 35. 190 Iacobus de Ardizone, Summa super usibus feudorum composita (1518) in CGIC. 191 In this version, the collection ends with LF 2.51, still includes the Capitula Ugonis de Gambolado and ex clud es Fulbert’s letter. All manuscripts with the Ardizona recension contain supplements, called extravagantia, but these vary. See Weimar, “Handschriften” (n 188) 36-41. Many of them became part of the vulgata recension found in the manuscript and printed editions of the Corpus iuris civilis. 192 Weimar further distinguishes a recensio protovulgata (which excludes the Capi tula Ugo nis and incorporates Fulbert’s letter; at this stage Accursius treated LF 2.52-2.57 not as part of the compilation, but as extravagantes) and a recensio Accursiana (which includes the Capitula Ugonis after LF 2.22) regularly as the tenth collatio of the Authenticum in manuscripts of the Volumen. See Weimar, “Handschriften” (n 188) 49. 193 The Libri Feudorum with the ordinary gloss have been reprinted (with a commentary) in M Mon tor zi, Diritto feudale nel Basso medioevo: Materiali di lavoro e strumenti critici per l’esegesi della glossa ordinaria ai Libri feudorum (1991). An English translation of the Libri feudorum is found as an appendix to T Craig, Jus feudale, with an Appendix Containing the Books of the Feus, trans Lord Clyde (1934) II 1079-1183.
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(now lost) apparatus of Jacobus Columbi, of whom Alvarottus (d 1453) said that he had glossed the Libri feudorum so elegantly, that after him no one dared to do so.194 Weimar on the other hand distinguishes between Accursius’ apparatus – in twenty of the many manuscripts195 – and the Glossa ordinaria, a revised version thereof. Additions of ca 1282 refer to a “liber Jacobi Columbi de Reg(g)io”. According to Weimar, this should be understood as a reference to a manuscript owned by Jacobus Columbi that contained the original version of the Accursian gloss, not as a reference to an apparatus, which could be plagiarised.196 For the same reason, the summa that the editor G B Palmerio attributed to Hugolinus is ascribed either to Jacobus Columbi or to Accursius.197 Odofredus’ Summa, of which parts were copied verbatim by Baldus, was printed in 1584 in Alcalá de Henares.198 Jean de Blanot wrote a famous commentary on J Inst 4.6 (de actionibus), a part of which was published separately as Tractatus de feudis et homagiis, which Guillaume Durand used in his Speculum iudiciale, IV.3, de feudis.199 Whether Jacques de Revigny wrote the Summa feudorum attributed to him has been questioned.200 Kees Bezemer recent ly proposed Jacobus Balduini as its author.201 A tractatus de feudis, ascribed to Pierre de Belleperche in the printed editions, was in fact written by Johannes Fasolus (1233-1286) who taught in Naples.202 The text of his work shows strong similarities with that of the Summa ascribed to Mar tinus Syllimanus (ca 1245-1306).203 Around 1300 194 Laspeyres, Entstehung (n 186) 363-375, 399. 195 Weimar, “Handschriften” (n 188) 75-81 distinguishes between two recensions: a gloss to the protovulgata recension, incorporating Pilius’ unfinished gloss, and adding his (Accursius’) own glosses up to LF 2.56. Subse quently Accursius enlarged his apparatus incorporating Pilius’ introduction and adding a gloss to LF 2.57. The Glossa ordinaria is a revision of the first recension, as it does not contain Accursius’ gloss to LF 2.57. 196 Cf Weimar, “Handschriften” (n 188) 84. At 76 n 87 Weimar explains that the glosses ad LF 2.54 with the siglum “co.”, are copied from a commentary to the Authenticum by Columbus, a contemporary of Azo, preserved in Munich BSB MS Clm 13018 (which ends with a constitution of Frederick I, which was later incorporated in the vulgata-recension of the LF). 197 Hugolinus [sic], Summa in BIMAE II 181-194. The summa is attributed to Jacobus Colombi by E Seckel, “Ueber neuere Editionen jurister Schriften aus dem Mittelalter I” (1900) 21 ZRG, RA 212 at 255-271; and attributed to Accursius by Weimar. 198 Odofredus Bononiensis, Summa in usus feudorum (1584). There has been no reprint. 199 In J Archer, “Notes sur le droit savant du moyen âge” (1906) 30 RHD 146. 200 Jacobus de Ravanis, Summa feudorum, ed C Pecorella, 2nd edn (1959). 201 C Bezemer, “Jacobus Balduini: Probably the Author of the Summa feudorum parmensis” (2006) 74 TvR 325. 202 Meijers, Études III 159; D Maffei, Giuristi medievali e falsificazioni editoriali del primo Cinquecento [= Ius Commune Sonderhefte X] (1979) 58-59. The Lyon, 1517 edition was reprinted in 1970. 203 The Summa is printed in TUJ X.1 1. Meijers doubted the authorship of Mar tinus Syllimanus: Meijers, Études III 178.
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Andreas de Iserna, a professor and advocate in Naples, whom later jurists describe as the champion of the feudal lawyers, completed his extensive Commentaria in usus feudorum (with a long introduction ending with a discourse on the authority of the Libri feudorum). Several sixteenth- and seventeenth-century printed editions exist of this work. Andreas’ collegue Jacobus de Belviso wrote a short lecture on the Libri feudorum.204 Bartolus and Baldus (who criticised the style of Andreas de Isernia) used it extensively for their commentaries on the Libri feudorum.205 On feudal-law problems the commentaries to the Libri feudorum are not the only works to be consulted. There are other loci classici to discuss feudal matters, for instance D 41.2.3.5 (Paul, Edict 54) and J Inst 4.6 (de actionibus).206 Some of the quaestiones and many of the commentators’ consilia concern feudal law. H. A STRATEGy FOR RESEARCH For the glossators and canonists there existed loci ordinarii (or leges solemnes) to discuss questions of law. In their glosses the medieval jurists referred to similar and contrary texts in the Corpus iuris civilis and Canonici, but as a whole these references turn out to be limited in number. Cross-referring shows a limited, more or less fixed number of texts. By reading all these references, one eventually returns to the same principal texts, the loci communes, the sedes materiae where a specific question of law is discussed. The loci communi turn out to be the same in the works of the glossa tors and commentators, though the emphasis may shift from one of these texts to another. For the canonists the sedes materiae shifted in the thirteenth century from the Decretum to the decretals. Once the modern reader is aware of the sedes materiae, he can relatively easily follow the development of the legal doc trine throughout the ages. The fact that there is a specific sedes materiae to be found for each legal pro blem does not, however, preclude the collision of doctrines. The casuistic texts allowed various interpretations. Questions such as whether transfer of 204 Printed in Lyon in 1511 along with his commentary to the Authenticum, it is now available in a reprint: Jacobi de Belviso Aurea lectura ... summam autenticorum consuetudinesque et usus feudorum elucidans in OIR XII. 205 The printed editions of Bartolus works include a lectura authenticorum (of which his authorship is put in doubt); those of Baldus include a lectura feudorum. On the latter, see C Danusso, Ricerche sulla Lectura feudorum di Baldo degli Ubaldi (1991). 206 On D 41.2.3.5, see Meijers, Études III 3, 261 (Johannes Bassianus); on J Inst 4.6, see Van SoestZuurdeeg, La lectura (n 104) 344-347 (Jacques de Revigny).
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ownership requires a causa, whether Roman law knows of a general remedy for unjust enrichment or whether canon law grants the third party a remedy when a contract is concluded in his favour remain questions for all times. In their glosses and commentaries the jurists discussed the various views expressed by their prede cessors and contemporaries. There is even a special type of literature devoted to the controversies among the glossators: dissensiones dominorum. Gustav Hänel publish ed three twelfth-century collections of issues on which the Four Doctors differed in their opinions.207 Two other collections date from the be ginning of the thir teenth century – one of which (completed shortly after 1216) is ascribed to Hugolinus.208 A seventeenthcentury pendant was published in Venice by Antonius Fachinaeus, Controversium iuris.209 Many of the dissensiones referred to a dissenting view by Martinus. He contradicted Bulgarus’ strict interpretation of Roman law, invoking natural equity as his main argument, for instance granting a claim in case of unjustified enrichment through an extensive interpretation of D 3.5.5.5 (a case of mala fide unauthorised management of another’s affairs). Of the next generation of glos sators, as the collections composed around 1200 show, some followed Martinus and others Bulgarus. This fact gives rise to the hypothesis that there were two “schools” among the glossators: one going back to Bulgarus, to whom Justinian’s codification in itself was sufficient to solve all legal problems, and another beginning with Martinus, who sought to harmonise Roman law with the principles of canon law.210 Indeed the collection ascribed to Hugolinus spoke of Martinus “et eius sequaces”. Azo and Accursius referred to “Gosiani”. What was meant is not certain: glossators who adopted Martinus’ interpretation of a specifi c text, or followers of Martinus, who adhered to his view in general? And who were they? Of the younger generation, Johannes Bassianus unreservedly sided with his teacher Bulgarus, his contemporaries Aldricus, 207 The two oldest collections date back to the times of the Four Doctors: an anonymous collection (Vetus collectio) and one ascribed to Rogerius in the sixteenth century (collectio Rogerii). The author of the third collection (collectio codicis Chisiani) also referred to glossators of the next generation, such as Pilius and Placentinus, but not to Azo. All three are edited by G Hänel, Dissensiones dominorum sive controversiae veterum iuris romani interpretum qui glossatores vocantur (1834; repr 1964). Of the collection attrib uted to Rogerius, several sixteenth-century printed editions exist and one by Haubold (1821). 208 V Scialoja (ed), “Di una nuova collezione delle dissensiones dominorum” (1888) 9 Studi e documenti di storia e di diritto 249; (1890) 11 Studi e documenti di storia e di diritto 417; (1891) 12 Studi e documenti di storia e di diritto 241, reprinted in V Scialoja, Studi giuridici (1934) II 327-413. The collection ascribed to Hugolinus is edited in Hänel, Dissensiones (n 207). 209 A Fachinaeus, Controversarium juris libri tredecim. In quibus omnes fere quaestiones praecipuae. Nunc primum in Italia excusi (1609). 210 See Cortese, Grandi linee (n 61) 262.
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Lothair, Albericus de porta Ravenate are referred to as “Martini sequaces”.211 As to whether Rogerius (d ca 1170) sided with Martinus, Gouron has recently explained that this is the case, where he used the summa Trecensis212 (and Lo codi)213 in his summa on the Code.214 Pilius and Placentinus often preferred Martinus’ interpretation of texts, but not always. The boundaries between the two “schools” were not very sharp. Consequently, the student who wants to study the medieval history of a certain doctrine should first establish the sedes materiae. Coing provides a useful introduction to the relevant Roman- and canon-law sources on each subject he dis cusses in his Europäisches Privatrecht (1500-1800).215 Fifteenth-century indices and repertories provide more detail. The indices to the ordinary gloss, Odofredus’ lecturae, and to the works of Durand, Bartolus and Bal dus have already been mentioned. A classical tool is the Repertorium iuris copiosum of Johannes Bertachi nus (1448-1497) on both Roman and canon law.216 Much older, but not always reliable is Albericus de Rosate (1290-1360), Dictionarium utriusque iuris.217 The second step is reading the ordinary gloss to the particular text. Reading the text implies solving the allegationes, which refer to similar or contrary texts, and reading the glosses to those texts too. If the glosses happen to contain references to earlier writers, one can almost be certain that a reconstruction of the genesis of the doctrine in the twelfth and early thirteenth centuries is possible. At the time Accursius wrote his gloss-apparatus to all parts of the Corpus iuris, Bartholo meus Brixiensis revised the glossa ordinaria to Gratian’s Decretum, and Ber nardus Parmensis composed a commentary to the new Liber Extra, which would become the ordinary gloss to this collection of decretals. It is usually helpful to compare the gloss with works of contemporaries: Odo fredus, Innocent IV and Hostiensis. The lectures of Odofredus, for 211 See Collectio Hugolini (n 208) no 53. 212 See text at C.(3) above. 213 This summa was composed in the Provence around 1260. The Latin translation is published by H Fitting (ed), Lo Codi in der lateinischen Übersetzung des Ricardus Pisanus: die provenzalische Fassung der Handschrift A (Sorbonne 632.) Vorarbeiten zu einer kritischen Textausgabe, (1906; repr 1974). The text is available via www.uni-tuebingen.de/kabatek/codi/index.html 214 A Gouron, “Lo Codi, Source de la somme au Code de Rogerius”, in Satura Feenstra (n 95) 309 repr in his Études (n 88). Whether Rogerius’ summa copies parts of Lo Codi or vice versa is not certain. 215 H Coing, Europäisches Privatrecht (1985) I: Älteres Gemeines Recht, 1500 bis 1800. 216 There are many similar repertories, for instance M Boldewan, Loci communes iuris civilis (1551); Gemellus, Sedes materiarum totius iuris utriusque (1598); A Barbosa, Loci communes iurisprudentiae (1737). 217 The Lyon, 1539 edition was reprinted in 1984.
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instance, cover all parts of the Digest and Code. Though the works of Odofredus never reached the authority of the Accursian gloss – its academic status became almost exclusive – a comparison of the two is fruitful, because he referred to earlier glossators far more than Accursius did. A third step is reading the sedes materiae in the commentaries of their pre decessors: Azo and Hugolinus, Johannes Teutonicus, Laurentius Hispanus and Tancred. Unfortunately, the printed editions of their works only cover parts of the Corpus iuris civilis and canonici: the lectures of Azo – of a later date than his famous summa Codicis – followed the order of the Code. Commentaries to the decretals of pope Innocent III – to the Compilatio III and to the canons of the Fourth Lateran Council – have been printed recently. Commentaries to earlier decretal collections are con tained only in manuscripts. Johannes’ gloss to the Decretum, completed in 1216/1217, was revised because of the promulgation of the Liber Extra, but gives many references to the early decretists. With regard to the glossators, the fourth step is verifying whether the sedes materiae appears in the dissensiones dominorum and in another book, not yet mentioned, the Casus Codicis of Guillelmus de Cabriano.218 Both take us back to the middle of the twelfth century, the days of the Four Doctors, and offer an insight into the jurisprudence of those days. The Casus Codicis are probably based on Bulgarus’ lectures on the Code.219 They show which texts were treated, thus giving an impression not only of what Bulgarus found most important or interesting for his students, but also of the opinion held in Bulgarus’ school and of his way of reasoning. Starting with the ordinary gloss to the Corpus iuris civilis and canonici, it is thus often possible to read legal history backwards. It should be noted, however, that the twelfth-century sources are often hidden in manuscripts and rare editions. A final caveat is necessary. In manuscripts some care was taken to indicate the original author of a gloss by placing a siglum after his gloss – such as “bul.” for Bul garus, “Mar.” for Martinus, and “az.” for Azo.220 The sigla, however, could easily be mis read or attributed wrongly,221 and, a gloss, after revision, 218 T Wallinga (ed), The Casus Codicis of Wilhelmus de Cabriano [= Studien zur Europäischen Rechts ge schichte CLXXXII] (2005). 219 T Wallinga, “Bulgarus, un des quattuor doctores”, in Les grand juristes [= Actes des journées inter nat ionales d’histoire du droit Aix-en-Provence, 22-25 mai 2003] (2006) 21. 220 W H Bryson, Dictionary of Sigla and Abbreviations to and in Law Books before 1607 [Virginia legal studies series] 2nd edn (1996). 221 In his edition of Irnerius’ glosses to the Digestum Vetus, Besta attributed the sigle Yr (of Henricus de Bayla) to Irnerius/Guarnerius (regularly: Y or G). Consequently he missed a lot of material. E Besta, L’opera d’Irnerio (1896; repr 1980) II “Glosse inedite d’Irnerio al Digestum Vetus”.
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may bear the reviser’s siglum instead of that of the original author; glosses may also have been copied without the author’s “siglum”.222 i. CONCLUSiON The editors of this volume were of the view that the cupida legum iuventus might feel the need for a short, updated guide through the foresta selvetica of the learned law of the Middle Ages. We now have reached the end of our tour through the wild woods. It only remains to conclude. The sum of it all is that medieval Roman law, like beauty itself, is a joy forever. We feel sympathy with Alexander the Great, who, according to Aulus Gellius (Attic Nights xx, 5) told Aristotle that he would rather be first in learning than in wealth and power. Had he lived in the twenty-first century he would without doubt have loved Roman law. From the other root of medieval scholarship, the Biblical tradition, we find an answer to the question why “Happy is the man that findeth wisdom and the man that getteth understanding. For the merchandise of it is better than the merchandise of silver, and the gain thereof than fine gold” (Proverbs 3, 13-14). We hope the reader will share with us the eternal beauty of the Roman and canon law of the Middle Ages. .
222 See Dolezalek, Repertorium (n 41) 460-524; G Dolezalek, “Libri magistrorum and the transmission of glosses in legal textbooks”, in V Colli (ed), Juristische Buchproduktion im Mittelalter (2002) 315.
2 The Infrastructure of the Early Ius Commune: The Formation of Regulae, or its Failure Kees Bezemer A. INTRODUCTION B. FROM CASUS TO REGULAE: THE CONCURRENCE OF ACTIONS C. FROM THE LEX AQUILIA TO THE CONTRACT OF SALE D. THREE DIFFERENT ARGUMENTS FOR A CASE OF TOLL COLLECTION E. LIMITS TO THE FREEDOM TO ARGUE F. THE IMPACT OF REVIGNY AND BELLEPERCHE IN FRANCE: JEAN FAURE G. ITALY DIVIDED: CINUS VS DINUS H. REGULAE AS CONCLUSION OF A COMMENTARY: JACOBUS BUTRIGARIUS I. CONCLUSION A. INTRODUCTION All interpretative activity necessarily begins with the explanation of words. This is what the medieval jurists first did when they started to explore the corpora of Roman and canon law. Next to this “literal” approach, they soon applied other exegetic methods, such as indicating texts containing identical (similia) or contrary (contraria) solutions to a legal problem or casus. These similia and contraria, originally listed in the margins of the manuscripts at a fixed distance from the main text, presented a challenge to inventive legal minds: was it possible to explain the discrepancies and reduce these to apparent contradictions? The method chosen for this end was usually the distinction (distinctio). Harmony was attained by a reduction of all the relevant texts to a “tree” of casus, of variable complexity, in which all the 57
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aspects of a specific subject matter were supposed to have found their place. An alternative method, also aimed at reduction of the texts pertaining to a specific matter, was to develop a regula or regulae. In this case the stress was less on the analytical process of explaining (apparent) differences, and more on achieving a synthesis that found a rule or rules that connected casus at a higher level. This way it was sometimes possible to create more order in areas of law that had not – or not sufficiently – been the object of this technique of generalisation. There was a title in the Digest on the point (D 50.17), consisting of 211 regulae iuris antiqui (rules of the old law, that is, the law of the so-called classical period). This title received a lot of attention from the glossators, and served both as an example and as an invitation to develop new regulae.1 It is the development of the latter that will be discussed in this contribution. To clarify, this chapter will discuss the designation with the word “regula” of rules not found described as such in the authoritative texts.2 Examples will be taken from different areas of private law. The emphasis will be on Roman law and its interpreters between 1200 and 1400. The year 1200 is chosen because around this date the academic jurists became aware of the need to integrate law other than the Roman into a “system”, which later was to become known as the ius commune. It should also be observed that in around 1300 canon law provided new impetus to the formation of new regulae through the promulgation of the Liber Sextus in 1298. This was a codification of canon law, and it contains eighty-eight regulae iuris at the end of its fifth and last book. Of course, only a few examples of the formation of regulae (or the failure to form regulae) in the period here examined can be given, and there can be no claim of being complete. The development of regulae was closely related to the emergence of separate subject matters (materiae), and it is important to pay particular attention to the role of technical legal citations. The way in which individual jurists dealt with this important, but rather neglected, aspect of medieval legal literature would seem to have had an effect on their readiness to accept the existence of a regula. Finally, a few words should be said about the situation that emerged after a new regula had been developed. This was not the end of the debate. The inductive process leading to the formation of a regula having been completed, a new phase was entered upon in which the exact scope of the regula had to be fixed. This happened by listing the casus where it did not apply. In other 1 See, in particular, P Stein, Regulae Iuris: From Juristic Rules to Legal Maxims (1966) 131-152. 2 Cf Stein, Regulae (n 1) 153 (“so-called doctrinal rules”).
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words, its ambit was defined by formulating the exceptions to its application. This (deductive) phase generally falls outside the reach of this contribution. It is important to be aware that this process meant that the texts that had been instrumental to the formation of the regula acquired a different status. From this moment on, they were seen in the light of the regula they had helped to create, and – in this context – lost their separate status as casus, continuing their existence in the shadow of the regula. B. FROM CASUS TO REGULAE: THE CONCURRENCE OF ACTIONS The first example illustrating the theme of this volume concerns an area that received its form between 1200 and 1400, and which shows how casus can produce regulae. The process can be described as the birth, youth and adulthood of a doctrine – in this case the doctrine of concurrence of actions. Tracing the development of ideas about this subject, I have been able to determine the moment when casus – I mean the cases to be found in the appropriate Roman law texts – have led to the formation of regulae, and when, in this case almost simultaneously, the subject matter has become a separate materia. I have even been able to pinpoint the place of birth of the doctrine. This provides a good starting-point; it is also an example of the use of a “search engine” of exceptional quality and rarity. The author who first named the doctrine of concurrence of actions was Azo (d after 1220). He was the first to speak of cumulatio (literally “accumulation”) in this context. I discovered this by consulting Dolezalek’s Repertorium at C 2.1.3 Edita actio, a text which at a later stage was to become the home base (sedes) of the subject. In Azo’s gloss on the words “decernit aequitas”, the word cumulatio is used to describe the situation of someone who starts a lawsuit about something that was already the object of legal proceedings.3 Dolezalek found this gloss in twenty manuscripts. In Azo’s (printed) Summa and Lectura the two instances when cumulatio is forbidden are mentioned, but the word cumulatio is missing.4 This shows the importance of the 3 See G Dolezalek, Repertorium manuscriptorum veterum Codicis Iustiniani (1985) 600 no 338: “Tunc dicitur mutari actio, cum quis vetere relicta aliam (i.e. actionem) intendit. Quod quando liceat, videamus. Et quidam ante litem contestatam potest, post litem contestatam non potest. Tunc enim non mutat, quia necesse habet in veteri querela persistere, ut ff. de iudic. De qua re [D 5.1.74] i. resp., et l. Non potest [D 5.1.23]. Non tamen diffiteor quin de alia vel de re eadem agere possit alio modo, etiam post litem contestatam. Set illa non erit mutatio, set cumulatio actionis” (italics added). 4 See Summa Azonis (1506; repr 1966) 20B (ad tit C 2.1), and Azonis ad singulas leges XII librorum Codicis (1577; repr 1966) fol 59r (nos 23-25, ad C 2.1.3).
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laborious research in the manuscripts. Azo says that concurrence of actions is prohibited in the following cases: first, if another action is blocked by the defence of res judicata (exceptio rei iudicatae); and secondly, if a choice has to be made between the available actions (elective concurrence). Accursius (d 1263) repeats the essentials of Azo’s view, as he often did, and more than once uses the word cumulatio, which marks the beginning of a success story.5 In this story the word regula appears for the first time in the work of Jacques de Revigny. He distinguishes three situations when concurrence of actions is not allowed, which he derives from a theory (ars) devised by the Accursian gloss.6 These situations correspond with the two cases mentioned by Azo. The third situation – actions contradicting each other – later became separately known as Dinus’ third regula (see below), but Revigny still attaches the word regula to the theory of Accursius as a whole, a theory which he considers to be most true, and which he defends against some doctors who wanted to phrase differently the first part about the exceptio rei iudicatae.7 The identification of this regula created another mind set. The texts, which formerly were separately mentioned as cases in which concurrence was forbidden, have now become the supporting texts of the regula, and connected to each 5 It concerns the gloss “Emendari” ad C 2.1.3 Edita actio. 6 See Revigny’s Lectura super Codice, published under the name of Pierre de Belleperche, repetitio ad C 2.1.3 Edita actio (1519; repr 1967) fol 50rb: “Sed supposito quod sit admittenda cumulatio, queritur qualiter sciemus ubi est admittenda, et ubi non. Glosa dat talem artem. Ubicumque actio primo intentata sic se habet ad cumulandam vel intentandam [i.e. actionem] quod lata sententia absolutoria in primo intentata non obstaret exceptio in cumulanda vel intentanda [i.e. actione], nec sunt ille due actiones sibi contrarie nec tolluntur invicem electione, tunc est admittenda cumulatio et alias non.” I have checked the three manuscript versions of this repetitio. For this passage they contain no variants worth mentioning. 7 Revigny ad C 2.1.3 (n 6) fol 50rb: “Supposito quod cumulatio sit admittenda, dico artem istam verissimam. Doctores quidam regulam cumulationis predictam volunt [ed: nolunt] dare sub aliis verbis sic. Ubi actiones sic se habent quod lata sententia in una obstat exceptio rei iud. in alia, non procedit cumulatio. Regula [ed: regule] sub istis verbis proposita sic [ed: si] intelligatur sicut dictum est quod ubi sunt due actiones sic se habentes [ed. habent] quod lata sententia in prima, obstaret exceptio rei iud. in secunda. Verum est quod non admitteretur cumulatio. Sed converte: prima actio sic se habet ad secundam quod lata sententia in secunda obstaret exceptio in prima. Numquid ipsa admitteretur cumulatio? Dico quod sic, quia prima [i.e. actio] non esset preiudicialis secunde, immo [ed: ideo] secunda prime. Unde dico quod sic debet dari regula: ubi sunt due actiones, et prima sic se habet ad secundam quod, si esset lata sententia absolutoria in prima obstaret exceptio rei iud. in secunda, non admittetur cumulatio per l. preall. ff. de excep. l. Fundum et l. Fundi [D 44.1.16 and D 44.1.18]” (italics added). The emendations are based on the manuscript versions of this passage. See fol 50vb: “Sed numquid econverso actioni [ed. actione] ex confessione prima intentate possit cumulari actio prima ex vendito? Dico quod secundum [ed: secunda] regulam cumulationis est quod ubi sententia absoluta lata in prima obstaret exceptio in secunda, non valet cumulatio quia prima est preiudicialis secunde , ut ff. de excep. l. Fundum et l. Fundi [D 44.1.16 and D 44.1.18]” (italics added). See also L J van Soest-Zuurdeeg, La lectura sur le titre De actionibus (Inst. 4,6) de Jacques de Révigny (1989) 190 (lines 125-128 and 140-143), 199 (lines 416-421), 341 (lines 162-177), and 342 (lines 193-197).
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other. It was a matter of time before someone formalised this aggregate of texts on a higher level. The man who took the step was Dinus de Mugello (d 1303?). With hindsight this step may seem obvious and unsurprising,8 but it was indeed a significant advance. In his treatise On the Rules of Law (De regulis iuris), on the title of that name in the Liber Sextus, Dinus discusses our subject matter at the twentieth rule: Nullus pluribus uti defensionibus prohibetur (“No one should be forbidden to use more than one defence”).9 Here, Dinus speaks of a materia cumulationis.10 He appears to be the first to do so. From then on the subject matter had achieved a status that made it fit for separate treatment in teaching and writing. After Dinus we see that the new status of what initially were a couple of casus now triggered questions about the regulae that previously had been posed about these casus. The question about the ratio legis, once asked about the single texts that constituted the basis of a rule, was now put on a different level: “what is the reason underlying this rule?”11 Another effect of the new situation was that some authors increased the number of rules in an attempt to reach an exhaustive treatment of the subject. Bartolus (1314-1357) did so. He arrived at a total of six rules.12 Closer exami 8 The influence exerted by Revigny on Dinus is still largely unexplored. Meijers states that both Dinus’ treatise De actionibus and his treatise De regulis iuris contain opinions of Revigny, usually anonymously. See Meijers, Études III 118-119 (and the “note des éditeurs” at n 419). 9 This treatise can be consulted on the internet on the website of the French National Library. See http://gallica.bnf.fr, Tractatus Dyni super regulis juris. There is one drawback: the edition, which is that of Paris, 1498, is not foliated. 10 Before he starts with his lengthy treatment of the subject matter Dinus makes the following remark: “Sed an per viam cumulationis proponere poterit plures actiones? Quidam non intelligentes cumulationis materiam dicunt simpliciter quod non, ut in predicto § Quotiens [D 50.17.43.1]; et ideo tractatus [ed: male contractus] de cumulatione communiter valeat et sit utilis apud canonistas sicut apud legistas, quia secundum canones debet exprimi res et causa, licet non actio. Numquid pendente primo iudicio licebit eandem rem ex alia causa petere vel licebit aliam rem petere ex eadem causa. Hec enim est cumulationis natura. Ad huius declarationem et intellectum querendum est an cumulatio sit admittenda, et in quibus casibus” (italics added). 11 See, e.g., Jacobus Butrigarius, Lectura super Codice ad C 2.1.3 (1516; repr 1973) fol 42vb: “Expedita materia mutationis modo venio ad cumulationem, [et quero que sint regule impedientes cumulationem (omitted in original owing to homoioteleuton)] et ponam exempla earum. Secundo que sint rationes illarum regularum. Tertio que regule cumulationem firment et defendant, distinguam ergo. Et primo quero que sint regule impedientes cumulationem? Respondeo sunt tres.” 12 Bartolus de Saxoferrato, Commentaria in primam Codicis partem ad C 2.1.3 Edita actio (1574) fol 39vb: “Dat [i.e. Dynus] tamen tres regulas in quibus cumulatio est prohibita, de quibus duas regulas hic [ed: haec] glosa ponit. Prima est … Secunda regula est … Addit Dynus tertiam regulam: quando sunt plures actiones contrarie, non admittitur cumulatio, ut l.i. infra de fur. [C 6.2.1], l. Eum qui & l. Contra maiores infra de inoffic. test. [C 3.28.14 and 16]. Dices tu: ista non est nova regula. Nam si sunt contrarie electione tolluntur, ut d. l.i. [fol 40ra] infra de fur. [C 6.2.1]. Respondeo etc … Iste sunt regule Dy. & gl. Ego addo alias tres regulas impedientes.”
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nation of the additional three reveals that they are merely refinements of the others. In this respect, therefore, I agree with Bartolus’ contemporary, the practician Albericus de Rosate (d 1360), who wrote that Dinus’ treatment is adequate for practice (in northern Italy), and that the rest belongs to the world of hallucinations.13 Bartolus’ pupil Baldus (1327-1400) maintained the three rules of Dinus, but in response to the refinements of Bartolus devised a new classification of the types of concurrence of actions.14 Surveying the development of the ideas about concurrence of actions from Azo to Baldus, we see above all the formation of a separate segment within the ius commune, with its own rules based on a limited number of texts. Future discussion was now to be centred around the rules, pushing the texts that had been at their origin into the background. We enter the world of the limitationes and extensiones of the rules, which requires a different analysis of the texts because their weight has been reduced in comparison with the rules that emerged from them. C. FROM THE LEX AQUILIA TO THE CONTRACT OF SALE Now I shall give some examples where a detailed analysis of the citations used has proved to be quite illuminating, although the development of a regula did not take place. These have been selected from Revigny’s lectura on the Code. This is partly because it is a source with which I am very familiar; but also, and more significantly, because studies of legal development in the middle ages have shown Revigny to be an author who introduced new arguments and texts to the discussion of issues that previously seemed to have been settled by the Accursian gloss.15 The examples concern the duty of disclosure: is a seller obliged to inform his buyer about certain defects of the object sold? Revigny developed a 13 See Albericus de Rosate, Commentarii in primam Codicis partem ad C 2.1.3 (1586; repr 1979) fol 73ra no 15 (i.m.): “de cumulatione antiqui et Moderni Doctores longas filaterias fecerunt, sed tandem vidi teneri quod plene notatur per dominum Dynum extra de reg. iur. cap. Nullus pluribus, libro vj. Et ibi etiam per Ioannem Andr. et de elect. cap. Ut quis duas [Sext 1.6.25], et per Azonem in summa de ordi. iudi. § i. Et licet cumulationis materia sit subtilis, raro tamen vidi contingere in practica, quia advocati nolentes intricare processus communiter procedunt in prima, demum in alia instantia proponunt quod cumulari posset.” 14 Cf. Baldus de Ubaldis, In primum, secundum, & tertium librum Codicis commentaria, repetitio ad C 2.1.3 Edita actio (1599; repr 2004) fol 95vb no 78: “Et licet Dom. Dyn. tractet hanc materiam in c. Nullus pluribus de reg. iu. lib. 6, alto et pulchro stylo: ego tamen istam breviter trado, dicens quod triplex est cumulatio, sc. permissa, non permissa, et mixta.” According to this edition, the repetitio was given at Padua in 1380 (fol 92rb). 15 See, e.g., T Repgen, Vertragstreue und Erfüllungszwang in der mittelalterlichen Rechtswissenschaft (1994) 137-148, and W Ernst, Die Einrede des nichterfüllten Vertrages (2000) 88-90.
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theory on the subject that reveals a way of arguing which is not immediately obvious without a thorough analysis of the citations. During a lecture Revigny said that he witnessed a dispute on the question “what is a patent defect?” He at once gave a detailed answer, in which two things stand out: first, the importance of the social position of the contracting parties; and secondly, the knowledge of each party about the defect. Revigny first discusses a cloth merchant. If he sells cloth to a simple student, the information he should give to the buyer is different from when he sells to a professional buyer of cloth. And, Revigny adds: “I also consider how the buyer has touched and inspected the object bought.” To illustrate this he tells a story from his own experience: Once I saw that someone had bought a bird with a wound under its wing. The buyer said to the seller: “My friend, you have deceived me, you knew it had this wound under its wing.” Says the seller: “Yet I am not liable to you, because the defect was patent.” I [i.e. Revigny] say that a seller who knows of the defect is liable. Therefore in case of a sale I consider how the buyer has inspected the bird, whether he has looked under its wing. And if the seller has seen that the buyer did not inspect the bird under its wing, it should be clear to him that the buyer was ignorant of the defect. If, in addition, the buyer has not spoken of a defect, it is clear he was in error. Therefore the seller is liable: he was obliged to inform him from the moment he was aware of the defect.16
This story was not only a means to keep the attention of his audience. The detailed description of what happened was necessary to show that the seller in this case had acted deceitfully, whereas the buyer was only negligent in his inspection of the bird. These facts resulted in the application of the “rule” that the dolus of the seller outweighed the culpa of the buyer. As 16 Revigny, Lectura super Codice ad C 4.58.1 Si non simpliciter (n 6) fol 206vb: “Sequitur videre ex parte emptoris. Emptor pro vitio quod scivit non aget, nisi fuerit stipulatus. Si autem ignoravit vitium, agit nisi fuerit error supinus, ut ff. de contrahenda emptione l. Si ea que [D 18.1.43]. Dico quod si venditor scivit vitium et emptor ignoravit quantumcunque supine, venditor tenetur ei ex quo sciebat; alias scire debebat emptorem hoc ignorare. Unde ex quo patitur eum errare, tenetur si instruxit eum, quia in dolo est venditor. Dolus autem preponderat culpe quantecumque, ut ff. ad leg. aquil. Idem si obstetrix in fine [D 9.2.9.4] et ff. de actio. emptio. l. Ex empto § Si quis virginem [D 19.1.11.5]. Sic ergo si vitium sit patens, [fol 207ra] non tenetur venditor. Ego vidi dubitari quid diceretur vitium patens. Dico quod ego considero conditionem contrahentium; unde dico quod venditor pannorum alio modo debet certiorare scolarem simplicem, alio modo debet certiorare illum qui expertus est in emptione pannorum. Et etiam considero modum tangendi et videndi rem que emitur. Ego vidi semel quod quidam emerat avem habentem sub ala plagam. Dicebat emptor venditori: ‘Amice, tu me decepisti; tu sciebas eam habere plagam sub ala.’ Dicit ille: ‘Immo ego non teneor vobis, quia vitium erat patens.’ Dico quod venditor sciens tenetur. Unde in venditione ego considero quomodo inspexerit, utrum viderit eam sub ala. Unde si venditor vidit quod emptor non inspiciebat avem sub ala, debuit scire eum ignorare vitium. Unde si non dixerit vitium, patens fuit eum errare. Unde tenetur: debuit enim eum certiorare ex quo sciebat vitium.”
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a consequence the seller had to inform the buyer about the wound. This seems fair enough. But it is important to look at the texts cited. The first is the famous text about the javelin throwers from the Digest’s title on the lex Aquilia (D 9.2.9.4). Revigny probably had in mind the last sentence about a slave who carelessly crossed a field where people were exercising at the javelin, and someone deliberately aimed at the slave and killed him. In that case the dolus of the javelin thrower outweighed the negligence of the slave, making the javelin thrower liable to the owner of the slave. It is important to notice that this text is about the law of delict, not about the contract of sale. Revigny could transplant it because the boundaries between these areas of law had not yet attained the impermeability of later times. The second text cited (D 19.1.11.5), about a seller who knowingly allows the buyer to err about a defect of the object sold (a woman slave is not a virgin as the buyer thinks) is indeed a good example of dolus on the side of a seller.17 This freedom to cite texts from apparently any part of the legal corpus is typical of Revigny. But not all authors felt as free as he did. I shall return to this issue below (see section E.). The preceding cases should be compared to a similar case about wine sellers who sold wine to students in Orleans. Not every seller told his customers that the wine had to be drunk before Christmas. At the time, methods for the preservation of wine were still primitive. A seller had to inform the students about the nature of the wine, Revigny says.18 In this case, there was no need for subtle ways of reasoning. There is a text (D 18.6.16(15)) which says that a wine seller is obliged to warn his buyer that after a specific date the quality of the wine will deteriorate. If he does not, it is considered to be dolus. There is no mention of culpa on the side of the buyer, but we would place this case also under the heading “duty of disclosure”. Revigny does not make a connection with the other case. Anyhow, his way of arguing in that case did not make a connection easy. “Duty of disclosure” had not yet developed into a distinct subject matter (materia) with its own rules.
17 Revigny will have cited it for the passage “et sciens errare eum venditor passus sit”. 18 Revigny, Lectura super Codice ad C 4.48.3 Dolum auctoris (n 6) fol 203ra: “Isti rustici vendunt quotidie vina scholaribus; isti rustici bene sciunt naturam vini quod non potest servari ultra natale, et si servetur ultra natale non valet aquam. Scholaris tale vinum emit a rustico bona fide. Rusticus tacuit naturam vini. Scholaris servavit vinum suum, deinde invenitur penitus inutile. Iste dolus rustici non nocet scolari, rusticus enim debuit ei dicere naturam vini, ut ff. e. Si vina que [D 18.6.16].”
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D. THREE DIFFERENT ARGUMENTS FOR A CASE OF TOLL COLLECTION The next example has been selected to show that in the art of arguing, not only (modern) boundaries in the domain of private law were ignored, but also those between private and public law. It is another example drawn from the colourful cases mentioned in the commentaries of Jacques de Revigny. The abbot of a French monastery was staying in England.19 He charged his prior to dispatch some wine to him for his personal use. While the wine was already at sea, the abbot apparently found another way to cater for his needs, so he saw the opportunity of making a good sale in England (in another commentary Revigny introduces a wine seller who says that in England wine is very expensive, “as there is nothing but beer”).20 The messenger, who found out that the wine was already at sea, said it was to be sold. Having heard this, the French tax collector said: “You will have to pay the tolls, as it is no longer carried to your abbot.” The messenger responded: Initially we intended the wine to be shipped for the personal use of the abbot, yet because of a supervening event we are forced to sell it, to prevent any harm being done. So we are not obliged to pay the tolls.
Revigny sets out three arguments. The first is taken from the lex Caesar (D 39.4.15), a text from the title on tax collectors, duties and confiscations, which he had seen cited. This states that a ship loaded with stones had left Crete 19 See his commentary on D 39.4.16 Interdum in Paris BN MS lat 14350 fol 53vb: “Legem istam Cesar [D 39.4.15] vidi allegare [allegari?]. Lex dicit quod de rebus quas ducit quis ad usum suum, non solvit pedagium, C. e. l. Universi [C 4.61.5]. Abbas qui erat in anglia mandavit priori qui erat in francia mittere sibi vinum, et sic ad usum suum vehebatur. Deinde, cum vina in mari essent, vina illa emerunt . Habuerat vina, unde expediebat sibi quod vina illa venderentur. Nuncius invenit vinum in mari et dixit: ‘Vendamus illa vina.’ Dicit exactor pedagiorum: ‘Solvatis pedagia, ex quo non portatis ad illum abbatem.’ Dicit nuncius ideo illius: ‘Propositi sumus ab inicio ut ad usum abbatis duceremus ista vina, set ex supervenienti causa propter necessitatem dampni vitandi oportet quod nos vendamus ea; unde non tenemur ad pedagium.’ Argumentum est lex illa Cesar quia ab inicio ceperunt navigare pro causa questus, scilicet propter usum abbatis. Ex facto tamen mutaverunt consilium propter necessitatem dampni vitandi. Est ergo inspiciendum propositum quod ab inicio habuerunt, non propositum quod post habuerunt, quia hoc fecit necessitas dampni vitandi, sicut in lege illa Cesar spectandum est inicium; et sic fuit iudicatum per legem aliam que non multum facit C. de coll. do. l. Si filia fuerit [D 37.7.3]. Lex videtur dicere oppositum. Quidam habebat concubinam. Causa illius paraverat vestes. Habuit servam. Tradidit ei vestes prioris. Deinde dicit de secunda: ‘Concubine mee lego vestes paratas causa eius.’ Numquid habebit vestes prioris concubine? Videtur quod non, quia non fuerunt parate ad usum suum, set ad usum prime. Dicitur quod ymo non inspicietur inicium. Sic(ut) videtur, licet essent parata vina ad usum abbatis, quod non spectetur illud inicium, set illud quod postea venalia sunt, supra de l. iii. l. Qui concubinam [D 32.1.29].” 20 The remark about the price of wine in England can be found in his repetitio on D 12.1.22 Vinum. See K Bezemer, What Jacques Saw. Thirteenth-Century France through the Eyes of Jacques de Revigny, Professor of Roman Law at Orleans (1997) 121 and 125.
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before the coming into force of a decree of Caesar restricting such transports to leaseholders. It was then driven back to the island by the wind, before later setting out once more after the decree had come into force. The text rules that the time of the first departure was the material one and the decree did not apply to its cargo. This text could be analogously applied to the case of the abbot: in both cases the original intention decided the matter. “And so it was judged,” states Revigny, “by another text which has little force.” The other text is D 37.7.3 Si filia fuerit, which deals with collation of dowry. It is impossible to find a satisfactory explanation of the argument contained in this text, though any suggestions would be welcome. That Revigny, never hesitant about daring analogies, considered the text to be of little value to our problem indicates that it will not be easy to find the reasoning underlying it.21 Yet, Revigny would not be Revigny if he did not have another text up his sleeve, and in this case he provides an argument against the wine-loving abbot taken from a text on the law of legacies. It is the lex Qui concubinam (D 32.1.29). This deals with the position when a testator, who had once had a concubine for whom he had ordered clothes to be made, had afterwards given these clothes to her successor, and then wrote in his last will: “To my concubine I bequeath the clothes made for her.” The text states that the clothes had to remain with the second concubine, because what was important was the intention of the testator, not the original destination of the clothes. Transposed to the case of the abbot, this means that what was relevant was the eventual destination (sale) of the wine, not its original destination (personal use of the abbot). It is an argument. Most of us nowadays would probably not accept that a text from the law of legacies could be used to solve a fiscal problem. To Revigny and some of his contemporaries it was a sound argument by analogy, although it takes some time to work out how. It is obvious that this free way of reasoning is not very apt to produce internally coherent doctrines, let alone regulae based on Roman law texts. Revigny must have realised this. E. LIMITS TO THE FREEDOM TO ARGUE Revigny’s very free way with the texts soon provoked criticism and inevitable reaction. It started with his younger colleague Pierre de Belleperche (d 1308), who more than once complained about the liberties Revigny permitted himself in handling the texts. 21 It is interesting to consider whether the abbot’s case was a real case, or simply a hypothetical object of an academic dispute? I am inclined to say it was a real case because certain terms typical of Revigny when he describes academic disputes (“questio”, “disputari”) are not present.
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A good example is what Belleperche said about one of the many cases in which Revigny dealt with the custom of retrait lignager, the right of the kin of a seller of family property to retrieve the property in exchange for payment of the price and any expenses incurred. It was during an academic dispute that the following problem was posed. A usurer buys a family property for 100 pounds. At the same time he lends 1,000 pounds to the seller. One of the latter’s kin offers 100 pounds to the usurer in order to get the property back. The usurer replies that the money lent has to be returned too. Some argued that the loan was connected to the sale by means of a pactum adiectum, and as such was a part of the price. They based this argument on the lex Fundi (D 18.1.79), which states that, if someone sells a piece of land on the condition that half of it should be leased to him for a period of ten years, he can use the actio venditi to enforce the contract of lease, at least if the land was sold at a lower price to make the condition acceptable. Revigny, however, used this text to prove that, in retrait lignager, it was necessary simply to offer the interest on such a linked loan, as it was only the advantage (utilitas) to be derived from the loan of money that was to be considered part of the price. It is quite clear that in practice, the custom of retrait lignager would become impossible to exercise if the other view prevailed. It is probable that the development of Revigny’s argument was influenced by the desire to defend this custom, which he considered reasonable.22 He could not detach the loan from the sale; but in this way he was able to reduce its impact on the amount of money to be returned to the buyer by the kinsfolk of the seller. Belleperche was deaf to arguments of this nature. In his commentary on another text put forward by Revigny (D 45.1.68), he mentioned the question and Revigny’s answer to it.23 He began by stating, “I do not know what he wants to say”, and he concluded that the account of Revigny’s lecture must have been deficient, which, of course, is not the case. Then he gave further examples to demonstrate that Revigny’s view was incorrect. His deafness to the background to that view is epitomised in the comment: “You will see questions like these disputed by professors. They are not problematic, their solution lies in the texts (‘casus sunt legis’).” In other words, these questions had no value for an academic dispute as they can be answered without any 22 Compare his argument against buyers who tried to frustrate the custom by making unnecessary expenditure on the estates they had bought. See Bezemer, Jacques (n 20) 7 and 12. 23 See K Bezemer, “Ne res exeat de genere, or how a French custom was introduced into the ius commune” (2000) 11 Rivista internazionale di diritto comune 67 at 79-80 and n 29, where the entire passage is reproduced.
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debate. Belleperche refused to see that Revigny had intentions beyond simply applying Roman law texts blindly to cases for which a solution was at hand in customary law. In the long run Revigny triumphed, not because of his subtle way of arguing, but because of the number of places where he discussed retrait lignager. The sheer quantity made it possible for later French authors to develop it into a separate subject matter, with rules based not on Roman law texts but on customary law. The clash between their views became apparent when Belleperche was still a baccalarius. Revigny presided over an academic dispute for which he had invented the following question. A debtor dies before paying his debt, leaving behind two heirs. One of the heirs wants to pay his part of the (divisible) debt. Is the creditor obliged to accept? According to Roman law, the solution would seem too simple to be worthy of a dispute. Revigny defended the opposite by saying that the original debtor would not have been able to settle his debt by instalments, and that the position of the creditor should not deteriorate because of the emergence of more than one heir. Belleperche, probably dreaming of an easy victory over the formidable debater Revigny, protested and put forward the Roman law solution. Unfortunately for him, Revigny had rallied some supporters, because an important man, probably one of his former pupils, addressed Belleperche in a rather patronising manner, and explained that some debtors have to pay their debt in its entirety and others not. It was the end of the debate. Belleperche’s attempt to corner Revigny had failed. A couple of years later, when Belleperche had his own school, he said to his students: “At the time, I wished to have paid a penny to have had this text at my disposal.” He was indicating how little value he attached to the text(s) adduced by the important man, and indirectly by Revigny.24 Since I do not believe that Revigny allowed the use of arguments that had no significance for the question asked, there must be some connection. In this case, it again seems that a rule of customary law was at the base of the argument. In France the liability of heirs for debts was linked to the possession (saisine) of the moveables of an inheritance. Only the heir who possessed these had to pay the debts, and he had to pay them in their entirety, not according to his proportion of the estate. The text of the important man (C 2.18.3) concerns an heir who was forced to pay the complete debt for which a charge had been given. This is the sum total of the similarity. Belleperche 24 For the commentary of Belleperche containing the story of the dispute, see K Bezemer, Pierre de Belleperche. Portrait of a Legal Puritan (2005) 40 note 61. The other text cited by the important man was D 10.2.25.12, and not D 10.2.25.16, as mentioned by mistake.
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had little patience with arguments of this nature. He wanted more substantial analogies; but his was an approach that left little room for local law, unless it was very similar to Roman law. Because Belleperche wanted texts of Roman law to have a substantial and not just a formal connection to a problem posed, he consequently wanted to restrict freedom of argument, pulling up the bridges, so to speak, between certain areas of law. A good example is provided by what he says about an opinion of his contemporary Jacques de Boulogne (1248-1301), a colleague for about five years. In a discussion on the way a (royal) decree (rescriptum) should be formulated if it could affect existing rights or obligations, Boulogne had used a text about legacies (D 32.1.22) as an argument. Although the analogy between a prince granting a privilege and a testator making a legacy is not far-fetched, Belleperche points out an important difference: It is not good to argue from last wills to privileges, because the things a sovereign does are for the benefit of his subjects, whereas a testator acts in his own interests and his soul’s.
In this case it meant that the king of France was not obliged to declare expressly that he wanted any other rights or obligations to be abolished.25 In another case it was again Revigny who had to be chided for taking too many liberties in his way of arguing. The pope had ordered a bishop to provide a cleric with a benefice on the recommendation of the abbot of Saint-Euverte, a monastery in Orleans. The abbot had died before any recommendation had been made. Could the bishop still make a valid provision? Revigny used texts from the law of contract, because he regarded the recommendation as a kind of agreement. Belleperche rejected the argument, certainly because of its too “horizontal” nature. A papal order does not depend primarily on somebody’s recommendation.26 There are more restrictions of this type. Some texts in the corpus iuris permit argument from contracts to last wills, and vice versa. As a legalist, Belleperche could not contradict this. Yet even in this context he stated that arguing from last wills to contracts is not allowed if, at issue, are aspects of
25 For the preceding question, see Bezemer, Portrait (n 24) 19-21 and n 50. It is important to note that Belleperche approved of Revigny’s opinion: the latter argued with a text about the decree of a prince (D 27.1.12.1). 26 The case is described in K Bezemer, “The Law School of Orleans as School of Public Administration” (1998) 66 TvR 247 at 268-269. Additional material in K Bezemer, “Pierre de Belleperche: An Early Attempt to Make Public Law a Separate Branch of Legal Science?”, in J Krynen and M Stolleis (eds), Science politique et droit public dans les facultés de droit européennes (XIIIe-XVIIIe siècle) (2008) 41 at 45 and n 15.
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last wills that go beyond the essential elements of a contract.27 Here again Belleperche is found acting as the guardian of an art of arguing founded on substantial (Roman law) elements, not on free analogies. Belleperche’s view became dominant in the sixteenth century, which is beyond the scope of this chapter. This stress on the essential elements sometimes led to unintended effects of another nature. In many parts of France, especially in the north, a wooden house was considered to be a moveable. Revigny mentioned this layman’s opinion, although he did not accept it.28 Belleperche entirely ignored this aspect and instead asked about the nature of the possessorium of a wooden house, the right to protect one’s possession (saisine). To determine its nature, he used a text about the things that belong to a house, even should they not be physically connected to it (D 19.1.17), and are therefore considered immoveable. As possessorium is not mentioned in this text, Belleperche concluded, by means of an argument a contrario, that the possessorium is a moveable “because the soil does not belong to the essence (esse) of the possessorium”.29 This scholastic manoeuvre resulted in a solution that French laymen would also have understood, as they saw the rights connected with wooden houses also as moveables. F. THE IMPACT OF REVIGNY AND BELLEPERCHE IN FRANCE: JEAN FAURE It has been necessary to devote so much attention to demonstrating the differences between Revigny and Belleperche because each of them exerted 27 See Bezemer, Portrait (n 24) 156 and n 4. 28 As usual his argument is very much based on common sense. A wooden house cannot be removed without dismantling it. Therefore it has to be seen as an immoveable. See Revigny’s commentary on D 41.1.60 in Paris BN MS lat 14350 fol 75rb: “Ego vidi rusticos quosdam qui dicebant quod domus lignea esset mobilis, nam, dicunt ipsi, domus potest separari et ferri alio loco. Ego dico est immobilis et inseparabilis, nam illud inseparabile est quod [MS qui] non potest removeri in statu in quo est. Unde domus lignea potest removeri: hoc est verum si dissolvatur. Sed certe in statu in quo est non potest removeri. Unde videamus lignea est res immobilis, et est casus legis, infra de vi et vi ar. l. Si plane si quis [D 43.16.1.8].” 29 Petrus de Bellapertica, Commentaria in Digestum novum ad D 43.16.1.8 Si quis (1571; repr 1968) 27: “Dixi possessorium est res mobilis, et est casus legis (casus est), supra de action. empt. l. Fundi nichil aliud est, in principio [D 19.1.17pr]. § iste videtur contra me. Dicit quod domus ligneae, quia solo affixae sunt, immobiles sunt, ideo etc. Non facio vim domino [de eo?], non est simile de domibus, quia aedes sunt res immobiles, quin ipsum solum, cui aedes inhaerent, faciunt unum totum, ut supra de usuc. l. Eum qui [D 41.3.23]; et ideo, quin ad essentiam aedium solum est necessarium, ideo etc. Sed possessorium, licet affixum sit solo, non est res immobilis, quia solum non est de esse possessorii, quia possessorium mobile remanet. Sic intelligo l. alle. Fundi [D 19.1.17], et dixi loco suo.”
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considerable influence on what was to follow in Italy. Revigny must have influenced Dinus de Mugello in respect of the formation of regulae. Belleperche certainly inspired Cinus de Pistoia to use another method for the development of doctrines, by which I mean his reliance on distinctions (distinctiones). Before turning to the Italian sequel, a few words should be devoted to the influential French author Jean Faure (d 1340). He was well informed about the ideas of Revigny and Belleperche, and also about legal practice, secular and ecclesiastical, from his days in the south of France. This can easily be illustrated by a remark of his about the concurrence of actions: These days this problem will hardly ever occur in practice, because canon law does not require that the name of the action is expressed, and neither does the custom of secular courts.30
By this Faure meant that many of the theoretical problems about concurrence of actions had no counterpart in legal practice. Equally interesting is what Faure wrote about the nature of regulae. A couple of passages selected from his commentary on the Institutes reveal that Faure was very much aware of the power (potestas) and the limitations of legal rules. He clearly stood in the tradition of Dinus whom he mentioned on various occasions. He realised that regulae are, in essence, based on casus. In a discussion on actiones noxales, for example, he concluded: About this (subject matter) a firm rule can hardly be given, but it can be said that on average there are no noxal actions on the basis of contracts or quasi-contracts.31
In this case this was simply because the few texts concerned were too different and specific to be generalised into a rule. When there was an established rule, Faure was anxious to separate it from texts that did not fall within its scope. His discussion of penal actions provides a good example. The text (J Inst 4.12.1) says that if the litis contestatio has been achieved, and the offender 30 Joannes Faber, In quatuor Institutionum Libros Commentarii (1582) fol 159rb: “Sed haec quaestio vix potest cadere in facto hodie, cum nomen actionis non exprimatur de iure canonico, ut extra de iud. c. Dilecto [X 2.1.6], nec de consuetudine curiae laicalis.” 31 Faber ad J Inst 4.8 (n 30) fol 165ra: “Quomodo ergo intelligemus hanc materiam? Super hoc vix potest dari certa regula, tamen potest dici quod regulariter ex contractibus, vel quasi contractibus non agitur noxaliter, ut patet ff. de actio. & obli. l. Ex contractibus [D 44.7.49], de nego. gest. l. Si filius [D 3.5.13] & d. l. Si oleum § penul. [D 4.3.9.4a], ff. de minoribus l. Quod si minor § i. [D 4.4.24.1], & hoc verum pro dolo commisso in contractu, vel extra contractum. Sed interdum agitur noxali actione ex contractu, pro delicto commisso extra contractum quando virtus actionis potest se ad hoc extendere, ut patet ff. de pig. act. l. Si sevus [D 13.7.31], man. l. Inter causas § Sed cum servus [D 17.1.26.7], de fur. l. Si servus communis § i. cum seq. [D 47.2.62.1-2]. Pro delicto vero per servum commisso agitur noxaliter etc.”
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dies, the proceedings will be continued, also against his heir or heirs. The Accursian gloss mentions some texts to underpin this rule. Faure commented: These casus have nothing to do with the regula which is given here, and which is about penal actions resulting from a wrongdoing. The actions mentioned in these casus are different, so the exceptions given here (by Accursius) are useless.32
Because Faure had a thorough knowledge of the Orleans jurists Revigny and Belleperche, it is interesting to see if and how he responded to the liberties Revigny allowed himself both in his method of teaching and in his way of arguing. Faure’s view on Revigny’s way of teaching has more or less become a classic among legal historians. I quote: Professor Jacques de Revigny continues in this place and adds the subject of the summons (libelli), that usually is treated at another text. I will omit it here, as it is not the proper subject (to discuss here).33
Faure ascribes Revigny’s behaviour to a need for ostentation. And, what did Faure make of the less visible subtleties in Revigny’s technical citations? Had he seen them? Did he side with Belleperche in his fight against the abusive use of texts? If I have not yet found a telling example to demonstrate Faure’s views on these issues, it is nonetheless possible to point to an indication of his opinion. There are many passages where Faure discussed the custom of retrait lignager; few show any inspiration from the discussions of Revigny, who had put so much of his ingenuity into the subject.34 G. ITALY DIVIDED: CINUS VS DINUS About the same period, matters took a different turn in Italy. Dinus’ pupil Cinus de Pistoia (1270-1336/7) did not share his master’s interest in regulae, old or new (i.e. those still to be discovered). This may have been caused by Cinus’ initial aversion to the canon law branch of legal studies and practice. This was an attitude he had in common with Belleperche, and it is a plausible inference that it may have encouraged him to keep away from the regulae 32 Faber ad J Inst 4.12.1 in medio (n 30) fol 173ra: “Hi casus nil faciunt ad regulam quae hic traditur, quae loquitur in actionibus poenalibus quae descendunt ex maleficio; et patet quod actiones quae competunt in illis casibus non sunt huiusmodi, & ideo frustra fuerunt hic fallentiae positae. Redeamus ad materiam huius § quaerendo ultra glosam aliqua quae faciunt ad intellectum § etc.” 33 Faber ad J Inst 4.6 pr. (n 30) fol 115va: “Haec sufficiunt pro lectura huius paragraphi. Sed dominus Iaco. de Ra. altius exorditur, et cumulat hic materiam libellorum, quae consuevit tractari in authent. Offeratur [aut. C 3.9.1]. Ego vero hic omitto quia non est propria materia et si de hoc videre vis: vide in Spec. de libel. concept.; ibi reperies satis.” 34 See K Bezemer, “Ne res exeat de genere” (n 23) 107-109.
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iuris of the Liber Sextus, and whatever else concerned the formation of (new) rules. However this may be, Cinus did not continue Dinus’ search for regulae, whether in canon or Roman law. Kriechbaum has noted this aspect of Cinus’ work, and, in this connection, has pointed to Cinus’ interest in distinctiones, which is certainly due to the influence of Belleperche.35 Comparison of the treatises by Dinus and Cinus on intestate succession provides a striking example of this. Dinus’ treatise ends with some regularia and casus about the innovations brought by the Code and the Novels. He mentions five regulae, sometimes with their exceptions.36 Cinus’ treatise (if the attribution is correct) ends with casus breves about descendant, ascendant, and collateral heirs. Only in the last case is the word regula mentioned.37 This might be viewed as a relapse into former practice, but it seems much more likely to be a statement aimed against unwarranted generalisations without textual support. Cinus’ pupil Bartolus de Saxoferrato (1313-1357) is supposed to have followed his master in this respect. There is, however, at least one exception to be mentioned. In his discussion of the subject of concurrence of 35 Cf M Kriechbaum in Lange, RRM II 294-295 (without the connection to Belleperche). 36 I quote from the collection of treatises available on the website of the French National Library. See http://gallica.bnf.fr. Tractatus illustrium in utraque, Tomus VIII, Pars I (1584) fol 319rb no 24: “Postremo videtur quod quaedam innovata sunt, & quaedam irregularia in successione ab intestato. Nota primo quaedam regularia, & casus, per quae sunt innovata ab intestato C. com. de success. l. Vitrico et l. Affinitas [C 6.59.3 and 7]. Dicuntur autem affines omnes illi qui per uxorem mihi contingunt, ff. de grad. l. Non facile § Affines [D 38.10.4.3 in medio]. […] Item et alio casu: si uxor decedat relictis filiis emancipatis, vel nepotibus, pater una cum eis habet utilem usumfructum, C. de bo. mat. l. 3 [C 6.60.3.1]. Item est & alia regula quod servus non potest esse successor, ut l. Servus C. comm. de succes. [C. 6.59.4]. Fallit [i.e. regula] cum mora est facta in libertate praestanda, C. ad Orfi. l. fi. [C 6.57.6], de his quib. ut indig. l. fi. [C 6.35.12]. Item fallit cum decessit apud hostes, C. de suis et legiti. l. Apud hostes [C 6.55.8]. Item est alia regula: donec potest habere locum successio ex testamento, cessat ab intestato, ff. de acqui. haer. l. Quandiu [D 29.2.3], C. comm. de success. l. Antequam [C 6.59.8]. Fallit ista regula si sic dicit testator: “Te haeredem instituo, si legitimus noluerit”, ff. de haere. insti. l. Si ita quis haeredem instituat [D 28.5.83]. Item est alia regula: qui proximior est in gradu, proximior & potior est in successione … Item est regula quod nullus hospes potest etiam ab intestato succedere alumno sive vitrico, sive hospiti … Ultimo restat quae sunt per ius novissimum [i.e. the Novels] immutata etc.” 37 The treatise attributed to Cinus can be found in the collection mentioned in the preceding note. It follows Dinus’ treatise. For the doubts about its attribution, see M Kriechbaum, in Lange, RRM II 657-658. The passage mentioned in the text is on fol 321vb: “Casus breves Trium partium tractatus successionum Cyni. De descendentibus. Si sunt descendentes, cunctis aliis praeferuntur, etiam si gradu sint remotiores. Et succedunt primi gradus aequaliter, ulteriores vero in stirpes cum eis qui primi sunt gradus. Ulteriores autem cum ulterioribus, sive aequalis sive inaequalis gradus sint. Sive paris sive disparis numeri, succedunt pariter in stirpes in infinitum. Hic deservit Authen. in successione [authentica after C 6.55.12]. De ascendentibus. … De collateralibus … Tertio haec regula obtinet ut qui prior est gradu, potior sit, remotiores excludens … Hic deserviunt authenticae Itaque [authentica after C 6.59.11], Cessante [authentica after C 6.58.3], Post fratres [authentica after C 6.58.3], in hoc ordine aptissimo.”
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actions, Bartolus pays tribute to both Dinus and Cinus. Dinus’ three rules are extended with three more rules.38 Cinus’ four genera cumulationis are enriched with a fifth (same reason, same case, against different persons).39 Thus, with Bartolus, both approaches have found their place. H. REGULAE AS CONCLUSION OF A COMMENTARY: JACOBUS BUTRIGARIUS At the same time, Jacobus Butrigarius (d 1348), one of Bartolus’ teachers, was another Italian under the influence of the Ultramontani, but in a different way from Dinus and Cinus. His work showed that regulae were considered so important that they deserved a special place in lectures and commentaries. Butrigarius’ commentary (repetitio?) on the lex Precibus (C 6.26.8) provides an example of the way regulae can find expression in the structure of a commentary or lecture. After a discussion of “vulgar” substitution, he wrote: Having discussed the contrary texts and the questions, I come to its regulae. The first is that a “vulgar” substitution is expressed by negative words (“if x is not my heir, it will be y”).40
From this rule he inferred three consequences. What we see here is that once a rule had been established, a new (deductive) phase was entered, in which its scope, its exceptions, and its limitations had to be fixed. I. CONCLUSION The examples in the preceding sections are intended to show, first, how, in the course of the thirteenth and fourteenth centuries, regulae were developed for certain legal subject matters, and secondly, why, for others, this development did not happen. One should not forget that, even if an author 38 See above, section B. and note 12. 39 See Bartolus de Saxoferrato, Commentaria in primam Codicis partem ad C 2.1.3 Edita actio (1574) fol 40rb no 22: “Quintum genus cumulationis est quando sunt plures actiones ex eadem causa, & ad idem contra diversos.” 40 Jacobus Butrigarius, Lectura super Codice ad C 6.26.8 Precibus (1516; repr 1973) fol 18ra: “Visis contrariis et questionibus, venio ad eius regulas. Et prima regula est quod vulgaris expressa fit verbis negativis, et tacita fit verbis negativis tacite intellectis; et fit hoc modo: ‘Si talis non est heres, talis sit mihi heres.’ Ex quo infertur quod si adeatur hereditas, expiret, quia venit casus eius contrarius. Secundo infertur quod per eam succedit quis testatori, non pupillo, ut l.i. ff. e. [D 28.6.1.3]. Et ex hoc infertur aliud, scilicet quod substitutus vulgariter numquam ex ea substitutione capit bona impuberis, sed bona testatoris tantum; nisi caperet ex substitutione tacita pupillari, ut dixi. Modo venio ad pupillarem [i.e. substitutionem] etc.”
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saw reasons to accept the existence of a regula in a particular area, another author might disagree. The detection of (new) regulae remained a matter of interpretation. There is one thing I must emphasise above all: the use of the word “regula”, or a similar expression, is an important marker of the development described above. This word had a well defined meaning (see D 50.17.1) that very much stressed its inductive character. A regula was to be extracted from the law, not the other way around. In consequence, every medieval jurist knew what it meant if somebody claimed to have discovered a (new) regula. And if the new regula was indeed accepted, it necessarily engendered discussions about its exact scope and its exceptions. This meant that a new regula could be eventually wrecked and deprived of utility by the number of exceptions to which it was subject. If I may put my point about the word “regula” in another way: we should not assume too quickly the existence of a regula if the word itself, or a synonym, was not used. Much more than nowadays, in the medieval world the use of a word carried a lot of weight, because – for many people – words had as much reality as the things to which they referred. Naming a thing was acknowledging the existence of the concept. Therefore, it was highly relevant whether or not the word “regula” was used. In other words, a regula was a regula if it was called a regula.
3 Ius Quaerens Intellectum: The Method of the Medieval Civilians James Gordley A. INTRODUCTION B. THE APPLICATION OF TEXTS TO NEW SITUATIONS C. SEEKING ORDER (1) Order through the juxtaposition of texts (2) Order through ascribing explanatory power to terms in certain texts (3) Order through a schema D. CONCLUSION A. Introduction In the West, since the time of the Roman jurists, the task of understanding and interpreting the law has usually belonged to a distinct class which a person can enter only after a long period of specialised study. Its members are united, not so much by agreement as to their conclusions, but by a common understanding of how conclusions are to be reached. They share a method which enables each jurist to arrive at opinions of his own and to explain why he agrees or disagrees with those of other jurists. This chapter is about the method of the medieval civilians who expounded Roman law from the twelfth century, when the study of Roman law was revived, through the fourteenth century, when they produced their last great works. Their task, as they conceived it, was to explain the texts compiled by the emperor Justinian in the sixth century and which became known as the Corpus iuris civilis. The largest part of the compilation, the Digest, was made up of short extracts from Roman jurists. Nevertheless, the method of the medieval civilians was unlike that of the Roman jurists. It will be helpful to say a few words about the Roman jurists in order to see how it was different. Some scholars, such as Fritz Schultz and Peter Stein, believe that the 77
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Roman jurists learned to think systematically from the Greeks, and in particular from philosophers such as Aristotle.1 While the jurists’ method was systematic, nevertheless it did not work in the same way. Unlike Greek philosophers, the jurists did not abstract a concept from ordinary experience, define it, and then explore the logical consequences of the definition. Commonly, the jurists took a concept that was familiar from ordinary experience and, instead of defining it, they refined and clarified it by putting a series of particular cases. Some of their most basic concepts, such as possession, negligence (culpa in the narrow sense) or consent, are familiar in the ordinary experience of people almost anywhere. Wherever objects belong to people, a person will sometimes possess an object that does not belong to him, such as another’s blanket or spear. He will have been taught in childhood not to be careless with sharp objects or fire. It will matter, at least sometimes, whether he consented to a course of action or not. The genius of the Roman jurists was not to discover concepts such as these but to see that they were legally significant and to refine them by putting particular cases. Could a man be in possession of a farm without going round every part of it? Certainly.2 Would he retain possession even if he left on an errand leaving none of his household at home? He would.3 What did it mean to be negligent? As Reinhard Zimmermann has observed, the jurists did not “try to subsume the facts of an individual case under an abstract rule or formula” but proceeded “casuistically”.4 A pruner is negligent if he harms someone by cutting off a branch over a public way without calling out.5 So is a javelin thrower who kills someone by throwing it in an inappropriate place,6 a farmer who burns stubble on a windy day and cannot control the 1 Their evidence seems to me to be thin, although I cannot review it here. I can note that these authors disagreed with each other. Schulz and Stein claimed the Romans used the methods which, according to Aristotle, characterise a true science. They disagreed as to when. Schulz thought that Greek methods were used during the late Republic in what he calls a “Hellenistic age”, and that classical jurists lost track of them: F Schulz, History of Roman Legal Science (1953) 67. Stein thought that Greek methods were first used by classical jurists who initiated a “scientific revolution”: P Stein, Regulae Iuris: From Juristic Rules to Legal Maxims (1966) 33-35. Theodore Viehweg claimed that rather than using the method Aristotle ascribed to a true science, the jurists had used the more tentative method that Aristotle described in the Topics: T Viehweg, Topik und Juisprudenz, 4th edn (1969). But it is hard to see the resemblance, except that neither method looks like the one Aristotle believed to characterise a true science. These disagreements show that it is difficult to find evidence of a Greek influence on the Roman jurists even when one is looking hard for it. 2 D 41.2.3.1. 3 D 43.16.1.24. 4 Zimmermann, Obligations 1008. 5 D 9.2.31. 6 D 9.2.9.4.
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fire,7 and a barber who shaves a customer out of doors near a playing field and cuts him when a ball strikes the hand that is holding the razor.8 Similarly, in considering when the parties consented to a sale, the jurists did not discuss the nature of consent. They put cases about copper sold as gold or vinegar sold as wine.9 Their manner of stating these cases was in one sense abstract: they left out all the facts that might be encountered in real life that had no bearing on the meaning of the concept they were testing. For that reason, it is hard to tell whether their cases actually occurred and whether they were hypothetical. Nevertheless, each statement of a case was concrete in that it described a factual situation that might occur. Watching the Roman jurists leap from concept to conclusion can be unsettling for those familiar with other Western intellectual traditions, such as ancient Greek philosophy, or, for that matter, modern physics and economics. A philosopher, a physicist or an economist defines his concepts abstractly, and then works out their consequences by logical steps. The Roman jurists explained their concepts by putting particular cases, moving from a concept to a conclusion at once, without a logical explanation of how they got from the one to the other. Like the Roman jurists, and unlike philosophers, physicists or economists, the medieval jurists did not work by defining concepts and logically working out their implications. For that reason, their method can also seem unsettling, like that of the Romans. Despite this similarity, however, their method was not that of the Roman jurists. Their starting point was the texts of the Corpus iuris civilis. While a Roman jurist felt free to jump from concept to conclusion on his own authority, a medieval civilian presented his conclusions as grounded on the authority of the texts, even though the texts did not resolve the matter explicitly. Another difference concerned the matters about which they drew conclusions. The Roman jurists worked by testing their concepts against particular cases. To do so, they needed a good stock of concepts, but not much structural organisation beyond the concepts themselves. They were not much concerned with how the various parts of their law were interrelated. The medieval jurists were concerned with the relationship of each text to every other. They identified ordering principles that related one part of the law to another that was embedded in these texts. We will consider, first, how the medieval civilians applied their texts to new situations which the texts did not explicitly consider. We will then see 7 D 9.2.30.3. 8 D 9.2.11pr. 9 D 18.1.9.
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how they found an order in their texts with which the Romans had been less concerned. b. the ApplIcAtIon of texts to new sItuAtIons The medieval civilians applied their texts to new situations in three ways. One was to generalise the scope of a text that deals with one situation so that it could be applied to a new one. Another way was to limit the scope of a text framed in general terms by distinguishing those situations to which it will be applied from those to which it will not. The third way was to move directly and by analogy from the situations expressly dealt with in the texts to a new situation. None of these ways of applying authoritative texts to new situations is distinctly medieval. Modern jurists proceed in the same three ways when they apply a code, a statute or a precedent. They begin with a text and then move up, down, or sideways. Movement in each of these three directions can be illustrated by the medieval civilians’ discussion of the relief to be given if a price was disproportionately low or high. They generalised a post-classical text that dealt with the sale of a land: If you or your father part with an estate for a lesser price when it is worth a greater, it is equitable that you return the price to the buyer and recover the land by the authority of the court, or, if the buyer chooses, that you recover the amount of the deficiency in the just price. The price is considered to be too low if less than half of the true price was paid.10
At an early date, the medieval civilians took this text to protect sellers of things other than land, and buyers as well as sellers.11 The result was the general remedy for a one-sided contract that became known as laesio enormis. In order to generalise this text, the medieval civilians limited the scope of another one, this time a classical text: “Pomponius says with regard to the price 10 C 4.44.2. 11 The Corpus legum, better known as the Brachylogus, written at the beginning of the twelfth century, does not speak of land but of objects sold: H Böcking (ed), Corpus legum sive Brachylogus iuris civilis iii.xiii.8 (1829). The Dissensiones dominorum of the early thirteenth century reports a dispute in which all participants take it for granted that the buyer has a remedy. The disputed question is whether, for him to have it, the sales price must be twice or one-and-a-half times the just price. The participants are said to be Placentinus and Albericus, who wrote in the twelfth century, and Martinus, a student of the legendary jurist Irnerius to whom the revival of Roman legal studies was traditionally ascribed: G F Haenel (ed), Diversitates sive dissensiones dominorum, Hugolinus § 253 (1834). According to Accursius, it was agreed among the jurists that the remedy would be available generally in contracts bonae fidei: Glos ord at C 4.44.2 sv auctoritate iudicis.
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in sale that the contracting parties are naturally permitted to take advantage of each other.”12 Accursius explained, “unless he is deceived beyond half the just price”.13 The medieval civilians applied other texts by analogy to explain when a price is just. These texts described how prices were to be determined in other situations. They concluded that the just price is the price generally prevailing at the time and place the contract was made. According to Accursius,14 that conclusion was supported by two texts that said that the value of a slave is not his value to individuals but to people in general. One text concerned a slave who was to be redeemed by paying his value.15 The other dealt with the amount to be paid for a slave who was killed.16 The value of land, according to Accursius, is to be determined by its quality and rents. He cited two imperial rescripts and a text calling into question the sale by a guardian of land that was “infertile, stony and pestilential”.17 The value of chattels was their price as of the time and place of sale, although, in opposition to his own view, Accursius cited a text concerning the difficulties of valuing a stolen cow.18 Although the medieval jurists’ conclusions were supposed to be logically consistent with the texts, nevertheless, whether they were generalising a text, limiting its scope, or applying the text by analogy, the texts might be logically consistent with more than one conclusion. For example, in discussing laesio enormis, the medieval jurists generalised the text that gave the seller a remedy when he had received less than half the just price. They limited the one that allowed the buyer and seller to take advantage of each other. It would have been as logically consistent to have limited the first text and generalised the second. It can be difficult to tell why the jurists found one conclusion more compelling than another. For example, in the view of some modern scholars, the medieval jurists regarded the classical text allowing the parties to take advantage of each other as repugnant to their Christian values.19 That view may go beyond what we can know. Accursius merely said that, “it is permitted for the contracting parties to deceive each other up to half the just price”. He did not say anything about whether it was contrary to Christian values for them to do so, 12 13 14 15 16 17 18 19
D 4.4.16.4; see also D 19.2.22.3. Gl ord at D 44.16.4 sv naturaliter licere. Gl ord at C 4.44.2 sv autoritate iudicis. D 35.2.63. D 8.2.33. D 27.9.13pr. D 13.1.14.3. J Q Whitman, “Long Live the Hatred of Roman Law!” (2003) 2 Rechtsgeschichte 40 at 48-49.
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and, if it was, why they should be allowed to deceive each other at all. His contemporaries did not seem to find this position troubling. A papal decretal provided that, in canon law, as in civil law, relief would not be given unless the contract price deviated by half from the just price.20 Although France was a Christian country, the French never went as far as the medieval civilians. They maintained into modern times that the remedy should only be given to sellers of land.21 England was a Christian country and never developed a similar remedy. In the nineteenth century, in Germany, which still considered itself a Christian country, jurists were still arguing about how to read these two texts: to provide a remedy only for sellers of land,22 or for buyers as well and parties to similar transactions.23 In considering why the medieval civilians reached their conclusions, we must go by what they tell us. Here, they tell us very little. One reason they tell us little is that, as mentioned, in one respect, their method resembled that of the Roman jurists. As the Romans jumped from a concept to its application without a logical explanation of how they got from the one to the other, the medievals jumped from a text to its application. Nevertheless, just as the Romans did not think any conclusion was equally sound, the medieval jurists did not think that any application of the texts was equally compelling. They often disagreed over the best solution, or tried to work toward a better one. By looking at instances in which the jurists did disagree or changed their views over time, we can get a sense of what made one solution more attractive to them than another. We will look at how they approached three problems: whether a person is liable if he bothers a neighbour by making smoke on his own premises; whether he is liable if he makes a true statement that injures the reputation of another; and whether he is liable if he builds a water mill that cuts off the flow of current to a nearby mill owner on the same stream. To resolve the first problem, the medieval civilians generalised a text; to resolve the second, they limited one; and to resolve the third, they applied their texts by analogy. We have seen that there was nothing distinctively medieval in applying a text to a new situation in these three ways. We will now see that in each of these instances, there was nothing 20 X 3.17.3. 21 C de Ferrière, Dictionnaire de droit et de pratique II.v sv “lézion d’outre moité de juste prix”, nouv edn (1769) 135, 137; H Lacombe de Prezel, Dictionnaire portatif de jurisprudence et de pratique II.v sv “lesion” (1763) 430. 22 See, e.g., R von Holzschuher, Theorie und Casuistik des gemeinen Civilrechts (1864) III 729-30; K von Vangerow, Leitfaden für Pandekten-Vorlesungen (1847) III § 611; C von Wächter, Pandekten (1881) III § 207. 23 See, e.g., J Seuffert, Praktisches Pandektenrecht (1852) II § 272.
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distinctively medieval about the way the jurists looked for the best solution. In each case, there are direct parallels in the work of later jurists. The problem of the person who bothers his neighbour by making smoke was governed chiefly by two short Roman texts. One text reported that the jurist Aristo “does not think that smoke can lawfully be discharged from a cheese shop onto the buildings above it”. The text added: He also holds that it is not permissible to discharge water or any other substance from the upper onto the lower property, as a man is only permitted to carry out operations on his own premises to this extent, that he discharge nothing onto those of another.24
The other text suggested that, nevertheless, a person could “create a moderate amount of smoke on his own premises, for example, smoke from a hearth”.25 So the question arose, what general rule could explain why there was an action for the smoke of the cheese shop but none for that of the hearth? Accursius distinguished the discharge of smoke from that of water on the ground that “smoke naturally disperses”. Having done so, he was unable to distinguish the smoke from a cheese shop from the smoke from a hearth. He concluded that the text about the cheese shop could not mean what it said. Instead, “the person with the upper premises is required to bear the smoke, and on that account not to have windows”.26 His inveterate critic, Jacques de Revigny (Iacobus de Ravanis), had little difficulty pointing out why this solution was unsatisfactory: the text “says the complete opposite of what the Gloss [of Accursius] says”.27 According to Odofredus, the owner of the cheese shop was liable because one cannot use one’s land in a way that harms another: “unusquisque debet facere in suo quod non officiat alieno”.28 That rule appeared to rest on a straightforward principle, and perhaps, for that reason, it lived on. Rephrased by Blackstone – sic utere tuo ut neminem laedas29 – it passed into the common law. Nevertheless, it did not explain why one person could annoy another with the smoke from his hearth. It has been criticised by modern jurists because it does not explain why one can harm another in cases like that of the hearth but not like that of the cheese shop.30 24 D 8.5.8.5. 25 D 8.5.8.6. 26 Gl ord to D 8.5.8.5 sv ad iure. 27 Albericus de Rosate Bergamensis, In primam ff. veter. part. commentarii at D 8.5.8.5 no. 5 (1585) in OIR XXI (describing the opinion of Jacques de Revigny). 28 Odofredus, Lectura super digesto veteri at D 8.5.8.5 (1550) in OIR II. 29 W Blackstone, Commentaries on the Laws of England , 4 vols, (1766-69; repr 1979) III 217. 30 W V H Rogers, Winfield and Jolowicz on Tort, 14th edn (1994) 404.
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Jacques de Revigny proposed a different distinction: a person cannot discharge anything onto another’s property.31 That solution was suggested by Aristo’s remark that one must “discharge nothing onto [the premises] of another”. It sounded like a clear rule. Perhaps for that reason it was accepted by the great medieval jurist Baldus degli Ubaldi,32 and became popular among the Dutch and German jurists of the seventeenth and eighteenth centuries.33 But, again, it does not explain why one is not liable for the hearth, which does discharge smoke onto another’s property. Bartolus of Saxoferrato found another solution: I think the following is to be said: Sometimes the owner of the lower premises makes fire in the usual way for the ordering of his family, and then he may do it lawfully, and he is not liable if the smoke ascends unless he acts with an intention to injure. In the same way, if the owner of the upper premises lets water flow in some way that is normal, for his water clock, he is not liable if some descends unless he acts with an intention to injure. But if the owner of the lower premises wants to make a shop or inn where he is continually making a fire and a great deal of smoke, he is not allowed to do so, as in this text. In the same way, if the owner of the upper premises lets water flow beyond what is normal, he is not allowed to do so, as this text says.34
For Bartolus, then, two things mattered: the extent of the interference, and whether the interfering use of the land was usual. This is a solution to which many modern jurists have returned.35 Bartolus’ solution does not seem to rest on a straightforward principle, like the rule of Odofredus that one landowner cannot harm another. It is not as clear as the rule of Jacques de Revigny that no one can discharge anything on another person’s land. To apply Bartolus’ rule, one must decide how much smoke is a “great deal” and what activities are “usual”. But his rule did distinguish the hearth from the cheese shop. Presumably, the jurists would have agreed on a single rule if they had found one that did seem to rest on a straightforward principle that was clear and which also could distinguish the hearth from the cheese shop. Since they could not find a rule that was satisfactory in all these ways, they disagreed as to what the proper rule should be. Because they disagreed, we can get a sense of the sort of rule that they would have regarded as satisfactory. We can also see that, in this instance, there was 31 Albericus, Commentarii at D 8.5.8.5 no. 5 (n 27) (giving the opinion of Jacques de Revigny). 32 Baldus degli Ubaldi, Commentaria Corpus iuris civilis at D 8.5.8.5 (1577). 33 See, e.g., D Gothofredus, Corpus iuris civilis . . . cum notis integris Dionysii Gothofredi, Antonii Anselmo, Simonis von Leuwen at D 8.5.8.5 no 37 (1726); J Voet, Commentarius ad Pandectas 8.5 § 5 (1726). 34 Bartolus de Saxoferrato, Commentaria Corpus iuris civilis at D 8.5.8.5 (1615). 35 J Gordley, Foundations of Private Law (2006) 68-69.
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nothing distinctively medieval about their ideas about what a satisfactory rule would look like. There is nothing distinctively medieval about wanting a rule that seems to rest on a straightforward principle, that is clear, and that distinguishes cases like the hearth from cases like the cheese shop. Since modern jurists did not find a rule that was satisfactory in all of these ways, they continued to disagree over which of the three rules proposed by the medieval jurists was the best one. In the example just discussed, the jurists started with texts that dealt with a specific situation and tried to formulate a general rule. At other times, they tried to limit the scope of a general text. An example is the way they dealt with the question of whether a person is liable for making a statement that is truthful but detracts from another’s honour or reputation. As we have seen, if the statement were untruthful, the person who made it would be liable in an action for iniuria. One text suggested that he would not be liable if the statement were true: “It would not be fair (bonum aequum) for one who defames a pernicious person to be condemned, for the wrongs of such a person ought to be observed and made known.”36 The medieval civilians were faced with two alternatives: to conclude that a person who reveals another’s wrongs is never liable, or to find some way to limit this text. Accursius mentioned one possible limitation only to reject it: the text might apply only to statements made in judicial proceedings.37 That limitation was too strict if “wrongs … ought to be observed and made known”. Cinus de Pistoia cited another text that said it would be “inhumane” to disclose the extent of another’s wealth.38 He suggested that it would be wrong and inhumane (iniuriosus et inhumanus) to disclose another person’s defects.39 But could one disclose another’s moral as well as his physical defects? Could one never disclose a physical defect? Jacques de Revigny thought that one could disclose conduct for which the plaintiff would be legally answerable. In that event, he said, the defendant should not be liable since there was a public interest in the revelation.40 This position was taken by Pierre de Belleperche in his Lectura Institutionum,41 and later adopted by Dinus de Mugello.42 But Petrus refined it in a comment on C 9.35.5. The important question, indeed, is whether the disclosure is of aid or interest to the commonwealth. Therefore, 36 37 38 39 40 41 42
D 47.10.18pr. Gl ord to D 47.10.18pr sv eum qui. C 9.35.2. Cinus de Pistoia, In Codicem commentaria at C 9.35.5 no 10 (1578). Cinus, Commentaria at C 9.35.5 no 10 (n 39). Petrus de Bellapertica, Lectura Institutionum at I.4 de iniuriis (1536). According to Cinus, Commentaria at C 9.35.5 no 12 (n 39).
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the defendant should be able to reveal matters of public interest even when the plaintiff would not be legally answerable: for example, the plaintiff had leprosy and might infect the city.43 This solution became standard. It was accepted by Cinus himself 44 and by Bartolus.45 Here, although the jurists finally settled on a rule, they did so only after several different rules had been suggested and found wanting. Cinus’ proposal, that one could not reveal another’s defect, was ambiguous. Cinus himself must have thought that, standing alone, it was inadequate since he accepted the rule that became standard. Other rules seemed narrow: that one could only reveal another’s conduct in legal proceedings, or if that person would be legally answerable for it. The jurists finally concluded that there must be a public interest in the disclosure. Once again, there was nothing distinctively medieval about the way the medieval jurists arrived at this solution. Modern jurists have walked the same path. They have faced the same alternatives: to exclude liability for any truthful statement, or to impose liability but to limit it. The common law, traditionally, excluded liability. Most jurisdictions today impose liability but limit it in the same way as the medieval jurists: the defendant is not liable for disclosures in the public interest.46 The defendant is liable in the United States for the new tort of “intentional disclosure of embarrassing private facts” except for information “of legitimate concern to the public”.47 He is now liable in England for “breach of confidence” even no information had been confided to him unless “there is a sufficient public interest ... to justify curtailment of the conflicting right”.48 In France, a defendant will be liable for revealing facts about a celebrity’s private life in a tabloid when he would not be if the same information appeared in a historical work.49 In Germany, a defendant is liable for disclosing the crimes a person committed in the past but not if they were war crimes since the press has a “legitimate interest” in “informing, instructing and ... shaping public opinion”.50 According to the European Court of Human Rights, there is “a fundamental distinction” between merely “reporting details of the private life of an individual” and “impart[ing] information and ideas on matters of public interest”.51 43 Petrus de Bellapertica, Super IX libros Codicis at C 9.35.5 no 16 (1569). 44 Cinus, Commentaria at C 9.35.5 no 12 (n 39). 45 Bartolus, Commentaria at D 47.10.18 no 1 (n 36). 46 Gordley, Foundations (n 35) 250-252. 47 Restatement (Second) of Torts § 652(D) (1976). 48 Campbell v MGN Ltd [2004] 2 AC 457. 49 Cass, 2e ch civ, 14 Nov 1975, arrêt no 729, pourvoi no 74-11.278 (unpublished). 50 OLG, Frankfurt 6 Sept 1979 NJW 1980, 597. 51 Von Hannover v Germany, 24 June 2004 (Application no 59320/00) no 63.
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There have been different views of what information is a matter of public interest. The view in the United States is notoriously broader than that in continental European countries. The view is necessarily broader in modern democracies informed by mass media than in medieval society. Nevertheless, it is not surprising that jurists, medieval and modern, have limited liability for disclosing truthful information by asking whether there is a public interest in the disclosure. Any narrower limit seems arbitrarily to prohibit some disclosures while permitting others, which is the objection Accursius made against permitting only disclosures in legal proceedings, and Jacques de Revigny made against permitting only disclosures about conduct for which the plaintiff was legally answerable. There is nothing distinctly medieval about the discomfort they felt about stopping short of a rule that protected disclosures in the public interest. The third way in which the medieval civilians applied their texts to new situations was by drawing analogies to situations that were dealt with by their texts. An example is their discussion of a question put by Bartolus: “if I have a mill below, and others make a mill above so that they impede me, may they do this?”52 As Alan Watson has pointed out, no Roman text expressly dealt with this problem.53 Bartolus said it was an old question that had been argued by “Franciscus Accursius (not the author of the Ordinary Gloss) and other doctors of Bologna”.54 It had become important in the Middle Ages because of a revolution in mill technology.55 When mills became more efficient and useful for a greater variety of tasks, rivers became crowded with them. Accursius, the author of the ordinary gloss, cited one text in favour of the builder of the first mill.56 It said that usage should be respected.57 But, he added, the opposite result was supported by three other texts which allowed a proprietor to divert water which had its source on his own land,58 and by a fourth which dealt with a more remote problem.59 Bartolus concluded that “if, indeed, the river was public, as is every river that flows perpetually60 ... [and] the first person had his mill lawfully ... the 52 Bartolus Commentaria at D 43.12(11).2 no 2 (n 36). 53 A Watson, “The Transformation of American Property Law: A Comparative Law Approach” (1990) 24 Georgia Law Review 163 at 175. 54 Watson, “Transformation” (n 53) 175. 55 J Gimpel, The Medieval Machine: The Industrial Revolution of the Middle Ages (1977) 7-15. 56 Gl ord at C 3.34.7 sv procurator. Accursius mentioned the problem without resolving it in his Gl ord at D 2.13.6.6 sv rationis. 57 C 3.34.7. 58 D 39.3.21; D 38.2.24.12; D 38.2.26. 59 D 50.17.61(62) (the problem of repairing one’s own house). 60 Citing D 43.12.1.3.
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second person cannot act or take away from him the advantage that he lawfully began [to derive] from what is public”.61 The result should be the same, he added, “if the second person builds below the first mill and backs up the water”.62 The key to the problem, he said, is that the river is “public”. He relied on a text that stated, “whenever anything is done in a public place, it should be permitted on condition that it causes no injury to anyone”.63 He supported his conclusion by citing texts that dealt with things done in public places. The building of the mills was like an encounter between carts on a public road: the first one to enter prevails. It was like two people who want to build on a strip of beach where anyone was entitled to build: the first to begin building prevails.64 Similarly, the first to draw water from a public river may do so if it is “without injury to those nearby”.65 Again, there is nothing distinctly medieval about Bartolus’ use of analogy to resolve a new problem. Blackstone did so when he discussed the same problem: the rights of the first person to build a mill. Like Bartolus, he thought that the first person was protected against late comers. He drew an analogy to a wild animal which belongs to the first person to capture it.66 In the early nineteenth century, Justice Shaw defended the same position by drawing the same analogy as Bartolus to an encounter on a public road between the first to occupy a spot and one who came later.67 Ultimately, American courts rejected Shaw’s position. An important reason, I have argued elsewhere, is that Roman law was a richer source than the common law of analogies that would support it.68 Bartolus could cite texts about people who build on a public beach and those who draw water from a public river. In contrast, it is hard to think of a common law action to vindicate a right to use a public place.69 Like Bartolus, Shaw drew an analogy to an encounter on a public road, but the case was hypothetical and to common lawyers might have seemed recherché. If a person were pushed out of a spot he occupied on a road, he would recover at common law for battery simply because he was pushed, and not by asserting a quasi-proprietary right to the spot on which he was standing. When Bartolus drew the analogy, he could cite a text. 61 Bartolus, Commentaria at D. 43.12(11).2 no 2 (n 36). 62 Bartolus, Commentaria at D 43.12(11).2 no 8 (n 36). 63 D 43.8.2.10. 64 Bartolus, Commentaria at D 43.12(11).2 no 10 (n 36). 65 Bartolus, Commentaria at D 43.12(11).2 no 10 (n 36). 66 Blackstone, Commentaries (n 29) II 403 67 Carey v Daniels 49 Mass (8 Met) 466, 478 (1839). 68 Gordley, Foundations (n 35) 116-119. 69 The only one that comes readily to mind is an action for public nuisance, and it can only be brought privately when the plaintiff has been specially affected.
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In these instances, then, there was nothing distinctively medieval in the way the medieval jurists worked from their texts to a conclusion, whether they were generalising a text, limiting it, or applying it by analogy. Modern jurists have worked from their authoritative texts in much the same way. They are still using the method of applying these texts that the medieval jurists first developed. It would be wrong to conclude, however, that modern and medieval jurists work in the same way. One difference is that modern jurists use not only the method that the medieval jurists had developed, but other methods as well. Another difference is that the medieval jurists had to work with a closed corpus of texts compiled centuries before their own time. To begin with, modern jurists use other methods as well. At times, one of these newer methods has taken the limelight, leaving the older one in the shadows. We remember the nineteenth century as an age of conceptualism or Begriffsjurisprudenz. The conceptualist method was to define legal concepts such as contract or property abstractly and then to try to extract conclusions from the definitions. For example, contract was defined in terms of the will of the parties. It was thought to follow that a contract, even at an unfair price, was valid in principle if it was freely entered into. Property was defined in terms of the will of the owner: he could use his property as he chose. The nineteenth-century conceptualists then encountered problems explaining why sometimes an owner could not use his property as he wished, as in cases like the cheese shop. Since the late nineteenth and early twentieth centuries, when jurists became aware of the limits of conceptualism, the favoured method has been to reason functionally, in terms of the policies that the law should serve. Some of the time modern jurists continued to apply texts in much the same way as medieval jurists, but other times they used these newer methods as well. The reason is not that the medieval jurists were incapable of making what we would call conceptualist or functionalist arguments. Occasionally, they did so. But they did so sporadically, without regarding these arguments as the basis for an alternative method for applying their texts. For example, Bartolus made what we would call a conceptualist argument in discussing the rights of the person who builds the first mill along a river. He considered what we would call a conceptualist objection of a hypothetical interrogator. If the first to build were protected against late comers, he would injure them, for “is it not always an injury to those nearby since then one cannot make his own building?” It is an injury to deprive another of a right, and the first builder had deprived them of the right to build. Bartolus made what we
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would call a conceptualist response: “I answer that he does not suffer injury or harm but he does not acquire an advantage; and these are not equivalent or the same in meaning (ratio).”70 His argument was that it is not an injury to prevent another from acquiring an advantage; therefore the late comer is not injured. In the nineteenth century, Joseph Story made the same argument as Bartolus’ hypothetical interrogator: to take possession of a wild animal “presupposes no ownership already existing”, but if he who builds the first mill can prevent others from doing likewise, he would deprive them of a right they previously possessed.71 Similarly, the medieval jurists occasionally made what we would call arguments of public policy. In discussing what we call the conflict of laws, Bartolus considered whether a city or principality could punish its own citizens for crimes committed elsewhere. Bartolus answered that it could “for it is in the interest of the republic to have good subjects … but men are made good by punishments imposed for wrongs”.72 Presumably, medieval jurists such as Bartolus would not have made such arguments if they had regarded them as improper or antithetical to their usual method. The reason they made them so rarely seems to be that they thought their usual method was quite satisfactory, and, indeed, that it epitomised the proper way to apply an authoritative text. Ernst Gombrich described a similar phenomenon in the history of art. In ancient Egyptian relief sculpture, one can find, on rare occasions, touches of realism: the bent back and the tension in the muscles of a man pulling on a rope. But these were “isolated instances” that “remained without consequence”. “They do not become part of the tradition to be improved and extended ...” Gombrich likened them to “random mutations ... weeded out by a principle of natural selection”.73 That may be a bad simile. They were not random. The Egyptian sculptor and the medieval jurists must have regarded them as nice touches although not the basis for a new method. The principle of natural selection did not work against them, but neither did it work for them so that they could be developed and refined. Another difference between the medieval and modern jurists is that, in modern law, jurists apply texts that are comparatively recent, or, at least, not as remote from their own time as the Roman texts were from the time of the medieval civilians. Moreover, when new problems arise, modern jurists 70 Bartolus, Commentaria at D 43.12(11).2 no 5 (n 36). 71 Tyler v Wilkinson 24 Fed Cas 472, 474 (1827) (Case no 14312). 72 Bartolus, Commentaria at C 1.4 no 47 (n 36). 73 E M Gombrich, Art and Illusion: A Study in the Psychology of Pictorial Representation, 2nd edn (1961) 143.
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can often turn to new cases and statutes that address them and have become authoritative texts. In contrast, the medieval jurists worked with a closed body of ancient texts, those of the Corpus iuris. Supposedly, the holy Roman emperors, as successors of the Caesars, could alter or add to these texts, but they rarely did so.74 Much of medieval legislation did deal with new problems, but it was the work of princes or municipal authorities. It did not become part of the ius commune, the law based on the Corpus iuris, which, in the eyes of the civilians, was common to all principalities and cities. Consequently, the medieval jurists were more likely to find themselves confronted with a problem that had no parallel at the time their authoritative texts were written, and that the authors of these texts could not have imagined, let alone addressed. When the medieval jurists tried to resolve such a problem, they became creative in the extreme. They had to cite texts that had nothing to do with the problem. A good illustration is their discussion of what we call conflict of laws. Suppose the statutes or customs of Bologna, Padua and Modena differ. Which law should apply when suit was brought in one city over an event that had occurred in a different city or between citizens of different cities? The Roman jurists had never addressed the problem. They had distinguished the ius gentium, which governed matters such as sales and applied to people regardless of their nationality, from the ius civile which governed matters such as marriage and applied only to Romans. They had allowed subject peoples in their Empire to keep much of their own law. But they had never addressed the question of whether a Roman court should apply someone else’s law instead of its own. The medieval jurists believed this question should be resolved by the ius commune, a law common to all cities and principalities, rather than by a statute or custom of any one of them. Iacobus de Arena proposed some basic rules that were accepted by Cinus of Pistoia and refined by his pupil Bartolus. They still sound familiar. According to Iacobus, if a question concerns procedure, it is to be resolved by the law of the forum; if it concerns contract, it is to be resolved by the law of the place of contracting; if delict, meaning tort or crime, by that of the place where the wrong was done; and if property, by the law of the place where the property was located. As a medieval civilian, Iacobus was required by his method to cite a Roman text for each of these propositions. The texts he cited show the lengths to which medieval jurists might go when there were no good texts on hand. 74 M Bellomo, The Common Legal Past of Europe 1000-1800 (1995) 67-68.
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For the proposition that, in matters of procedure, the judge should apply the law of his own court, he cited a text that advises a Roman judge that “although witnesses should not be lightly summoned from long distances”, “he should find out what the practice is in the province of which he is the judge”, and summon witnesses from another city if that is the practice.75 To show that a contract should be governed by the law of the place where the contract was made, he cited a text that said that the warranty against eviction in a sale of land should be adapted to the custom of the region.76 To show that, in delict, one should look to the place the wrong was committed, he cited a text that discussed what a master must pay when his slave cuts down a neighbour’s tree, and a law imposes a “particular fine” on a man who does so.77 Here he was helped by a gloss of Accursius which said that the fine was imposed by the law “of the place where the trees were”.78 Jacobus also cited a text which said that some crimes which occur in one province do not occur in others. For example, in Arabia, the enemies of a person commit a crime called σκοπελίσμον by piling stones on a person’s land as a sign that anyone who cultivates it will die horribly. That crime should be punished, according to the text, because it violates the principle that it is wrong to threaten another’s life.79 On the law that applies to suits over property, Iacobus cited one text that concerns what a magistrate should do when a house is in a ruinous state,80 and another that deals with a guardian who paid taxes on a ward’s estate that were not legally due but are paid by the land owner, rather than his tenants, by the custom of the region.81 These texts merely show that, in Roman times, local practice mattered when it was a question of summoning witnesses, construing implied warranties, fining people who cut down trees, keeping buildings in good repair, and paying taxes that are customary but not legally due. Moreover, vengeance can take odd forms in places like Arabia. None of these texts concerns the conflict of laws. By the fourteenth century, the creativity of the civilians was drawing criticism. Richardus Malumbra complained that “our older fathers and doctors ... argued from the witness of our laws which were close to the matter in question”. Now, he said, instead of “sticking to the text and the gloss and the opinions of the most respected doctors”, the jurists “turn to fables or 75 76 77 78 79 80 81
D 22.5.3.6. D 21.2.6. C 3.41.2. Gl ord at C 3.14.2 sv saltui. D 47.11.9. C 8.10.3. D 26.7.37.6.
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make arguments so logistic and sophistic that they have no truth but only its appearance”.82 Perhaps he had in mind imaginative uses of the Roman texts like the one we have just seen. If so, the criticism may have been a bit unfair. There were only so many Roman texts, and no legal problem could be resolved without citing them. c. seekIng order As mentioned earlier, the concern of the medieval jurists was not solely to apply their texts to situations that the texts did not expressly cover. They wanted to explain each text of the Corpus iuris in terms of every other. That effort led them to impose an order on the texts that the Romans had not contemplated. Their method of finding order in the law was neither Roman nor modern. As mentioned already, the Roman jurists worked by testing their concepts against particular cases. To do so, they needed a good stock of concepts but not much structure beyond them. Since early modern times, jurists who have sought order have tried to explain rules by higher-level principles or concepts. I have described elsewhere how this approach began in the sixteenth century with the work of the late scholastics, who, for the first time, organised Roman law into doctrines that they tried to explain by higher principles.83 Their approach was taken up in the seventeenth and eighteenth centuries by members of the northern natural-law school founded by Hugo Grotius and Samuel Pufendorf. Nineteenth-century jurists tried to explain rules in terms of basic concepts which, in turn, they explained by still more basic concepts. Medieval jurists sought order but not in this way. They sought order by linking related texts. Sometimes they juxtaposed Roman texts that used the same word or expression. The meaning of a word in one text was identified or distinguished from the meaning of the same word in another. Sometimes they ascribed explanatory power to a term found in one text. They treated it as the key to understanding other texts that may not have used the same term. Sometimes they created a schema. Differences or similarities in results were explained by identifying an element that they had in common – an element that might or might not be found in a text — and then identifying a circumstance that supposedly accounted for the difference or the similarity. 82 Quoted in Albericus, Commentaria, Proemium (n 27). 83 J Gordley, The Philosophical Origins of Modern Contract Doctrine (1991) 69-111.
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Sometimes the linkage of texts illuminated an area of law better than if the texts were read singly. In these instances, a modern reader is apt to imagine that the medieval jurists were groping towards a principled explanation of an area of law. That is the sort of explanation he is used to. He may regard their work as a primitive attempt at a principled explanation. At other times, the medieval jurists did little more than cross-reference and classify the texts that bore upon the same area of law but were dispersed in the Corpus iuris. Reading the texts together was no more illuminating than reading them singly. The modern reader is apt to think that the medieval jurists were attempting to make something like a concordance or a card file. It is true that the order the medieval jurists found in their texts served the purposes for them that would be served, for a modern jurist, by a principled explanation or by a card file: in the one case, illuminating an area of law; in the other, labelling and cross-referencing. Nevertheless, the medieval jurists themselves were neither searching for principled explanations nor merely trying to label and cross-reference. Their goal was to assign each text a place in the scheme of things by relating it so far as possible to every other text. (1) order through the juxtaposition of texts One way the medieval jurists found order was by explaining one text by juxtaposing others that used the same word or expression. One of the other texts might use a different word or expression that appeared in still a further text; this could then be linked to the second text and through it back to the first. The end result was a chain of interconnections among texts in which each text was supposed to shed light on the meaning of every other. Sometimes the juxtaposition of texts led to a deeper insight than one might have had reading the texts in isolation. An example is the jurists’ discussion of the role of consent in contract formation. In Roman law, only certain contracts such as sale and lease were legally binding upon consent. Others, such as gratuitous loans for use and consumption, were binding when a certain object was handed over. Others were binding upon completion of a formality involving the use of certain words. All of these contracts required consent. As Ulpian said, quoting Pedius, “there is no contract, no obligation that does not consist of consent, whether it is formed by the handing over of something or by the use of certain words …”84 But each contract had its own rules as to when it became binding. By juxtaposing Roman texts, the medieval civilians arrived at or sharp84 D 2.14.1.3.
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ened the insight that, in principle or by nature, all contracts are binding by consent although not all are legally enforceable. That insight may have been glimpsed by the Roman jurists. When the texts were linked, it appeared more clearly. Accursius explained: There are two roots of an effective obligation. One is natural. The natural root arises out of consent which can be given by all men, even slaves. D 2.14.1.3 ... Nevertheless this natural root does not have the force to compel performance of the obligation. It does prevent a person who has performed from taking back his performance. D 46.1.16.3. To this natural root a civil root is sometimes joined which gives efficacy or form or clothing to the natural root so that it can produce an obligation.85
In this passage, Accursius pulled together two lines of Roman authority. The first is the text he cited as an example of a natural obligation, D 2.14.1.3. This is the text just mentioned in which Ulpian said that all contracts require consent. The second is the Roman distinction between natural and civil obligations. Natural obligations were created by certain contracts that were not directly enforceable, such as a contract made by a slave or by a father with his son. These contracts nevertheless had certain legal consequences, two of which are mentioned in D 46.1.16, the last text Accursius cited: a natural obligation could be the subject of a guarantee, and it could be raised as a defence if a party performed and later sued to recover his performance. In Accursius’ view, then, consent to real and formal contracts produces a natural obligation that must then be “clothed” by the delivery of the object or the formality to produce a civil obligation. Another Roman text said that “an obligation is a legal bond which ties us to the necessity of delivering some thing in accordance with the laws of our state”.86 Accursius thought that the text applied to both natural and civil obligations. Since the civil law did not compel performance of a natural obligation, Accursius concluded that “whenever a person is said to be bound by a natural obligation, the statement should be understood of the ius gentium”. According to other texts, the ius gentium was a law governing matters such as sales that applied to people regardless of their nationality. It was distinguished from the ius civile, which governed such matters as marriage and applied only to Romans. In several texts, the distinction is dressed up with some philosophical speculation. The ius gentium is the law “established
85 Gl ord at J Inst 3.14pr sv necessitate. 86 J Inst 3.13pr.
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among all men by natural reason”.87 The ius gentium emerged in response to human necessities; to it pertain such things as war, captivity and slavery, since by the law of nature all were born free. “And by the ius gentium, nearly all contracts were introduced such as sale and purchase, lease and hire, partnership, loan for consumption and others without number.”88 Thus, by pulling all these texts together, Accursius concluded that, according to the law established by natural reason, all contracts give rise to an obligation upon consent, although the obligation is natural and not civil. One cannot say whether, by linking these texts, he derived a new insight or merely clarified the insights of the Roman jurists. In any case, he had reached a conclusion that, at the most, was implicit in the texts. At other times, by juxtaposing their texts, the medieval jurists classified them without coming any closer to an insight that would explain them. An example is a distinction they drew between “natural” and “civil possession”. In one text, Ulpian said that “if someone has gone away from his field or his house leaving none of his household there”, he does not lose possession by going away, and so he can bring an action for possession if he finds an intruder upon his return.89 In another text, Paul said that a person “naturally” possesses what he stands upon, and that “the ownership of things originated in natural possession … a relic of which survives in those things that are captured on land, sea and in the air, for they become the property of those who first take possession of them”.90 Ulpian said that both “natural” and “civil” possession was protected, although in the context of a quite different problem: protecting a possessor who does not have legal title.91 Putting their statements together, the twelfth-century jurist Hugo concluded that there were two kinds of possession: natural, when one was in physical control: and civil, as in the case Ulpian put where “someone has gone away from his field or house”, a conclusion that was adopted by Accursius.92 The distinction between natural and civil possession appeared in leading treatises such as that of Johannes Voet on into the eighteenth century.93 It was useful as a label for the obvious point made by Ulpian: that one does not lose possession whenever one leaves one’s house. But it is merely a label. It does not shed light on why possession ought to be protected. 87 88 89 90 91 92 93
J Inst 1.2.1. The same phrase appears in D 1.1.9. J Inst 1.2.1. D 43.16.1.24. D 41.2.1pr; D 41.2.1.1. D 43.16.1.9. Gl ord at D 43.16(15).1.9 sv civiliter. See, e.g., Voet, Commentarius 41.2 § 3 (n 33).
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(2) order through ascribing explanatory power to terms in certain texts Another way in which the medieval civilians found order in their texts was to ascribe explanatory power to a term found in one text, treating it as the key to understanding other texts. Again, some of the conclusions they reached were more illuminating than others. A success, to judge by its later history, was the formulation by Bartolus of what came to be called the doctrine of causa. According to this doctrine, for the parties to enter into a contract that the law will respect, they must have done so for one of two causae or reasons: either out of “liberality”, or to receive something in return. The word causa appeared in three key Roman texts. One text used that term to explain that, in Roman law, not all contracts were legally actionable: “When there is no causa, it is accepted that no obligation can be constituted by an agreement; therefore a naked agreement does not give rise to an action although it does give rise to a defense (exceptio).”94 Accursius and Jacques de Revigny had described the causa referred to by the first text as simply “something given or done”.95 The other two texts said that the formal contract of stipulatio had to have a causa.96 The causa in the second, according to Accursius, was re or spe, a thing or the hope of a thing.97 According to Jacques de Revigny and Pierre de Belleperche, the texts meant that a stipulatio is not valid if a party mistakenly believes there is a causa or reason for obligating himself.98 These texts might seem an unpromising source for a general ordering principle of contract law. Yet Bartolus found one. When the first text spoke of an agreement without a causa, he said, it meant “no causa fulfilled (impleta), but the agreement was certainly made for a causa”.99 Consequently, one sort of causa was the receipt of something in return. In dealing with the texts concerning stipulatio, Bartolus explained that the causa might be the receipt of something in return. That alone was not enough, however, since a stipulatio was binding even if a promise was gratuitous. In that event, Bartolus explained, the causa was “liberality”. There were, then, two kinds of causa.100 94 D 2.14.7.4. 95 Gl ord at D 2.14.7.4 sv causa; Jacques de Revigny, Lectura super Codice, published under the name of Petrus de Bellapertica, at C 2.3.10 (1519; repr 1967) in OIR I. 96 D 12.7.1; D 44.4.2.3. 97 Gl ord at D 44.4.2.3 sv idoneum. 98 Jaques de Revigny, Lectura to C 2.3.5 (n 95); Petrus de Bellapertica, Commentaria in Digestum Novum to D 44.4.2 (1571; repr 1968). 99 Bartolus, Commentaria at D 12.4.7.2 (n 36). 100 Bartolus, Commentaria at D 44.4.2.3 (n 36).
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Baldus provided the doctrine with a rationale: “Without a causa equity will not say that an action arises lest one party use his substance badly and the other be unjustifiably enriched.”101 He seems to have meant that in the case of a party who is not using his substance badly. If he were, as he said elsewhere, it would be “foolishness” rather than “liberality”. 102 If he receives something in return, neither party is unjustifiably enriched. As he explained elsewhere, “in contracts, equity or equality must be served”,103 a requirement he identified both with the remedy for laesio enormis104 and with the principle of a famous text that said, “it is equitable that no one should be enriched by another’s loss or injury”.105 Since equity required that there be a causa, Baldus read the doctrine into canon law in which non-formal agreements were binding without regard to the Roman rules. That was so, he explained, provided they had a causa.106 Less successful in retrospect was their attempt to find a basis in the ius gentium for the Roman distinction between contracts that were and were not binding upon consent. Bartolus did not reject Accursius’ view that consent gives rise to a natural obligation by the ius gentium. Nevertheless, he tried to find a basis in the ius gentium for the distinction between consensual and real contracts. He claimed that the ius gentium gave these contracts their “name”. The “name” made these contracts actionable, for “nominate contracts give rise to an action by this alone: that they exist and have a name”.107 Consensual contracts were binding on consent and real contracts only on delivery of an object, because of a difference in their names. Consensual contracts such as sale took their names from an act a party performs by agreeing; I can sell you my house today by so agreeing even if I do not deliver it to you until next month. Real contracts such as deposit took their names from an act a party performs by delivering: I cannot say I am depositing an object with you unless I am actually depositing it right now.108 Baldus not only accepted this explanation but concluded that innominate contracts were unenforceable in canon law.109 101 Baldus degli Ubaldi, In Decretalium volumen commentaria at X 1.4.11 no 30 (1595). 102 According to Baldus, if the causa were not stated expressly in the notarial document that had become the accepted substitute for the Roman stipulatio, one should presume the contract was made out of “foolishness” rather than “liberality”: Baldus, Commentaria at C 34.30.13 no 14 (n 32). 103 Baldus, Commentaria at C 4.44.2 no 48 (n 32). 104 Baldus, Commentaria at C 4.44.2 no 48 (n 32). 105 D 50.17.206. See Gordley, Philosophical Origins (n 83) 54-57. 106 Baldus, Commentaria at C 3.36.15 no 3 (n 32); see Baldus, In Decretalium volumen at X 1.35.1 (n 101). 107 Bartolus, Commentaria at D 2.14.7.5 nos 14-16 and at D 2.14.7, no 2 (n 36). 108 Bartolus, Commentaria at D 2.14.7 no 2 (n 36). 109 Baldus, In Decretalium volumen at X. 1.4.11 no 30 (n 101); Baldus, Commentaria at C 3.36.15 no 3 (n 32).
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(3) order through a schema Another way in which the medieval civilians found structure in their texts was by making a schema. Differences or similarities in results were explained by identifying an element which they had in common and then a circumstance which supposedly accounted for the difference or the similarity. Sometimes, the result was a mere list. An example is Accursius’ account of the mistakes that vitiate consent to a sale. Ulpian had said: The sale is invalid if there is disagreement either as to the fact of sale (in ipsa emptione) or the price or any other matter. If, therefore, I thought I was buying the Cornelian estate and you that you were selling the Sempronian, the sale is void on the ground that we were not at one as to the physical thing sold (in corpore) … Of course, if we are merely in disagreement over the name but at one on the actual thing, there is no doubt that the sale is good; for if the thing is identified, a mistake over its name is irrelevant. Next comes the question whether there is a good sale if there is no mistake as to the physical thing (in corpore), but there is in regard to its substance (in substantia), for example where vinegar is sold for wine, or copper for gold, or lead or something else resembling silver for silver.110
Ulpian concluded that consent had not validly been given at least in the case of the copper sold for gold and the lead sold for silver. Accursius noted that consent was lacking if there was an error about (1) whether there was a sale, (2) price, (3) corpore, (4) substantia, and (5) materia.111 The schema does not tell us much more than we could see from Ulpian’s examples. Sometimes the schema explained nothing. For example, Accursius proposed a three-fold classification of fault (culpa): “the fault is sometimes within the act; sometimes it precedes the act; sometimes it follows the act”.112 He found instances of each in his texts. Fault is within the act when a man throws another off a bridge,113 or a doctor operates negligently on a slave.114 It precedes the act when someone digs a pit to catch bears or deer in a public place and something falls in,115 or when a person who has borrowed silver for a dinner party takes it aboard ship where it is lost to shipwreck or pirates.116 It follows the act when a doctor operates correctly but neglects after-care.117 110 This refers to D 18.1.9. 111 Gl ord at D 18.1.9 sv aliquo alio. He had a sixth category as well: error in “sex”. That category was based on D 18.1.11.1, which said that the buyer of a slave could void the sale if he mistakenly thought that the slave was male but not if he knew she was female but mistakenly thought she was a virgin. 112 Gl ord at D 9.2.8pr sv sed culpa reus. 113 D 9.2.7.7. 114 D 9.2.7.8. 115 D 9.2.28pr. 116 D 44.7.1.4. 117 D 9.2.8pr.
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He classified his texts into these three categories, but the classification does not tell us much about fault. Nevertheless, sometimes the schema suggested a reason why results should be similar or different. An example is a series of distinctions concerning fraud that seem to have first appeared in a gloss to the Liber pauperum of the eleventh-century jurist Vacarius,118 and were subsequently picked up by Azo and Accursius.119 Fraud in the causa, which led a person to contract who otherwise would not have contracted, was distinguished from incidental fraud, which led a person to contract on worse terms than he otherwise would have accepted. Incidental fraud was distinguished into fraud ex proposito if it was practised intentionally, and fraud ex re ipsa if a party paid too much or too little though the other party had done nothing intentionally to defraud him. In the first case, the victim had an action for the difference between the amount he paid and the amount he should have paid, however small that difference might be. In the case of fraud ex re ipsa, he had an action only if the difference exceeded half the just price. They cited a text for each branch of these distinctions. Here, the schema was not merely a list. It identified the evil to be remedied. In the case of intentional incidental fraud and laesio enormis the evil was the same: an unfair price. However, in the one case, the unfairness was brought about intentionally, and would be remedied however small it was, while in the other, it was remedied only if it was greater than half the just price. d. conclusIon We have seen that the medieval jurists faced two tasks which the Roman jurists did not. One was to apply authoritative texts to new situations. The Romans had few texts, and their opinions, for the most part, were not based on the authority of texts but on their own authority or that of other jurists. The second task was to find order in the way that different areas of law were related to each other. The Romans had not felt the need to do so. In carrying out the first of these tasks, the medieval jurists developed ways of applying texts to new situations that have been used by jurists ever since. Sometimes they generalised a text to apply to a wider number of situations; 118 Vacarius, Liber pauperum, ed F de Zuleta, at D 19.2.23.3 [= Selden Society XLIV] (1927; repr 1972) 51. 119 Azo Portius, Summa Codicis at C 2.20 no 9 (1557). See H Fitting (ed), Summa trecensis (1894) [published under the title Summa Codicis des Irnerius] lib 4 tit 41; A Gaudentius (ed), Rogerius, Summa Codicis at C 4.44, in BIMAE I; Hostiensis, Summa aurea, (1574) iii. 17, par. 7. See also G Fransen, Le Dol dans la conclusion des actes juridiques (1946) 49-55.
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sometimes they limited it by distinguishing situations in which the text would apply from situations in which it would not; and sometimes they drew analogies with a different situation from those their texts already considered. Modern jurists do the same. The principal differences are that modern jurists use other methods as well, and that the medieval jurists were sometimes forced to use their texts more imaginatively to apply to problems that the authors of their texts had never considered. In carrying out the second of these tasks, the medieval jurists found a larger order in the law in a way that was neither Roman nor modern. The Roman jurists were not much concerned with a larger order. When modern jurists have sought one, they have tried to explain rules by larger principles or concepts. The medieval jurists sought order by linking texts to each other, sometimes juxtaposing those that used the same terms, sometimes taking a term used in one text as an explanation for the rules found in others, and sometimes making a schema in which differences or similarities among texts were explained by identifying an element that the texts had in common and another that supposedly accounted for the difference or the similarity. Sometimes through the use of these methods, the medieval jurists seemed to have achieved the sort of insight that moderns have sought through a principled explanation; at other times, they seemed to have achieved only the sort of order that moderns obtain with a concordance or a card file. Of course, it is only in looking backwards that one can say that, with a few exceptions, there was nothing distinctively medieval about the way these jurists carried out the first task, and nothing modern about the way they carried out the second. It is only in looking backwards that one can distinguish the one task from the other. For the medieval jurists, it was all a matter of understanding their texts, each text in terms of every other.
4 Medieval Family and Marriage Law: From Actions of Status to Legal Doctrine Laurent L J M Waelkens A. INTRODUCTION B. THE ROMAN LAW OF PERSONS C. ROMAN FAMILY LAW D. MARRIAGE (1) Roman case law (a) Coniunctio and coniugium (b) Vir et uxor (c) Concubinage (d) Nuptiae (e) Matrimonium (2) Early medieval legal texts about matrimony (3) Twelfth-century case law about matrimony E. MARRIAGE AND FAMILY: FROM CASUS TO REGULA A. INTRODUCTION The theme “from casus to regula” is particularly interesting in the law of persons. The sources of classical Roman law contain only case law (casus) about family matters and personal relations between house-mates and relatives. There were no rules (regulae). The way in which, at the end of the twelfth century, this case law was shaped into rules and systematic doctrine is significant for the history of medieval law.
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B. THE ROMAN LAW OF PERSONS In classical Latin a persona was a theatre mask, hence a character and a theatre player. In legal texts the word was used for the actors in a law suit. When the word occurs in the Corpus iuris civilis, it has thus to be understood as referring to one of the men present in court. It is accordingly found used for a plaintiff or pursuer, for a defender or defendant, and for the judge. An action in personam was not understood as an action against a person, but as an action against the defendant whose name was mentioned in its formula. Gaius commenced his Institutes with the law of persons. In the first part of his book he described the situation of men in court. His reflections on slaves and family members are related to their representation in court. It is impossible to understand the first part of his Institutes without realising that the contents are about civil courts. Contemporary Romanists have to fight the tendency to find in Gaius rules of modern-time civil institutions. The example of tutela illustrates this well. The relevant passages (Gai Inst 1.142200) do not explain the institution of guardianship, but rather the way women and under-age patresfamilias were represented in the military civil court. In the early Republic civis meant brother-in-arms and civil legal proceedings were military. Civil courts were only accessible to soldiers. Women and children, however, could appear in the civil court, as they were recognised as successors to deceased soldiers. When they appeared in the civil court, they were represented by a soldier. This procedural representation remained when citizenship was no longer reserved to fighting men. For women it existed until the Imperial procedure by cognitio for lawsuits was developed, in which women received free access to the court according to the rights of all freemen (ius liberorum).1 In Republican civil courts the representative of a woman played only a formal role. If she arrived alone in court, the praetor appointed a tutor from among the bystanders. The latter had nothing to fear, because the woman could not sue her tutor. On the other hand, by Gaius’ time, the tutor of children was liable for his actions in representing a pupil. This liability developed into the institution of guardianship for children. Inspired by this institution, modern Romanists have translated tutela as guardianship and understood tutela mulierum as guardianship of women, transplanting medieval and modern 1 That is, access to the Imperial court in the manner of all free people (liberi). It is necessary to dismiss completely from one’s mind the idea that women gained independent access to the court through having children, as found expounded in Kaser, RPR2 320-321 and some recent literature based on this old interpretation. Gai Inst 1.44 has to be understood as case law.
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rules into the old case law.2 This kind of transplant of modern notions to antiquity undermines the proper legal understanding of Roman case law. In Gaius’ Institutes, tutela is in fact a mere aspect of an appearance in court. The meaning of the persona in the Roman law as “a player in a lawsuit” was still present in the thirteenth centu ry. Discussions about the question of whether witnesses are persons are still to be found in glosses and comments. Most glossators accepted that they were.3 In his famous theory about persona representata, Sinibaldus Fliscus sought to explain how a deceased body could still be liable or present in court.4 There was nothing about his identity, his personality or his legal personality! Hostiensis taught us that, in opposition to the legists, canonists were not only resolving the conflicts of people in court, but that they were also concerned with the care of their souls.5 Nevertheless, for Hostiensis, personae appeared in court as litigants, judges and witnesses.6 In the fourteenth century the idea of persons as beings with human dignity appeared.7 But it was not until the early modern period that legal doctrine provided that all people received rights at birth (iura naturalia), which meant that everyone achieved the status of person, without it being necessary to appear in court.8 This therefore is the first obstacle to understanding the medieval law of persons. That law dealt with legal procedure, not with the inalienable rights of persons. In a short chapter such as this, it is impossible to review how the Roman law about persons was transformed into the modern law of persons, from old case law to modern rules. The focus will accordingly be on family and marriage.
2 The argument is more fully developed in L Waelkens, “Tutela mulierum herbekeken”, in D Heirbaut (ed), Festschrift Monique Van Melkebeek [= Iuris Scripta Historica XXV] (2009) (in press). 3 Y Mausen, Veritatis adiutor, La procédure du témoignage dans le droit savant et la pratique française (XIIe–XIVe siècles) (2006) 25-28. 4 For bibliography on this question, see R Feenstra, “L’histoire des fondations: À propos de quelques études récentes” (1956) 24 TvR 381 at 414-419. 5 Consider his theory about forum internum or forum conscientiae. 6 See the passages about persona mentioned in [Hostiensis], Index locupletissimus rerum ac verborum notabilium ex Hostiensis lecturis super quique libros Decretalium (1631; repr 1965) 86. 7 A Lefebvre-Teillard, Introduction historique au droit des personnes et de la famille (1996) 41-43. 8 Most famously found in H Grotius, De iure belli ac pacis I.iv.4, ed B J A de Kanter-van Hettinga Tromp (1939; new edn with notes by R Feenstra, 1993) 31.
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C. ROMAN FAMILY LAW Familia constituted an important element of the Roman civil law.9 It was essential to participation in a civil lawsuit. The civil law originated in the army. Roman soldiers obtained special rights or privileges as an inducement to participate in military campaigns. All these privileges were attached to the “status of liberty”.10 Most veterans kept this status on leaving the army. From the fourth century bc on, peace treaties (foedera) granted aspects of the status of liberty to other peoples. Provinces that promised loyalty and payment of taxes to the senate received a partial status of liberty. The extent of the grant depended on what they had to offer to Rome. Liberi (later understood as freemen) had a series of political rights, of which the most important was a special procedure to settle mutual conflicts. Roman citizens, who were brothers-in-arms (cives), or veterans who kept their military privileges, brought mutual conflicts before the military praetor, who took into consideration their status of liberty. Veterans and those peoples who had acquired liberties under their treaty (foedus) went to their own peregrine praetor for an initial application. The praetors checked the liberties, and gave instructions about the law to apply to the judges who had to decide civil cases. This law made by the praetors was the civil law.11 The idea of familia was central to the civil lawsuit. It is found as early as the Twelve Tables in connection with the military comitia centuriata. A citizen could invoke his civil rights in favour of his entourage. He could therefore appear in the praetor’s court for his relatives, who could thus benefit from his status of liberty. On the other hand, when he lost his case – and one party loses in every case – he became liable himself. The civil law was accordingly developed through citizens acting in court for their friends and for famuli – those people sharing their home. Those whom a citizen, using his own civil rights, defended in court constituted his familia (the word is
9 A wonderful study providing a critical analysis of the Roman family is J F Gardner, Family and Familia in Roman Law and Life (1998). 10 The origin of the word libertas is difficult to retrace, because we have very few old Latin texts, and most scholars are influenced by the meaning it had in classical literature. It is obvious that it had to do with military service. The word liber could have indicated an able-bodied, fighting man. On Rome’s Aventine Hill stood the temple of Liberty, which housed the administration of the censors. The census-tables were kept there. 11 On this interpretation of the Republican formulary procedure, see L Waelkens, Civium causa, Handboek Romeins recht (2008) 48 and 123-134; on the theory of liberties, see L Waelkens, “De Romeinse oorsprong van de fundamentele rechten en vrijheden” (2003) 71 TvR 187; and L Waelkens, “The Status of Liberty, from Roman Civil Law to Human Rights”, in B Raymaekers (ed), Lectures for the XXIst Century (2008) 187.
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probably derived from famuli, “close people”).12 One main significance of a litigant’s familia was his liability for the individuals who constituted it. Familia was thus devel oped in civil law as a structure of liability. For the judges and praetor who supervised execution of judicial decrees, a citizen who pleaded the cause of a member of his familia was liable not only with his own assets, but also with the assets of all family members for whom he could appear in court. From the point of view of the court and according to civil procedure, a litigant who became liable under a decree had only one estate: the community of goods that was made up of his own estate and those of the members of his family. This community of goods made it necessary to establish clearly who was a member of which familia. In Gaius’ Institutes and the other sources of classical law the familia can thus be understood as an ascertained group of people acting together in civil law, represented in court by a single paterfamilias, and liable according to the value of the common estate. The sources contain case law about membership of and release from the family. These show that the central feature of the familia remained unchanged in Gaius’ Institutes from the Twelve Tables. The familia was about neither kinship nor acquaintance: rather, it was concerned with acting in court. The family did not originate in marriage, but in civil liability, in dealing with problems about assets and liabilities. Assets and liabilities can be expressed in book-keeping, and double-entry book-keeping is a remnant of the old Roman family. The daybook (codex expensi et accepti) expressed the position of the paterfamilias as debtor and creditor as regards other citizens. The ledger (codex rationum) expressed the position of the family members in their relationship with the paterfamilias. Since the latter was also a family member, he too had his account in the ledger. What the paterfamilias owed to another citizen according to the daybook was expressed in the ledger as due to him by a family member. What he claimed as due to him in the daybook was expressed in the ledger as owed to a family member. This feature of double-entry book-keeping – that credits and debts are opposite in daybook and ledger – is due to its origin in Roman family law.13 Family members created “natural” obligations between themselves;14 but these could not be enforced in court. In classical Roman law the paterfamilias could only be sued by other patresfamilias and not by citizens from his own family. 12 Lewis and Short, A Latin Dictionary (many edns), sv familia. 13 About Roman double-entry book-keeping, see L Waelkens, “Gaius IV, 73: debet ou debetur?” (2000) 68 TvR 347. 14 The word naturalis in combination with obligatio either developed from the meaning of “origin” or was a reference to the naturales, an ancient word for children.
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Book-keeping is what underpins a business enterprise, the sole word for which in Latin became familia. Roman texts provide the examples of familia stationis, familia aquarum, familia gladiatoria, familia monetalis, familia thermensis, familia mansionis, familia publicanorum, familia vectigalis, and so on.15 Familia never means a loving family bringing together wife, husband and children. D 50.16.195 stated that a single person had a familia and that a woman who managed her own business had a familia on her own, independent of that of her husband. A woman acting in court was called domina. In some texts the term materfamilias is used.16 The Church Fathers changed the scope of familia by focusing on the Judeo-Christian concept of kidushin. Biblical views of the relationship between wife and husband spread a new focus on cohabitation. New couples were expected to leave the house of their parents and to establish a new household.17 In both Jewish and early Christian communities this establishment of a new household “under the huppa” was common practice; but it is completely absent from the case law of the Corpus iuris.18 Nonetheless, the fact that, in late classical Roman law, the paterfamilias is often called dominus – the word used in the ius gentium for a litigant – indicates that the legal concepts of domus and familia remained, as in the old civil law, closely related to each other. This meant that Jewish and Christian fathers of a family who respected kidushin had explicitly to emancipate children who married. In contrast to medieval canon law, classical Roman law did not recognise tacit emancipation by wedding. Tacit emancipation by cohabitation starts to appear in legal sources in the sixth century. Thus, it is explicitly mentioned in texts from Spain19 and Rhetia.20 In Roman law not only the emancipation of a man, but also that of a woman, led to the status of dominus or domina, with the capacity to acquire 15 See J-J Aubert, Business Managers in Ancient Rome: A Social and Economic Study of Institores, 200 bc–ad 250 (1994) index at 509. 16 See, e.g., C 1.48.1 or C 6.61.5pr. 17 For the texts, see J Gaudemet, Le mariage en Occident (1987) 43-48. For texts and context of this new vision, see J Gaudemet, L’Eglise dans l’Empire romain (IVe-Ve siècles) [= Histoire du Droit et des Institutions de l’Eglise en Occident, ed G Le Bras, III] (1958) 514-561 (“L’Eglise et la vie familiale”). When consulting the rich legacy of Gaudemet, it is important to avoid his confusion of family and marriage. On “kidushin”, see M Meiselman, Jewish Women in Jewish Law (1978). 18 Nonetheless, Vismara saw traces of the Christian family in the law of Constantine: G Vismara, “I rapporti patrimoniali tra coniugi nell’alto medioevo”, in Il matrimonio nella società altomedievale (1977) 634-635. 19 A Jordà Fernandez, “Pàtria poestat i emacipació per causa de matrimoni: Del dret romà a la seva concreció als costums de Tortosa e als furs de Valencia” (2001) 1 Revista de Dret històric Català 93. 20 D Illmer, “Zum Problem der Emanzipationsgewohnheiten im Merovingischen Frankreich”, in L’Enfant [= Recueils de la Société Jean Bodin XXXVI] (1976) 144.
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rights and liability in court. Contemporary scholars of Roman law often forget the first rule of interpretation in the Corpus iuris: all legal texts about men are applicable to women.21 Christian theology also supported the equal treatment of man and woman.22 The consequences of tacit emancipation by cohabitation seem obvious. Under Roman law it would have led to two new families, one for each spouse; this was the current situation in classical Roman law.23 In the early Middle Ages, however, this had changed, so that a married and emancipated couple no longer had two separate families, but instead together constituted a single new familia. In kidushin husband and wife became duo in carne uno. This caro unus was expressed in a single family for both. Canonists taught that such tacit emancipation led to the husband and wife being one family. Likewise, the idea of community of goods appeared quite early in Christianised regions.24 Thus, in Carolingian times the idea that a single family was created by cohabitation was common in Europe.25 Canonists promoted this style of family.26 In a study of the so-called “Ligurian law”, Meijers’ analysis of the twelfth-century jurisprudence led to identification of a family with a community of goods, which was to be found from Flanders to Liguria and from Saintonge to Salzburg. At the death of one spouse half of this community fell open for succession.27 This was clearly the new family of the early Middle Ages: a family in community with two spouses who were emancipated by cohabitation and who had equal rights in the family. The canonists and legists of the twelfth century dramatically changed their views about the family. At university they studied the Corpus iuris. They deduced rules about familia from classical Roman case law. A Roman familia had only one head, one paterfamilias. The Corpus iuris contained case law about the relations between the dominus and his family members, mostly cases about potestas, that is, the authority of a paterfamilias over the family members for whom he was held liable and had to pay. These universityeducated lawyers distilled rules from the cases about the Roman family, and 21 D 50.16.1. 22 See, for instance, J de Churruca, “Egalité et inégalité des conjoints dans le mariage des premiers siècles”, in J Ganghofer (ed), Le droit de la famille en Europe (1992) 241 with bibliography. 23 As observed by Gardner, Family and Familia (n 9) passim. 24 See, for instance, Vismara, “Rapporti patrmoniali” (n 18) 674-675. 25 Set out, e.g., in K Schmid, “Heirat, Familienfolge, Geslechterbewusstsein”, in Matrimonio nella società altomedievale (n 18) 103. 26 It was, e.g., introduced in the law of Bremen by Bishop Adaldag of Bremen: W Barkhausen, “Erzbischof Adaldag und König Harald Gormsson, Über das bremische eheliche Güter- und Erbrecht und seine Beziehungen zu den dänische Landschaftsrechten” (1994) 111 ZRG, GA 363. 27 E M Meijers, Le droit ligurien de succession 3 vols (1928-1936). Meijers studied only the law of succession, but in Roman law and its aftermath, succession is family law, namely about the liquidation of a family.
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transplanted them into the relations of husband and wife. Case law about appearance in court and liability was transplanted to a new family that originated in cohabitation. In the Middle Ages this cohabitation was marriage. In order to evaluate properly the evolution of family law from casus to regula, we also have to analyse the evolution of marriage during the reception of Roman law. This is the second aspect of this chapter. D. MARRIAGE In classical Roman law marriage had a limited character as a legal institution. From the Middle Ages onwards, however, it has been common to read of Roman matrimonial law in the Corpus iuris. In fact, the Corpus iuris contains case law about relations between individuals in which is discussed coniugium, coniunctio, consortium, concubinatus, contubernium, nuptiae and matrimonium. All of these words express different types of sexual relationships. Every specific term occurs in case law which deals with other problems. There was no total vision about sexual relationships; and no Roman lawyer developed discussion of their different aspects in an attempt to understand them as constituting a single legal institution. Thus, when reading the Roman sources, it is vital to distinguish these different types of relationships clearly. An interesting fragment in this context is C 5.27.5, the modern discussion of which is very confused. The Latin text explains a problem of succession in a complex relationship. The praetorian prefect has to decide who are a couple’s legitimi, that is their heirs on intestacy. In the case, all the above-mentioned terminology is used. All translators have confused the terminology about relationships found in this text, leading to its interpretation as dealing with the legitimacy of children born before marriage.28 Intestacy, however, is a question of liquidation of a familia, which, as shown above, is a means of structuring liability. The common view that coniugium, nuptiae, and matrimonium leads to a family, which is what modern Romanists understand the text as about, is typically medieval. (1) Roman case law It is first important to examine the Roman terminology as preserved in the case law.
28 See L Waelkens, “La légitimité de C. 5, 27, 5”, in F Roumy et al (eds), Mélanges en l’honneur d’Anne Lefebvre-Teillard (2009) 1031.
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(a) Coniunctio and coniugium The terms coniunctio and coniugium both referred to all lasting sexual relationships. There was, however, an important difference between them. A coniugium was a relationship that still subsisted; a coniunctio was a relationship that had ended. Contubernium, a relationship between slaves, was a coniugium.29 Incestuous partnership was considered a coniunctio or coniugium;30 but it could not be nuptiae.31 Concubinage was coniugium.32 Matrimonium was not necessarily coniugium: in case of imprisonment there was no coniugium, but a matrimonium could continue.33 Coniugium was unthinkable after death; but the Code mentions a case where heirs, claiming goods given in dowry, argued that the matrimonium of the widow continued after her husband’s death.34 A couple within the prohibited degrees of consanguinity who lived in coniugium had to be separated;35 this was because incest had to do with coniugium.36 Saint Augustine wrote of sexual relationships in such works as De bono coniugali and De coniugiis adulterinis. He never discussed matrimonium.37 De coniugiis adulterinis contains his celebrated theory that adultery and bigamy had to do with coniugium. (b) Vir et uxor The normal terminology for husband and wife, for a couple living together, for spouses, was vir et uxor. The phrases uxorem ducere and maritum habere were used in discussing citizens, pilgrims and people whose status was unknown. The civil consequences of the actions indicated by these terms depended on the family position of both spouses and on their status of conubium. The latter was an old privilege in peace treaties. Descendants of spouses with conubium acquired civil status. The sources show that a woman described as an uxor was not necessarily in matrimonio.38 Children who contracted nuptiae were not spouses, but became so when they reached they required age.39 But couples who lived in an incestuous relationship never became spouses.40 It 29 30 31 32 33 34 35 36 37
D 23.3.39pr. D 48.5.39(38).4. Gai Inst 1.59. Conc. Toledo, can 17; Ovid, Metamorphoses 14.298 and 10.295. C 5.16.24.2; C 5.17.1. C 5.15.2. D 48.5.39(38).4. J Inst 1.10.4; D 23.2.8. See www.augustinus.it searching sv matrimoni*. All quotations from the works of Saint Augustine containing the word matrimonium date from after 1100. 38 See, e.g., D 49.15.12.4; D 48.5.7. 39 D 23.2.4. 40 D 48.5.14(13).4.
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was necessary to be classed as vir et uxor for the actio rerum amotarum to be applicable.41 The general term for marriage in the Middle Ages, maritagium, was derived from the Roman term maritus. (c) Concubinage Concubinage is a difficult relationship to understand. It is dealt with in the Digest title, De concubinis (D 25.7). It could only occur where nuptiae or matrimonium were impossible. Concubinage was not possible when the relationship was lewd and it required monogamy. The judge determined the status of concubinage from the intention of the woman (ex sola animi destinatione).42 He discerned the affection of spouses from the affection of concubines.43 Concubinage with a child was impossible.44 If nuptiae were presumed, concubinage was again impossible.45 During the council of Toledo (400 ce) the bishops agreed that people living in concubinage would not be excluded from communion, at least if the relationship was monogamous. As the marital bond was also informal in nature, judges would have to consider the aims and intentions of the couple to decide their status. Concubinage continued as an accepted relationship until the twelfth century.46 (d) Nuptiae Nuptiae meant wedding with an exchange of vows. D 23.2 de ritu nuptiarum contains the relevant texts and case law. The verb nubere applied to women, while men were understood uxorem ducere. The plural nuptiae referred to both promises. Nuptiae implied a sexual relationship (coniunctio) and a relationship involving assets (consortium).47 It required the consent of both partners: nuptias enim non concubitus, sed consensus facit.48 Because of the patrimonial consequences, it required the approval of any paterfamilias, but assent or approval could be replaced by a court decision.49 In the late Empire it was the parents, not the paterfamilias, who had to approve. Justinian also required approval from the parents of minors, even if they lacked parental authority. 41 42 43 44 45 46 47 48 49
D 25.2: De actione rerum amotarum. D 25.7.4. D 24.1.3.1. D 25.7.1.4. D 23.2.24. Council of Toledo in Dist. 34 c. 4. D 23.2.1. D 50.17.30 and D 35.1.15. D 23.2.2.
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Consummation was not essential for nuptiae;50 but a wedding normally led to coniugium, so it was impossible for couples within the prohibited degrees. Financial considerations led to the creation of other impediments, such as the prohibition of the wedding of tutor and pupil.51 That a marriage had taken place could be proved in any way, including by presumptions. A promise to procreate children would suffice.52 In classical law written evidence of marriage could be provided by tabulae nuptiales. Leading a woman to a man’s house gave a very important proof that they were wed.53 Confarreatio was a special version of nuptiae. Its main impact was on the familia, which was about book-keeping. After a wedding, newborn children belonged to the family of their father. Only after nuptiae could a dowry account be opened. Dowry was a proof of nuptiae. A woman who proved there had been a wedding was entitled to the actio dotis at the end of the relationship. Nuptiae also had penal aspects. Adultery could only be committed with a woman who was wed in this way, not with one in matrimonium.54 Also, betrothal was an institution connected to nuptiae. People were never obliged to wed, but to provide compensation for wasted expenses.55 (e) Matrimonium The existing confusion in the literature of Roman law and legal history means that matrimonium is a difficult relationship to understand. It has been confused with coniugium and nuptiae. The Roman sources, however, clearly distinguish them. Matrimonium did not require the consensus needed for nuptiae.56 Adultery was a breach of nuptiae, but not of matrimonium.57 Matrimonium could persist after liquidation of the family.58 A female slave could live in matrimonium with her dominus; but there could never be nuptiae.59 Much of the confusion is due to the use of the term of contrahere matrimonium that is found in Gaius, the Digest, and the Institutes. Most Romanists understand this as about a contract; but contrahere in this fragment means 50 D 23.2.7. 51 D 23.2.59. 52 Aulus Gellius, Noctes Atticae 4.3.2 53 D 23.2.5. 54 D 48.5.35. 55 D 23.1.1; D 23.1.2; C 5.17.2. 56 D 23.2.22. 57 D 48.5.35(34). 58 C 5.16.24.2. 59 C 6.4.4.3.
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something of the nature of “bringing along”, “involving”. Investigation of the occurrence of the word matrimonium in classical Roman law reveals its use in four categories: first, the status of liberty for children; secondly, the restitution of dowry; thirdly, the restitution of gifts and donations at the end of a relationship; and fourthly, the decreeing of divorce. When dealing with these matters, the courts had to investigate and decide whether the relationship between the couple was in fact one of such a high quality. Whether or not matrimonium existed was a matter to be decided by the assessment of a judge. He checked whether or not there was affectio maritalis, the intention of the couple to stay together for life in a monogamous relationship, caring for each other and bringing up children. Affectio maritalis was not some kind of poetic moment, but an important legal concept. It survived separation. Matrimonium was most certainly a civil law concept.60 The judge had also to ascertain whether the spouses had conubium: the civil privilege of living in matrimonio. Those who were straightforward citizens always had. Peregrines had conubium when it had been provided by the peace treaty relating to their province. After 212 ce all free inhabitants of the Empire had conubium. The first category of matrimonial cases concerned liberty. Gaius linked the status of liberty to matrimonium. Children born and educated in a high-quality relationship received liberty at birth. Further, the children of a slave living in a high-quality matrimonial relationship with her dominus also received the status of liberty.61 The three other categories all required the judge to deal with the end of matrimonium. Three titles of the Digest contain case law about recovery of dowry goods.62 When confronted with an actio rei uxoratae, later an actio dotis, the judge had to establish if, first, there were nuptiae with the establishment of a dowry account, and secondly, if there was no longer matrimonium. If matrimonium still subsisted, no restitution could follow. For instance, when a paterfamilias was imprisoned, his succession fell open; but if his wife’s affectio maritalis continued, the heirs did not have to return the dowry. D 24.1, De donationibus inter virum et uxorem, deals with gifts and donations between cohabitating couples. After the ending of the relationship, gifts had to be given back, if it was shown that what had ended was matrimonium; this was not the case, however, if there had never been matrimony. 60 See, e.g., D 24.1.32.13; D 24.1.3.1; D 39.5.31pr; D 48.5.14(13).4; C 5.17.1. 61 C 6.4.4.3. 62 D 23.3 (De jure dotium); D 23.4 (De pactis dotalibus); D. 23.5 (De fundo dotali).
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Finally, the existence of matrimonium was always at issue in cases involving divorce. When a litigant claimed that divorce meant that the consequences of a wedding were at an end because of a divorce, the judge had to establish whether or not there had been matrimony. There could be no divorce without a breach of matrimony. A debate over this type of issue could arise after the death of one or both spouses. Augustus introduced high inheritance taxes for people without three children born in wedlock. It is easy to illustrate this with an example. Consider the fiscus suing a woman with three children for inheritance taxes. If the fiscus proved the third child was born after the end of matrimony, the widow would have to pay the maximum rate; if she proved all three were born in matrimony, she would fall under the provision for a reduced rate! Of course, most people never had to establish or even know whether or not they lived in matrimony. Outside a court, it was of little or no importance. Hence the frustration of the Pandectists: what was this matrimony without forms and without legal control? As Ludwig Mitteis said: “Eine verwirklichte Lebensgemeinschaft!”63 (2) Early medieval legal texts about matrimony After the division of the Western Empire in 476 ce, this Roman case law continued in the jurisdictions of the new kingdoms.64 In the sixth century, the Edict of Theodoric seems to have preserved unaltered the meaning of the Roman terminology about relationships.65 In general, the Edict of Theodoric favoured Christian interests. This becomes clear, for example, through reading the juris prudence about the goods of abbeys or bishoprics. But in dealing with relationships, the Theodoric’s courts strictly followed Roman case law. As yet, the idea of a single family with a common estate was not accepted. Matrimony did not compel a paterfamilias to share his familia.66 Further north, the same continuity is also found in the case law collected in
63 This celebrated expression is found quoted in Kaser, RPR2 73. 64 D Claude, “Niedergang, Renaissance und Ende der Präfekturverwaltung im Westen des römischen Reichs (5.-8. Jh.)” (1997) 114 ZRG, GA 352. 65 For coniugium, see EdTh 59; for uxor/maritus, see EdTh 24, 37, 54, 59 and 153; for nuptiae, see EdTh 36-37; for matrimony, see EdTh 20, 36 and 54. The cases mentioning matrimonium belong to classical Roman case law: EdTh 20 = CTh 9.24.3; EdTh 36 = C 5.5.6 (396); EdTh 54 = CTh 3.16.1-2. On the meaning of matrimonio in EdTh 20, it may be noted that the text contains de hoc matrimonio and this hoc refers to the fact that a matrimony has been proven in the case. See my remarks about the use of personal pronouns in Latin, in L Waelkens, “La cause de D. 44, 4, 2, 3” (2007) 75 TvR 199 at 206-207. 66 EdTh 93.
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the Lex Romana Burgundionum.67 Later sources, however, show that things have changed. Medieval relationships were influenced by Christianity. In the West the current text of the Bible was the Vulgate of Saint Jerome.68 A keen lawyer, Jerome imported legal terms into his theology.69 In the Vulgate Bible, the terminology used for relationships is very close to the terminology of Roman law. Jerome used the term coniugium for sexual relationships in general,70 and nuptiae for weddings or kidushin.71 He was sparing with the word matrimonium, which occurs only four times in the Old Testament and twice in the New.72 Each of these instances is clearly to be understood as representing the high-quality relationship found in Roman law. The matrimony of Roman law does not seem initially to have presented a problem for Christian doctrine. As noted, St Augustine did not use the word.73 In his theology and his moral writings he dealt mainly with coniugium: he did not concern himself with the legal consequences of relationships. The idea of matrimonium as such is absent from his thinking. The same spirit is also found in the later penitentiaries of the Christian moralists: again, no matrimony. Historians, however, are apt to cause confusion by eagerly transplanting into the early Middle Ages the later mentioned twelfth-century identification of coniugium, nuptiae and matrimony.74 Reading the penitentiaries in manuscript provides considerable – often comical – information about sexual relations; but they never disclose anything about matrimonium. Furthermore, in Regino of Prüm’s published books about causes before the 67 Uxor/maritus in 21.2; 24; 25; nuptiae in 1.2; 16.1-2; 21.1; 22.3; 22.6; 22.9; 26.1; 27.1-2; 36.4; 37.1-2; 37.4-5; matrimonium in 21; 22.2; 27.2. 68 The fragments from the Bible in the Collatio legum Romanarum et Mosaicarum lead to the conclusion that another Latin translation was known in Ancient Rome. 69 J Gaudemet, Le droit romain dans la littérature chrétienne occidentale du IIIe au Ve siècle [= Ius romanum medii aevi I.3.b] (1978) 112-126. 70 Gen 26.7; 28.1; 30.4; 31.17; 34.4; 39.19; 45.19; 49.31; Lev 20.10; Deut. 7.3; 25.7; Judg 1.13; Ruth 1.12 (vinculo coniugali); 4.10; 1 Kings 4.15; 2 Chron 29.9; Tob 7.13; Esth 1.18; 3.13f; 8.11; Mt 1.20 and 24. 71 Gen 29.22; 29.26; Lev 21.3; 22.12; Judg 14.15; Tob 6.13; 9.2; 9.5-7; 9.18; 12.1; Is 54.1; 62.4; 1 Macc 9.37; 9.41; 10.58; Mt 9.15; 9.22; 22.3-4; 22.8-12; 24.38; 25.10; Mk 2.19; Lk 5.24; 12.36; Jn 2.1-2; 1 Cor 7.8; 7.11; 7.34; Apoc 19.7. 72 Ruth 13; 2 Chron 9.14; Prov 30.23; Eccl 23.22; 1 Cor 7.10; 7.38. 73 See above section D. (1) (a) at n 37. 74 Thus, it is necessary to be cautious in using the two volumes of Matrimonio nella società altomedievale (n 18), which contain extensive material about relationships in the early Middle Ages, because most of the authors analyse everything using modern concepts. If, however, the reader is sensitive to the presence of this twentieth-century conceptualisation, a lot of information may be found in the articles of P Toubert, “La théorie du mariage chez les moralistes carolingiens” (at 233); G Picasso, “Il fondamenti del matrimonio nelle collezioni canoniche” (at 199); and R Manselli, “Il matrimonio nei penitenziali” (at 287).
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synods,75 there is much about relation ships, but discussed in terms of uxor et maritus, coniugium, sponsa, copulatio or nubere. Nubere is even used in the sense of having sexual intercourse.76 But the word matrimonium occurs only three times: twice in a quotation from the Pauli Sententiae,77 and once in a quotation from Rabanus Maurus, who also understood matrimonium as a legal concept when he wrote “de his qui in matrimonio sunt, sed nubere non possunt”.78 Collections of canons often mention sexual relationships, but rarely matrimonium. This can easily be confirmed by checking Gratian’s Decretum (1132/1140), which drew on collections of canons from the previous few centuries. Gratian included excerpts from case law, decretals and conciliar decisions about coniugium and nuptiae. The word matrimonium, however, occurs only ninety-one times, and is used in a distinctive way. It is first found in quotations from ancient Roman sources: the Novels;79 the Digest;80 the Code;81 from Ambrose;82 Jerome;83 the Vulgate; 84 the Roman councils of Carthage85 and Ancyra;86 Isidore of Seville;87 John Chrisostom;88 Symachus;89 the popes of Roman Antiquity;90 and finally the lawyer pope Gregory the Great.91 The second series, which consists of eight fragments, is early medieval. Underlying these seems to be an understanding of the term matrimonium
75 Das Sendhandbuch des Regino von Prüm, ed and trans F W H Wasserschleben and Wilfried Hartmann [= Ausgewählte Quellen zur deutschen Geschichte des Mittelalters XLII] (2004). 76 Regino of Prüm, Libri synodales 2.250 in Sendhandbuch (n 75) 368-369. 77 Regino of Prüm, Libri synodales 2.128-129 in Sendhandbuch (n 75) 310-311: matrimonium contrahere quoted twice e lege Romana; cf Pauli Sententiae 2.20.4 in Lex Romana Visigothorum, ed G Haenel (1849; repr 1962) 368. 78 Regino of Prüm, Libri synodales 2.243 in Sendhandbuch (n 75) 366-367. 79 D. 78 c. 2. 80 C. 3 q. 7 c. 2; C. 30 q. 3 c. 6. 81 C. 29 q. 2 c. 3; C. 36 q. 2 c. 3. 82 C. 27 q. 2 c. 36; C. 28 q. 1 c. 14 §3; C. 32 q. 4 c. 9. 83 D. 31, c. 7; C. 32 q. 1 cc. 10 and 11; C. 32 q. 4 c. 2; C. 32 q. 4 c. 14. 84 From 1 Cor 7.11: C. 32 q. 5 c. 16 and C. 33 q. 1. 85 D. 23 c. 2; C. 33 q. 2 c. 1. 86 D. 27 c. 1: Pope Martin quoted by the council of Ancyra; see Friedberg in CIC I col 98 n 5. 87 D. 23 c. 3; D. 40 c. 7; C. 32 q. 4 c. 9; C. 32 q. 5 c. 15; C. 35 q. 4 c. 1. 88 C. 27 q. 2 c. 45; C. 32, q. 1, c. 4. 89 C. 36 q. 2 c. 2. 90 Fabianus (236-250): C. 32 q. 7 c. 25; C. 35 q. 2-3 c. 3; Siricius (394-398): C. 27 q. 2 c. 50; C. 33 q. 2 c. 12; Innocentius I (402-417): D. 26 c.3; C. 28 q. 1 c. 1; Leo (440-461): C. 27 qu. 2 c. 17; C. 32 qu. 2 c. 12; Pelagius (555-560): D. 28 c. 13; C. 32 q. 1 c. 6. 91 D. 10 c. 1; D. 33, c. 2; C. 20 q. 1 c. 2; C. 27 q. 2 c. 12; C. 27 q. 2 c. 29; C. 28 q. 2 c. 2 (ius matrimonii); C. 32 q. 1 c. 10; C. 33 q. 2 c. 1; C. 33 q. 4 c. 7; C. 35 q. 2-3 c. 20; C. 35 q. 5 c. 2; C. 35 q. 8 c. 1-2.
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equivalent to that of Rabanus Maurus. Popes Zachary (741-752),92 Stephen V (816-817),93 Eugene II (824-827),94 and Nicholas I (858-867)95 pursued German princes who, with the aim of merging and consolidating territories, lived in incest with heiresses. These popes accordingly initiated a series of lawsuits in which the lawyers went back to the classical Roman law to find texts for arguments about forbidden relationships.96 These eighth- and ninthcentury quotations in the Decretum are contemporary with the ninth-century revival of matrimony in legal texts. For instance, the term matrimonium is found in the Carolingian comments on CTh 4.6.4 that Haenel published.97 Thus, seven commentators close to the Carolingian chanceries, from the interpretator of the Theodosian Code to the author of the Epitome of Sankt-Gallen,98 commented on the same ancient Roman casus. Thus, they used a case dealing with the inheritance rights of naturales liberi (innate freemen) in a matrimonium legitimum (a matrimony recognised by a court) to develop a theory about the lawful relationship which give succession rights to the children. As a result, children born outside such a lawful relationship became progressively understood to be “natural children”, who did not have full inherit ance rights. Succession entailed the ending of a family. From these comments on CTh 4.6.4 can be inferred both the early medieval idea that a family arises through relationships, and also the growing conviction in the legal world that the right type of relationship to bring a family into existence is Roman matrimony. This developing view of the lawyers still did not penetrate into the world of bishops and confessors. Thus, the word matrimonium never occurs in Rather of Verona’s Libri praeloquiorum, which were written in 934-936 and dealt with cohabitation, coniugium and sexuality.99 The third series of texts in the Decretum that contain the word matrimonium dates from the twelfth-century. It includes Gratian’s extracts from
92 C. 30 q. 3 c. 2 and 3. 93 C. 33 q. 2 c. 1. 94 C. 27 q. 2 c. 23: this text may also have been altered by Gratian: see Friedberg in CIC I col 1069 n 253. 95 C. 27 q. 2 c. 26; C. 30 q. 3 c. 1; C. 30 q. 4 c. 1; C. 32 q. 7 c. 25. 96 On this episode, see P Corbet, Autour de Burchard de Worms, L’Eglise allemande et les interdits de parenté (IXe-XIIe siècle) [= Ius Commune, Sonderhefte, Studien zur Europäischer Rechtsgeschichte CXLII] (2001). 97 Lex Romana Visigothorum (n 77) 110-111. 98 On the Carolingian comments published by Haenel, see now the excellent study of D Liebs, Römische Jurisprudenz in Gallien (2. bis 8. Jahrhundert) [= Freiburger Rechtsgeschichtliche Abhandlungen, Neue Folge XXXVIII] (2002). 99 Ratherii Veronenis, Praeloquiorum Libri VI, ed L D Reid [= Corpus christianorum, Continuatio medievalis XLVIA] (1984) 46-59.
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contemporary canonical sources.100 Gratian himself used the word nineteen times.101 In some fragments, he inserted the word into a quotation in which it had not originally occurred.102 It is obvious that in early medieval sources matrimonium was an exclusively legal term, only to be found in the context of law suits. From the Carolingian lawsuits on consanguinity and incest onwards, it also became clear that matrimonium no longer had the exclusive meaning it had had in Rome of a high-quality relationship, but instead also referred to what the Romans called coniugium. Nonetheless, the original meaning remained familiar. Around 1100, the word matrimonium appeared in moral philosophy. It occurs twice in the Sentences of Anselm of Laon (d 1117); for him it had the Roman meaning of a high-quality relationship, and was not to be confused with the Christian institution of coniugium.103 (3) Twelfth-century case law about matrimony The sudden rise in significance of matrimonium in Gratian’s Decretum was not fortuitous. In 1122, the Investiture Controversy had been concluded by the Concordat of Worms. The Concordat established the jurisdiction of the Church, but did not define its competence. One thing was beyond doubt: as in Roman times, ecclesiastical judges had no authority to enforce their decrees. Execution of their decisions was therefore submitted to the imperial judges, those lords who acquired sovereign competence through feudal delegation. Shortly after 1122, Gratian composed the Decretum in order to sustain the new legal order. He recalled the old principle of Roman law that the sentences of episcopal courts had to be executed by the imperial administration.104 The jurisdictional competence of the new courts was vitally 100 Polycarpus: C. 35 q. 2-3 c. 11; Urbanus II (1088-1099): C. 35 q. 2-3 c. 3; C. 35 q. 6 c. 4; Paschalis II (1099-1118): C. 30 q. 3 c. 5; C. 30 q. 4 c. 5; C. 35 q. 2-3 c. 22; Callixtus II (1119-1124): D. 27 c. 8; Celestinus II (1134-1144): C. 35 q. 6 c. 2; Palea : C. 27 q. 2 c. 18. 101 C. 27 q. 2 and c. 1-2, c. 28, c. 39; C. 28 q. 1 title; C. 29 q. 1 and c. 1; C. 30 q. 5 c. 8 ; C. 91 q. 1 c. 1; c. 2; c. 3; c. 7; C. 33 q. 2 c. 9; c. 11 and c. 13; C. 34 q. 1-2 c. 8; C. 35 title and q. 1; C. 35 q. 2-3 c. 21. 102 D. 31 c. 14: see Friedberg in CIC I col 115 n 147; C. 29 q. 2 c. 2: see Friedberg in CIC I col 1093 n 15; C. 27 q. 2 c. 23: see Friedberg in CIC I col 1069 n 253. 103 Anselm of Laon, Systematische Sentenzen, ed F P Bliemetzrieder [= Beiträge zur Geschichte der Philosophie des Mittelalters, Texte und Untersuchungen XVIII.3] (1919) 129-151. He replaced (at 139) even nuptiae with coniugium: “consensus enim facit coniugium, non coitus”. He wrote (at 146): “adulterium ante matrimonium cum coniuge commissum”; but stated (at 146 in fine): “copulentur in matrimonio […] attamen non ob hoc coniuges habendi sunt”, because the promissio coniugii is for him the central issue. 104 In C. 11 q. 1 c. 36. About the audiences, see G Vismara, La giurisdizione civile dei vescovi (secoli I-IX) (1995). Cf A Dumas, “Histoire de la juridiction ecclésiastique”, in DDC VI 326-383.
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important. It is logical to assume it was Gratian’s first concern. Indeed the only reason for Gratian to collect all this material immediately after 1122 must have been for the sake of the new ecclesiastical courts. In the Decretum Gratian set out the enforceable canon law. The oldest version of the Decretum was divided in two parts. The first consisted of the distinctions about the sources of canon law and the status of clerics; the second dealt with causes relating to all the matters about which clerics were striving to enforce their rules, including, for instance, relationships, discipline, penitential matters and consecration.105 This bipartite structure reflected the jurisdiction of the older episcopal courts. The last decision of a Western Emperor about their competence had been a Novel (35) of Valentine III (452 ce). This Novel had restricted the competence of the episcopal courts.106 In the early Middle Ages, however, it had been reinterpreted. Vismara noticed it was invoked in the episcopal courts.107 A ninth-century Interpretatio of Novel 35 demonstrates that Majoranus had amended the Novel in favour of the bishops.108 Valentine III would have established the jurisdiction of the episcopal courts: first, ratione personae in all cases with clergymen as litigants, and secondly, ratione materiae in all typical church matters. Study of the position in Italy and Gaul suggests that these two guiding principles survived in ecclesiastical practice.109 They must have inspired Lanfranc du Bec when he asked for the restoration of independent episcopal courts in England in the 1070s. In the Decretum, Gratian stated explicitly that all cases involving clergymen as litigants had to be decided in the new courts, ratione personae.110 The issues brought together in the causae of the Decretum were also reserved for the ecclesiastical courts, this time ratione materiae. The new courts, which at the end of the century were organised into consistory courts, achieved great success in many regions. They inspired more confidence than the feudal courts. From the beginning, they accepted a procedure of appeal and, from the 1140s, they enjoyed the support of the school of Bologna and the Faculté du Décret in Paris. All over Europe, people tried to bring their conflicts before the ecclesiastical courts. 105 New research on the composition of the Decretum is summarised by C Larrainzar, “La investigacion actual sobre el Decreto de Graciano” (2004) 90 ZRG, KA 27; but still see the synthesis of older views in G Mollat, “Corpus iuris canonici, Décret”, in DDC IV 611-627. 106 Codex Theodosianus, II, Leges novellae, ed P M Meyers and Th Mommsen (1990) 142-148. 107 Vismara, Giurisdizione civile (n 104) 173 ff. 108 See Leges novellae (note 106) 148-149; the Novel of Majoranus is itself lost. 109 Vismara, Giurisdizione civile (n 104) 206-207. 110 C. 2 q. 11.
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There were different ways in which lay litigants could bring their civil conflicts before the ecclesiastical judges. They could empower them to act by bringing in a cleric as party to a juridical act. A classic example was provided by the reintroduction of the Roman testament in many regions. By leaving a bequest to a parish priest or a local church in a last will, testators could make the ecclesiastical judges competent. To make sure the church or the priest received the bequest, the judges had to apply testamentary law. They reintroduced the Roman testament, because their jurisprudence had to be accepted by the feudal judges. As the latter were imperial delegates, they could not refuse to apply Roman law. Thus, the introduction of the testament – not to be confused with the older donation pro anima – was due to the twelfthcentury ecclesias tical judges in different regions.111 This raised the question that if lay people could successfully invoke the new courts ratione personae, why should they not also try to do so ratione materiae? Thus, if cohabitation was a church matter, why should the many disputes that originated in cohabitation not be brought before the ecclesiastical courts? These conflicts included not only disputes about relationships, but also those about such costs as housing, living and childcare, and about the status of children, the inheritance rights of spouses and children, parental authority, protection of women and children, community property, dowry and the like. The resolution of conflicts arising from cohabitation also introduced contract law, delict or penal liability into the new courts. There accordingly was a considerable body of case law in the twelfth century about the competence of ecclesiastical judges in issues of cohabitation. When questioned by defendants, the jurisdiction of the ecclesiastical court had to be established in a preiudicium. Lawsuits leading to preiudicia were introduced by actions of status. These actions were explained thoroughly by the thirteenth-century canonist Guillaume Durand and by the glossators, but they were already very common in twelfth-century canonical procedure. When a case was introduced in a canon-law court, the first discussion often dealt with competency. A preliminary hearing was introduced by an action of status. The preiudicium, the provisional decision, was called possessio status, as according to usage in Roman law, the term “possession” typically indicated a provisional situation. For the legists, preiudicia did not have the force of res iudicata, and 111 See, for instance, Acts of Last Will, ed L Waelkens, vols II and III [= Recueils de la Société Jean Bodin LX-LXI] (1993) II 10-12 (Denmark); II 38 (England, where the executor had to resort to the ecclesiastical court); II 97 (France); II 156 (Northern Netherlands); II 163 (Southern Netherlands); III 82 (Zurich); III 144 (Alsace); III 162 (Scotland).
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the possessio status was confirmed by the final sentence. On their part, the canonists were confronted with the problem that every preiudicium about competence was potentially an attack on the secular judges. They introduced two ways of strengthening their preiudicia. First, they admitted appeals against interlocutory decisions, relying on arguments that sometimes were hardly congruent with Roman law.112 This meant that decisions were checked by a higher ecclesiastical court, or eventually by Rome, before finally being submitted to the exequatur of the less learned local lord. Secondly, the canonists drew on the imperial Roman law to provide arguments about jurisdiction. As imperial delegates, the lords derived their jurisdiction from Roman law. If canonical preiudicia were made according to Roman law, they had in theory to accept them. Many actions of status dealt with the nature of sexual relationships and whether they qualified for jurisdiction. It is therefore a necessary conclusion that cohabitation was accepted as a criterion for jurisdiction. The actions of status about cohabitation have recently been studied by Florence Demoulin-Auzary. Her brilliant and insightful work is based on an impressive know ledge of legal manuscripts, and results in an excellent and sophisticated book. 113 Nonetheless, while writing about twelfth-century preiudicia establishing “marriage”, she does not appreciate that she is in fact recounting its birth. In these actions of status, the canonists used Roman-law arguments about cohabitation with the single aim of establishing their jurisdiction. No longer was the issue that of resolving problems of liability, liberty, inheritance, donations or payments. To realise their objective and to convince the secular judges, the twelfth-century ecclesiastical courts discovered an arsenal of arguments in Justinian’s compilations. When quoting them, the canonists had no reason to distinguish between coniugium, consortium, matrimonium, nuptiae, uxoratus, and maritagium. Examination of the case law studied by Demoulin-Auzary reveals that there was a new criterion of the canonical jurisdiction: matrimony. Central to these actions of status was proof of, first, consensual cohabitation, and secondly, tractatus (sexual intercourse). In the terminology of classical Roman law, consensual cohabitation was nuptiae and intercourse was coniugium. If both were proved, the result was matrimony and it came under the authority of the ecclesiastical courts. Matrimony was therefore developed as a matter of jurisdiction. The development of 112 A Padoa Schioppa, Ricerche sull’appello nel diritto intermedio (1970) II 55-65. 113 F Demoulin-Auzary, Les actions d’état en droit romano-canonique: mariage et filiation (XIIeXVe siècles) [= Bibliothèque de droit privé CCCLXXXVII] (2004). All of the medieval sources are quoted in footnotes, making half of the book consist of editions of the sources.
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matrimony in the case law may be followed in the Quinque Compilationes Antiquae, where it is found in the fourth book.114 From the moment cohabitation became a matter for the ecclesiastical courts, that of the status of children inevitably followed. As noted, Christian cohabitation led to a family. Only the ecclesiastical judges could therefore decide whether any children were the legitimi of the Roman law, the right heirs on intestacy. By recognising and constructing the family, the ecclesiastical judges indicated how estates were to be realised and the property transmitted. They embedded a vision of a particular way of life into a progressively developing case law about proof of cohabitation, from presumption of concubinage to the elements proving with certainty the possession of matrimonial status.115 This would inspire the theologians. E. MARRIAGE AND FAMILY: FROM CASUS TO REGULA That cohabitation gave access to the canon-law courts because it was a Christian matter now provided an important and refined subject for theologians. Twelfth-century theologians and moralists recycled the coniugium and matrimonium of the canonists to develop simple maritagium into a complex institution. Gaudemet was of the view that the first lengthy comment on “marriage” was written by Hughes of Saint-Victor (d 1141) in his De sacramentis.116 Gaudemet was, however, too keen to identify the developed institution. Hughes still distinguished between coniugium and matrimonium. He thought that the first was a natural and divine institution, while the latter was the creation of lawyers, secundum iudicium ecclesie. He considered that coniugium was sometimes possible when matrimonium was prohibited.117 The consensus that led to coniugium was strengthened by the contract of matrimony.118 Matrimonial law was unstable;119 but it resolved problems left by the Creator.120 Robert Pullus, who taught in Oxford (1133-1138) and in Paris (1142-1144), was another who also still distinguished between the legal term of matrimonium and the old 114 See E Friedberg (ed), Quinque compilationes antiquae, nec non collectio canonum Lipsiensis (1882; repr 1956) 44-53, 91-96, 126-130, 144-146, and 180-181. Most of this case law was adopted into the Decretals of Gregory IX. 115 Demoulin-Auzary, Actions d’état (n 113) 151-188 (“la vie maritale, de la présomption de concubinage à la possession matrimoniale”), 189-234 (“la possession matrimoniale”). 116 Gaudemet, Mariage en Occident (n 17) 146-147. 117 Hughes de Saint-Victor, De sacramentis XI [= Patrologia Latina CLXXVI] (1854), cols 483-484. 118 Hughes, De sacramentis (n 117) col 487. 119 Hughes, De sacramentis (n 117) col 490. 120 Hughes, De sacramentis (n 117) col 506 in fine and 508 in fine.
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idea of coniugium, so that the consensus to a coniugium could be in contradiction to a matrimonium.121 Nevertheless, Pullus mentioned, for the first time, coitus matrimonii.122 The twelfth-century theologians were largely inspired by St Augustine’s doctrine of conugium and by the way Ambrose and Augustine understood kidushin. Influenced by contemporary ecclesiastical jurisdiction, and drawing on the arguments of the Church Fathers, they developed a theological understanding of how couples should live. Peter Lombard (bishop of Paris, 1158-1160) adopted in his Sententiae (IV 26-42) the new relationship and the new family developed by the canonists.123 He was the first moral philosopher and theologian to do so. He confused coniugium and matrimonium.124 In his work he analysed creation of the bond of marriage, consensus ad idem, marital relations, and impediments to marriage. His moral analysis of the relationship fits with the image of the relationship to be found in the case law of the Roman court under Alexander III (1159-1181).125 Matrimony (matrimonium) was the regular term for this new institution. In the famous decision Tanta est vis matrimonii, Alexander III’s court ruled that the force of matrimony was such that even children born before the marriage of their parents acquired the status of heirs following the marriage.126 If justified by Roman law, this was nonetheless a typical decision of the twelfth century, and far from classical Roman law.127 Intestacy had to do with the ending of a family and realisation of its assets; so when family was established by matrimony, it was no longer established by cohabitation. From the 1160s onwards, theologians transformed what had been case law about relationships into a regulated ideal of a way of life. They transmitted this to scholars and confessors, who then returned this interpretation to the canonists. Huguccio,128 Magister Honorius of the school of Kent,129 or the 121 122 123 124
125 126 127 128
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Robertus Pullus, Sententiae [= Patrologia Latina CLXXXVI] (1854), cols 947 and 952. Pullus, Sententiae (n 121) col 948. Petrus Lombardus, Sententiae in IV Libris Distinctae, II, Liber III et IV (1981). See, e.g., Petrus, Sententiae (n 123) 420 (he refers to matrimony in the works of Saint Augustine; it is not mentioned in them); 421-422 (quae sint consideranda in coniugio? Sunt et alia plura in matrimonio consideranda …); 422 (quid sit coniugium? Sunt igitur nuptaie vel matrimonium viri mulierisque coniunctio maritalis, inter legitimas personas, individuam vitae consuetudinis retinens); 422 (efficiens autem causa matrimonii est consensus per verba expressus, nec de futuro sed de presenti); 423 (consensus solus facit matrimonium – consensus leads to matrimony and matrimony is a coniugium, even without copula carnalis). See X 4.1 De sponsalibus et matrimoniis. X 4.4.6. See Waelkens, “Légitimité” (n 28) 1045. For the next few centuries it will probably still be necesssary to read the quaestiones about matrimony in manuscript, because the edition of Huguccio, Summa decretorum, I, Distinctiones I-XX, ed O Prerowsky (2006) contains only the first 7% of his Summa, first edited in 1949. Magister Honorius, Summa de iure canonico tractaturus, I, ed R Weigand et al (2004) also ends
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Distinctiones Monacenses of the French-Rhenish School130 all comment on Gratian’s case law against the background of doctrine about matrimony. The consistory courts seem to have had to apply rules matching with a theological theory. A trend had now been set. In the thirteenth century, major academic comments about a unique matrimony–coniugium–nuptiae were developed in the works of scholars such as William of Auxerre, Alexander of Hales, Albert Magnus, Saint Bonaventura or Thomas Aquinas. These definitely influenced parish priests, preachers and confessors. Their vision of relationships was followed in daily life and regulated it. In thirteenth-century law books, maritagium (marriage) – the term derived from Roman uxor et maritus – was understood as the common word in daily use for the new matrimony. This new understanding is also found in the works of the thirteenthcentury canonists. Hostiensis, in his comments on the Liber Extra’s title De matrimonio,131 applied the thirteenth-century vision of matrimony to the old case law on relationships. The radical novelty of this is illustrated by a significant problem that the lawyers would never have admitted. If, in an action of status, the court decided there was no matrimony, innocent children fell into a legal black hole. They no longer had a family: there was no access either to the old Roman case law or to the new family law and rules on intestacy; there was no access to the consistory courts. To deal with the problem, the canonists for some cases developed a requirement of provision of aliment of children, inventing an actio ex lege based on D 25.3.5.1. The problem would finally lead to the acceptance of divorce in the early modern era, in order to save the situation of children when there were marital problems. In the thirteenth century, however, it presented case lawyers with problems arising out of the regulae developed by theologians.
provisionally with C. 1 q. 7; but remarks on matrimony may be found passim. See, e.g., at 131 on the duas uniones in matrimonio, animorum et corporum. 130 Distinctiones ‘Si mulier eadem hora’ seu Monacenses, ed R Sorice (2002) 130-145. 131 Henrici de Segusio [Hostiensis], In quartum Decretalium librum Commentaria to X 4 (1581; repr 1965).
5 The Roman Concept of Ownership and the Medieval Doctrine of Dominium Utile Thomas Rüfner A. BARTOLUS AND HIS DEFINITION OF OWNERSHIP B. THE DEVELOPMENT OF THE DOMINIUM UTILE C. DUO NON POSSUNT HABERE DOMINIUM EIUSDEM REI IN SOLIDUM (1) The glossa ordinaria on D 13.6.5.15 (2) Odofredus and the notion of habere dominium alio iure (3) Different modi of ownership in the canon law (4) Albericus de Rosate’s synthesis (5) Bartolus and the doctor de Aurelianis D. THE MEANING OF BARTOLUS’ DEFINITION OF OWNERSHIP E. FROM REGULA TO CHAOS? A. Bartolus and his definition of ownership Commenting on D 41.2.17.1 – a text from the Digest dealing with the difference between possession and ownership (dominium) – the celebrated jurist Bartolus de Saxoferrato gives the following definition of ownership: “What, then, is ownership? Answer: it is the right of complete disposal over a corporeal thing, as long as it is not prohibited by law.”1 This definition has influenced conceptions of property law for many centuries.2 It is, for example, repeated almost verbatim in the French Code civil, article 544:
1 Bartolus a Saxoferrato, In primam Digesti Novi partem Commentaria ad D 41.2.17.1 no 4 (1574; electronic edn by A J B Sirks 2004) fol 73va: “Quid ergo est dominium? Responde, est ius de re corporali perfecte disponendi, nisi lege prohibeatur.” 2 On its influence on later authors of the ius commune, see H Coing, Europäisches Privatrecht, 1500-1800 (1985) I 292.
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Ownership is the right to enjoy and to dispose of things in the most absolute manner provided they are not used in a way prohibited by statutes or regulations.3
The definition of Bartolus is thus apparently not only an adequate expression of the classical Roman law but also a forerunner of the modern, liberal concept of ownership. The modern continental concept of ownership is that of an absolute right of use and disposal. There can be only one owner (or group of co-owners). The possibility of a vertical division of ownership is excluded.4 Article 544 of the French Code was drafted as a clear expression of the legislative will to end all feudal institutions.5 In feudal law, the right of ownership is vertically split between the feudal lord and the tenant: neither has the full right of disposal, because each has to respect the position of the other. Thus, neither lord nor tenant has the right to dispose de la manière la plus absolue (“in the most absolute manner”). It would thus seem that the definition of Bartolus is as incompatible with feudalism as article 544 of the Code civil was designed to be. Just like the right to dispose de la manière la plus absolue, the ius perfecte disponendi can be attributed to neither party in a feudal relationship.6 Most scholars agree that in Roman law, too, ownership was an absolute and indivisible right.7 It is therefore not surprising that Max Kaser gives a definition of Roman ownership which is almost as close to the words used by Bartolus as article 544 of the Code civil: Even though the sources contain no definition of ownership, it is possible for this period [i.e. the classical period of Roman law] to define ownership as absolute power under private law, which – subject to restrictions imposed by law or party autonomy – allows every legal or factual disposition over the thing.8 3 “La propriété est le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu’on n’en fasse un usage prohibé par les lois ou par les règlements.” English translation by G Rouhette and A Rouhette-Berton available via Légifrance at http://195.83.177.9/code/liste.phtml ?lang=uk&c=22&r=360#art3537 (accessed on 3 May 2009). 4 The term “vertical division” is used to refer to the division of property rights between a superior owner and an inferior owner as in the case of the relationship between feudal lord and tenant. By using this term, the present writer does not wish to express an opinion on the question whether it is really appropriate to explain the existence of dominium utile and dominium directum in medieval law as a division of ownership; on this issue, see M Kriechbaum, Actio, ius und dominium in den Rechtslehren des 13. Und 14. Jahrhunderts (1996) 335-339. 5 See J-L Halpérin, Histoire du droit des biens (2008) 194. 6 For the incompatibility of this conception of ownership with feudal institutions, see P Garnsey, Thinking about Property (2007) 200; H Coing, “Zur Eigentumslehre des Bartolus” (1953) 70 ZRG, RA 348 at 354. Cf also the references in D Hecker, Eigentum als Sachherrschaft (1990) 41 n 51. 7 See, however, the critical remarks by R Feenstra, “Duplex Dominium”, in J A Ankum, R Feenstra and W F Leemans (eds), Symbolae iuridicae et historicae Martino David dedicatae (1968) I 55-71. 8 Kaser, RPR2 I 400: “Obschon uns die Quellen keine Definition des Eigentums bieten, läßt es sich für diese Stufe bestimmen als die privatrechtliche Vollherrschaft, die innerhalb der von der
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If Kaser’s view is correct, Bartolus coined a definition of ownership which the Romans, knowing that “each definition in Civil law is dangerous”,9 never spelled out, but which was an accurate explanation of the Roman concept of dominium. However, the fact that Bartolus gave a definition of ownership which appears to be an adequate reflection of both the classical Roman and the modern liberal concept of ownership gives rise to an obvious question:10 how could a medieval lawyer, whose primary goal was to find workable legal rules for a feudal society, come up with such a definition?11 More specifically, how could Bartolus give this definition at the outset of a short treatise on property, which – just a few lines below the passage just quoted – contains a comprehensive exposition of the doctrine of dominium utile? As is well known, the doctrine of domnium utile (or duplex dominium) is the device through which medieval lawyers integrated feudalism into the conceptual framework of Roman law. According to this doctrine, both the feudal lord and his vassal are owners of the fief. The lord has the dominium directum or superior ownership, but the vassal has the dominium utile. This doctrine introduces the concept of vertically split ownership into Roman law. It is thus in flat contradiction with the principles of Roman and modern property law that have just been explained. This chapter will explore how Bartolus – and other medieval legal scholars12 – could at the same time come up with a definition of ownership that appears true to Roman principle and also develop the doctrine of dominium utile. The study is undertaken with the hope that it will also help to explain the relationship between general rules and specific cases in the ius commune.
Rechtsordnung und der Privatautonomie gezogenen Grenzen jede rechtliche oder tatsächliche Verfügung über die Sache gestattet.” 9 D 50.17.202: “omnis definitio in iure civili periculosa est”. 10 This apparent continuity is noted (and questioned) by D Willoweit, “Dominium und proprietas. Zur Entwicklung des Eigentumsbegriffs in der mittelalterlichen und neuzeitlichen Rechtswissenschaft” (1974) 94 Historisches Jahrbuch 131 at 131-132. 11 The question was already asked by Fernando Vazquez de Menchaca in the sixteenth century: cf K Seelmann, Die Lehre des Fernando Vazquez de Menchaca vom Dominium (1978) 57. 12 While the present writer is confident that he has traced the development discussed in this article with some accuracy, the conclusions presented are not based on a full survey of all sources. Therefore, no claim is made that the medieval jurists quoted were actually the first to hold the views attributed to them. Some of the doctrines and ideas explained below may be older than appears from the sources cited for them.
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B. the development of the dominium utile It is not necessary for the present purpose to trace the history of the concept of dominium utile in every detail, but a few basic facts need to be recounted.13 The concept of dominium utile was not used exclusively to explain the position of the vassal within a feudal relationship. It occurs in connection with a variety of legal positions which were not ownership in the Roman sense, but somehow seemed to resemble ownership. Among these positions was that of someone who had completed the longi temporis praescriptio.14 The Justinianic texts left some room for doubts whether the position of the possessor of a piece of land, after the period of ten or twenty years had lapsed, was really that of an owner in the full sense. Some jurists, therefore, held that the longi temporis praescriptio only led to the acquisition of dominium utile for the possessor.15 Equally, the term dominium utile was employed with reference to the position of certain longterm users of land such as the superficiary, the emphyteuta, and – according to some – the usufructuary. In contrast to feudal tenure, these types of tenancy were known to Roman law and subject to extensive provisions in the Justinianic sources. Some of these sources, especially those from the postclassical period, did not follow classical principle and contained ambiguous statements regarding the legal position of the tenant. This led the medieval lawyers to classify superficiaries, emphyteutae and the like as domini utiles of the land they held.16 However, as Feenstra has shown in a very detailed study, it is likely that the concept of dominium utile was originally developed in order to explain the position of the vassal in feudal law. The first scholar to employ the term may have been the glossator Pilius.17 The doctrine became part of the generally accepted institutions of the ius commune – at the very latest – when it was incorporated into the Gloss of Accursius.18 It is Bartolus, 13 On the doctrine of dominium utile, see generally E Landsberg, Die Glosse des Accursius und ihre Lehre vom Eigenthum (1883) 92-101; E Meynial, “Notes sur la formation de la théorie du domaine divisé (domaine directe et domaine utile) du XIIe au XIVe siècle dans les romanistes”, in Mélanges Fitting (1908; repr 1969) II 409. 14 Cf Kaser, RPR2 II 285-288. 15 On this, see R Feenstra, “Les origines du dominium utile chez les glossateurs (avec un appendice concernant l’opinion des ultramontani)”, in R Feenstra, J H A Lokin, and N Van Der Wal (eds), Flores legum H J Scheltema Antecessori Groningano oblati (1971) 49 at 58-62. 16 D Strauch, “Das geteilte Eigentum in Geschichte und Gegenwart”, in G Baumgärtel et al (eds), Festschrift für Heinz Hübner zum 70. Geburtstag (1984) 273 at 277. 17 Feenstra, “Origines du dominium utile” (n 15) 84. 18 See Feenstra, “Origines du dominium utile” (n 15) 60 and 84 for references to the relevant glosses. On the dissenting opinions of Jacques de Revigny and other ultramontani, see Meynial, “Théorie du domaine divisé” (n 13) 427; Feenstra, “Origines du dominium utile” (n 15) 87-93; R Feenstra, “Dominium utile est chimaera” (1998) 66 TvR 381 at 389-397. As Feenstra has
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however, who is credited with being the first jurist to give a systematic and comprehensive overview of all instances of dominium utile.19 Although the famous definition of property is almost immediately followed by the systematic explanation of the various types of dominium utile just mentioned, Bartolus does not seem to see any contradiction. 20 This does not mean, however, that the medieval jurists were generally unable to perceive the possible conflict between the doctrine of dominium utile and the principles of Roman property law. C. duo non possunt habere dominium eiusdem rei in solidum D 13.6.5.15 was one place in the sources where the contradiction was too obvious to be overlooked. The text deals with the case of a vehicle that is given on loan or hired out to two people. Is each of them severally liable for the return of the car to its owner? Or is the obligation to return the car divided between the two? Ulpian reports the opinion of Celsus filius and quotes him as having said – obiter – that two people cannot own or possess the same thing in solidum. The expression in solidum is probably used to indicate that Celsus does not exclude the possibility of partial ownership. There can very well be several co-owners of one thing, but no two persons can own the entirety of a thing at the same time.21 (1) the glossa ordinaria on d 13.6.5.15 Accursius seems to think D 13.6.5.15 requires little explanation as far as ownership is concerned: This much is clear that two people cannot be owners of the entirety of a thing as a whole or some part thereof as is stated here and below de castrensi peculio l. hereditate §. pater [D 49.17.19.3] ...22 shown, the ultramontani did not dispute that emphyteutae and feudal tenants had a position that amounted to ownership. Rather, they tended to view the position of the emphyteuta or tenant as the only true dominium and therefore to view the assumption that there were two distinct types of dominium (utile and directum) as unnecessary. Thus, they anticipated the development of French law in the eighteenth century: see Coing, Europäisches Privatrecht (n 2) I 293; Feenstra, “Origines du dominium utile” (n 15) 93. 19 Meynial, “Théorie du domaine divisé” (n 13) 442-443; Feenstra, “Origines du dominium utile” (n 15) 84; for a detailed analysis of this system, see Coing, “Eigentumslehre des Bartolus” (n 6) 355-364. 20 Bartolus, In primam Digesti Novi ad D 41.2.17.1 nos 5-8 (n 1) fol 92va. 21 Cf the translation by P Birks in Th Mommsen, P Krüger, A Watson (eds), The Digest of Justinian (1985) I 403. 22 Accursius, Glossa in Digestum Vetus, gl dominium ad D 13.6.5.15 (1487; repr 1969) fol 220va:
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Accursius confines himself to the remark that the maxim that there cannot be two owners of the entirety of a thing is clear enough.23 With that, Accursius moves on to discuss the more problematic question whether possession can be acquired by two people in solidum. (2) odofredus and the notion of habere dominium alio iure A few years after Accursius, Odofredus24 deems it necessary to address the problem of duplex dominium in his lecture on D 13.6.5.15, although he expressly states that the matter does not properly belong there: Now, Gentlemen, we would not have to go any further here; rather, we would have to move on to other leges, which follow. However, as some issues are being touched upon here, which need to be touched upon elsewhere, I will go further and discuss shortly what is written here by Johannes and Azo. In this section, you have the rule that two people cannot have full ownership of the same thing. The same follows from the provisions below in the title de castrensi peculio l. hereditatem §. pater [D 49.17.19.3] and below in the title de acquirenda possessione l. possideri §. ex contrario [D 41.2.3.5]. But contrary to this rule it seems in the case of a thing which belongs to the dowry that the husband is the owner, because the rei vindicatio is granted to him, which is not given to anyone except the owner, as can be seen in the text C. de rei vendicatione l. doce [C 3.32.9], and similarly, the wife is the owner, as is shown by the text in C. de iure dotium l. in rebus [C 5.12.30]. To this, some respond by saying that two people cannot have ownership of the same thing under the same law, but they can have it under two different sets of laws. And they give a bad example for this, because they say that the husband is the owner – under the law of nations and not under the civil law because he would already have acquired ownership by (adverse) possession. And this is clear from the fact that he has the vindicatio as provided in l. doce [C 3.32.9]. And to that other l. in rebus [C 5.12.30] the followers of this doctrine respond that while it is true that the husband is the owner and the wife is the owner, she is not the owner in reality, but only in expectation, because the dowry has to be returned to her upon dissolution of the marriage. – But you should use the examples as follows: Two people can have ownership of the same thing under different sets of laws, for example one person can have the superior ownership, like one who owns property directly, and the other can have the inferior ownership, like a superficiary, as seen above si ager vectigalis vel emphyteuticarius petatur l. ii. [D 6.3.2]. But two people cannot have full ownership of the same thing in such a way that both are full superior or inferior owners.25 “Hoc est planum quod duo non possunt esse domini insolidum nec totius nec partis rei ut hic et infra de castrensi peculio l. hereditate §. Pater ...” 23 There is no further discussion at D 49.17.19.3 either: see Accursius, Glossa in Digestum novum (1487; repr 1968) fol 265vb. 24 On his life, see Lange, RRM I 323-334. 25 Odofredus, In secundam Digesti Veteris partem Praelectiones ad D 13.6.5.15 (1552; repr 1968) fol 54vb: “Or Signori, hic non esset procedendum, sed esset procedendum ad alias leges que sequuntur, tamen quia hic tanguntur quedam que alibi sunt tangenda, ultra procedam et breviter tangam vobis que hic scripta sunt per Johannem et Azonem. Vos habetis in §. isto si duobus in
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Odofredus starts his explanations by citing the glosses on the Digestum vetus written by Azo (and his teacher Johannes Bassianus).26 The contents of these glosses force Odofredus to spend more time explaining the text than would otherwise be warranted. After mentioning two other texts in Justinian’s compilation that contain the principle duo non possunt habere dominium eiusdem rei in solidum,27 Odofredus comes to the problem of duplex dominium. He does not, however, cite the case of a vassal and his lord, who both have dominium under the doctrine of dominium utile. Rather, Odofredus refers to the case of dowry, which seems to contradict the rule given by Celsus: C 3.32.9, a rescriptum of the emperors Carus Carinus and Numerianus from 283 ce, states clearly that the husband is the owner of all things belonging to his wife’s dowry. Another imperial enactment, C 5.12.30, made by Justinian in 529 ce, provides that the wife shall have an actio in rem to recover her dowry. In this context, Justinian uses the word vindicare although he does not actually say that the wife’s remedy is a rei vindicatio. Even so, the two texts can be read as saying that both the wife and the husband are owners of the things belonging to the dowry. Next, Odofredus cites the opinion of some unnamed scholars (quidam) who try to solve the apparent contradiction between the maxim duo non possunt habere dominium eiusdem rei in solidum and the texts on dowry. According to these quidam, the rule that there can only be one owner in solidum does not principio quod duo non possunt habere dominium eiusdem rei in solidum: et ad hoc concordat infra de castrensi peculio l. hereditatem §. pater et infra de acquirenda posessione l. possideri §. ex contrario. sed videtur contra quod maritus est dominus rei dotalis, quia datur ei rei vendicatio que non datur nisi domino ut C. de rei vendicatione l. doce, item uxor similiter est domina rei dotalis ut C. de iure dotium l. in rebus. Ad quod respondent quidam duo non possunt habere dominium eiusdem rei eodem iure. sed alio et alio iure sic. et subiiciunt exemplum malum, quia dicunt quod maritus est dominus iure gentium et non civili, quia iam usucaperet: quod ex eo apparet quia maritus habet rei vendicationem ut in l. doce et ad l. illam in rebus respondent licet maritus in veritate sit dominus et uxor sit domina, verum est non re sed spe quia soluto matrimonio reddenda est ei dos. Sed vos ponatis ita exempla quod duo possunt habere dominium eiusdem rei et alio iure, puta quod unus potest habere directum dominium sicut ille qui habet directam proprietatem: alius potest habere utile dominium ut superficiarius ut supra si ager vectigalis vel emphyteuticarius petatur l. ii. Sed duo non possunt habere dominium eiusdem rei in solidum, ita quod ambo directi domini sint in solidum vel utiliter.” 26 On Azo’s gloss in general, see F C von Savigny, Geschichte des römischen Rechts im Mittelalter (1850; repr 1961) V 12-14; P Weimar, “Die legistische Literatur und die Methode des Rechtsunterrichts in der Glossatorenzeit” (1969) 2 Ius Commune 43 at 71-72; Lange, RRM I 266-267. According to H H Jakobs, Glossa magna (2006) 16, Azo’s apparatus magnus on the Digestum vetus was written by Azo in continuation of the work of Johannes Bassianus. See also H H Jakobs, “Odofredus und die Glossa ordinaria”, in F Dorn and J Schröder (eds), Festschrift für Gerd Kleinheyer (2001) 271 at 343. 27 D 41.2.3.5 actually refers to possessio not dominium.
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apply where the concurring owners are owners by virtue of different sets of laws (alio iure). As becomes apparent later in the text, Odofredus agrees with this formula, but gives it a meaning very different from the one preferred by the nameless quidam. For them, only the dominium of the husband consists in re, while the wife’s ownership only exists in spe. It only becomes real when the marriage is dissolved and the husband has to give the dowry back to the wife. Thus, there is no real contradiction to the maxim duo non possunt habere dominium eiusdem rei in solidum – there is only one owner at a time. The husband is the only real owner until the time of dissolution, when ownership returns to the wife. According to Odofredus, the quidam stress that the husband’s ownership is based on the ius gentium and not the ius civile. The purpose of this somewhat enigmatic remark seems to be the exclusion of another possible solution – according to C 5.12.30.2, the wife’s remedies are subject to usucapio. If the husband remains in possession after the dissolution of the marriage, he can acquire permanent ownership through the lapse of time. One could assume that C 3.32.9, which treats the husband as owner, refers to the time after the husband has become owner through usucapio. This would of course be a weak method of explaining away the contradiction. The quidam – with whom Odofredus seems to agree on this point – deny it by insisting that the husband is owner by virtue of the ius gentium. According to the Roman sources, usucapio is an institution of the ius civile,28 whereas traditio – the standard mode to transfer property in Justinianic law – belongs to the domain of the ius gentium.29 If the husband is owner by virtue of the ius gentium, his ownership is based on his receipt of the dowry and not on subsequent adverse possession. The words Sed vos ponatis ita exempla introduce the position of Odofredus himself. According to him, the rule duo non possunt habere dominium eiusdem rei in solidum applies only within one of the two categories of ownership. No two persons can have the dominium directum, and no two persons can have the dominium utile. However, the existence of a dominus directus and a dominus utilis, as in the case of the emphyteuta, is permissible. For Odofredus, dominium utile and dominium directum are forms of ownership based on different iura. He takes over the formula of the quidam and uses it to bring the institution of dominium utile in line with the classical Roman rule contained in D 13.6.5.15. Even though questions of textual history are not the main focus of this paper, a few remarks on the citation of Johannes and Azo may be in order. 28 J Inst 2.6pr. 29 D 41.1.9.3.
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As Horst Heinrich Jakobs has shown, when the apparatus of Johannes and Azo is mentioned in the printed edition of Odofredus’ lecture on the Digestum vetus, the reference is often to a remark which cannot be found in the apparatus of Azo and Johannes Bassianus, but in the glossa ordinaria of Accursius.30 However, in this case, at least the printed version of the glossa ordinaria (quoted above) does not have a discussion of duplex dominium, while at least one manuscript of Azo’s apparatus contains a short text which seems to allude to the views discussed by Odofredus.31 A manuscript located in Munich contains the following gloss which refers to the word dominium vel possessionem in D 13.6.5.15: Under the same law, but under different sets of laws, it is possible as in the case of a husband and wife, as above qui sat. da. co. sciendum [D 2.8.15] and C. de iure do. in rebus [C 5.12.30] – which I deny.32
The gloss qualifies the statement duorum quidem in solidum dominium vel possessionem esse non posse by saying that this is only true eodem iure, while there can be two possessors or two owners diverso iure. The final clause quod nego makes it clear that the glossator is only reporting the view of someone else, from which he personally takes his distance. The allegation of D 2.8.15 probably refers to the third section of the fragment which states that both the husband and the wife are possessors of the dos. The short gloss makes the point that possession and ownership of the dowry are assigned to the husband and the wife at the same time, and mentions (but in the end does not follow) the explanation that the two own (and possess) under different sets of laws. This gloss is apparently the starting point for Odofredus’ discussion. He explains to his students that the view rejected in the apparatus of Azo (and Johannes) is held by quidam. In the way that it is conceived by those quidam, Odofredus does not follow it either, but he agrees with it if ius diversum (or 30 H H Jakobs, “Petitorium et possessorium in uno libello intendere” (1998) 115 ZRG, RA 323; H H Jakobs, “Studien zur Geschichte der glossa ordinaria”, in H H Jakobs et al (eds), Festgabe für Werner Flume (1998) 99 (revised version of “Petitorium et posessorium”); H H Jakobs, “Or signori! Die accursische Glosse als apparatus joannis et azonis in Odofredus’ Lectura super Digesto veteri”, (2000) 117 ZRG, RA 311; Jakobs, “Odofredus und die Glossa ordinaria” (n 26) 271-352. All these articles are now in H H Jakobs, Digesten – Glosse – Savigny. Kleine Schriften zur Wissenschaft vom Römischen Recht, ed W Ernst (2004). See also Jakobs, Glossa magna (n 26) 17. 31 Jakobs, Glossa magna (n 26) 17 stresses that Odofredus may refer to the Accursian gloss when he cites Johannes and Azo. Instances where Odofredus refers to material that is only present in Azo’s apparatus, but absent from the glossa ordinaria thus do not contradict Jakobs’ view. 32 Munich BSB MS Clm 14028: “eodem iure, diverso enim iure potest ut in viro et uxore ut supra qui sat. da. co. sciendum et C. de iure do. in rebus. quod nego”. The present writer has not been able to see the manuscript himself and wishes to express his gratitude to Horst Heinrich Jakobs who kindly consulted his collection of microfilms and passed on the text of this gloss.
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alium) is taken to refer to the dominium utile, which can co-exist with the dominium directum of another person. Of course, it would be of interest to know where the view of the quidam, which is cited by Odofredus and which seems to be at the basis of the gloss in the apparatus of Azo, originated, and if it is accurately reported by Odofredus. To answer this question, further research on the manuscript sources is needed. (3) different modi of ownership in the canon law The lectures of Odofredus can be dated to between 1231 and 1263.33 In 1234, pope Gregory IX published his Decretals (or Liber Extra). Only a few years later, Bernardus Parmensis de Botone wrote a commentary on the Decretals which came to be regarded as the glossa ordinaria on the Liber Extra.34 Both works, the Decretals and the gloss by Bernardus, seem to have been important for the question at hand. The Liber Extra contains X 2.19.9, a text taken from a Decretal of pope Innocent III, written in 1207, which – in a context not otherwise of interest in the present study – repeats almost verbally the rule contained in D 13.6.5.15: “since two people cannot at the same time possess the same thing as a whole in the same way …”35 The gloss of Bernardus de Botone comments on this phrase as follows: The text does well to say “in the same way”. See ff. de acquirenda possessione possideri §. econtrario [D 41.2.3.5]. For one person can have civil possession, the other natural possession. See ff. de precario. et habet §. eum qui [D 43.26.15.4]. Similarly ff. commodati si ut certo §. ultima [D 13.6.5.15], but in opposite sense ff. uti possidetis l. 3 in principio [D 43.17.3pr], where it is said that one has just possession and the other unjust possession. As in ff. qui satisdare cogantur sciendum §. si fundus [D 2.8.15.3] and ff. de iure dotium quamvis [D 23.3.75] and C. de iure dotium in rebus [C 5.12.30] from which it can be deduced that the husband is the owner of the things that belong to the dowry, but the wife as well. The words “in the same way” resolve the contradiction.36 33 According to Lange, RRM I 330, the lectures can be dated between 1236 and 1263. However, as Jakobs, “Odofredus und die Glossa ordinaria” (n 26) 272 n 5 has shown, Odofredus may have started his teaching career a few years before 1236. 34 Kriechbaum in Lange, RRM II 208; H Zapp, “Bernardus de Botone”, in LMA I col 1976; K W Nörr, “Die kanonistische Literatur”, in Coing, Handbuch I 365 at 376-377. 35 “[Q]uum duo insimul eandem rem et eodem modo in solidum possidere non possint …” 36 Bernardus de Botone, gl eodem modo ad X 2.19.9 in Decretales D. Gregorii Papae IX, I-II 19 (1613; electronic edn by A J B Sirks, 2005) col. 691: “Bene dicit, eodem modo ff. de acquirenda possessione possideri §. econtrario. nam unus potest habere civilem, et alius naturalem possessionem. ff. de precario. et habet §. eum qui sic ff. commodati si ut certo §. ultimus. Sed contra ff. uti possidetis l. 3 in principio ubi dicitur, quod unus iustam habet possessionem, et alius iniustam: ut ff. qui satisdare cogantur sciendum §. si fundus et ff. de iure dotium quamvis et C. de iure dotium in rebus. Ex quibus colligtur, quod maritus est dominus rerum dotalium, et uxor similiter; hoc verbum, eodem modo, solvit contrarietatem.”
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The passage from the Liber Extra differs from D 13.6.5.15 in that it only mentions possession and not ownership. Bernard’s gloss however, uses the text to discuss both possession and ownership. It lists texts from the Digest which restate the principle that possession (D 41.2.3.5) or possession and ownership (D 13.6.5.15) cannot belong to more than one person at the same time and contrasts these statements of principle with other Justinianic texts that seem to prove that under some circumstances divided possession and divided ownership can occur. The final part of the gloss is most important for the present purpose. Bernard uses the example of dowry, which Odofredus calls bad; but it is not clear whether he follows the nameless quidam quoted by Odofredus who consider the wife’s ownership as consisting in spe only. Rather, Bernard is content to say that both the husband and the wife own the things belonging to the dowry. He concludes that the insertion of eodem modo in the text of X 2.19.9 resolves the apparent contradiction between the rigid rule duo non possunt habere dominium eiusdem rei in solidum and the instances of divided ownership and/or possession that can be perceived in other texts. It is obvious that the position of the canon law as explained by Bernardus de Botone is very similar to the solution proposed by the quidam and by Odofredus himself. According to Odofredus, two people can concurrently own the same thing as long as each one of them can base his position on an alium ius. Bernardus requires that ownership be of a different kind. While it is not clear if Bernardus alludes to domnium directum and dominium utile when he mentions different modi of ownership, it is obvious that his doctrine is just as apt to reconcile the maxim duo non possunt habere dominium eiusdem rei in solidum with the reality of divided ownership as the position of Odofredus. The peculiar strength of Bernard’s conception is – of course – that it is based on the textual authority of X 2.19.9, while Odofredus has no textual argument in support of his claim that two people can own the same thing in solidum as long as each one of them owns alio iure. (4) Albericus de rosate’s synthesis The fact that the sources of canon law lend themselves more easily to an interpretation which leaves some room for exceptions to the rule duo non possunt habere dominium eiusdem rei in solidum than do the Justinianic texts may be the reason why Albericus de Rosate (ca 1290-1360)37 bases his treatment of the issue primarily on canon law authorities: 37 On his life, see Kriechbaum in Lange, RRM II 665-669.
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After the text has been explained, add another point for which this paragraph is often cited, namely that full ownership and possession of a thing cannot belong to several people. The same is stated in extra de probationibus c. licet [X 2.19.9] and see what is noted there and see Innocent extra de praescriptionibus c. auditis [X 2.26.15] in the end of the text and the same is also stated below de castrensi peculio l. haereditatis § pater [D 49.17.19.3] de concessione praebendarum c. post electionem [X 3.8.7] and see Roffredus in the Libellus on the rei vindicatio utilis which is granted to the superficiary. For on the basis of different kinds of ownership, say superior and inferior ownership, there can be several owners of the same thing as Hostiensis notes there in his Summa under the same title §. quibus detur. And see other authors of summae and the Speculum.38
Albericus begins by reiterating quod dominium et possessio eiusdem rei non potest esse apud plures in solidum. At first sight it may seem that X 2.19.9 et quod ibi notatur are cited only in support of this basic rule. In reality however, these citations39 already indicate the important qualification which Albericus adds to the basic rule: it is not applicable if two owners base their claim on diversa dominia. With this, Albericus takes over the doctrine of the gloss to X 2.19.9. Immediately afterwards he identifies dominium directum and dominium utile as diversa dominia which can co-exist in spite of the maxim duo non possunt habere dominium eiusdem rei in solidum. Albericus thus makes the connection which is already present in the lecture of Odofredus but absent from the gloss of Bernardus de Botone. The importance of this connection is underlined by the citations at the end of the passage which all confirm the existence of dominium utile as a second form of ownership.40 38 Albericus de Rosate, In secundam Digesti Veteris partem Commentarii ad D 13.6.5.5 no 16 i.f. (1585; repr 1977) fol 78rab: “Exposita litera collige unum ad quod saepe allegatur iste §. quod dominium et possessio eiusdem rei non potest esse apud plures insolidum. Concordat extra de probationibus c. licet et vide quod ibi notatur et vide Innocentium extra de praescriptionibus c. auditis circa finem et concordat etiam infra de castrensi peculio l. haereditatis §. pater; de concessione praebendarum c. post electionem et vide Roffredum in libello de utili rei vendicatione quae datur superficiario: nam ex diversis dominiis, puta directo et utili possunt plures esse domini eiusdem rei ut ibi notat Hostiensis in summa eodem titulo §. quibus detur, et alios sumistas, et Speculum”. Cf also no 19 i.pr fol 78va. 39 The commentary on X 2.26.15 by Sinibaldus Fliscus (pope Innocent IV), which is cited immediately after X 2.19.9, does not contain an explicit statement on the issues discussed by Albericus. It is probably cited for the remark that several church officials may at the same time exercise the same rights over a certain group of believers, e.g. the archidiacon, the parson, the bishop and the archbishop can excommunicate or visit the same subjects (“... sicut apparet in visitatione ecclesiasiae et aliis similibus, quae non prohibentur simul esse apud plures, nam archidiaconus, plebanus, Episcopus et archiepiscopus eosdem subditos excommunicare et visitare possunt”), Innocent IV, Apparatus in V libros decretalium, ad X 2.16.15 no 6 (1579; repr 1968) 307. 40 Cf Roffredus Beneventanus, Libelli iuris civilis, (1500; repr 1968) 24-26. The reference to Hostiensis is difficult to understand. If Hostiensis eodem is taken to refer to the title De commodato in the Summa Hostiensis, the citation seems to be erroneous. At least in the printed edition accessible to the present writer, the title De commodato in book 3 only contains a § Quibus dentur, which does not mention the dominium utile or anything else that might be pertinent to
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(5) Bartolus and the doctor de aurelianis Bartolus de Saxoferrato does not mention the possible conflict between the doctrine of dominium utile and the rule duo non possunt habere dominium eiusdem rei in solidum in his extensive commentary on D 13.6.5.15.41 As has already been mentioned, he betrays no doubts regarding the admissibility of dominium utile under the rule in D 13.6.5.15 in the small treatise on dominium utile that is contained in the commentary on D 41.2.17.1. However, Bartolus comes to mention D 13.6.5.15 and the rule contained therein in his commentary on D 41.2.17.1 at the outset of his discussion of dominium utile: I ask: how many types of ownership are there? A certain Doctor from Orleans says, as that German Doctor, who yesterday held a repetition here, has reported, that there is only one type of ownership. But there are two. And I prove this through the l. possessores in fin. C. de fundis patrimonialibus lib. 11 [C 11.62.12.1] where it is said that the emphyteuta is the owner (of his land). And yet someone else remains the owner, viz. the lessor, l. i et ii C. de iure emphyteutico [C 4.66.1-2]. And if there are two owners, the types of ownership must be different, because the same ownership cannot belong to two persons, as is stated in l. si ut certo § si duobus vehiculum supra commodati [D 13.6.5.15].42
Bartolus discusses the opinion of an unknown French jurist, of which he was informed by an equally anonymous German. Ennio Cortese has recently shown that the French scholar was probably Jean Nicot.43 He taught law at the the issues discussed by Albericus. See Henricus de Segusio, Summa (1537; repr 1962) fol 146ra. However, Hostiensis acknowledges the existence of the utilis rei vindicatio and the dominium utile elsewhere in his work, see book 3, title De locato et conducto, § Que actio ex hoc contractu nascatur, fol 151va (concerning the emphyteuta) and title De feudis, § Quod ius acquiratur vasallo, fol 153vb-fol 154ra (concerning the vasallus). The text in the title De feudis is commonly cited for the final sentence Sed dominus meus dicit quod utile dominium est chimera. Unlike his teacher Jacobus Balduini, however, Hostiensis himself accepts the notion of dominium utile as is apparent from the sentence immediately preceding the one just quoted: “quidquid tamen superius sit allegatum satis videtur dici posse quod habeat [sc. vasallus] dominium utile ad exemplum predictorum.” Cf Meynial, “Théorie du domaine divisé” (n 13) 427 who writes that Hostiensis reports “l’opinion de son maître sans s’y rallier”. The Speculum Iudiciale of Gulielmus Durantis contains similar statements signalling acceptance of the doctrine of dominium utile; cf Wilhelm Durantis, Speculum Iudiciale bk 4 pt 2 De causa possessionis et proprietatis § 4 no 10 and bk 4 pt 3 De locato § 5 no 29 (1574; repr 1975) II 149 (concerning the superficiary) and 270. 41 Bartolus a Saxoferrato, In secundam Digesti Veteris partem Commentaria ad D 13.6.5.15 (1574; electronic edn by A J B Sirks, 2004) fols 82vb–83vb. 42 Bartolus, In primam Digesti Novi, ad D 42.2.17.1 no 5 (n 1) fol 92va: “Quaero, quotuplex est dominium? Quidam doctor de Aurelianis, ut retulit ille doctor Theutonicus, qui pridie hic repetiit, dicit quod unum solum est dominium. Sed duo sunt. et probo per l. possessores in fin. C. de fundis patrimonialibus lib. 11, ubi dicit, quod emphyteuta est dominus, et tamen alius remanet dominus scilicet concedens l. i et ii C. de iure emphyteutico. et si sint duo domini, diversa dominia sunt, quia non potest idem dominium esse apud duos: ut l. si ut certo § si duobus vehiculum supra commodati.” 43 E Cortese, “Controversie medievali sul dominium utile: Bartolo e il quidam doctor de Aurelianis”, in A Padoa Schioppa, G di Renzo Villata and G P Massetto (eds), Amicitiae Pignus. Studi in
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university of Orleans for many years before becoming bishop of Orleans in 1357.44 In the university, he was the doctor assigned to the natio germanica.45 Thus, it is very plausible that a German jurist should have propagated his point of view when visiting the university of Perugia and holding a repetitio there around 1350.46 The Frenchman maintains that there is only one dominium, and thus denies the doctrine of dominium utile. Since a lecture by Nicot has recently been discovered,47 we know that he continued and exacerbated the critical attitude of earlier French jurists towards the doctrine of dominium utile.48 In the context of his argument against the position of the doctor de Aurelianis, Bartolus cites D 13.6.5.15 and transforms the text – which at first sight contains a strong argument against the doctrine of dominim utile – into an authority supporting the same doctrine. The line of reasoning is simple. Bartolus obviously agrees with the position of Albericus de Rosate, according to which the maxim duo non possunt habere dominium eiusdem rei in solidum does not apply where different types of property are involved. Bartolus now takes one of the texts where the Justinianic law itself does not stick to the classical principle of indivisible ownership: C 11.62.12.1, which indeed calls the emphyteutae owners of their land (fundorum domini). Now Bartolus confronts this text with two sources where, in accordance with the classical principle, the dominus fundi is the lessor who gives out his land to the emphyteuta. Bartolus concludes that the rule in D 13.6.5.15 can only be satisfied if it is accepted that the dominium of the lessor is of a different type than the dominium of the emphyteuta. Thus the maxim duo non possunt habere dominium eiusdem rei in solidum becomes an argument in favour of the recognition of the dominium utile. Bartolus’ statement demonstrates that there was no longer any doubt ricordo di Adriano Cavanna (2003) I 613 at 29. On the identity of these two jurists and the question whether – at the time of Bartolus – French jurists opposed the concept of dominium utile, compare also Feenstra, “Origines du dominium utile” (n 15) 87-92 and Kriechbaum, Actio (n 4) 315 n 96. 44 On Nicot’s life, see M Duynstee, “An Unknown Fourteenth-Century Lecture of the Orléans School: Jean Nicot on Book VI of the Code” (1992) 60 TvR 363 at 365-367. 45 Cortese, “Bartolo e il quidam doctor de Aurelianis” (n 43) 619; Duynstee, “Jean Nicot” (n 44) 366 n 19. 46 For the place and date of the repetitio mentioned by Bartolus, see Cortese, “Bartolo e il quidam doctor de Aurelianis” (n 43) 613. It was customary for doctores from abroad to hold a repetitio at a university they were visiting; cf K Bezemer, What Jacques Saw (1997) 54. A famous example is the repetitio held by Pierre de Belleperche at Bologna in 1300 when he was on his way to Rome for the jubilee; see Savigny, Geschichte (n 26) VI 28; Kriechbaum in Lange, RRM II 548. 47 Duynstee, “Jean Nicot” (n 44) 363-375. 48 Cortese, “Bartolo e il quidam doctor de Aurelianis” (n 43) 628 and (at 633) cf the excerpts from Nicot’s lecture. See above n 18 for the attitude of the earlier French jurists.
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regarding the compatibility of the doctrine of dominium utile with the rule duo non possunt habere dominium eiusdem rei in solidum.49 d. the meAning of BArtolus’ definition of ownership So far, we have seen how the medieval lawyers found a way around the conclusion that the maxim duo non possunt habere dominium eiusdem rei in solidum, which is so clearly stated in D 13.6.5.15, could not be reconciled with the doctrine of dominium utile. The remaining question is whether this has any consequences for our understanding of the famous definition of ownership. If Bartolus shared the conviction of medieval jurists (at least) since Odofredus that D 13.6.5.15 was no obstacle to the integration of feudal tenure in the ius commune, how could he have created a definition of ownership which seems to exclude all forms of split ownership and feudal tenure? There is a strong suspicion that the definition must be read differently in the light of its originator’s stance on dominium utile. This suspicion is confirmed if one turns to the reasons which Bartolus gives for the inclusion of the several elements of his definition. Only the justification for the words perfecte disponendi is of interest here, because these words seem to go against the possibility of split ownership: Why do I say that ownership is the right of complete disposal? Because of the l. in re mandata C. mandati [C 4.35.21] and with respect to the difference between ownership and possession which is the right to stand on a thing.50
Bartolus thus gives two reasons. First, he cites a text in Justinian’s Code which states that, whereas the contract of mandate binds the mandatarius to carry out the aliena negotia with the utmost care, each man is free to act as he pleases in most – though not all! – of his own affairs (non omnia negotia, sed pleraque). The citation makes it clear that Bartolus wants to emphasise the character of ownership as a right existing for the sake of the owner. However, the text that Bartolus chooses explicitly states that, even in one’s own affairs, some restrictions exist. This already makes it likely that, for Bartolus, ownership does not really presuppose the possibility to dispose de la manière la plus 49 The same appears from the treatment of the issue by Paulus de Castro. Paulus devotes only a few lines in his commentary on D 13.6.5.15 to dominium utile: Pauli Castrensis, In secundam Digesti Veteris partem Commentaria ad D 13.6.5.15 no 2 (1582; electronic edn by A J B Sirks, 2004) fol 76va. 50 Bartolus, In primam Digesti Novi ad D 41.2.17.1 no 4 (n 1) fol 92va: “Quare dico perfecte disponendi? per l. in re mandata C. mandati et quo ad differentiam possessionis, quae est ius insistendi rei.”
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absolue.51 Secondly, Bartolus states that he uses the words perfecte disponendi to distinguish ownership from possession.52 Since possession does not entail any right of disposition, but only – as Bartolus puts it – a ius insistendi, this, too, shows that Bartolus is far from requiring absolute, unencumbered power.53 We can conclude that it is at least highly likely that the definition of ownership given by Bartolus was less Roman and less modern than it sounds to us.54 It was, in truth, a definition that was perfectly compatible with the doctrine of dominium utile and the feudal realities of the time. e. from reGula to ChAos? Hopefully, this paper has shed some light on the ways in which the medieval lawyers adapted the Roman sources to the needs of their time. Unfortunately, though, the treatment of dominium utile is hardly an example for the development of clear rules from the vast mass of cases and opinions contained in the Justinianic sources. The new rule which emerged from the labours of the jurists – the general definition of ownership coined by Bartolus – was probably less meaningful than one might have expected. Moreover, one might say that the jurists of the Middle Ages destroyed a clear rule, which was contained in D 13.6.5.15. At the end of the period of the commentators, the maxim duo non possunt habere dominium eiusdem rei in solidum had become almost meaningless. The exact meaning of the terms dominium directum and dominium utile and the extent to which the Roman rules on dominium were applicable to either type had to be worked out anew. In that sense, the path of medieval property law did not lead from casus to regula, but rather from a rule that proved to be too rigid to many difficult cases.
51 Thus contrary to Coing’s interpretation (“Eigentumslehre des Bartolus” (n 6) 354), the reference to C 4.35.21 does not imply that the owner of a thing enjoys a sovereignty similar to that which every person has over their own actions, but rather that the owner is free within the limits of his or her position – just as every person is free in their actions only within the limits of the human condition. See also P Grossi, Le situazioni reali nell’esperienza giuridica medievale. Corso di storia del diritto (1968) 155. On the continuing use of C 4.35.21 in the context of the concept of ownership by later authors of the ius commune, see Coing, Europäisches Privatrecht (n 2) 292. 52 Coing, “Eigentumslehre des Bartolus” (n 6) 353. 53 The verb insistere is used in D 41.2.1pr to characterise possession: “Possessio appellata est, ut et Labeo ait, a sedibus quasi positio, quia naturaliter tenetur ab eo qui ei insistit ...” 54 Grossi, Situazioni reali (n 51) 155; Willoweit, “Dominium und proprietas” (n 10) 146; Seelmann, Lehre des Fernando Vazquez (n 11) 65; Hecker, Eigentum (n 6) 40-41 have all come to similar conclusions.
6 Succession to Fiefs: A Ius Commune Feudorum? Magnus Ryan A. B. C. D. E. F.
INTRODUCTION THE LIBRI FEUDORUM AND THE GLOSSATORS SUCCESSION IN THE LIBRI FEUDORUM LATER INTERPRETATION OF THE ACCURSIAN GLOSS NATURA FEUDI AND RECTUM FEUDUM CONCLUSION A. INTRODUCTION
Succession was one of the most heavily represented themes in later medieval and early-modern juristic discussion of fiefs. In this, ius commune feudorum merely reflected the wider trends of practical and academic jurisprudence. However, the frequency with which the phrase ius commune feudorum occurs in their surviving works indicates that many of the glossators thought that the law of fiefs constituted a significant category of its own within the broader ius commune, and this was indeed the case. The fief was thought to be sui generis. This is of some significance because the hermeneutic bias of the glossators from the outset and, at Bologna at least, with few deviations, had been to assume that most if not all phenomena could be described and analysed by means of the tools Justinian gave them. It took until the last decade or so of the twelfth century before a lawyer explicitly stated that it was forbidden to quote as authorities texts outside the Corpus Iuris (that lawyer being Azo: non licet juristis allegare nisi Justiniani leges). However, at Bologna at least, the principle was obviously enshrined in the practice of teaching and commentary long before that and was probably the aspect of glossatorial method which did more than anything else to create an autonomous discipline of law during the twelfth century.1 Although glossators such as the mid-thirteenth-century Jacobus de Ardizone observed that there was nothing about the vassal in the Roman 1 E Landsberg, Die Quaestiones des Azo (1888) 74.
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law,2 the schools had in fact found at least one fertile stretch of the Corpus iuris to help them answer questions about vassals: the ius patronatus – that is, the law governing relations between freedmen and their former owners, now their patroni. Seemingly the earliest glossator to do this, Johannes Bassianus, who taught Azo at Bologna in the later twelfth century, had even argued in a text which shows some marks of having been prompted by a practical case that “by the custom of the kingdom what we read in the laws about freedmen is applied by everyone to vassals”.3 These details about the vassal matter because they are in marked contrast to what happened with the fief; the glossators found no such parallels for the fief. The fief as known to the glossators was not an analogue or a composite of analogues drawn from the laws of Justinian; rather, it was the fief of the Libri or Liber feudorum. This was the short and rather chaotic collection of treatises composed in Pavia and Milan over at least fifty years of the twelfth century and probably longer, seemingly in its earliest stratum a product of Lombardist jurisprudence, in its later sections almost a manual by and for communal judges and advocates in Pavia and Milan.4 An apparatus of civilian glosses was written on the Libri by Pillius de Medicina, which was left incomplete at his death in 1208/13 and went on to form more than half of the eventual standard gloss of Accursius.5 The technically accurate title of the Libri feudorum by the end of the Middle Ages was the Decima collatio de feudis, the tenth and final section of the Novels in the vulgate form used at the medieval schools known as the Authenticum, but for most of the thirteenth and fourteenth centuries the text could appear just about anywhere in the fifth and “short” volume of the Corpus iuris (the Volumen parvum) alongside the Authenticum, Institutes and last three books of the Code, and it went under a variety of titles. 2 Iacobus de Ardizone, Summa super usibus feudorum composita (1518) fol 3vb. 3 Bassianus: “Quod vero de libertis legitur in legibus ex regni consuetudine in vasallis ab omnibus observatur”, quoted from Bassianus’ Summa de accusationibus by Ardizone in Summa feudorum (n 2) fol 9ra. The kingdom concerned is Lombardy. I agree with Lange, RRM I 224: the text as we have it probably originated in a professional consultation or consilium by Bassianus. For Bassianus’ summa, also known as Libellus accusatorius and Libellus accusationis, see E Seckel, “Über neuere Editionen juristischer Schriften aus dem Mittelalter” (1900) 21 ZRG, RA 212 at 300-306; and S Kuttner, “Zur neuesten Glossatorenforschung” (1940) 6 Studia et Documenta Historiae et Iuris 275 at 313; repr Kuttner, Studies in the History of Medieval Canon Law (1990) I. 4 K Lehmann, Das langobardische Lehnrecht. Handschriften, Textentwicklung, ältester Text und Vulgattext nebst den capitula extraordinaria (1896). 5 For Pillius’ death, see Lange, RRM I 229 and n 23. For an edition of his apparatus, see A Rota, L’apparato di Pillio alle “Consuetudines Feudorum” e il Ms. 1004 dell’Archivio di Stato di Roma [= Studi e Memorie per la Storia dell’Università di Bologna Ser Ia XIV] (1938) 1-170. A reprint of the Glossa ordinaria to the Libri feudorum is available in M Montorzi, Diritto feudale nel basso medioevo. Materiali di lavoro e strumenti critici per l’esegesi della glossa ordinaria ai Libri feudorum (1991).
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B. THE LIBRI FEUDORUM AND THE GLOSSATORS Ius commune feudorum begins with this text. This is not to imply that fiefs and vassals had not been legally stable phenomena across Europe before the appearance of the Libri and their adoption by the civilians and canonists, merely that the Libri feudorum or Lombard feudal law served as the foundation of sustained glossatorial meditation on fiefs. If one ignores the glosses to the Libri themselves (which number about 636 by Professor Montorzi’s reckoning), the massive 96,000 remaining separate annotations comprising the standard gloss to the Roman law contain about thirty-one annotations that so much as mention fiefs, lords, vassals or feudal concessions. In many cases such observations are restricted to one or two words, and contain no profound or detailed analysis. Twelfth-century lawyers – particularly at Bologna, whose traditions are partly preserved, and better preserved in this Accursian aspic than those of other twelfth-century law schools – were not much interested; indeed, of these glosses, perhaps a handful reach back further than the generation of Azo. Whilst it is true that glossators as far back as Irnerius had made the occasional comment about vassals and fiefs,6 and although a trickle of glosses and comments runs thereafter through sources such as the Dissensiones dominorum and the occasional free-standing summa, no coherent body of jurisprudence on such matters took shape until the end of the twelfth century; ius commune feudorum was a latecomer. This meant that when the Libri feudorum arrived at the schools, there was no strong tradition of jurisprudence to condition their exegesis. C. SUCCESSION IN THE LIBRI FEUDORUM A great deal of the Libri feudorum is concerned with succession, the other main preoccupations of the text being forfeiture and procedure, especially proof. The standard position may be reduced to the following brief statements. Fiefs, formerly called benefices, were initially not even lifetime grants, let alone heritable. Later, the lord chose which son would inherit but now it is divided between sons equally. Grandsons in the direct line were then admitted (by Conrad II), as well as – in default of sons – brothers, so long as the fief at stake was not in its first generation.7 Daughters may not inherit, 6 See E M Meijers, “Les glossateurs et le droit feudal” (1934) 13 TvR 129 [repr with additions in Meijers, Études III 260] passim. 7 LF 1.1.1 and 2.
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in contrast to successions regulated by the laws, unless specific provision has been made for them at the original enfeoffment.8 Lateral succession used to be restricted to the fourth grade according to the Roman computation (fratres patrueles), but now it extends to males ad infinitum.9 Agnates have a well-protected interest in any fief which is already in its second generation – that is, which has already been inherited once – and can even take a fief forfeited by a vassal when his own son cannot.10 No alienation of such a fief (a “paternal fief” or feudum paternum) is valid without the consent of the agnates.11 Sons of a morganatic second marriage by the vassal may not succeed.12 No illegitimate or adoptive children may succeed.13 Ascendants may not succeed.14 At the outset of civilian reflection on feudal succession, then, stood the explicit contention that succession to fiefs was atypical in a number of ways. The glossators took this as a given. The manuscript containing the Summa Trecensis, the earliest full summa on the Code, implicitly recognises this by its very organisation, for it contains a short treatise on succession according to Roman law, then according to Lombard law, and finally an extract from an early recension of the Libri describing succession to fiefs.15 More explicitly, and getting on for a century later, Accursius noted that the bar on female succession was contrary to Roman law, explaining: Here, therefore, [the text] establishes something different to what is observed according to law, nor is this surprising, for the authority of the Roman laws is not negligible, but they do not extend their force to the point at which they overcome custom or usage …16
It is striking that Accursius does not object to this, because the passage he is paraphrasing is of course an inversion by Oberto dall’Orto, one of the 8 LF 1.1.2; 1.8; 2.2.3; 2.11; 2.17. 9 LF 1.1.3. 10 LF 2.26; LF 2.26.18 and LF 2.31. 11 LF 2.39 pr. 12 LF 2.29. 13 LF 2.26.9 and 11. 14 LF 2.50. 15 F Patetta, Il manoscritto 1317 della biblioteca di Troyes, in F Patetta, Studi sulle fonti giuridiche medievali, ed G Astuti (1967) sec XV 561-577 at 568; see Troyes BM 1317 fol 71rb-va. 16 Glos ord to LF 1.1.3, gl a successione feudi [Montorzi, Diritto feudale (n 5) 16b]: “Hic ergo aliud statuit quam in legibus observatur, nimirum. Legum Romanarum non vilis est auctoritas, non tamen usque adeo vim suam extendunt, ut consuetudinem vincant, aut mores ut. j. de cog[nitione] feu[di] c. i [LF 2.1]. In isto § notare licet deteriores esse conditiones mulierum quam virorum, et hoc est quod dicitur ff. de sta[tu] ho[minum] l. in multis viris [sic; recte: iuris; D 1.5.9]. Sed quare hoc contingat quero? Respon[deo] quia dominum iuvare non possunt, nec pugnam facere, quibus insto, quia filii earum possunt, tamen removentur secundum quod hic dicitur, est ergo pro ratione voluntas.”
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contributors to the Libri, of C 8.52(53).2, where Constantine accords custom considerable force but subjects it to the twin restrictions of law and reason. Accursius goes on to say that women cannot fight and therefore cannot assist their lord, which is the reason given in the Libri at several points, but he concludes on a note of mystification: sons could serve on their behalf, so why should women not succeed after all? His response is a resigned est ergo pro ratione voluntas. Where the exclusion of women was concerned, the Libri themselves provided plenty of escape clauses. The standard formulation in the text is that women may not succeed to a fief unless they have been expressly permitted to do so by the original charter of enfeoffment.17 That allowed plenty of room for manoeuvre. D. LATER INTERPRETATION OF THE ACCURSIAN GLOSS This eirenic attitude to the succession mechanisms in the Libri was fairly common but not universal amongst the glossators. We can see this in the fortunes of a gloss by Accursius to Code 3.36.14 (Familiae erciscundae) on the implications of eviction after a division between co-heirs. Accursius’ question is as follows. Two brothers have divided their paternal inheritance in a judgment of familiae erciscundae, the one taking their father’s fiefs, the other his alods. The former dies leaving only a daughter. Does she have an action of eviction against her uncle? Accursius answers no: the defunct co-heir knew when he accepted the fiefs that if he left a daughter she would be unable to inherit them.18 Jacques de Revigny at Orleans elaborates by providing an instructive mini-dialogue.19 The one brother says to the other: “I am weak, so I shall have the alods and you, who are strong, shall have the fiefs”. The additional detail that the division has been made in consideration of the incapacity of one son to serve his fiefs adds nothing of substance to the discussion, and is only mentioned here because it incidentally reveals that Revigny shared one of the major assumptions of the Italian glossators – itself barely 17 See above at n 8. 18 See Glos ord to C 3.36.14, gl pro parte: “Item, quid si uni assignetur per divisionem iudicis totum allodium, alii feudum qui decedens reliquit tantum filiam haec filia evicto ei feudo agere possit, quod videtur quasi non sit ei vitium quod foemina sit nata: ut j. de leg. her. l. lege [C 6.58.14] et de lib. praeter. vel exher. l. fi. [C 6.28.4]. Econtra quod non: sicut si res empta naturaliter interiisset vel fato: ut ff. de evic. l. si servus [D 21.2.21pr]. Item quia pater causam praestitit ar. ff. de evict. l. si servum [D 22.1.25]. Sed puto quod non, cum pater eius filie accipiens in partem hoc sciebat posse evenire, nisi fuisset stipulatus de evictione: ut j. de evict. l. si fundum [C. 8.44(45).27].” 19 I follow the spelling suggested by L Waelkens, “La ‘Lectura Institutionum’ de Raoul d’Harcourt” (1992) 3 Rivista Internazionale di Diritto Commune 79 at 79 n 2.
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more than a paraphrase of a passage in the Libri feudorum – to the effect that physical disability could nullify hereditary title to a fief.20 Revigny adds that so long as the girl’s father knew he was taking fiefs, and knew the iura feudorum, then she has no remedy. If he did not, then perhaps his ignorance should not count against him and his daughter. Now this is interesting. It was a regula iuris that ignorance of the law prejudiced anyone, whereas ignorance of fact need not.21 The strong implication of Revigny’s final remark is therefore that the iura feudorum are not so well established that they come under that rule. It is hard to imagine what iura feudorum might mean if not the Libri, which Revigny demonstrably knew and by that very name.22 The varied fortunes of Accursius’ gloss to C 3.36.14 in the jurisprudence inspired by the school of Orleans provide a clear index of the influence of the Libri feudorum. In the next generation Pierre de Belleperche thought the very question fatuous since eviction could only be pleaded against the person from whom the evicted party had title. In his own treatment of the question he cut out the circumstantial detail to an irreducible core, omitting Revigny’s description of the circumstances which made Accursius’ question more accessible, details derived from the dispositions of the feudal law.23 Cinus of Pistoia was content to repeat Belleperche’s charge of irrelevance,24 although he frequently cited the Libri feudorum in other contexts where Belleperche and Revigny had ignored them. The professor of Roman law at Orleans and Toulouse, Guillelmus de
20
LF 2.36 [Lehmann, Lehnrecht (n 4) 166]. See, for glossatorial discussion of this passage, the Glos
ord [Montorzi, Diritto feudale (n 5) 71b-72a); Jacobus de Ardizone, Summa feudorum (n 2) fol 28rb; Jacobus de Belvisio, Summa feudorum (below, n 50) fol 100vb. 21 Sext 5.12.13; cf D 22.6.9pr. 22 R Feenstra, “Quaestiones de materia feudorum de Jacques de Révigny” (1972) 84 Studi Senesi 379 at 386 [repr R Feenstra, Fata Iuris Romani. Études d’Histoire du Droit (1974) 298]. 23 See Florence BML Plut 6 Sin 6 fol 158rb, with variants listed from Cambridge Peterhouse 34 [hereafter “Ca”] fol 109vb: “Querit glo. ulterius po[ne] pater decessit relictis duobus heredibus. habet feudalia et quedam censualia. [Ca omits: dividit quod primogenitus habeat feudalia et alius censualia]. primogenitus decedit relicta filia. illa non potest feudalia habere. evincantur. nunquid illa filia [Ca adds: non potest feudalia habere] regressum habet contra heredes patris sui. videtur quod sic dicit glo., ar[gumento] huius legis, que videtur dicere expresse; alias esset naturam vituperare, ut j. de li. pre. l. maximum [C 6.28.4]. videtur contra, quia debet scire istud, ideo etc. ar. j. de evict. si fundum [C 8.44.27]. Ista questio fatua est. non habet regressum de evictione nisi propter defectum actoris a quo causam habuit evincatur. ita non est hic et ideo non habet regressum de evict. ut ff. de evict. l. hoc iure [D 21.2.27].” 24 See Cyni Pistoriensis in Codicem et aliquot titulos primi Pandectarum tomi ... doctissima Commentaria (1578; repr 1964) I fol 179vb: “Ultima gloss. querit de quadam quaestione circa feudum et allodium, quae videtur Pet. fatua quaestio. Nam de evictione non agitur, nisi propter defectum autoris, a quo causam habuit possessor, res evincatur, ut ff. de evict. l. hoc iure [D 21.2.27], ergo etc.”
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Cuneo,25 a contemporary of Cinus, approached the gloss in a more charitable manner.26 His conclusion was the same as that of Revigny. If the son who accepted the fiefs at the time of the original division knew that they were fiefs, then his daughter would have no action against the other son who took the alods. But the precise details of Guillelmus’ commentary take us much further into the background of principle and general rule than any previous gloss. Guillelmus began by explaining the difference between a fief and an alod. The holder of an alod might be under the jurisdiction of somebody else, but he owns his alod; he does not hold it in dependent tenure.27 The fief, in contrast, is held from somebody else such that services are owed for it.28 The Libri feudorum are used to exemplify both comments. The fief differs from emphyteusis in so far as it is granted out of affection and not as a purely financial transaction.29 Finally, and most relevantly given the terms of the original question, Guillelmus explains: And a fief is of such a nature that daughters cannot succeed to a regular fief [rectum feudum] and the reason is because they cannot serve like a man in a fief [LF 1.38] and therefore it is contrary to the law that says daughters and sons ought to succeed equally [C 6.58.14; 6.28.4].30 25 For biographical details on Guillelmus, see E M Meijers, “La première époque d’épanouissement de l’enseignement de droit à l’université de Toulouse”, in Meijers, Études III 167 at 186; and now Lange, RRM II 568-581. 26 See Guilhelmus de Cungno super Codice (1513) fol 54ra, with variants from the manuscript Basel Universitätsbibliothek C. I. 6 [hereafter “B”] fol 53va-b. 27 Guillelmus de Cuneo, Super codice (n 26) fol 54ra: “Sed glosa movet postea talem questionem et pro evidentia est sciendum quod nos habemus allodia et feuda. allodia vocantur illa que quis ut propria possidet nec tenet ab aliquo. Sed ipse tanquam dominus possidet licet sit sub iurisditione alterius in feu. de illo [B: allod.] c. uno. alias est tub ti. de prohi. alie. feud. per fre. c. hac edictali. § ad hec de allodiis [LF 2.53.11].” The last three paragraphs of LF 2.53 were frequently given their own rubric (De allodiis) in manuscripts of the Libri feudorum. Guillelmus allows for both possibilities in giving the alternative reference to Hac edictali. See Lehmann, Lehnrecht (n 4) 179, and Montorzi, Diritto feudale (n 5) 92a-93a. The correct reference should be Ad hoc, qui allodium. 28 Guillelmus de Cuneo, Super codice (n 26) fol 54ra: immediately following: “Sed habemus etiam feudum et dicitur feudum quando aliquis tenet rem aliquam pro qua tenetur prestare servitium aliquod in feudum [sic; recte feudis,] de feu. cogni. c. i. [LF 2.1].” 29 Guillelmus de Cuneo, Super codice (n 26) fol 54ra: immediately following: “... et differt ab emphiteota quia feudum principaliter fit propter amorem magis quam propter lucrum in feu. de feu. da. in vicem [B: adds sub] le. com. c. uno. [LF 1.26]. Sed emphiteosis fit principaliter propter lucrum insti. loc. et conduc. § adeo [J Inst 3.24.3], et j. de iur. emphi. l. fina. [C 4.66.3].” The distinction was standard. 30 “Et feudum est talis nature quod filie non succedunt in recto feudo et est ratio quia non possunt servire sicut vir in feudum ff.a de suc. feu. c. uno. § filiab [LF 1.38] et ideoc et est contra ius quod dicit filiasd et filios equaliter debere succedere, l. j. de le. here. l. lege xii. ta. [C 6.58.14] et j. de li. p. et exher. l. maximum virum [C 6.28.4].” Notes: aB: omits ff bB: fila vero c B: omits et ideo d Ed: filia. Guillelmus de Cuneo, Super codice (n 26) fol 54ra: immediately following.
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These comments contain nothing out of step with Italian jurisprudence of the thirteenth century. The fief is an independent phenomenon: it is sui generis and not to be subsumed by emphyteusis. Some of the peculiar characteristics of the fief are contrary to the Roman law. In this case, the point of disagreement is the inequality of male and female heirs. It is even more important that Guillelmus refers in this context to the rectum feudum, a phrase to which we will return shortly. This would have been impossible for Revigny, for all that he relied on the feudal law as iura feudorum. By Guillaume de Cuneo’s time, it seems clear, the matter was therefore closed: ignorance of the Libri was not an excuse. With that implicit recognition, natura feudi gained an enhanced traction and authority in legal argument. A second oddity of feudal succession provoked a disagreement of a far higher order and concerned what exactly the word “heir” meant; it gives a precise indication of the differences in emphasis between jurisprudence governed by the Libri and so natura feudi on the one hand, and jurisprudence limited to the Corpus iuris on the other. In the course of his commentary on C 6.3.6, Cinus relates the following question by Revigny and Belleperche: It once happened that the king of the Franks granted to a certain knight a castle in fief in the following way: I give to you and to your heirs. The said knight died without sons, whereupon the king sought the return of the fief, because in this case heirs ought to be understood as sons.31
Cinus goes on to explain that Revigny and Belleperche disagreed with the verdict, on the grounds that the phrase et haeredibus should not be taken to refer to heirs of the body, but in the wider sense of any heir, so as to include extranei. The immediate obstacle to such an argument is D 36.1.18(17).8 in the title on the Senatus consultum Trebellianum, which in the Vulgate reads: If, moreover, an individual left a fideicommissum in this form – “My son, I grant to you on your faith, that, if you were to die without an heir, you would restore the inheritance to Seius” – the deified Pius replied in a rescript that he is to be regarded as thinking of children.32 31 Cinus, In Codicem ad C 6.3.6 (n 24) fol 348ra (De operis libertorum l. Liberti): “De facto acciderat, quod rex Francorum cuidam militi dedit castrum in feudum hoc modo: Do tibi et haeredibus tuis. Miles iste decessit sine filiis, unde Rex petebat feudum, quia in casu huiusmodi haeredes debent intelligi filii.” 32 See Accursii Glossa in Digestum Infortiatum in CGIC VIII fol 202vb: “Si quis autem ita fideicommissum reliquerit: fidei tue fili committo, ut si sine herede moriaris restituas Seio hereditatem, videri eum de liberis sensisse Divus Pius rescripsit.” Mommsen’s edition reads “si alieno herede moriaris”. As will become clear, had the Vulgate contained this reading, the debate about to be examined would perhaps have taken a different direction. I am grateful to Bernhard Stolte for discussing these variant readings with me, and for his reassurance that the text of the Basilica provides no solution to this difficulty.
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Accursius observed in his gloss to this passage that si sine herede might refer to any heir, that is, not simply to heirs of the body but to extranei as well; but he rejected this interpretation on the grounds that it is extremely uncommon for there to be no heir, even if the heir is merely the fisc.33 He continued: And it is following this argument that, if I grant to you and to your heirs a fief or a precarious tenancy, it would seem to be understood as a grant to sons, otherwise it would be perpetual ...34
Now this supports strongly the judgment against the claimants of the fief in the case related by Cinus. He notes this, and says that Revigny and Belleperche argued against the application of D 36.1.18(17).8 to feudal succession. Their objection, he explained, was rooted in the very point Accursius made when he argued that si sine herede must refer only to heirs of the body, otherwise the condition of the fideicommissum would be extremely difficult to fulfil, and no testator is likely to have imposed such a condition intentionally.35 In other words, there are obvious reasons for the restrictive reading in the case described in the Digest, but no obvious reason why this should be extended as a point of principle to feudal succession. Revigny’s discussion of the matter has not been found;36 but Belleperche’s discussion has been. On closer inspection, it emerges that Cinus did not report Belleperche quite faithfully, for the precise term he used in his summary of the case was liberis rather than Cinus’ heredibus. Beyond this, Belleperche’s treatment of the question corresponds in all important points with what Cinus tells us.37 The 33 Accursius, Glossa (n 32) fol 202vb: “sine herede, alias est sine herede et alias si sine alieno herede, scilicet existente etc. id est extraneo, sic C. de li. pre. l. iii. [C 6.28.3], qualis est quilibet preter liberos, sed prima verior et hec est ratio presumptionis, quia raro occurrat quod quis decedet sine herede cum saltim fiscus sit heres ut C. unde vir et uxor l. i. [C 6.18.1].” 34 Accursius, Glossa (n 32) fol 202vb: “et est secundum hoc ar. quod si concedo feudum vel precarium tibi et tuis heredibus quod de filiis videatur intellectum alias duraret sine fine …” 35 Cinus, In Codicem (n 24) fol 348ra, immediately following the passage cited above, note 163: “Et ad l. ex facto [D 36.1.18], respondent [scil. Revigny and Belleperche] quod ibi non extenditur appellatio haeredum, sed restringitur ad filios, ideo quia inutile redderetur fideicommissum, cum raro vel nunquam conditio posset existere, si intelligeretur de haeredibus quibuscunque, cum impossibile vel raro sit, quem non habere haeredem.” 36 The single manuscript containing his Lectura codicis (Paris BN MS lat 14350) breaks off in book 4, and the commentary in the printed edition (fols 257rb-258va) does not contain any reference to the affair. The additiones by Revigny to the Infortiatum (where D 36.1.18.8 might have elicited a response) listed by G Dolezalek, Verzeichnis der Handschriften zum römischen Recht bis 1600 (1972) III s.v. “Iacobus de Ravanis”, in Toledo Biblioteca de la Catedral 32-9 contain no identifiable addition at the relevant passage (fol 170va-b). No repetitio by Revigny is known on either C 6.3.6 or D 36.1.18. See C H Bezemer, Les Répétitions de Jacques de Révigny (1987) 111-156, 183-235. 37 See Florence, BML Plut 6 Sin 6 fol 228vb, with variants listed from Ca (n 23): “et per istam [legem?] sententia fuit determinata Parisiis [Ca: Parisius]. Rex concessit castrum alicui [Ca: alicui alicui] et liberis suis. decessit non relictis liberis sed extraneis, non iudicantur [Ca: inducuntur]
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disagreement between Revigny and Belleperche on the one hand and Accursius on the other is a dispute about the autonomy of feudal succession. For in restricting the application of D 36.1.18(17).8 to the single matter described there, the two ultramontani were implicitly treating feudal succession as yet another case where it is all but impossible to die without any heir at all. Cinus then refers to another jurist whose opinion supported that of the gloss against Revigny and Belleperche. Dinus, he tells us, stressed that Accursius was talking about the feudal contract, which by its very nature does not pass to extranei.38 Dinus indeed insists on the special nature of feudal succession in his additional gloss to D. 50.16.219: To the gloss on D 36.1.18(17) ... where stipulation is discussed, but it does not seem to be understood as about extraneous heirs, the following answer can be made. It there discusses the feudal contract, which by its very nature has not been accustomed to pass to an extraneous heir, whence it is said in feudal custom that, whenever there is discussion of heirs, it is to be understood as concerning male children and not women or extraneous heirs as in the Libri feudorum [LF 1.13pr].39
The reactions over the next two or three generations to Accursius’ gloss to D. 36.1.18(17).8 are most instructive. First, and most obviously, the story heredes ut castrum habere debeant. istud iudicium falsum est. ubi sibi stipuletur et heredibus suis videtur stipulari omnibus heredibus ut ff. de probat. si pactum [D 22.3.9], ergo si dono tibi et tuis heredibus non debet astringi iste favor quia illi extranei heredes habebunt. nam clausula que imponitur ad augmentandum non debet restringi ff. de condi. et de. l. cum tale § ult. [D 35.1.72.8]. nec obstat l. allegata. verisimile est ubi condicionem apponit quod illam impleri velit et ideo bene intelligitur [Ca: intelligatur] de heredibus propriis [sic; recte Ca: proprii] corporis alias condicio non posset impleri, ut l. ex facto § ult. [D 36.1.18.8], et ideo iudicium malum fuit.” Note that Belleperche does not mention Revigny here. 38 Cinus, In Codicem (n 24) 348ra: “Dyn. vero videtur sentire cum illa glo., et sic secundum eum bene fuit iudicatum quia ibi loquitur in contractu feudali, qui de sui natura non transit in haeredem extraneum. Unde in usu feudorum dicitur quod quotiens de haerede tractatur, intelligitur de filiis masculis, et non de foeminis sive haeredibus extraneis, ut de ali. feudi. c. i. versic. et sic [sic; recte si] clientulus [LF 1.12 pr]. Et ita scribit in d. § ultim. et de verborum signific. l. in conventionalibus [sic; recte conventionibus, D. 50.16.219].” 39 This comment does not appear in Dynus de Muxello super Infortiato et Digesto novo (1513) in OIR XVII, nor in BV MS Ottobon lat 1307, which contains Dinus’ additiones on the Infortiatum. I have taken the quotation from BV MS Urb lat 156 fol 146vb: “ad glo. ex facto ad trebell. ... ubi loquitur in stipulatione et tamen non videtur intelligi de hered. extran. sic potest responderi. ibi loquitur de contractu feudi dotali [sic; recte feodotali] qui de sui natura non consuevit transire ad heredem extraneum, unde in consuetudine feudi dicitur quod quotiens de herede tractatur, intelligitur de filiis masculis et non feminabus [sic] sive de heredibus extraneis, [ut in § codicill.] x. coll. de ali. feu. § fi. [LF 1.13pr].” At D 36.1.18(17).8, Dinus writes (at BV MS Urb lat 156 fol 94vb): “Sed op., quod in dubio videtur lex innuere quod appellatione heredum non solum filii sed extranei heredes intelliguntur, ut infra, de ver. si. in omnibus [not found], et propterea dicas quod aut sunt talia iura que solum transeunt ad filium, ut est feudum quod non transit ad extraneum, ut in constitutione feudorum, de suc. feudi c. i. [LF 2.8], et tunc ap[pellatione] hered[um] soli filii contineantur, alias si ad filium tanquam ad quemcunque successorem, tunc extranei heredes continentur, ut preal. l. cum si[milibus].”
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shows that the Libri feudorum joined the debate late in the day. Juristic reflection had been prompted in the first place by an argumentum a similibus: how appropriate was Accursius’ extension to feudal inheritance of the word haeres in a Digest fragment? A discussion rooted entirely in the Roman law then ensued, only to be concluded by the arrival (late in the thirteenth century) of a text which confirmed the position of Accursius. Here, then, is a case where the introduction of the Libri feudorum to the exclusively Justinianic theory of the ultramontani resulted in a flat contradiction, and in the vindication of the Libri feudorum. Secondly, the progression from Accursius’ gloss to Cinus’ commentary on the Code (by way of Pierre de Belleperche, and Dinus’ Additiones) shows how easy it was for later scholars to make the implicit explicit. The Glossa ordinaria is sparing in its citation of the Libri feudorum, but slightly richer in examples of argument from Roman law to feudal tenure. It was a comparatively straightforward matter to fill out the numerous passages where Accursius had observed ut in feudo or ut in feudis with precise references to title and chapter of the Libri feudorum. The only casualties of this development were a few of the detailed arguments of the ultramontani: only a few, and only the details, because Revigny’s picture of the fief agreed in most respects with that of the Libri feudorum. Some jurisprudence, of the Italian glossators as well as the ultramontani, was rendered obsolete by the attachment of their successors to the Libri feudorum. The question of whether the ius accrescendi applied to the case where a fief is granted to two brothers, one of whom then dies, had exercised some civilians. Cinus, in his commentary to C 6.10.1, says that some of the moderni argued that the ius accrescendi applied only to a fief granted by the emperor.40 Andreas Bonellus de Barulo argued in precisely this manner in his commentary on the Tres Libri (books 10-12 of the Code).41 Belleperche denied that an imperial grant made any difference.42 The Libri feudorum 40 Cinus, In Codicem (n 24) fol 353rb. 41 See D. Andreae de Barulo ... Commentaria super tribus postremis libris Codicis ad C. 10.14.1 (1601) in OIR XVIII 35: “Donavit Imperator mihi, et tibi feudum, si tu decedis sine liberis portio tua mihi accrescit.” Further on, Andreas argues: “Et lex ista est argumentum quod in contractibus inter vivos sit locus iuri acrescendi, sed contrarium est verum, ut in usufructu, qui accrescit proprietati etiam postquam alteri fuerit acquisitus, ut ff. de verb. obl. l. Si mihi et Titio [D 45.1.110], et de usufr. accr. l. 1, 2 et 3.” The passage occurs with only the most minor variants in Madrid, BN MS 825 fol 104va. For other treatments of this question, see the references provided by A Romano, Aspetti dell insegnamento giuridico nelle università medievali IV. Le quaestiones disputatae” (1975) 35 (no 24). 42 See Florence, BML Plut 6 Sin 6 fol 230rb at C 6.10.1: “Queritur de feudis. conceditur feudum duobus simul alter sine herede moritur. numquid accrescit alteri. Dicunt doc[tores] aut est concessum a principe et tunc accrescit, si socius libera. prin. l. un[ica, C 10.14.1], aut a privato,
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make it more than clear that no such principle applies, and Cinus summed up the issue with the observation that the question was only fit for disputations, since the precise matter was covered by the Libri.43 Once again, the most influential figure appears to have been Dinus: Cinus refers to him at the end of his comments on C 6.10.1, and it emerges from Dinus’ own additio at D 45.1.110 that virtually the entire argument came from him.44 E. NATURA FEUDI AND RECTUM FEUDUM A fundamental characteristic of the future ius commune feudorum is already discernible in these stories. This is flexibility. The Libri feudorum make it clear that supplementary agreements, what a civilian would understand as “pacta apposita”, could be made between lord and vassal at the moment of investiture, which, recorded in the charter of enfeoffment, would be definitive in any future litigation. Thirteenth-century disputations in particular show that the glossators took this very seriously. In the first example, such an agreement at the time of the iudicium familiae erciscundae would have protected the daughter. The Libri feudorum do not contain much law anyway, and much of what they do contain was of no use to the glossators or anyone after them, concerned as it was with modes of proof which were no longer current or would soon cease to be. The value of the text was in directing attention not to rules but to questions: was there a charter of enfeoffment; did it contain any supplementary agreements?45 In their absence, the fief was deemed to be a normal or rectum feudum, defined in turn by reference to the second common quantity in both the examples we have just seen: the et dico quod non quia quesita accrescunt.” Ca (n 23) gives an identical reading, but omits the obviously correct sine. 43 Cinus, In Codicem (n 24) fol 353rb: “Disputari posset, tamen non est quaestio, quia casus de fratri. de no. bene. investi. c. i. col. 9 [sic; LF 2.12.]. Item in iure emphyteutico secundum Dy. ut ipse scribit in dicta l. si mihi et Titio [D 45.1.110].” 44 This is another example to add to W M Gordon, “Cinus and Pierre de Belleperche”, in A Watson (ed), Daube Noster. Essays in Legal History for David Daube (1974) 105 at 108, who notes Cinus’ implication that his debt to Belleperche for his commentary on the rubric of C 3.33 amounts to an isolated comment, whereas three quarters of it is in fact borrowed. Dinus’ gloss to D 45.1.110 is missing from the 1513 edition of the Additiones. See BV MS Urb lat 156 fol 135vb: “No. hic arg. quod in contractibus non est locus iuri accrescendi, unde si concessi aliquibus feud., puta duobus quod uno eorum mortuo debeat ad me redire.’ He concludes: ‘dico quod in feudo non est questio, ut in capitulo tercio de fratribus novo [sic; recte de novo] beneficio investitis, coll. x [LF 2.12 ...].” Dinus must mean the passage corresponding to Lehmann, Lehnrecht (n 4) 130; there is no third section of LF 2.12. 45 M J Ryan, “Ius Commune Feudorum in the Thirteenth Century”, in A Romano (ed), … Colendo iustitiam et iura condendo … Federico II Legislatore del Regno di Sicilia nell’Europa del Duecento. Per una storia comparata delle codificazioni europee (1997) 51 at 62-63.
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vital concept of natura feudi.46 Here the glossators were extremely creative. The expression natura feudi appears only twice in the Libri feudorum, once in connection with a vassal’s right to trial before peers, once as that which a fief loses when it is granted with full freedom of alienation. Yet the glossators regularly mentioned exclusion of women and the restrictive interpretation of who constitutes an heir as belonging to “the nature of a fief”. Neither extension of the term was improper if judged by the main emphases of the Libri feudorum. LF 2.2 mentions a pactum allowing inheritance by women as at least “contra feudi consuetudinem”, and the passages in the Libri where succession is restricted to males in the absence of any compelling reason to admit females are legion. The edifice of doctrine had a firm foundation in natura feudi, or the closely related concept of the rectum feudum or “regular fief”. Charters of enfeoffment from northern Italy in the twelfth century frequently employ the phrase rectum feudum47 and there is even a rubric, possibly put there by the glossators themselves, describing the “Custom of the regular fief” (De consuetudine recti feudi) in the Libri (LF 2.33). But the rest of the edifice could bend with the wind because the glossators never doubted that additional agreements could be made at the moment of enfeoffment even against natura feudi. The skill of the glossators in extracting from the Libri an idea of natura feudi or the standard fief prompts an important question. Is there any progression or story to be told here about feudal succession, and if so, when does it stop? There can of course be no question of identifying a single jurist as solely responsible for the propagation of an idea which we have already seen to be general or implicit in the jurisprudence of a variety of thirteenth-century lawyers, but one could make a very strong case for Dinus, who deploys the notion of natura feudi freely in his work. We have seen that in the debates between Accursius and the ultramontane giants Revigny and Belleperche, the last word was that of Dinus. In this respect it is significant that Dinus is also the first recorded jurist to make use of the concept of natura feudi in a professional consultation.48 The occasion was a succession dispute which had arisen in Verona, the lineaments of which were similar to those of the question treated by Accursius and Revigny about one co-heir taking the father’s fiefs and the other his alods. In Dinus’ consilium, a brother and sister have split the inheritance, only for the brother to discover that some of what he now 46 Ryan, “Ius Commune Feudorum” (n 45) 55-65. 47 J Ficker, Forschungen zur Reichs- und Rechtsgeschichte Italiens (1868-1874; repr 1961) IV 183-184 (no 141: Parma, 1167, here described as “per morem Theutonicum”); 191-192 (no 151: Mombello, 1178), as two examples among many. 48 Ryan, “Ius Commune Feudorum” (n 45) 58-60.
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has consists of fiefs. He asks for the fiefs to be taken out of the reckoning and for what remains to be split equally between himself and his sister, for sisters cannot inherit fiefs anyway. Dinus’ arguments here are very similar to his earlier comments as he adjudicated between Revigny and Accursius, although they are more extensive. The key point of the consilium is that a simple agreement to divide an inheritance can only relate to those things which can, by the ius commune, potentially pertain to both parties anyway.49 Such a claim requires a fairly robust notion of what a fief is; this was also the broader issue behind the discussion of what constituted an heir for feudal purposes. F. CONCLUSION As we see, then, it took most of the thirteenth century for jurisprudence to stabilise on this point. At roughly the same time as Dinus wrote, the first full defence of the validity of the Libri feudorum as a source of ius commune was written by Iacobus de Belvisio, whose commentary on the Libri feudorum would become standard-setting. The most significant point Jacobus makes in this, one of the most widely-used and influential commentaries on the Libri feudorum, is that the customs contained therein should be treated as general customs and therefore valid in the absence of specific local customs to the contrary.50 Accordingly, whenever a fief is granted, it is deemed to be granted according to the nature of a fief described by the Libri.51 A detailed consideration of the detailed and long-running debates between the medieval lawyers over the validity of the Libri feudorum would be out of place here. Long after the main outlines of feudal succession had achieved fixity in the works we have seen and many more like them, jurists continued to challenge the validity of the text, or parts of it, on the grounds that the Libri contained merely the local customs of Milan and other Lombard cities – the opinion which Jacobus de Belvisio explicitly sought to rebutt. According to this school of thought, the only components of the text with general validity were the imperial constitutions of Lothar III and Frederick Barbarossa.52 On occasion, such arguments 49 Ryan, “Ius Commune Feudorum” (n 45) 59. 50 See Jacobus de Belvisio, Commentarii in authenticum et consuetudinibus feudorum in OIR XII fols 81-102 at 82va: “... maxime si consuetudines de feudis non reperiuntur ergo istae tanquam generales debent servari …” 51 Iacobus de Belvisio, Commentarii: (n 50) fol 82va: “... ergo quando feudum datur videtur dari secundum naturam feudi in isto iure consuetudinario contenti”. 52 M J Ryan, “Zur Tradition des langobardischen Lehnrechts”, in G Dilcher and D Quaglioni (eds), Gli inizi del diritto pubblico/Die Anfänge des öffentlichen Rechts (2009) II 225 at 233. Note Dinus’ usage above (n 39): LF 2.8 is not an imperial text, yet is termed by Dinus “constitutio”.
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smack more of convenience than genuine scepticism. Nevertheless, in the later Middle Ages it was all but impossible to analyse a feudal inheritance case without reference to natura feudi, even if only as the starting-point for an argument which would eventually contradict the relevance or applicability of the concept to a given case.
The similarity, especially when abbreviations were used, between “consuetudo” and “constitutio” must always be borne in mind, but the technical significance of calling the Libri feudorum “constitutiones” should not be underrated, all the less since many jurists did so.
7 Towards the Medieval Law of Hypothec Paul J du Plessis A. B. C. D.
INTRODUCTION THE ROMAN-LAW POSITION MEDIEVAL LEARNED LAW CONCLUSIONS A. INTRODUCTION
Accounts of the external history of the reception of Roman law and its contribution to the creation of the legal systems of Western Europe usually contain a number of stock narrative elements. Chief among these is the statement that the teaching of Roman law at medieval Italian universities from the twelfth century onwards and the associated scholarly endeavours of medieval jurists contributed significantly to the creation of a pan-European ius commune which, though it did not replace local customary law, in time proved instrumental in the formation of the legal systems of Western Europe.1 Although this statement continues to have broad academic support, it is often difficult to judge its accuracy since the study of medieval learned law has been hampered by the existence of obscure (unprinted) sources and fierce academic disagreements about methodology. In recent years, much progress has been made in this field of study. The publication of important bibliographical surveys such as those of Coing2 and Lange3 as well as the creation and dissemination of authoritative readings of important sources have greatly facilitated scholarly investigation into medieval learned law. Furthermore, individual scholars have made important contributions to modern understanding of the origins of specific legal doctrines in medieval legal scholarship.4 While it cannot be denied that these scholars have made significant advances, it seems fair to state that much of recent scholarship on medieval 1 See, for example, P Stein, Roman Law in European History (1999), ch 3. 2 Coing, Handbuch. 3 Lange, RRM. 4 To name but two: S Kuttner, The History of Ideas and Doctrines in Medieval Canon Law (1980); and R Feenstra, Le droit savant au Moyen Age et sa vulgarisation (1980).
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learned law continues to focus on external factors (sources, changes to the text, textual transmission) rather than the law itself. More specifically, there is little scholarship on the intellectual methods employed by medieval jurists to transform Roman-law texts into the ius commune of Western Europe. The aim of this chapter is to make a modest contribution to modern understanding of the law of hypothec by investigating a single aspect of this legal institution and its transmission into medieval learned law. This investigation will focus on the manner in which the medieval jurists engaged with a particular rule of law and the way in which they developed it. The argument will be divided into two sections. First, an account of the Roman law of hypothec will be provided in order to explain the context of the rule in question. Secondly, the transmission of this rule into medieval learned law will be examined. B. THE ROMAN-LAW POSITION To understand the Roman law on hypothec, certain introductory observations about its origin in the Roman law of pledge are required. Roman law knew two forms of “security” which a debtor could employ to allay the creditor’s fears about solvency. The form preferred by the Romans until the classical period appears to have been personal surety whereby the debtor used solvent third parties to guarantee that he would repay the debt.5 The other form, which seems to have become dominant during the classical period, is that of real security where the debtor used his assets (or those belonging to third parties) to guarantee the repayment of the debt. Real security seems to have originated in the fourth century bce in the concept of fiducia. It was not a contract as such; rather, it was an informal agreement (pactum) added to one of the formal modes of conveyance such as mancipatio or cessio in iure.6 Under fiducia, a debtor agreed to relinquish ownership of the asset to the creditor until such time as the debt had been repaid. Fiducia benefited the creditor, but had a number of significant drawbacks for the debtor, most notably the loss of ownership. To counteract these, a different form of real security was created in Roman law, namely pignus. Unlike fiducia, pignus was a contract and would eventually be classified according to Justinian’s Institutes as one of the contractus re which came into existence upon the handing over of the object.7 Pignus had a number of advantages over fiducia, chief of those being that the debtor did not relinquish ownership, only possession of the object. 5 B Nicholas, An Introduction to Roman Law (1962; repr with int and glossary by E Metzger (2008)) 151. 6 The standard work remains G Noordraven, Die Fiducia in het Romeins Recht (1988). 7 See Zimmermann, Obligations 220.
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Not much is known about the transition from the earliest form of real security to pignus, a flexible agreement whereby only possession of the pledged object was transferred. At best it may be speculated that the legal requirements of fiducia (loss of ownership and formality) must have made it less useful in an increasingly monetised Roman economy characteristic of the third century bce.8 While pignus resolved many of the practical problems surrounding fiducia, the debtor, who retained ownership of the object, still had to relinquish possession of it to the creditor. This limited the debtor’s use of his property and also meant that a potentially valuable object could only really be pledged once, even for a small amount of debt. Thus, during the course of the late Republic, a variation on pledge was created which circumvented the problem of loss of possession. The pledge without possession (known in Justinianic law as hypotheca) represented the final stage in the development of real security in Roman law.9 The third-century jurist Ulpian defines a hypothec as follows: Strictly speaking we use the term pignus for the pledge which is handed over to the creditor and hypothec for the case in which he does not get even possession.10
According to classical Roman law, the creditor obtained a preferential real right over the object of the hypothec even though he did not have effective control of it as in the case of pledges with possession.11 If the debtor defaulted in his repayment of the debt, Roman law developed legal remedies to enable the creditor to claim the object of the hypothec (the actio pigneraticia), thus satisfying the requirement of possession, and to sell it to recover the debt in whole or in part. The transition from a pledge with possession to one without possession is 8 See J A C Thomas, Textbook of Roman Law (1976) 330-331. 9 While it was originally thought that the use of a Greek term suggested that hypotheca had its origins in Greek law, this view has since been refuted; see M Kaser and R Knütel, Römisches Privatrecht § 31.15, 17th edn (2003) 189. Pace W Kossak, “The Reception of Roman Law Regulations on Mortgage in the Legislation of Ukraine”, in M Jonca and A Debinski, Roman Law and European Legal Culture (2008) 67 whose views on the Roman law of hypothec are clearly incorrect. 10 D 13.7.9.2: “Proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit nec possessio ad creditorem.” Thomas, Roman Law (n 8) 332 postulates that the terms were not really distinguished until the time of Justinian, which goes some way to explaining the terminological confusion in the texts. English translations of Digest passages are taken from the Watson translation as adapted. 11 Marcian’s statement in D 20.1.5.1 – “inter pignus autem et hypothecam tantum nominis sonus differ” – does not necessarily stand in opposition to Ulpian’s definition in D 13.7.9.2, nor does it necessarily indicate that the two concepts were not clearly distinguished. When the context of D 20.1.5.1 (especially the introductory paragraph and the subsequent paragraph) is examined, it becomes clear that Marcian’s statement merely means that pledge and hypothec apply to the same type of obligations.
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traditionally linked to the rise of agricultural tenancy.12 Tenancy was a particular manifestation of the contract of letting and hiring (locatio conductio), classified in the Roman scheme of contracts as one which came into existence through consensus on the essentials of the contract. Like its historical predecessor pledge, hypothec operated on the principle of subsidiarity. There could be no agreement of pledge/hypothec without the existence of a debt created by another causa, mostly ex contractu (in this case, the contract of letting and hiring). A contract of pledge (and thus also one of hypothec) could be created with little formality. D 20.1.4 shows that only consent was required by law to create the pledge/hypothec irrespective of the wording used or whether it was recorded in writing.13 This made it especially useful when used in conjunction with the agreement creating the debt, such as a contract of tenancy.14 In most cases, the “clause” regulating the hypothec would have formed part of the contract. Additionally, a provision could be included stating that the creditor would have the legal right to sell the goods once he had obtained possession.15 The contract of pledge/hypothec was particularly useful in the various manifestations of the contract of letting and hiring. In most cases, it was used to ensure payment of the rent either by handing over a specific movable object as security (the slave Eros in D 20.4.9pr) or by agreeing that certain objects belonging to the tenant would be deemed hypothecated for the payment of rent even though they were not physically handed over to the creditor. Initially, this seems to have been done by express agreement in the contract of tenancy, but by the end of the classical period a certain category of objects (collectively called invecta et illata) were deemed to be pledged ipso iure even if the parties did not expressly agree as much in the contract. At this point it is important to note that the legal rule under discussion, namely that the landlord had a hypothec over the invecta et illata of the tenant as security for the payment of rent, operated both in urban and in agricultural tenancy. Both were merely variants of the Roman contract of letting and hiring, but the nature of the circumstances which these contracts catered for led to the development of variants of the same rule to address specific situations. It is 12 See Thomas, Roman Law (n 8) 332. Compare D 20.6.14, D 47.2.62.8 and Gai Inst 4.147. 13 D 20.1.4: “contrahitur hypotheca per pactum conuentum, cum quis paciscatur, ut res eius propter aliquam obligationem sint hypothecae nomine obligatae: nec ad rem pertinet, quibus fit verbis, sicuti est et in his obligationibus quae consensu contrahuntur ...” (“a mortgage [read pledge/ hypothec] is made by consent, when someone agrees that his property will be bound by way of mortgage for some obligation. As in consensual contracts, it does not matter what words are used”). 14 See P J du Plessis, “The Interdictum de Migrando Revisited” (2007) 54 RIDA 1. 15 The legal position on this point varied over time: see Thomas, Roman Law (n 8) 331.
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conventionally assumed that agricultural tenancy is the older of the two types of contract. While the consensual contract of letting and hiring is assumed to have been created in the second half of the second century bce if not before, the term colonus (tenant of agricultural land) does not appear in legal sources before the first century bce.16 In agricultural tenancy, the landlord acquired a hypothec over at least two categories of object. The texts are as follows: I let you some land and (as is customary) it was agreed that its produce would be a pledge to me in respect of the rent. If you were stealthily to remove the produce, [Julian] used to say that I can have the action for theft against you. Equally, if you sold the standing crops to someone who took it away, we say that it becomes a stolen thing. Crops, while in the soil, are part of the land so that a tenant makes them his own, because he is regarded as having gathered them with the owner’s consent. One certainly cannot say the same in the case just put; for by what reasoning can they be held to become the tenant’s property when the purchase reaps them from himself?17 We accept that property brought onto an urban leasehold is hypothecated, as if it had been impliedly agreed. The opposite is true of rural tenancies.18
As the first text shows, the jurist Africanus (second century ce), quoting his teacher Julian, states that the landlord had a hypothec over the crops gathered by the tenant with the owner’s consent. While the text mentions an agreement (compare D 20.2.7pr) between the parties to this effect, it is generally assumed by modern scholars that the hypothec over the fruits of the rented property was an implied contractual term which operated ipso iure and to which the parties did not need to agree explicitly.19 The same rule clearly did not apply in respect of other goods brought onto the rented property by the agricultural tenant, as the second text, from Quintus Neratius Priscus, a jurist 16 P W De Neeve, Colonus: Private Farm-Tenancy in Roman Italy during the Republic and Early Principate (1984) 39. On the dating of the contract of letting and hiring, see Th Mommsen, “Die römische Anfängen von Kauf und Miete” (1885) 6 ZSS, RA 260; M Kaser, Das altrömische Ius (1949) 297-382; and comprehensively H Kaufmann, Die altrömische Miete §§ 1-5, 6-27 (1964) 1-31. See also A Watson, The Contract of Mandate in Roman Law (1961) 9-10; A Watson, The Law of Obligations in the Later Roman Republic (1965) 100-101 where the author postulates that locatio conductio operis was probably the earliest form of letting and hiring in Roman private law to be distinguished, followed by locatio conductio operarum and locatio conductio rei. 17 D 47.2.61.8: “Locavi tibi fundum, et (ut adsolet) convenit, uti fructus ob mercedem pignori mihi essent. Si eos clam deportavis, furti tecum agere posse aiebat. Sed et si tu alii fructus pendentes vendideris et emptor eos deportaverit, consequens erit, ut in furtivam causam eos incidere dicamus. Etenim fructus, quamdiu solo cohaereant, fundi esse et ideo colonum, quia voluntate domini eos percipere videatur, suos fructus facere. Quod certe in proposito non aeque dicitur: qua enim ratione coloni fieri possint, cum emptor eos suo nomine cogat?” 18 D 20.2.4pr: “Eo iure utimur, ut quae in praedia urbana inducta illata sunt pignori esse credantur, quasi id tacite convenerit: in rusticis praediis contra observatur.” 19 De Neeve, Colonus (n 16) 9 n 34. Compare D 20.2.7pr.
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of the same period, indicates. In this scenario, the implication of the latter part of the text is that parties to the contract of agricultural tenancy had to agree explicitly that property other than fruits was hypothecated as security for the rent. These two texts also demonstrate one of the modes of classification of pledges (and hypothecs) used in classical Roman law, namely that some only came into existence by express agreement, whereas others were implied ex iure. The same classification was also used in urban tenancy, a variant of the contract of letting and hiring that developed in the first century bce. An example of an express hypothec from urban tenancy is where the parties to the contract listed specific objects to be hypothecated for the payment of the debt. In D 20.4.9pr the jurist Africanus recounts a case of a specific slave called Eros being hypothecated to ensure the payment of rent for baths.20 Similarly, in D 20.3.4, Paul discusses a case where a debtor listed specific assets to be hypothecated to ensure the repayment of a loan.21 The listing of specific objects had a number of advantages. First, given that the parties agreed on the specific assets to be hypothecated, it provided a level of assurance for the creditor that the value of the hypothecated goods could sustain the amount of the debt. Secondly, it also removed any uncertainty as to the identity of the objects as they could be easily read from the list. The only major drawback of listing specific goods to be hypothecated relates to depreciation in value. If the value of a slave declined over time, it could expose the creditor to added financial risk. This may be one of the reasons why a second form of hypothec came into existence. Unlike the first, the second form of hypothec consisted of a general contractual clause hypothecating some (not all) of the tenant’s remaining assets in the rented dwelling.22 This 20 D 20.4.9pr: “Qui balneum ex calendis proximis conduxerat, pactus erat, ut homo Eros pignori locatori esset, donec mercedes solverentur: idem ante calendas Iulias eundem Erotem alii ob pecuniam creditam pignori dedit. consultus, an adversus hunc creditorem petentem Erotem locatorem praetor tueri deberet, respondit debere: licet enim eo tempore homo pignori datus esset, quo nondum quicquam pro conductione deberetur, quoniam tamen iam tunc in ea causa Eros esse coepisset, ut invito locatore ius pignoris in eo solui non posset, potiorem eius causam habendam.” (“A man who rented baths from the first of the following month agreed that a slave Eros should be mortgaged to the lessor until the rent was paid. Before the first of July, he mortgaged Eros to another creditor for a loan. Asked whether the praetor should protect the landlord against the latter creditor in a suit for Eros, he answered that he should. Although, when Eros was mortgaged, nothing was yet owing for rent, even then the position of Eros was that he could not be released from the mortgage without the landlord’s consent. So the landlord should have priority.”) 21 D 20.3.4: “Titius cum mutuam pecuniam accipere vellet a Maevio, cavit ei et quasdam res hypothecae nomine dare destinavit ...” (“As Titius wanted to borrow money from Maevius, he promised to repay Maevius the amount, listing certain assets to be mortgaged”). 22 D 20.1.15.1.
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clause seems to have been created towards the latter part of the period ca 150-127 bce.23 Legal sources show that an explicit agreement was initially required to create such a contractual clause, but eventually it also became an implied term.24 The reason why this change occurred cannot be ascertained with certainty, but it has been suggested that it was in some way related to the standardisation of the law of pledge and the declining socio-economic circumstances of urban tenants.25 The content of this clause was restricted to goods classified as invecta et illata, a circumscribed category which referred to valuable movable objects.26 Since the content of this category was fixed, it did not matter whether the landlord consented to them being brought into the rented property. To reinforce the different positions in urban and in agricultural tenancy, the following statement occurs in a constitution dated to 223 ce extracted in Justinian’s Code: It is settled law that things which tenant farmers bring onto a farm, if their owners have agreed, are bound by the law of pledge to the owners of the property. But where a house is leased, the owner’s knowledge is not required in the case of things brought in or moved in; for these things are held by the law of hypothec.27
Roman legal sources never explain the reason for this distinction between urban and agricultural tenancy. This text will therefore be used as the sedes materiae to investigate how these rules on hypothec were received into medieval learned law. C. MEDIEVAL LEARNED LAW This section will explore a number of juristic writings/anonymous works representative of the glossators, the ultramontani and the commentators, as the intellectual endeavours of these groups have traditionally been considered in cumulative combination to have created the ius commune out of the Roman, canon, feudal and customary laws in the period 1100-1400.28 In 23 24 25 26 27
Du Plessis (n 14) 8. Du Plessis (n 14) 14-17. Du Plessis (n 14) 16-17. Du Plessis (n 14) 9-11. C 4.65.5 (trans B W Frier, Landlords and Tenants in Imperial Rome (1980) 110): “Certi iuris est ea, quae voluntate dominorum coloni in fundum conductum induxerint, pignoris iure dominis praediorum teneri. Quando autem domus locatur, non est necessaria in rebus inductis vel illatis scientia domini: nam ea quoque pignoris iure tenentur.” 28 The contract of letting and hiring seemingly does not feature prominently in classical canon law, apart from statements on remissio mercedis and emphyteusis (X 3.18.3-4). While this may create the impression that canon law was not concerned with letting and hiring, it seems more plausible
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fact, the majority of texts here discussed are derived from commentaries on Justinian’s Code, initially a more fertile source for juristic commentaries than the Digest, and the source of the most important text on the topic.29 Both Lo Codi and the Summa Trecensis – two of the most influential twelfth-century anonymous summaries of Justinian’s Code – mention the hypothec.30 The passage from Lo Codi (4.69.21-22) states: If someone takes an object for use [ie rents it], like a house, the person from whom he accepted it [i.e. the landlord] ought to release all the goods which he [i.e. the tenant] ferried into the house when he wishes to move out of the house, provided he has paid the rent or does not [wish to] remain for the [remaining] period for which he has not paid. But if he has not paid the rent and is not prepared to pay it, he to whom the house belongs [i.e. the landlord] is able to retain or obtain the goods in the house pro pignore until such time as it has been paid.31
The author(s) of Lo Codi, an instruction manual for lay-judges, distinguished between pledges with possession and those without possession, even though the term hypothec does not appear in the text.32 This can be seen from the use of the phrase “retinere vel petere” towards the end of the passage, which suggests the existence of two different regimes. This text shows a familiarity with the Roman-law concept of a hypothec; but since it is merely a summary it is silent on a number of important issues. First, it is unclear whether a distinction between urban and agricultural tenancy was made and whether the passage in question applies to both, since only urban tenancy (domus) is mentioned. Secondly, it does not state whether the hypothec arrangement is that the Roman law of letting and hiring was incorporated en masse into canon law. Where canon law differed from Roman law, specific mention was made, as in the case of the two institutions listed above. Certainly a number of prominent medieval canonists, such as Goffredus de Trano, Henricus de Segusio (Cardinal of Ostia (Hostiensis)) and Sinibaldus Fliscus (later pope Innocent IV) discuss letting and hiring and by the seventeenth century, most of the Roman law of lease was being used in ecclesiastical courts: see G B de Luca, Theatrum vertitatis et iustitiae sive decisivi discursus (1669) book 4 for a collection of court decisions on letting and hiring. 29 But see C M Radding, “Reviving Justinian’s Corpus: The Case of the Code”, in P Andersen et al (eds), Law before Gratian (2007) 35. 30 The Corpus legum (Brachylogus) does not contain any significant information about hypothec apart from a single note on the word [actio] serviana in Brachylogus in H Böcking (ed), Corpus legum sive Brachylogus iuris civilis 3.14.3 (1829) 100. 31 H Fitting (ed), Lo Codi: eine Summa Codicis in provenzalisher Sprache aus der Mitte des XII. Jahrhunderts in der lateinischen Übersetzung des Richardus Pisanus (1906) 143: “Si aliquis recipit aliquid ad pisionem, sicuti domum, ille a quo accepit debet dimittere omnes res ei quas portavit in domo quando vult exire de domo, si pagavit precium vel non remanet pro eo quod non paget. Set [sic] si non pagavit precium nec est paratus quod paget, ille cuius est domus potest retinere vel petere res quae sunt in domo pro pignore donec sit pagatus.” The Latin translation has been used instead of the original Provençal because it was edited, standardised and corrected by Hermann Fitting. It therefore provides a more accurate text. For general information and a bibliography on this work, see Coing, Handbuch I 200-201. 32 On the target audience of Lo Codi, see Lange, RRM § 49 I 415-421.
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included in the contract of lease as an implied contractual term, and whether the creditor (landlord) could sell the objects to recover the debt owed, though there is evidence to suggest that the notion of implied terms was known to the drafters of this treatise.33 The discussion of the hypothec in the Summa Trecensis (4.57.4-5) resembles that of Lo Codi, but with a few additional insights: In fact, some [elements] arise from the nature of the action, even though it is neither stated nor implied, for example that at the end of the lease and once the rent has been paid, the goods brought in by the tenant are restored by the landlord. Similarly if some [element] of violence intervened, he ought to restore it using the same remedy. Necessary or useful goods brought into the rented property also have to be restored.34
The authors of this summary were familiar with the notion of implied terms, though in this text the idea is linked to that of the nature of the action.35 The phrasing of the sentence suggests that the pledge/hypothec arrangements in lease were seen as an implied term. In contrast to Lo Codi, the authors of the Summa Trecensis explicitly used the term invecta et illata, but its meaning is not provided. The extent to which the Roman law is followed is evident from the statement that goods hypothecated would only be restored once the rent had been paid and that this term also included necessary and useful goods, though once again the text does not state whether a distinction was drawn between urban and agricultural tenancy and whether this rule applied to both. Although this passage does not contain much information on legal remedies, the authors speculated that the actio conducti could be used to enforce the return of the pledge/hypothec. The works of three glossators will be used to contribute to the discussion of hypothecs in tenancy. Azo (d ca 1230)36 distinguished between a pledge and a hypothec: “It [the text] does not state through the law of hypothec, since 33 Lo Codi 4.69.7 (n 29) 140: “Locacio [sic] est talis naturae quod aliquis potest petere illud quod neque dictum neque cogitatum est in principio negocii [sic], sicuti est in hoc placito ...” 34 H Fitting, Summa Codicis des Irnerius mit einer Einleitung (1894) 132: “Veniunt quidem ex natura actionis [actio locati] quedam, licet [nec] dicta nec cogitata sint, veluti ut finita conductione et solutis pensionibus res a colono illatae item inductae a domino restituantur. Item si quid vi abstulerit, eodem iudicio restituere debet. Et quod in re locata necessario seu utiliter impe[n] dit, et hoc ei restituendum est.” This work, wrongly identified by Hermann Fitting as the Summa Codicis of Irnerius, is now thought to have been the product of collaboration between a number of medieval jurists, produced ca 1135–1140. On the authors and target audience of this work, see Lange, RRM § 45 I 402-407. 35 On the nature of the action and its importance in medieval learned law, see L Capogrossi Colognesi, Remissio Mercedis (2005) 122. 36 On the life of Azo, see the entry on Azzo in LMA I 1317-1318, and the entry by P Weimar, “Die legistische Literatur der Glossatorenzeit”, in Coing, Handbuch I 202-203.
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it does not appear [to have arisen] through agreement, but indeed through delivery ...”37 This statement is a classic example of how the medieval jurists struggled to explain some of the inconsistencies in the Roman legal texts brought about by alterations by Justinian’s compilers. In the text in question (C 4.65.5) the term pignus is used whereas hypothec would have been more accurate. Azo tries to justify the use of this term in the manner set out above. His grasp of the difference between a pledge and a hypothec, though incorrect, demonstrates a familiarity with the two concepts. It also shows that he understood the notion of an implied term that could be read into a contract of lease and which affected movable property “delivered” (brought in) to the rented premises without the parties having to agree on it explicitly: Indeed the owner has the right of hypothecs by virtue of the lease and if someone were to let out urban property, goods brought and moved into it will be obliged by the law of pledge even if it was done without the knowledge of the owner. But goods brought onto agricultural property are only then bound if they have been brought in with the consent of their owners.38
Azo speculated on the reason why the landlord’s knowledge was required in cases of agricultural tenancy: It is customary to ask why it is different in [cases of] urban tenancy than in agricultural tenancy. Johannes [Bassianus] replied that in agricultural land [goods] are not brought in unless we know [about it]. For rusticity [is] sacred and nothing is brought [onto the land] except cattle, farm implements or similar goods. The matter is different in urban property, since much is introduced [into urban property] about which we do not know something or which we have not seen. Consequently in that case the obligation is nonetheless created without the explicit knowledge of the owner.39
It is not immediately apparent what Azo meant by the “sanctity of rusticity”.40 When viewed in context, however, he seems to be suggesting is that, in contrast to urban tenancy, a close relationship between a tenant of agricultural land 37 Azo, Lectura super Codicem on C 4.65.5, in CGIC III 171: “Pignoris iure] Non dicit iure hypothecae, quia nedum videtur conventione, sed etiam traditione …” 38 Azo, Lectura super Codicem on C 4.65.5, in CGIC III 171: “Habet etiam dominus ex locatione ius hypothecarum et si quidam locet urbanum praedium res inductae et illatae etiam domino ignorante pignoris iure tenentur. Ea vero quae in rusticum praedium locatum inducuntur iam demum tenentur si voluntate dominorum fuerint inducta …” In the remainder of this passage, Azo also comments on the position of the goods of the secondary tenant. 39 Azo, Lectura super Codicem on C 4.65.5, in CGIC III 171: “Non est necessarius] Solet quaeri quare aliud sit in urbano quam in rustico. Respondit Ioannis quia in rusticum praedium non inferuntur, nisi quae volumus quemlibet scire. Sancta enim rusticitas non inducit[ur] nisi boves et arrata et similia. Aliud in urbano praedio, praeterea quia multa inducuntur quae nolumus scire aliquem vel videre. Unde ibi non exquisita scientia domini nihilominus contrahitur obligatio.” 40 Johannes Bassianus was a student of one of the quattuor doctores (Bulgarus) in Bologna and the teacher of Azo: see Lange, RRM § 25 I 215-226.
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and the landlord existed, which permitted scrutiny of the goods brought onto the land. Whether this reflects social practice in thirteenth-century Italy is difficult to ascertain, given the wide variety of agricultural practices visible during this period.41 Further observations about the term sancta rusticitas are required. As the text stands, it is unclear whether Azo is attributing the term to Bassianus or whether he is putting forward the notion personally. While this may not seem significant at first, the use of this term in fact reveals much about the author as the term sancta rusticitas has an important intellectual history in medieval scholarship. The term seems to have originated from a letter by St Jerome, dated 394 ce, and addressed to Nepotian, the nephew of Heliodorus who had abandoned a life in the military for one in the service of the church. At the time of this letter, he was a presbyter at Altinum where his uncle was bishop. The letter is concerned with the duties of the clergy: The church is committed to the bishop; let him take heed whom he appoints to be his almoner. It is better for me to have no money to give away than shamelessly to beg what I mean to hoard. It is arrogance too to wish to seem more liberal than he who is Christ’s bishop. “All things are not open to us all.” [Virgil, Eclogues 8.63] In the church, one is the eye, another the tongue, another the hand, another the foot, others ears, belly and so on. Read Paul’s epistle to the Corinthians and learn how the body is made up of different members. [1 Corinthians 12.12-27] The rude and simple brother must not suppose himself a saint just because he knows nothing; and he who is educated and eloquent must not measure his saintliness merely by his fluency. Of two imperfect things holy rusticity (sancta rusticitas) is better than sinful eloquence.42
This letter was widely circulated because of its content and it is therefore not surprising to find it being cited by a medieval jurist. In this context, however, the citation is not used to provide substantive force to the legal argument. Rather, it serves as an embellishment (almost a figure of speech) to reinforce the extent of control exercised by landlords in the countryside.43 The influential glossator Odofredus from Cremona (d 1265)44 also paid attention to the rule which operated in the case of urban tenancy: 41 D Osheim, in his chapter on rural Italy, in D Abulafia (ed), Italy in the Central Middle Ages 1000-1300 (2004) 176, indicates that landlord supervision of parts of an estate (especially in church land) was a feature of thirteenth-century Italy. 42 English translation from http://www.newadvent.org/fathers/3001052.htm 43 It is interesting to note that the term sancta rusticitas also had a surprising second meaning in the works of the Humanists who equated it with outdated and ignorant medieval knowledge: see J D Tracy, “Against the ‘Barbarians’: The Young Erasmus and His Humanist Contemporaries” (1980) 11 The Sixteenth Century Journal 3 at 11-12. 44 Odofredus, though very influential, is not ranked among the most original of the glossators. On his life, see the entry by P Weimar, “Odofredus de Denariis”, in LMA VI 1361; and P Weimar, “Odofredus”, in Coing, Handbuch I 176-181.
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But what is the reason for the difference and I respond that the reason is the following: in urban property tenants bring many things onto the property of which the landlord has no knowledge: yet they are obliged through tacit pledge [D 2.14.4pr].45 But in agricultural land it is not true that the tenant brings certain goods onto the land which are unknown to any man.46
Although not phrased in the same manner, Odofredus (while not mentioning the idea of “sainted rusticity”) arrives at a similar conclusion to that of Azo, namely that it is very seldom that goods are brought onto agricultural property without the knowledge of someone. Again, this suggests a greater level of super vision in agricultural tenancy. Accursius’ glosses on C 4.65.5 follow Azo’s approach to this topic:47 Gl certi: [Goods] introduced in order to reside there permanently for as long as they inhabited [the leased property]48 [D 20.1.3249 and D 20.2;50 contra D 20.2.4].51
45 D 2.14.4pr: “item quia conventiones etiam tacite valent, placet in urbanis habitationibus locandis invecta illata pignori esse locatori, etiamsi nihil nominatim convenerit” (“Likewise, on the ground that even agreements by implication are valid, it is settled that in the letting of urban dwellings, the movables [of the tenant] are constituted a pledge for the landlord even though nothing is expressly agreed”). 46 Odofredus, Lectura super Codice on C 4.65.5, in OIR V fol 257v: “Certi iuris] … Sed quae est ratio diversitatis et respondeo ratio est illa: quod in praedium urbanum conductores multa inducunt, quae nolunt locatorem scire: sed tamen illa tacite pignori tenentur [D 2.14.4pr]. Sed in praedium rusticum non est verisimile, quod conductor inducat aliqua, quae non velit omnem hominem scire.” 47 On the life of Accursius, see the entry by P Weimar, “Accursius”, in LMA I 75-76. 48 Accursius, Glossa in Codicem C 4.65.5, in CGIC X 248: “Induxerint ut ibi perpetuo sint quamdiu inhabitaverint.” 49 D 20.1.32: “debitor pactus est, ut quaecumque in praedia pignori data inducta invecta importata ibi nata paratave essent, pignori essent: eorum praediorum pars sine colonis fuit eaque actori suo colenda debitor ita tradidit adsignatis et servis culturae necessariis: quaeritur, an et Stichus vilicus et ceteri servi ad culturam missi et Stichi vicarii obligati essent. respondit eos dumtaxat, qui hoc animo a domino inducti essent, ut ibi perpetuo essent, non temporis causa accommodarentur, obligatos” (“A debtor agreed that whatever was brought on the mortgaged land or there arose or was produced should be subject to mortgage. Part of the land was untenanted, and the debtor handed it to his managing slave to farm, assigning him the slaves needed for the purpose. The question was whether the managing slave, the other slaves sent to the farm, and the manager’s vicarii were subject to the mortgage. Scaevola replied that only those who were brought on by their owner as permanent, not those lent temporarily, were mortgaged”). 50 The entire title is cited and will therefore not be reproduced. 51 D 20.2.4: “Eo iure utimur, ut quae in praedia urbana inducta illata sunt, pignori esse credantur, quasi id tacite convenerit: in rusticis praediis contra observatur. 1. Stabula, quae non sunt in continentibus aedificiis, quorum praediorum ea numero habenda sint, dubitari potest? Et quidem urbanorum sine dubio non sunt, cum a caeteris aedificiis separata sint. Quod ad causam tamen talis taciti pignoris pertinent, non multum ab urbanis praediis different” (“We accept that property brought on to an urban leasehold is hypothecated, as if this had already been impliedly agreed. The opposite is true of rural tenancies. 1. The position of stables which are not directly adjacent to urban land is doubtful. Since they are separate, they are certainly not urban property; but so far as the implied hypothecation is concerned they hardly differ from it”).
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Gl ea quoque:52 [That is goods] which are introduced without the knowledge of the owner. And it is true that such things are frequently introduced which the tenant does not wish the landlord to know about. This does not happen often in agricultural lands, since nothing may be introduced other than hoes and farm implements and similar goods, [certainly not] money which they dare not wish for [C 11.48.5;53 D 20.2.1;54 contra D. 20.2.10;55 D. 2.14.4pr.;56 D. 20.2.7pr].57 What if the goods belonging to another are brought into a rented house or onto rented land and the owner of the object knows it and does not dispute it, it seems that goods of this nature are not obliged as is argued in D 13.7.20pr.58
Accursius’ summary of the accepted glossatorial interpretation of this area of law shows that jurists were generally unsure about the reason for the difference in hypothec arrangements between urban and agricultural tenancy. The glossators postulated that the difference may be related to the level of supervision visible in agricultural tenancy, and Accursius’ statement on the matter seems to imply that tenants of agricultural land were closely supervised by landlords and could not bring anything (especially money) onto rented land without the knowledge of the latter.59 52 Accursius, Glossa in Codicem on C 4.65.5 (n 48) 248: “Quae inducuntur domino ignorante. Et est vero quod saepe talia inducuntur quae non vult conductor sciri a locatore quod de levi non accidit in rusticis cum non nisi ligones et arrata et similia inferant non pecunias quas non auderent optare [C 11.48.5; D 20.2.1; contra D 20.2.10; D 2.14.4pr; D 20.2.7pr]. Quid si in domum vel fundum conductum rem alienam quod inferat domino rei sciente et non contradicente videtur quod non sint obligate ut arg. D 13.7.20pr.” 53 C 11.48.5: “domini praediorum id quod terra praestat accipiant, pecuniam non requirant, quam rustici optare non audent, nisi consuetudo praedii hoc exigat” (CE 366) (“The owners of an estate, shall receive products of the soil as rent, and shall not ask for money, for which the rustics do not dare to wish, unless the custom on the estate demands that” [Blume Translation]). 54 D 20.2.1: “senatus consulto quod sub marco imperatore factum est pignus insulae creditori datum, qui pecuniam ob restitutionem aedificii exstruendi mutuam dedit, ad eum quoque pertinebit, qui redemptori domino mandante nummos ministravit” (“By a resolution of the senate in the time of the emperor Marcus, the mortgage of a block [of flats] to a creditor, who made a loan for a building to be put up on the site and conveyed to him, enures in favour of the person who, at the owner’s bidding, provided the ultimate owner with the money to lend”). 55 D 20.2.10: “tutoris heres cum herede pupilli transactione facta, cum ex ea maiorem partem solvisset, in residuam quantitatem pignus obligavit: quaesitum est, an in veterem contractum iure res obligata esset. respondit secundum ea quae proponerentur obligatam esse” (“The heir of a guardian made a compromise with the heir of his ward, paid most of it, and mortgaged property for the rest. The question asked was whether the property was bound for what was due under the old contract. Scaevola answered that on the facts stated it was”). 56 Cf n 45 above. 57 D 20.2.7pr: “in praediis rusticis fructus qui ibi nascuntur tacite intelleguntur pignori esse domino fundi locati, etiamsi nominatim id non convenerit” (“As regards rural land the crops are impliedly taken to be hypothecated to the owner of the land, even if not agreed in so many words”). 58 D 13.7.20pr: “aliena res pignori dari voluntate domini potest: sed et si ignorante eo data sit et ratum habuerit, pignus valebit” (“Property belonging to another can be given as a pignus with its owner’s consent. Even if the pledge is made without his knowledge and he later ratifies, the pignus is valid”). 59 For one of the later glossators’ views on this matter, see Jacobus de Arena, Commentarii in universum ius civile on C 4.65.5, in OIR XVI fol 30r.
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The scientific approach of the school of Orleans (ultramontani), which influenced legal science during the thirteenth century, was not exactly revolutionary, but their approach towards textual analysis and textual authority was novel. One of the prominent French jurists associated with the school of Orleans, Jacques de Revigny (d second half of the thirteenth century)60 approached the matter by distinguishing between urban and agricultural property: Certi iuris] ... The reason for the difference can be [said to be] twofold, namely that sainted rusticity has everything in plain sight, accordingly among those things which the agricultural tenant introduce into the rented land nothing may be said to be harmful if the owner knows about it: since he does not introduce anything which is not agricultural implements, cattle and other similar things [required] for agriculture. Thus the knowledge of the owner in the countryside equates with knowledge of those things introduced onto the rented land. But the [urban] tenant introduces many things into the house which no one sees in any way. Thus in matters of invecta et illata it does not require the knowledge of the owner, for it may be grievous if the owner sees all.61
De Revigny’s view on the reason for the distinction between hypothecs in urban tenancy and those in agricultural tenancy is similar to that of Azo. In his opinion it was related to the sanctitas of rustic land which caused everything to be visible to others. Further on in this discussion, he also examined in this passage whether the innkeeper had a hypothec over goods brought in by guests and whether this required his express consent. De Revigny concluded that consent was not required since it could be perilous to the traveller to show his goods to the innkeeper. Baldus de Ubaldis (1327-1400), one of the most prominent of the commentators, enquired in his commentary on Justinian’s Code how the landlord’s hypothec over urban tenant’s goods could exist without consensus: The invecta et illata of the agricultural tenant are obliged for the rent with the consent of the owner [of the rented property], those of the urban tenant even if the owner does not know about it. [This is what the text states.] The opposition is: that obligation of pledges was created by agreement [D 2.14.4pr],62 thus an obligation can never be created between those who do not know about it, since among those who do not know about it there is nothing in consensus, which was not first conceived of in intellect. But one who does not know understands nothing, 60 On the life of Jacques de Revigny, see Coing, Handbuch I 281-282. 61 Jacques de Revigny, Lectura super Codice on C 4.65.5, in OIR I fol 209r: “Ratio diversitatis potest esse duplex: quod sancta rusticitas omnia palam habet: unde quam in his quae infert rusticus in fundum conductum non est vilis si sciat dominus: quod non infert nisi aratra, boves et similia intrat ad culturam ruris: ideo exigit scientia domini in rure quod eo sciente sint invecta in fundum. Sed conductor multa infert in domum quod nollet videri ullo modo. Unde non exigitur in invectis et illatis in domo scientia domini. Nam quia omnia videret dominus hoc esset grave.” 62 Cf n 45.
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as below [C 8.53.10].63 One solution is that the agreement is introduced for the benefit of man and thus consensus is required as in the contrary lex. However, a certain agreement is introduced by law and then consent is not required, unless it is presumed by law, as in this case [D 13.7.11.5]64 and above [C. 2.3.2].65 But the opposition is that the agricultural and urban tenant agree on the matter and thus also in the arrangement of the law. The solution is not the same reason, since it is easy for the owner [to spot] movable goods in his rustic property: for it is generally assumed that agricultural people have little in the way of movable goods and thus it is all in the open. But the owner does not count or know of the goods of an urban tenant.66 63 C 8.53.10: “nec ignorans nec invitus quisque donat. unde si de hoc fundo non cogitasti, cuius velut donationi consensisse continetur instrumento, maiores veritate rei quam scriptura vires obtinente intellegis, de quo non cogitasti nec specialiter subscripsisti, nihil te perdidisse” (CE 294) “No one makes a gift unknowingly or unwillingly. Hence, if you were not thinking of the farm which is mentioned in the document as though you had consented to make a gift thereof, you know that the truth has greater force than a writing and you have not lost what you did not have in mind or which you did not specially mention in the writing.” [Blume translation]) 64 D 13.7.11.5: “solutam autem pecuniam accipiendum non solum, si ipsi, cui obligata res est, sed et si alii sit soluta voluntate eius, vel ei cui heres exstitit, vel procuratori eius, vel servo pecuniis exigendis praeposito. unde si domum conduxeris et eius partem mihi locaveris egoque locatori tuo pensionem solvero, pigneraticia adversus te potero experiri (nam iulianus scribit solvi ei posse): et si partem tibi, partem ei solvero, tantundem erit dicendum. plane in eam dumtaxat summam invecta mea et illata tenebuntur, in quam cenaculum conduxi: non enim credibile est hoc convenisse, ut ad universam pensionem insulae frivola mea tenebuntur. videtur autem tacite et cum domino aedium hoc convenisse, ut non pactio cenacularii proficiat domino, sed sua propria” (“It is correct to say that the money is paid not only where it is paid to the creditor himself to whom the thing is charged but also when it is paid with his consent either to someone whose heir he is or to his procurator or to a slave in charge of collecting debts. Hence, if you rent a house and sublet part of it to me and I pay my rent to your lessor, I will have the action on pignus against you [for Julian writes that it is permissible to pay him]. And if I pay part to you and part to him, the same will be said pro tanto. It is clear that my own furniture and movables will be charged only with the sum for which I took my lodging; for it is not to be believed that my odds and ends were agreed to be charged for the rent of the whole block. However, this agreement is impliedly taken to have been made with the owner of the building as well, so that it is not from the bargain of the tenant sublessor that the owner derives advantage, but from his own”). 65 C 2.3.2:“post venditionem hereditatis a te factam, si creditores contra emptores actiones suas movisse probare potueris eosque eas spontanea suscepisse voluntate, exceptione taciti pacti non inutiliter defenderis” (CE 202) (“If you are able to prove that after the sale of the inheritance made by you, the creditors [of the inheritance] brought their actions against the purchasers, and that the later voluntarily submitted to them, you are not ineffectually defended [in actions brought against you for the same debt] by a plea of an implied pact” [Blume translation]). 66 Baldus de Ubaldis, Commentaria in iiii et v codicis librum on C 4.65.5 (1615) fol 137r: “Certi iuris] Invecta et illata coloni, obligantur pro mercede domino scienti, inquilini etiam ignoranti. [hoc dicit]. Op[positio] ista obligatio pignorum oritur ex conventione [D 2.14.4pr] quia ergo nunquam oritur obligatio inter ignorantes, quia inter ignorantes nihil est in consensu, quod prius non dsit in intellectu. Sed ignorans nihil intelligit, ut infra [C 8.53.10]. So[lutio] quaedam est conventio introducta pro hominem et tunc est necessarius consensu, ut in lege contraria. Quaedam est conventio tamen inducta per legem, et tunc non est necessarius consensus, nisi praesumptus a iure, ut hic, & [D 13.7.11.5] et supra [C 2.3.2]. Sed oppo[sitio] colonus & inquilinus conveniunt in ratione, ergo & in iuris dispositione. Solutio non est eadem ratione, quam facile est domino res mobiles rustici sui: nam rustici parum habere creduntur in rebus mobilibus et illud palam habent. Sed res inquilini scire et numerare non habet dominus.”
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Baldus thus came to the conclusion that, because it is introduced by law, consensus is not required. His wide-ranging discussion explored various key questions, such as the distinction between urban and agricultural tenancy. One of the distinctive features of Baldus’ treatment of the subject is his penchant for introducing tangents into the discussion. Thus, he enquired whether this rule applied to the innkeeper and whether goods had to be shown to or deposited with the innkeeper before liability would vest. Additional tangents included matters such as the lease of a colonus patriarius, emphyteusis, the property of others, minors, the church and of servants working for tenants. D. CONCLUSIONS The aim of this volume is to investigate the intellectual techniques used by medieval jurists to transform the case-based Roman legal texts into general rules of law. Against this backdrop, this chapter set out to investigate the medieval treatment of a rule of law for which there appeared to be no justification in Justinian’s compilation of Roman law. This investigation into medieval justifications for this rule of law demonstrated the various techniques used by the jurists. While it would be perilous (and indeed scientifically incorrect) to draw general conclusions, since only the works of a select group of jurists (as opposed to all the jurists representative of a specific period) were analysed, certain tentative conclusions will be put forward. First, it is clear that this rule of law rose from slender beginnings in epitomes of Justinian’s Code. For much of the twelfth century, medieval jurists struggled with the confused terminology (pignus/hypothec) found in Roman legal sources. As for the rationale underlying this rule of law, the glossators eventually settled on the issue of “control”. This was achieved by interpreting the rule of law in a manner familiar to their circumstances. If Jacques de Revigny’s analysis of this rule is taken as being representative of the thirteenth-century approach, it would seem that “control” continued to be the dominant justification of the existence of the rule of law, combined with a secondary argument relating to safety of goods. By the fourteenth century, a different justification for the existence of this rule becomes visible based on the sophisticated legal notion of implied consent. As I have mentioned elsewhere, these phases in the development of a legal rule are not linear and it would be unwise to draw too general conclusions from the opinions of individual jurists, but an analysis of these techniques provides modern scholars with a greater appreciation of the intellectual tools used by medieval jurists to transform Roman law into the ius commune of Western Europe.67 67 P J du Plessis, “The Creation of Legal Principle”, (2008) 4 Roman Legal Tradition 46.
8 The Ignorant Seller’s Liability for Latent Defects: One Regula or Various Sets of Rules? Jan Hallebeek* A. INTRODUCTION B. ROMAN LAW (1) Traces of historical developments in the Corpus iuris (2) Justinianic law C. THE ERA OF THE GLOSSATORS (1) Early legal scholarship (2) Placentinus and Johannes Bassianus (3) Azo (4) The last generation of glossators (5) Conclusions (a) Actio empti; actio quanti minoris (b) Praetorian remedies (c) The view of Accursius D. FROM THE GLOSSA ORDINARIA TO THE FOURTEENTH CENTURY (1) Romano-canonical procedure (2) The school of Orleans and Cinus E. THE ERA OF THE COMMENTATORS (1) Liability of the ignorant seller in case of latent defects (2) The scope of the Aedilician actio quanti minoris (3) Claiming price reduction: one remedy or various sets of rules? F. CONCLUSIONS
* The author is grateful to Kees Bezemer (Leiden) and Wim Decock (Leuven) for their comments on a draft version of this paper and to Margaret Hewett (Cape Town) for correcting the English and for further advice.
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A. INTRODUCTION In 1999 a European Directive was issued that required specific protection for the buyer of consumer goods. This was subsequently implemented in the various European jurisdictions. When repair or replacement of these goods, in the case of non-conformity, is impossible or cannot be demanded or when the seller refuses to provide either of these solutions, the buyer has the remedies of reduction in price and rescission.1 The corresponding liability of the seller does not necessarily depend on explicit warranties, contractual clauses or any kind of malicious intent (mens rea) on his side, but is simply imposed by the law or based on an implied warranty. In the Netherlands, the implementation of the Directive resulted in some changes in the civil code. These were promulgated in 2003. The remedies of price reduction and rescission, just mentioned, were adopted in a specific provision for sale contracts in book seven of the code (art 7:22 BW), next to the already existing general rules on rescission in view of breach of contract in book six (art 6:265 ff. BW). Because of the many similarities between, on the one hand, these remedies of price reduction and rescission and, on the other, the Roman law actio quanti minoris and actio redhibitoria, it was argued that the ties between contemporary Dutch private law and Roman law in this respect had again become apparent. These ties had been severed in 1992, when, together with the introduction of the new Dutch civil code, the specific rule on the seller’s liability for latent defects of the previous civil code, dating from 1838 (art 1543 OBW), had lost the force of law.2 General concepts of liability for latent defects – a kind of precursor of the provisions imposed by the European Directive – can already be found in early modern times.3 The sources of Roman law, especially the Corpus iuris, are not characterised by general rules of law; but if the concepts mentioned above are substantially based on Roman law, some rules must have already developed out of the casuistic texts of the Corpus iuris. Cases dealing with the seller’s liability for latent defects can be found in the Digest and Code titles on the remedies of 1 See art 3 (2) of the EU Directive 99/44, dealing with warranties to consumers within the European market. See also R Sefton-Green, Mistake, Fraud and Duties to Inform in European Contract Law (2005); for the links between Roman and contemporary law, see the chapter by M Schermaier in that volume. 2 J J Verhoeven, “Verborgen gebreken bij koop” (1990) 39 Ars Aequi 495; K Krzeminski, “Ad Edictum Aedilium Curulium; De Romeinsrechtelijke grondslag van de aansprakelijkheid voor verborgen gebreken” (2005) 54 Ars Aequi 692; J J Verhoeven, “Het gelijk der curulische aedielen; naar een moderne uitleg van de regeling betreffende de conformiteit bij koop in geval van verborgen gebreken” (2006) 23 Groninger Opmerkingen en Mededelingen 17. 3 H Coing, Europäisches Privatrecht, Band I, Älteres Gemeines Rechts (1500 bis 1800) (1985) 452-453.
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sale (D 19.1, de actionibus empti et venditi and C 4.49, de actionibus empti et venditi), as well as those on the aedilician edicts (D 21.1, de aedilitio edicto et redhibitione et quanti minoris, and C 4.58, de aedilitiis actionibus). It is the purpose of this contribution to investigate the way in which developments in medieval learned law contributed to the formation of a more general doctrine on the seller’s liability for latent defects, as far as such liability is imposed by the law, in other words, not based on warranties or contractual clauses voluntarily agreed upon by the parties, or on the seller’s malicious intent. B. ROMAN LAW Before investigating the medieval commentaries on the texts of the Corpus iuris relevant to our issue, it is necessary first to come to grips with the texts of the Corpus iuris itself. This has to be done from the appropriate perspective. From the beginning of the twentieth century, after the Corpus iuris had lost its significance for legal practice even in the German territories, the focus of the majority of Romanists has generally been directed towards historical developments during Roman antiquity revealed by the texts of the Corpus iuris, with much attention being paid in particular to the classical period of Roman law (from the beginning of our era until the end of the third century ce). As will be explained below, this approach is not that of the medieval jurists and, if we are not sufficiently conscious of this, our perception of medieval scholarship can be obscured. On the other hand, it is this historical development prior to the compilation of the Corpus iuris that can explain the problems in interpretation that occur when we attempt to understand the texts of the Corpus iuris as provisions of consistent legislation. (1) Traces of historical developments in the Corpus iuris As regards the question of the ignorant seller’s liability for latent defects, we can roughly distinguish three stages of historical development in Roman Antiquity. The first starts with the introduction of the aedilician edicts at the beginning of the second century BCE. Before that time, the regular contractual remedy for the buyer – the actio empti – was already in existence; but it is very doubtful whether this remedy, being a iudicium bonae fidei, could be used against an ignorant seller. The aedilician edicts, promulgated by magistrates with jurisdiction in the marketplace, known as the aediles curules, offered the buyer remedies for rescission (the actio redhibitoria or aestimatoria) and price reduction (the actio quanti minoris) for the case where a slave or beast of burden, purchased at the market, showed latent defects. The edicts
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imposed upon the seller a duty to reveal to the buyer possible defects in the merchandise and to give him certain warranties. Moreover, under the edicts the seller was liable even for defects of which he was unaware. The texts of the edicts themselves were incorporated in the Digest of Justinian. The one for slaves can be found in D 21.1.1.1, and that for beasts of burden in D 21.1.38pr (with a later addition for all the other cattle in D 21.1.38.5). The actio quanti minoris was not mentioned explicitly in the edict for slaves, but nevertheless appears to have been applied to the sale of defective slaves (cf D 21.1.55). The second stage of development we can trace in the Corpus iuris dates back to the period of classical Roman law. In view of the social need to grant the buyer better protection beyond the sphere of the marketplace,4 the regular contractual remedy of sale – the actio empti, which was actually older than the aedilician edict – was applied by analogy with the aedilician remedies. In the formulary procedure this could presumably be achieved by interpreting the clause “ex fide bona” of the actio empti as covering the observance of aedilician principles.5 This implies that it began including a liability of ignorant sellers. Some texts indicate that the seller who was unaware of the defects, and thus acting in good faith, could be held liable under the actio empti of civil law. Moreover, this remedy now was applied to claim price reduction (D 19.1.13pr) and rescission (D 19.1.11.3). The third and final stage of development originated in Justinian’s decision to retain the old remedies of the aedilician edicts, which in his days had become more or less redundant, and to extend their application. This development is clearly visible in the Corpus iuris. The Digest and Code contain, next to the titles on the remedies for sale (de actionibus empti et venditi – D 19.1 and C 4.49), separate titles on the aedilician edicts (D 21.1, de aedilitio edicto et redhibitione et quanti minoris, and C 4.58, de aedilitiis actionibus). Moreover, according to D 21.1.1pr and D 21.1.63, the aedilician edict for the sale of slaves also applies to other things. These two texts are regarded as containing Justinianic interpolations. However, only a few examples of goods 4 M Wlassak, Zur Geschichte der negotiorum gestio. Eine rechtshistorische Untersuchung (1879) 169-173. This opinion was followed, amongst others, by H Honsell, Quod interest im bonaefidei-iudicium. Studien zum römischen Schadensersatzrecht [= Münchener Beiträge zur Papyrusforschung und antiken Rechtsgeschichte LV] (1969) 81-87; and Kaser, RPR2 558. In some of the older literature D 19.1.13pr and D 19.1.11.3 were still presumed to be interpolated. See G Impallomeni, L’Editto degli edili curuli (1955) 245, 251; and P Stein, “Medieval discussions of the buyer’s actions for physical defects”, in D Daube (ed), Studies in the Roman Law of Sale Dedicated to the Memory of Francis de Zulueta (1959) 102. 5 It may be argued, though, that it is not very obvious to grant a iudicium bonae fidei such as the actio empti against a seller who is not to blame for anything. The liability is usually explained as resulting from a breach of duty of care: being owner, the seller is the first to notice the defect and should inform the buyer.
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with latent defects, other than slaves or cattle, can be found in the Digest title on the aedilician edicts (D 21.1, de aedilitio edicto et redhibitione et quanti minoris), containing replies from classical jurists. The same holds good for the imperial constitutions adopted in the title de aedilitiis actionibus of the Code (C 4.58).6 (2) Justinianic law To understand how the texts of the Corpus iuris were interpreted during the Middle Ages and how they could serve as material to build up a doctrine on liability for latent defects, it is important not to approach the texts in the fashion of those many modern Romanists who concentrate on the developments in the law of antiquity prior to the compilation of the Corpus iuris. This was by no means the approach of the medieval scholars. These jurists were perfectly aware of the historical genesis of the Roman law embodied in the Corpus iuris. They knew exactly when the classical jurists and the emperors had lived, but nonetheless they did not approach the Corpus iuris as if it were a historical source. They considered all texts of the Corpus iuris to be provisions of one and the same scheme of legislation, having an equal force of law and promulgated at approximately the same time, namely in the sixth century by Justinian. Accordingly, it did not matter whether a text originated from pre-classical, classical, or post-classical times, or whether a text was interpolated either by Justinian or earlier in post-classical compilations of classical replies. It is necessary to adopt this perspective to understand medieval legal scholarship. Reading these texts, containing such traces of historic development, as provisions of consistent legislation containing no contradictions leads to problems in interpretation. The Corpus iuris appears to contain two separate kinds of remedy for the buyer of goods with latent defects in order to hold the seller liable: first, the actio empti, and secondly, the aedilician actions. Both seem to be available for the same kinds of defects. The aedilician actions had originally only applied to slaves and cattle with an illness (morbus) or a certain (corporeal) defect (vitium); but, since Justinian extended the application of the aedilician actions to the sale of things other than just slaves and cattle, the range of defects should be understood as extended beyond those mentioned specifically in the original edicts.7 Such defects, not mentioned in the edicts, 6 D 21.1.49 and C 4.58.4 (Diocletian) deal with sale of defective plots of land. 7 See also for the Justinianic reform, N Donadio, “Garanzia per i vizi della cosa e responsabilità contrat tuale”, in E Jakab and W Ernst (eds), Kaufen nach Römischem Recht. Antikes Erbe in den europäischen Kaufrechtsordnungen (2008) 61 at 69-71.
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included, for example, poisonous herbs growing in the plot of land one had bought. Some defects, however, remained exempted from application of the aedilian edicts. At the same time, there were certain defects where the actio empti could not be used. Furthermore, both kinds of remedy, the actio empti and the aedilician actions, were aimed or could be aimed at the same purpose, namely price reduction or rescission. Finally, both kinds of remedies seem to have been available against a seller in good faith, that is, someone who was not aware of the defects. As regards the use of the actio empti against the ignorant seller of defective goods, the texts in the Digest are not unequivocal. This resulted in a debate among the glossators. Moreover, in the cases where ignorant sellers appear to be liable, no general pattern can be found regarding the extent of their liability. The most striking difference between the two types of remedy is that the actio empti originated in the ius civile or civil law (originally resulting from legislation, plebiscites, decisions of the Senate, imperial constitutions, and so on), whereas the actio quanti minoris and the actio redhibitoria belonged to the ius honorarium or praetorian law (originally resulting from the edicts of the magistrates). Though the distinction between civil and praetorian actions was still preserved in the Corpus iuris (see J Inst 4.6.3), it had lost its procedural significance. Since the formulary procedure had come to an end (342 ce), it was no longer necessary in civil litigation to request the magistrate for an action that derived from either civil law or praetorian law. But one important rule was preserved (J Inst 4.12pr): civil-law actions were perpetual, praetorian actions temporal or time-limited. Before turning to the commentaries of the glossators and commentators, it is first appropriate to present a general outline of the provisions of the Corpus iuris relating to the ignorant seller’s liability for latent defects. These provisions centred around the specific use of the actio empti for price reduction or rescission in the titles D 19.1 and C 4.49, and the remedies of the aedilician edicts in titles D 21.1 and C 4.58 – namely the actio quanti minoris, the actio redhibitoria, and the actio in factum. The Corpus iuris indicates that the actio empti was the primary remedy, and the aedilician actions the additional ones. This follows from the composition of the Digest, as explained in the introductory constitutions by Justinian himself. All that was introduced by laws concerning purchase and sale should have a prominent position within the books on patrimonial law (de rebus), that is, books twelve to nineteen of the Digest. Provisions derived from the former aedilician edicts are compiled in an additional book in the fourth part, to wit the twenty-first book of the
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Digest, which necessarily has its place not far from the contracts of sale, as if these provisions were their subordinates (ministrae).8 According to Justinian, the aedilician remedies developed from their beginning as attendants (pedisequae) in the wake of the remedies for sale.9 This precedence of the civil law actio empti over the praetorian actions of the aedilician edicts is, moreover, confirmed by the idea, still preserved in the Corpus iuris, that it is the task of the ius honorarium to support, supplement and rectify the ius civile (D 1.1.7.1). The main provisions dealing with the use of the actio empti as a remedy for latent defects can be found in D 19.1.13pr and C 4.49.9.10 The opening lines of D 19.1.13pr are generally phrased as if they were a rule of law not limited to the sale of certain goods or the existence of certain defects, although some specific examples follow. When the seller is unaware of the defects, the remedy (actio empti) can be used to claim price reduction. When the seller knowingly sold the defective object, the buyer can, on the other hand, claim compensation for his interest that amounts to full damages including consequential losses. As stated above, there are, however, some texts in the same Digest title where a seller in good faith appears not to be liable. This is the case where the slave he sold is a thief (D 19.1.13.1) or taxes (tributum) are due for the plot of land he sold (D 19.1.21.1). Other fragments in the Digest seem to confirm that D 19.1.13pr has a general purport. This possibility was at least discussed in later times by the medieval jurists. D 19.1.13pr and C 4.49.9 also make clear the way in which assessment of price reduction is supposed to take place. The buyer can claim the difference between what he paid and what he would have paid if he had known of the defect (quanto minoris empturus esset). Thus, it is not the objective difference in value that is owed, and certainly not as much as the buyer’s interest. The generally-phrased rule of D 19.1.13pr does not mention the possibility of claiming rescission, but other texts in the same title show that the actio empti can also be used for this purpose. In D 19.1.11.3 this is again phrased in general terms: rescission in view of latent defects is also covered by the actio empti. Other texts, however, have a mere casuistic character: the actio empti is used for rescission of the sale of a slave-woman whom the buyer erroneously considered to be virgin.11 There is no indication whatsoever that 8 Constitutio Omnem § 4. 9 Constitutio Tanta § 5. 10 The cases, however, are not identical. In D 19.1.13pr the seller did not give any specific information concerning the merchandise; in C 4.49.9 he did, namely the amount of capitatio due for the plot of land, which was sold. 11 D 19.1.11.5.
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the use of the actio empti for price reduction or for rescission was limited to a certain period of time. Being a civil action, it was perpetual. The most important, generally-phrased lines, dealing with the aedilician actions – the actio redhibitoria, the actio quanti minoris and the actio in factum12 – can be found in D 21.1.1.1 (the edict for slaves) and D 21.1.38pr (the edict for beasts of burden). The aedilician edicts primarily imposed a duty upon the seller to provide the buyer with the necessary information concerning the merchandise and to give certain warranties. Moreover, as appears from D 21.1.1.2, the edict for the sale of slaves was applicable also to cases where the seller was unaware of any defects. It was argued that this was not unfair because the seller was in a position to know these defects, and it made no difference to the buyer whether he was deceived by the seller’s lack of knowledge (ignorantia) or by the latter’s slyness (calliditas). As stated above, the edict for slaves applied, according to its own wording, also to the sale of “immovables, movables as well as living things”,13 and, according to another text, even to all other goods (venditiones ... ceterarum quoque rerum).14 Accordingly, the provision was supposed to have a wide application, making the other edict, that is the one for beasts of burden reproduced in D 21.1.38pr, more or less superfluous, unless one argued that the latter still had some significance, since D 21.1.1.1 mentions only rescission and D 21.1.38pr includes the remedy for price reduction. But, as seen above, other texts in title D 21.1 make clear that, in the case of defective slaves, it was possible to claim reduction of the selling price. The fact that the examples given in the Digest, where the aedilician remedies applied, almost exclusively cover cases of defective slaves and cattle has a historic reason and does not mean that the application is limited to such merchandise. Accordingly, the defects which resulted in liability should not have been seen as limited to illnesses (morbi) and corporeal defects (vitia).15 There was only a limited number of defects where the aedilician actions did not appear to be applicable, although sometimes the actio empti could nevertheless be used. These included the cases of slaves with certain mental defects16 and the sale of a slave-woman erroneously considered to be a virgin.17 Other cases, where the Digest explicitly and in more general terms maintained that the aedilician liability for 12 In some specific instances in title D 21.1, such an actio in factum is granted to claim reimbursement of the selling price or rescission (see D 21.1.31.17, 22). 13 D 21.1.1pr. 14 D. 21.1.63. 15 C 4.58.3 mentions a plot of land with poisonous herbs; cf also D 21.1.49. 16 D 21.1.4. 17 D 19.1.11.5.
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latent defects was excluded, included a purchase from the Imperial Treasury (fiscus),18 and the emptio simplaria.19 The term simplaria probably referred to daily purchases of minor importance.20 The main differences between, on the one hand, the actio empti used for price reduction and rescission and, on the other, the aedilician actions, used for the same purposes, exists in the fact that the praetorian remedies were only available within a limited period of time. The actio redhibitoria had to be brought within six months from the day the contract of sale was concluded,21 or from the moment the defect became known to the buyer or the buyer could have known of it.22 The actio quanti minoris had to be brought within one year from the day the contract of sale was concluded.23 Finally, there was also a difference between the actio empti and the actio quanti minoris as regards the assessment of price reduction. Whereas the first remedy was aimed at the difference between the selling price and what the buyer would have paid if he had known of the defect,24 the second was aimed at the difference between the selling price and the actual, that is, the objective market value of the defective object.25 It may be questioned in which way the compilers considered the praetorian actions to add something to the civil remedy. In the Corpus iuris the civil actio empti seems to be the primary remedy for latent defects, but its applicability was somewhat wider than that of the aedilician actions. It can be used for some defects that the aedilician edicts did not cover and its use was not restricted to a limited period of time. If indeed praetorian law supported, supplemented and rectified civil law, as D 1.1.7.1 stated, and Justinian wanted the aedilician actions to function as remedies additional to the remedy of sale, what could these actions offer? The only obvious advantage is the fact that the objective assessment of the price-reduction of praetorian law could sometimes result in a higher amount than the subjective assessment of civil law. It is possible, of course, to question whether this was sufficient ground for not abrogating the aedilician edicts, and to ask what other reasons might have induced Justinian to adopt in his legislation the two titles on the aedili18 See D 21.1.3. 19 D 21.1.48.8. 20 In H G Heumann and E Seckel, Handlexikon zu Quellen des römischen Rechts (many editions), simplarius is described as geringfügig. 21 D 21.1.38pr; C 4.58.2; D 21.1.19.6. 22 D 21.1.55. 23 D 21.1.19.6. On the annus utilis, see D 21.1.38pr and C 4.58.2. 24 See quanti minoris empturus esset, si … scisset in D 19.1.13pr or quanto, si scisset emptor ab initio, minus daret pretii in C 4.49.9. 25 See quo minoris cum venirent fuerint, D 21.1.38 and D 21.1.31.5.
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cian actions next to those on the actions of sale. Usually this is ascribed to the traditionalistic tendencies of both Justinian himself and the Eastern law schools. No matter what the reason may have been, the medieval jurists encountered two distinct remedies and two distinct sets of rules, and, as will be seen, this fact was to cause serious problems in interpretation. C. THE ERA OF THE GLOSSATORS In discussing the era of the glossators, the focus will be on the actio empti rather than on the aedilician actions, since the actio empti was the principal remedy in Justinianic law and most of the time the aedilician actions were applied in cases where the seller had given warranties, or was supposed to have done so. It is, however, first appropriate to notice that the extensive interpretation given in the medieval period to the Roman rule on a fair price (iustum pretium) found in C 4.44.2, in some cases covering latent defects, meant the buyer could claim rescission of the sale on the grounds that the selling price had been too high. This provision had originally granted the seller an action if something was sold for less than half the fair price. In such a case, he was considered to suffer an extreme prejudice (laesio enormis). In the Middle Ages the rule on a fair price was generalised. It was used not just to protect the seller, but also was applied when the buyer was deceived, in the sense that the selling price was too high. The remedy was named the condictio ex lege rem maioris after the opening words of C 4.44.2. Among the early glossators at Bologna, there was, however, no agreement as to in exactly which cases the buyer suffered such laesio enormis. According to Martinus (d before 1166) and some others, the actual selling price had to be at least twice as much as the fair price. Azo was of a different opinion, arguing that the buyer could claim rescission of the sale because of laesio enormis if what he had paid on top of the fair price was at least half of that fair price.26 It was his view which prevailed and which was adopted in the authoritative Accursian gloss.27 As a consequence the remedies of sale and the aedilician remedies were still necessary for cases of latent defects, where the difference between the selling price and the fair price did not exceed half of the latter.
26 G F Haenel (ed), Dissensiones dominorum sive controversiae veterum iuris romani interpretum, Hugolinus § 253 (1834; repr 1964) 426-427. 27 See the gloss iudicis ad C 4.44.2.
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(1) Early legal scholarship One of the first issues to be discussed by the Bolognese glossators was probably the extent of the liability of the seller who was unaware of the defects. Although this is not always stated explicitly in the sources, this discussion did not involve situations where the seller had given express warranties against defects in his merchandise, but this clearly followed from the nature of the Roman law texts adduced as arguments. The author of Lo Codi, an anonymous summa on the Code, originally written in the Provençal language and dating from just after the middle of the twelfth century, noted that sometimes in the Digest the seller who was unaware of the defects was also held liable under the actio empti. Some examples were given (the leaky barrel of D 19.1.6.4 and the unsound beams of D 19.1.13pr), without entering into the problem of whether or not these examples contained the general rule, namely that ignorant sellers were always liable. The cases which did consider the ignorant seller liable did not adopt, however, an equal extent of liability. Most of the time the ignorant seller was liable for the balance between what the buyer paid and the lesser sum he would have paid if he had known the defect, but some texts, such as D 19.1.6.4 (sale of a leaky barrel) or D 19.2.19.1 (lease of a leaky barrel), were understood to point in the direction of liability for the other party’s full interest. In Lo Codi this was justified by the supposition that the vendor or lessor of a leaky barrel might not have known of the defect, but that he was to blame for such lack of knowledge.28 The same line of reasoning was adopted and further elaborated by Rogerius (d between 1162 and 1166), who is said to have founded a law school at Montpellier. This glossator drew a distinction between three types of ignorant sellers. Some were not to blame for their ignorance and could not be held liable. Some were ignorant when they could easily have known of the defects, and these are liable quanto minoris “as in the case of selling a slave who is inclined to run away or is otherwise defective”. In exceptional cases, such as the sale of a leaky barrel or of an infertile slave woman,29 the ignorant seller was liable for the buyer’s full interest. The reference for the second category to the servus fugitivus and servus morbosus, combined with an explicit reference to D 22.1.1, may indicate that, according to Rogerius, the actio empti for price reduction should be applied in conformity with the assessment rule of the aedilician edicts. If so, Rogerius also adopted the 28 H Fitting (ed), Lo Codi in der Lateinischen Übersetzung des Ricardus Pisanus 4.62.9 (1906) 129. D 19.1.6.4 does not speak about interest or consequential damages. 29 D 19.1.6; D 19.1.1.
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objective standard – that is, the difference between the selling price and the market value at the time of the contract – for the use of the actio empti, although this is not in conformity with D 19.1.13pr and C 4.49.9.30 Rogerius’ contemporary Albericus rejected the former’s opinion that the vendor of a leaky barrel (the case in D 19.1.6.4) was liable for the buyer’s full interest. The text of D 19.1.6.4 stated that the seller was obliged to deliver a barrel which did not leak, even if he were unaware of the defect; but Albericus applied to this case the rule of D 19.1.13 that limits the vendor’s liability to the lesser amount the buyer would have paid if he had known of the defect.31 The underlying problem probably was that the Corpus iuris contains cases where the ignorant seller is not liable at all, where he is only liable for quanti minoris, or where he is liable for the buyer’s interest. This prompted Rogerius to discern three groups of ignorant buyers, each belonging to a certain category. A similar distinction was drawn by his contemporary Henricus de Baila in a gloss to the case in C 4.49.9. If the seller knew the exact amount of capitatio due for the plot of land he sold, but deliberately provided the buyer with incorrect information, he was liable for all damages. The seller who gave the wrong information out of ignorance was liable only for the balance between what the buyer paid and the lesser sum he would have paid, whereas the seller who did not say anything could not be blamed and was not liable at all.32 Later glossators preferred to acknowledge a principal rule for all ignorant sellers, and it is possible that Albericus, in his rejection of Rogerius’s interpretation of D 19.1.6.4, was one of those. The Casus Codicis of Wilhelm of Cabriano – said to be a faithful reproduction of the teachings of Wilhelm’s master, the glossator Bulgarus (d 1166) – offered two explanations for the fact that the ignorant seller was sometimes liable for defects and sometimes not. It argued that he was liable when he had given warranties, and that he was not liable, if he had not done so. Alternatively, one could argue that the texts that said that the ignorant seller was not liable should be understood as if he was not liable for the buyer’s interest, but that, despite his ignorance, he was liable for the balance between what the buyer paid and the lesser sum he 30 See the gloss with siglum R ad D 19.1.13 in Paris BN MS lat 4450 fol 194v: “Venditor rei uendite, detrimentum ignorans …” Cf Rogerius, Summa Codicis, IL (De actionibus empti et venditi), in BIMAE I 128. Rejecting for the actio empti the subjective standard for calculating the quanti minoris – i.e. the amount the seller would have paid less had he known the defect – can explain the occurance of Rogerius in the gloss essem empturus ad D 19.1.13pr of Accursius. 31 See the gloss by Albericus ad D 19.1.6.4 in Paris BN MS lat 4450 fol 193v, in F C von Savigny, Geschichte des römischen Rechts im Mittelalter, 3rd edn (repr 1956) IV 428. 32 See the gloss with siglum yr. ad C 4.49.9 in Paris BN MS lat 4536 fol 80va: “Venditor sciens nisi ueram capitationem predicat …” A similar gloss, but without siglum, can be found in München BSB MS Clm 22 fol 84rb: “Venditor sciens nisi in capitatione …”
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would have paid had he known of the defects.33 This seems to be a first step in the direction of a general rule for all ignorant sellers. The same approach can be found in a gloss by Otto Papiensis.34 (2) Placentinus and Johannes Bassianus Placentinus (d 1192), a citizen of Piacenza, was one of the most important glossators of the twelfth century. He taught at Mantua where ca 1160 he wrote a treatise on legal remedies, the Libellus de actionum varietatibus, which begins with the words Cum essem Mantue. Probably around 1170 he moved to Montpellier in France to succeed his master Rogerius. There he wrote his Summa Codicis. In Cum essem Mantue, when discussing the remedies of the contract of sale, Placentinus adopted the tripartite division of Rogerius. The ignorant seller was sometimes liable for all damages, as in the case of the leaky barrel; sometimes only for a limited amount, as in the case where he had sold cattle with a disease or a runaway slave; and sometimes not liable at all, unless he gave the buyer warranties, as in the cases where he had sold a thief or had not mentioned the existence of a servitude. For the assessment of the reduction in price, Placentinus clearly followed the subjective calculation of D 19.1.13pr, which was the difference between the purchase price and the price the buyer would have paid had he known of the defect.35 There is a gloss by Lotharius (d after 1211) suggesting that Placentinus considered the cases where the ignorant seller was liable to be exceptions to the principal rule that ignorant sellers should not be liable. An argument to consider this as the principal rule was found in the statement of D 19.2.22.3 (see also D 4.4.16.4) that, according to nature, seller and buyer may deceive each other. Later glossators considered this text not applicable to cases where the buyer’s disadvantage resulted from defects in the merchandise, except in the cases of D 19.1.13.1 (sale of a fur) and D 19.1.21.1 (sale of a predium tributarium).36 If a first step towards one general rule for ignorant sellers can be traced 33 Ad C 4.49.9 in T Wallinga (ed), The Casus Codicis of Wilhelmus de Cabriano [= Studien zur Europäischen Rechts ge schichte CLXXXII] (2005) 314-315. 34 This glossator considered the cases of selling and leasing out of leaky barrels (D 19.1.6.4 and D 19.2.19.1) as exceptional, where no distinction should be made between the one who knows the defect and the one unaware. Both are liable for the full damages. See the gloss with siglum Ot. ad C 4.58.1 in Munich BSB MS Clm 22 fol 86va and Paris BN MS lat 4536 fol 82vb: “Set si ignorasset …” 35 See Placentinus, Summa ‘Cum essem Mantue’ siue de accionum uarietatibus, tit XXII no 235, ed G Pescatore [= Beiträge zur mittelalterlichen Rechtsgeschichte V] (1897; repr 1967) 56. 36 See the gloss by Lotharius ad D 19.1.13 in Paris BN MS lat 4450 fol 194v, ed in Savigny, Geschichte (n 31) IV 465.
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in the Casus Codicis of Wilhelm of Cabriano, a similar approach is found in the Liber Pauperum, a well-structured compendium on the Digest and Code, composed by Vacarius (ca 1120-after 1198), the first scholar to teach Roman law in England. This referred to an existing opinion that there was a difference between leaking barrels and other things containing some kind of defect, since it was very easy to check whether or not a barrel leaks. As a consequence, the sale of leaky barrels should be seen as an exceptional case, where it was justifiable to hold the ignorant seller liable for the buyer’s full damages.37 Since Vacarius did not mention the cases where the ignorant seller was not liable at all, this pointed in the direction of a single criterion for the extent of the ignorant seller’s liability, namely quanti minoris in the sense of the balance between what the buyer paid and the lesser amount he would have paid, had he known of the latent defect. Johannes Bassianus (dates unknown) holds an important position within the tradition of Bolognese glossators, as not only a student of Bulgarus but also the master of Azo, whose influence would last until the end of the Middle Ages. Johannes Bassianus was the first to formulate a general rule on the liability of ignorant sellers. This can be found in an extensive gloss to C 4.4.9.9. He did not use the term regula, but the expression generaliter … extendimus: we extend the provision generally. The criterion of D 19.1.13, namely that the ignorant seller was liable for the balance between what the buyer paid and the lesser amount he would have paid, had he known the defect, was now extended to all other cases and all other defects, not just those mentioned in that text. This construction of a rule on the basis of one single text in the Digest was justified by appealing to D 39.2.30.2: what had been written down as an example could also be taken to refer to other things.38 Thus, the instances mentioned in D 19.1.13 should be taken as mere examples. Only two cases were excepted: the sale of a thief and the sale of a plot of land liable for tributum. In these cases, the ignorant seller could not be held liable since, as Johannes Bassianus subsequently explained, there was no slave who had never stolen something from his master. Thus every slave might be presumed to be a thief. For this reason it was written: “Quod domini faciant, audent cum talia fures.” The quotation is from Virgil, Eclogues 3.16, but this source was not mentioned by the gloss. Furthermore, the seller of a plot of land for which tributum was owed (which in antiquity applied only to provincial and 37 Vacarius, The Liber Pauperum, ed by F de Zuleta, lib IV tit 46 [= Selden Society XLIV] (1927; repr 1972) 151. 38 “Quod dictum est ‘aquae ducendae causa’, exempli gratia scriptum est: ceterum ad omnia opera stipulatio accommodabitur.”
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not to Italian land) could not be held liable, since everyone must know that, according to the ancient laws, tributum was owed for provincial tenements. Thus the buyer’s supine ignorance could not work out to his advantage.39 The gloss of Johannes Bassianus continues stating that there was another opinion, to the effect that the ignorant seller was never liable except in some of the cases mentioned before and in the one concerning the sale of secondhand garments as new in D 18.1.45. According to this opinion, it was the text on the sale of a fundum tributarium which should be adopted as a general rule and applied to other cases. But it was also possible to argue, Johannes Bassianus stated, that the ignorant seller was always liable for the the balance between what the buyer paid and the lesser amount he would have paid if he had known of the defect. This meant that the ignorant seller of a fundum tributarium did not have to pay additional damages to the same level as the seller who knew of the defect. The ignorant seller of a slave who was a thief did not have to pay the same level of damages as a seller who knew he was selling a runaway slave. The latter had to pay full damages; the seller of the thief had to pay only as much as the buyer would have paid less.40 39 “Qui pecus morbosum uel tignum uitiosum uel seruum fugitiuum aut uas non integrum sciens uendidit, tenetur ad omne interesse, si ignorans quanto minoris empturus esset, ut ff. de act. empti. et uen. Iul [D 19.1.13] et l. Tenetur § Si uas [D 19.1.6], quod ad alias res et ad alia uitia generaliter extendimus, ut quod in predictis exemplis dicitur ad cetera porrigatur, ut ff. de damp. infec. Dampni § Qui uor. [D. 39.2.30.2]. Excipiuntur duo casus. Nam qui ignorans furem uendidit uel tributarium predium, cum deberet uendere non furem, non tributarium, nec etiam in quanto minoris tenetur, ut ff. de act. emp. et uen. Iul. § Item qui furem [D 19.1.13.1] et l. Si sterilis § i [D 19.1.21.1], quippe debet quilibet suspicari et credere seruum furem esse. Nullus enim est, qui non quandoque uel modicum domino furetur, quare etiam fur est, ut ff. de edilic. e. Quod si nolit § Si uenditor [D 21.1.31.1]. Propterea scriptum est ‘quid domini faciant audent cum talia fures’ id est serui. Item quilibet debet scire secundum uetera iura quod nullum predium ytalichum tributarium est. Omne autem prouinciale tributarium est. Ergo emptoris supina ignorantia in fure et tributario predio est quare non prodesset ei, ut ff. de contrahen. empt. Et si consensu [D 18.1.15] et infra instit. de rerum di. § Per traditionem [J Inst 2.1.40].” For reference see next note. 40 Gloss with siglum Jo. and Job. ad C 4.49.9 in BamSB MS Jur 21 fol 80vab, Munich BSB MS Clm 22 fol 84rab and Paris BN MS lat 4534, fol 74va-b: “Alii dicunt quod in nullo casu tenetur ignorans, nisi in aliquo predictorum et in alio, scilicet ff. de contrahen. emp. et uen. Si uestimenta [D 18.1.45]. Regulare est ut non teneatur ignorans, set excipiuntur casus predicti. Et quod dicitur de iure tributario predicta porrigunt generaliter. Potest etiam dici quod generale est, ut in omni casu teneatur ignorans quanto minoris empturus esset. Quod ergo dicitur quod ignorans predium tributarium uenditor non tenetur supplere ad omne interesse, sicut tenetur qui sciens, et sic intellige l. ff. de act. emp. et uen. Si sterilis § i [D 19.1.21.1]. Quod uero dicitur quod ignorans furem uenditor non tenetur supplere adeo ut tenetur qui sciens uendidit fugitiuum. Illum enim habere non licet, ut ff. de ac. emp. et uen. Iul. § Item qui furem [D 19.1.13.1] et ideo uenditor ignorans per quanto minoris tenetur ad totum pretium, set non ad totum in fure sed in id quod minoris empturus esset, ut ff. de tridua. ac. Illud § Si cuius [D 14.4.7.2] et ff. de v. si. Minus [D 50.16.32] et ff. de fideius. Amis. in prin. [D 46.1.52pr] et C. de her. insti. Pater [C 6.24.2]. jo[annes]b[assianus].” This opinion of Johannes Bassianus is confirmed in the dissensiones dominorum handed down under the name of Hugolinus: see Haenel (ed), Dissensiones, Hugolinus § 410 (n 26) 530-531.
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Thus, Johannes Bassianus seems to have adopted as a general rule the view that the seller who was aware of the defects was liable for the full loss of the buyer, whereas the ignorant seller was only liable for the balance between what the buyer paid and the lesser amount he would have paid if he had known of the defect. The cases of D 19.1.13.1 (sale of a fur) and D 19.1.21.1 (sale of a predium tributarium) either could be taken as exceptions to this general rule, where the ignorant seller was not liable, or they could, through interpretation, still be brought into conformity with this general rule. Johannes Bassianus discussed a further problem: the difference between the actio empti to claim reduction in price and the actio quanti minoris of the aedilician edict, used for the same purpose. These two actions show many similarities and can be granted in similar situations.41 In a gloss to D 19.1.13, Johannes Bassianus explained that the first was a civil action and the second praetorian.42 But was not the second, in fact, redundant? The answer was no. The praetorian action was aimed at the difference between the selling price and the objective value or common price (estimatio communis). The civil action was aimed at the difference between the selling price and the lesser amount he would have paid. One might use the remedy which was the most advantageous. Suppose that someone, who knew very well how to handle horses, bought for forty a horse which moved backwards. It was more in his interest to use the praetorian action, because had he known of the defect, he still would have paid at least five for the horse, whereas the average buyer would not have given anything. With the praetorian action he could claim back the full forty.43 (3) Azo The writings of the glossator Azo (d 1220) reveal that, by the time he was lecturing in Bologna, there had developed a view that sellers, unaware of 41 The aedilician edict imposed on the seller the duty to give certain warranties, but liability under the actio quanti minoris does not seem to have been dependent upon those warranties. 42 In the Middle Ages the actio quanti minoris and the actio redhibitoria were characterised as praetorian actions, although they were introduced not by the praetor but by the aediles curules. For this reason the use of the term “praetorian” was in this respect criticised by the Humanist jurists of the sixteenth century. The remedies did belong, however, to the ius honorarium and in the Corpus iuris the terms ius praetorium and ius honorarium were more or less used as synonyms: see D 1.1.7.1. 43 Gloss with siglum Job ad D 19.1.13, in Paris, BN MS lat 4450 fol 194v: “Pone ergo comuni estimacione est deterior equs in v. Ergo in v. competit illa pretoria, ac si scisset, minoris empturus esset xl. Ergo pocius interest hic ciuili, nam per hoc consequitur quis quanto minoris esset empturus, ut hic. Pone ergo e contrario emit equm retrogradum quis qui bene nouerat usum equorum. Istius interest magis in pretoria quam ciuili, nam non fuerit minoris quam v, si millesies scisset. Si ergo agat pretoria, poterit consequi xl. totum. Enim estimacione communi hanc differentiam inuenit. Jo[hannes] b[assianus].”
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defects in their merchandise, were liable under the actio empti for the balance between what the buyer paid and the lesser amount he would have paid, but, at the same time, there was still the dissenting view, mentioned by Johannes Bassianus but not linked to any glossator by name, that ignorant sellers should not be held liable at all. The most important texts in the Corpus iuris holding the ignorant seller liable for defects were D 18.1.45 (garments which had been repaired were sold as new), D 19.1.6.4 (sale of a leaky barrel), D 19.1.13.1 (sale of a runaway slave), D 19.2.19.1 (lease of a leaky barrel) and C 4.49.9 (sale of a plot of land which owed a higher capitatio than the seller had stated). The most important texts stating that the ignorant seller was not liable for defects were D 19.1.13.1 (sale of a thief) and D 19.1.21.1 (sale of a plot of land for which tributum appeared to be owed). As a matter of fact, the case of C 4.49.9 closely resembled that of D 19.1.21.1. Yet they differed in the answer given to the legal problem, which was explained by the fact that in C 4.49.9 the seller had provided the buyer with incorrect information, whereas in D 19.1.21.1 the seller had given no information at all.44 It was uncertain whether the five cases, declaring the ignorant seller liable, should be considered as reflecting the principal rule or rather the exception. The same could be asked about the two cases that declared the ignorant seller not to be liable. Azo’s line of thinking can be found in his Apparatus maior to the Digestum Vetus as well as in his Lectura Codicis and Summa Codicis; he followed the approach of his master Johannes Bassianus. Azo considered that the five cases contained the general rule, applicable also to other cases of latent defects, namely that the ignorant seller was liable for the balance between what the buyer paid and the lesser amount he would have paid. In the fragments in the Apparatus maior the term regula was not used (Azo stated that the ignorant seller was always (semper) liable); but in the Summa Codicis, and likewise in the Apparatus maior, the terms used were regulare esse and regula, though it is clear that we are dealing with a general rule of law. Azo argued that it made more sense to consider two cases to be exceptional, rather than five.45 44 See the gloss with siglum p. (but it cannot have been Placentinus since it refers to the opinion of Azo) ad C 4.49.9 in Paris BN MS lat 16910 fol 84rb: “ff. e. l. i Si sterilis [D 19.1.21.1] contra …” 45 “Tenetur ignorans quanto minoris erat empturus emptor in capitatione predii, C. e. l. Si minor [C 4.49.9] et in uase non integro uendito et in uase uitioso locato, supra e. Tenetur § Quod [D. 19.1.6.4 i.f.] et infra locati Set addes § i [D 19.2.19.1]. Hic tamen melius et apertius dico ignorantem pro non integro teneri ad interesse, ut supra e. Tenetur [D 19.1.6], pro uase uitioso locato, idem pro uendito quanto minoris, in uestimentis, supra de contrahen. empt. Labeo [D 18.1.45], in seruo fugitiuo ut hic. Set hii v casus, ut dicunt, speciales sunt. In aliis enim ignorans non tenetur. Set nos contra, nam semper tenetur, nisi in casibus duobus, ut in fure et predio tributario, ut hic et infra e. Si ste. § Si pre. [D 19.1.21.1]. Cum ipsi dicunt v specialia sunt, multo
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Azo stated that there was a perfect explanation for the two exceptional cases: every slave might be presumed to be a thief and every man should know that tributum was owed for provincial land.46 In the text corresponding to this gloss in his Summa Codicis, Azo followed Johannes Bassianus in quoting Virgil, who was this time explicitly recognised as the author of the quotation.47 Azo also dealt with the question whether or not the aedilician actions were in fact redundant in his Apparatus maior to the Digestum Vetus. According to Johannes Bassianus, the actio quanto minoris in particular was still useful, because in some cases this remedy allowed the plaintiff to claim a higher amount than would be gained by using the civil action. Azo explained that the aedilician actions were not superfluous, because it was not possible to use the civil actio empti for rescission on the ground of corporeal defects, only for damages or reduction in price. Moreover, the civil actio empti could not be used if one had bought a thief or a predium tributarium. Therefore it was necessary to introduce the aedilician actions, for they served a different purpose.48 magis nos duos dicemus.” For the reference, see the following note. 46 Gloss with siglum az. ad D. 19.1.13.1 in BamSB MS Jur 11 fol 223rb; Paris BN MS lat 4451 fol 137rb; Paris BN MS lat 4459 fol 179vb; BV MS Vat Lat 1408 fol 210rb; BV MS Borgh Lat 225 fol 164rab: “Et hoc ideo, quia scire debuit eum furem esse eo ipso quod seruus erat, maxime si cautius erat. Dominis enim suis, et si nil aliud possunt, cinerem tamen subripiunt. Et fur est non solum qui extraneo, set etiam qui domino suo furtum facit, ut de aedilic. e. Quod si nolit § i. [D 21.1.31.1]. Item, si predium erat provinciale, scire debet tributarium. Ideoque, quia est quod ei imputetur, non agit contra ignorantem uel quod dicit lex non tenetur subaudi adeo non agitur quanto minoris res est, non quanto minoris empturus. Nec obstat quod dicitur licere contrahentibus se decipere, quia hoc in pretii quantitate non in uitiis rei. Verum est. az[o].” An almost identical gloss with siglum az. ad C 4.49.9 can be found in Prague, Knihovna Národního Musea, XVII A.10 fol 92va. A similar discussion (which cases make the rule?) can be found in anonymous gloss ad D 19.1.13 in BV MS Vat Lat 1408 fol 210rab: “Infra e. t. Si sterilis § i [D. 19.1.21.1] assignatur contrarium …” Cf also Azo, Lectura Codicis ad C 4.49.9 nos 1-4 in Azo, Lectura super Codicem (1577; repr 1966) 348-349 and Azo, Summa Codicis ad C 4.49 no 17 (1559) fol 111rb. 47 Azo, Summa Codicis ad 4.49 no 17 (n 46) fol 111rb. 48 Gloss with siglum az. ad D 21.1.19.2 in BamSB MS Jur 11 fol 247vb; Paris BN MS lat 4451 fol 192rb; Paris BN MS lat 4461 fol 198ra; BV MS Vat Lat 1408 fol 235r; BV MS Vat Lat 2512 fol 198rab; BV MS Borgh Lat 225 fol 182rab: “Puta si uendidisti seruum fugitiuum uel pecus morbosum cuius nomine agi potest etiam de iure ciuili uel ad interesse uel quanto minoris empturus erat, ut supra de acti. emp. Iulianus in prin. [D 19.1.13pr]. Et nichilominus agi reddibitoria potest de iure pretorio uel quanto minoris uel ex contractu uel ex cautione res est. Et caue tibi quia propter corporis morbos non agebat ut de iure ciuili ad redhibitionem, set ad interesse uel quanto minoris, uel ex contractu uel ex cautione, ut in pecore morboso et seruo. Set propter uitium animi in seruo fugitiuo agebatur de iure ciuili, non in seruo fure, nec predio tributario, ut notaui supra de act. emp. Iulianus [D 19.1.13]. Vnde exponebatur cautio super fugitiuo et quibusdam aliis quibus aduocari potest res. Item de sanitate de iure ciuili, ut supra de act. emp. l. Ex empto § Etiam [D 19.1.11?] et C. de act. emp. Emptor [C 4.49.14]. Set sine cautione agebatur, ut dixi, in fugitiuo, supra e. l. Quis sit § Idem recte [D 21.1.17.10]. Nec obstat quod dicitur supra de acc. emp. Ex empto § Redhibitionem [D 19.1.11.3], ut ibidem notaui. Fuit ergo necessarium has edilicias acciones proponi, utpote cum iste ad aliud dantur quam superiores de iure ciuili.
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A more elaborated view can be found in Azo’s Summa Codicis. The actio empti could in some specific instances be used for rescission;49 but when the actio empti was used for reduction in price, this could also sometimes result in rescission, such as when the buyer would not have bought the merchandise at all, if he had known of the defect, as appeared from D 44.2.25.1.50 In conformity with Azo’s view that the actio empti, used for price reduction, was clearly different from the aedilician actio quanti minoris, the Apparatus major indicates that there was a difference between the civil action, directed at the balance between what the buyer paid and the lesser amount he would have paid, and the praetorian, directed at the difference between the selling price and the common estimation.51 In at least one manuscript, this gloss continues by stating that there were two actiones quanti minoris, one of civil law and one of praetorian law.52 This is exactly what was written in Azo’s Summa Codicis. There was a civil actio quanti minoris, directed at the balance between what the plaintiff paid and the lesser sum he would have paid if he had known of the defect. This remedy was perpetual, but, as explained above, could not be used for all defects. There was also a praetorian actio quanti minoris, directed at the difference between selling price and actual value. This remedy could be brought for only one year, and could also be brought in certain cases where the civil action was not available. Both were necessary.53 Azo thus considered that the civil actio empti used for price reduction Quid enim si emptor quidem empturus erat, set minori precio? Subuenitur ei per hoc edictum uel ad redhibitium, uel quanto minoris erat res. Item quandoque dantur iste et non ille, ut supra dixi. az[o].” 49 D 19.1.11.3. 50 Azo, Summa Codicis ad C 4.49 nos 21-23 (n 46) fol 111va. The distinction between the buyer who would have bought, but for a lower price, and the buyer who would not have bought at all, may be derived from Aristotle. See Aristotle, Ethica Nicomachea lib III, cap 1-4 [= Aristoteles Latinus, ed G A Gauthier, vol XXVI 1-3 Fasc tertius] (1972) 179-183. 51 A gloss with siglum az. ad D 19.1.13, in BamSB MS Jur 11 fol 223rb; Paris BN MS lat 4451 fol 137rb; Paris BN MS lat 4459 fol 179vb; BV MS Vat Lat 1408 fol 210rb; BV MS Borgh Lat 225 fol 164rb: “Alia est accio ciuilis quanto minoris empturus esset, alia pretoria quanto minoris res ualet ut infra de edil e. l. Quod si nolit § Si quis [D. 21.1.31.16] et de except. rei iudi. Si is qui § Est in po. [D. 44.2.25.1]. az[o].” 52 See the gloss in BV Vat Lat 1408 fol 210rb: “Due sunt acciones quanti minoris …” This continuation of the gloss also maintains that the praetorian action can sometimes be used to claim a higher amount. For these reasons the aedilician remedies are not superfluous. 53 Azo, Summa Codicis ad C 4.58 no 3 (n 46) fol 114ra: “Actio autem quanto minoris empturus esset emptor ciuilis est, ut ff. de act. empt. l. Iulianus [D. 19.1.13] et ideo perpetua est. Haec autem quanto minoris res est, competit usque ad annum et cum ad aliud datur quam superior, neutra est superflua. Quid enim si emptor quidem empturus erat sed minori pretio? Subuenitur ei per hoc edictum, uel ad redhibendum, uel quanto minoris res est. Item esse quod dantur iste scilicet redhibitoriae, uel quanto minoris res est et non datur illa ciuilis, quia illa in casibus tantum competit, ut diximus supra de act. empt. ...”
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resembled the aedilician actio quanti minoris to such an extent that he presented the two as distinct actions, but with similar names. The question however arises as to whether he actually wanted the actio quanti minoris civilis to be a separate remedy, distinct from the regular actio empti. This question was of importance for procedural law, as will appear in the next section. This does not seem to have been the case. A Summa de Actionibus, sometimes ascribed to Azo,54 considered that the terms quanti minoris and redhibitoria did not indicate independent remedies, but were just additions (adiectiones) to, for example, the actio empti.55 A student of Azo maintained that, according to his master (dominus meus), the words quanti minoris were just an addition and did not refer to a separate action.56 Azo’s own master, Johannes Bassianus, had composed an Arbor actionum. This “tree of actions” set out the remedies of the Corpus iuris, totalling 169, in a scheme of 180 circles with the praetorian actions at the left and the civil actions at the right. Above each circle there were letters, placing an action into a certain category. This Arbor actionum, however, contained only one actio quanti minoris, which was described as praetorian and temporal.57 (4) The last generation of glossators According to Hugolinus (d after 1233), a student of Johannes Bassianus and one of the last generation of glossators, the general rule should be based on the five cases where the ignorant seller was liable and on the entire Digest title on the aedilician edicts. In the exceptional cases where the ignorant seller was not liable, the buyer could himself be blamed for the loss he suffered. Or one should argue that, in the case of selling a thief or a tenement owing tributum, the seller was not liable under the actio quanti minoris civilis but rather under the actio quanti minoris pretoria.58 Hugolinus used the term 54 W Litewski, Der römisch-kanonische Zivilproze nach den älteren ordines iudiciarii (1999) I 188. 55 Summa de Actionibus § 78, in BIMAE III 6. 56 Roffredus Beneventanus, Libelli iuris civilis (1500; repr 1968) fol 101va. See also Jacques de Revigny (under the name of Petrus de Bella Pertica), Lectura super prima parte Codicis ad C 4.58.2 (1519; repr 1967) fol 207rb: “Azo dicit quod quanto minoris et redibitoria non sunt nomina actionis, sed sunt adiectio actionis.” 57 A Brinz, Arbor actionum (1854) 19; for the Arbor actionum of Johannes Bassianus, see also A Errera, Arbor actionum, Genere letterario e forma di classificazione delle azioni nella dottrina dei glossatori (1995); and Lange, RRM I 221-224. 58 A gloss with siglum h. ad D 19.1.13 in London, British Library MS Royal 11 C III, fol 188ra and Paris BN MS lat 4461 fol 178rb: “Generaliter dixerunt quidam, numquam ignorantem uenditorem propter rei uitium teneri, sumpta generali regula propter istum casum de fure et alium, infra e. Si steri. § Si predium [D 19.1.21.1] et speciale esse in v casibus, ut teneatur ignorans, scilicet in pecore morboso, tigno uitioso, seruo fugitiuo, uestimentis interpolis et uase non integro, ut hic et supra de contrahen. empt. Si uestimenta interpola [D 18.1.45] et supra e. Teneri § Si uas
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regula here. There was also an extensive quaestio on D 19.1.13 by Jacobus Balduini (d 1235), a contemporary of Hugolinus and student of Azo, which also reflected his master’s teachings. Balduini used the term regulariter and spoke about regula nostra.59 Accursius (ca 1182-1263) and Odofredus (d 1265) did not add anything new to the doctrines developed by Johannes Bassianus and Azo, which were generally accepted and confirmed by the last generation of glossators. In fact, they were mere compilers and the importance of Accursius is primarily that, through his ordinary gloss, which gained enormous authority in centuries to come, more than 150 years of legal scholarship was compiled and transmitted to future generations of students being educated in Roman law. Azo’s teachings were accepted on which cases should be adopted as general and which as exceptional. They can be found in the gloss quanto minoris on D 19.1.13.1 as well as in the Lectura on the Digestum vetus of Odofredus on D 19.1.13pr.60 Here we also find the traditional justification for the fact that the ignorant seller was not liable when a thief or a predium tributarium was sold. Even the quotation from Virgil is found. Only in one respect did the Accursian gloss differ from the writings of Azo: it recognised, beyond any doubt, two distinct remedies for price reduction – one civil and one praetorian. The most important gloss for this position was that essem empturus on D 19.1.13pr.61 [D 19.1.6.4]. Nos totum contrarium dicimus, sumpta a pluribus regula, et fere ex toto illo titulo de edilic. e. [D 22.1] et ratione specialitatis assignamus, ut non teneatur in illis duobus casibus, quoniam emptori imputandum est. Et idem se queri debet quare non petiit sibi caueri furem non esse uel non quesiuit utrum fur esset, cum satis potuit putare nullum seruum facile inueniri nisi furem, saltem qui aliquod subripuit domino suo uel solitus est subripere, nam talis fur dicitur, infra de ed. ed. Quod si nolit § Si uenditor [D 21.1.31.1]. Et etiam omnes fures appellantur, ut ibi dicitur. Vnde Virgilius in bucolicis in illo loco dicit Damoeta cuium pecus ‘Quid facient domini audent cum talia fures!’. Secundus est in predio tributario. Quid enim si predium erat provinciale? Nonne debuit putare illud tributarium? Vel aliter dic quod in istis duobus casibus tenetur, sed non adeo ut in aliis. Nam in aliis tenetur ignorans quanto minoris fuisset empturus, set hic quanto minoris res est. Et est quidam differentia inter has acciones, quoniam prima est ciuilis et perpetua, secunda temporale et pretoria, ut infra de ed. e. Quod si nolit § Si quis [D 21.1.31.16] et infra de excep. r. iud. Si is qui § Est in potestate [D 44.2.25.1] et C. e. Si minor [C 4.49.9] et infra de edil. Quod si nolit § Si plures [D 21.1.31.5] et l. Bouem § Aliquando [D 21.1.43.6] et l. Hominem [D 21.1.47] et l. Sciendum § fi. [D 21.1.19.6]. h[ugolinus].” 59 Paris BN MS lat 4458 fol 171ra. 60 Odofredus, In secundam Digesti Veteris partem Praelectiones ad D 19.1.13pr (1552; repr 1968) fol 109vb. 61 “essem empturus Nota hic differentiam inter actionem quanto minoris et ciuilem et praetoriam. Nam in ciuili agitur quanto minoris esset empturus, si scisset, ut hic. Sed in praetoria quanto minoris ualuit tempore contractus propter uicium, ut infra de edil. edic. l. Quod si nolit § Si plures [D 21.1.31.5]. Sed aliis, ut R[ogerio], haec differentia non placet, ut arg. infra e. l. § Per contrarium in fi. [D 19.1.13.5], ubi etiam ciuili agitur quanto minoris ualet. Sed ibi non ea ex empto, siue quanto minoris, que propter uicium detur, agitur. Sed propter dolum emptoris, ubicumque tamen dicitur quanto minoris pretoria teneri, ibidem habet locum redhibitoria, si non esset empturus, si uicium sciuisset, ut infra de excep. rei iu. l. Si is qui § i. [D 44.2.25.1].” Cf also the gloss quanto
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In this gloss Accursius described the difference between, on the one hand, claiming quanto minoris esset empturus, si scisset with the civil action and, on the other, claiming quanto minoris ualet with the praetorian action. Rogerius and others were said to have disliked this distinction. Yet, as we saw above, the distinction Rogerius disliked was the one between the two kinds of assessment of price reduction. He preferred to use the objective standard of the aedilician actio quanti minoris, namely the difference between the selling price and the value of the object at the moment the contract was concluded (quanto minoris ualet), and, in spite of what can be read in D 19.1.13, he wanted to use this criterion when the actio empti was used for price reduction. We should consider it to be improbable, if not impossible, that the difference Rogerius disliked would have been the distinction between the actio quanti minoris civilis and the actio quanti minoris praetoria, since these concepts had not yet been developed in his day.62 Odofredus did not follow Accursius’ opinion that there were two separate actiones quanti minoris, civil and praetorian. In his view, the words quanti minoris empturus essem si scissem did not establish an independent remedy, but simply were a different name (cognomen) for, or an addition (adiectio) to, the contractual actio empti. The phrasing quanti minoris res valet quam empta indicated the aedilician action for price reduction which was available during one year.63 (5) Conclusions For more than a century and a half the glossators had produced opinions on the use of the actio empti for latent defects against an ignorant seller. Gradually some general concepts and rules of law had developed from the casuistry found in the Corpus iuris. (a) Actio empti; actio quanti minoris The seller, aware of defects, was held liable for the buyer’s full interest. When the seller was not aware, the buyer could use the actio empti to claim quanti minoris empturus esset, si scisset. In such a case, the seller was liable for the balance between what the buyer paid and the lesser sum he would have paid, had he known of the defects, a claim which was not restricted to a minoris ad D 19.1.13.1, the gloss homo sit ad D 21.1.31.5 and the gloss minus daret precii ad C 4.49.9. 62 Unfortunately the literature has missed this point and sometimes suggested the text of the gloss to be corrupt. See P van Warmelo, Vrywaring teen gebreke by koop in Suid-Afrika (1941) 61 and 65. 63 Odofredus, Praelectiones ad D 19.1.13pr (n 60) fol 109va.
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certain period of time. Accursius no longer regarded this action as the regular contractual action for sale, and provided it with a name of its own, the actio quanti minoris civilis. Only in two exceptional cases could the ignorant seller not be held liable under the actio empti: when he had sold either a thief or a fundum tributarium. In these cases the buyer had to blame himself for his losses. He should have realised that all slaves were thiefs and that tributum was owed for all provincial land. In these cases, however, it was still possible to use the aedilician action. According to the Digest, the actio empti could also be used for rescission.64 In contrast to what happened to the texts in D 19.1, de actionibus empti et venditi, where the actio empti was used to achieve reduction in price, the few scattered texts that allowed the actio empti to be used for rescission were not developed into a general rule of law. The medieval jurists considered it possible in only a few exceptional cases to use the actio empti for rescission, such as when the seller was aware of the defects, as in the case of D 19.1.11.5.65 The principal rule was that the actio empti could not be used for rescission on the ground of latent defects.66 It is questionable, though, whether this restricted applicability of the actio empti was seen as a problem. Since the plaintiff’s actio empti, used for price reduction, was directed at quanti minoris empturus esset si scisset, he would surely be indemnified, and where he would not have bought the goods at all had he known of the defect, the use of the actio empti for price reduction would in any case result in rescission.67 (b) Praetorian remedies Since the actio empti could only be used for rescission in some exceptional cases, the praetorian actio redhibitoria, which had to be brought within half a year, was by no means superfluous. The praetorian remedy for price reduction, however, which had to be brought within one year, had lost much of its significance. The glossators saw, as one of the few reasons that could justify the latter’s existence as a separate remedy, the fact that quanti minoris valet, based on the pretium commune, sometimes covers more than quanti minoris empturus esset si scisset, based on the pretium singulare. Moreover, the praetorian action could be used where the civil action was not available, such as against the seller of a thief or predium tributarium. 64 65 66 67
D 19.1.11.3. Azo, Summa Codicis ad C 4.49 no 21 (n 46) fol 111va. The gloss contineri ad D 19.1.11.3 and the gloss conueniri ad D 21.1.19.2. See Azo, Summa Codicis ad C 4.49 no 21 (n 46) fol 111va; Roffredus, Libelli (n 56) fol 101rb, and the gloss essem empturus ad D 19.1.13pr.
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(c) The view of Accursius As stated above, Accursius was probably the first to acknowledge the existence of two separate remedies quanti minoris aimed at price reduction due to defects, but this stand was not undisputed. According to Odofredus, one of these actions is the regular contractual action of sale. The words quanti minoris, as, for example, added to the remedy by Azo, are just an addition, which indicates that the buyer is using the contractual actio empti for a specific purpose, namely to achieve a reduction in price. Moreover, Accursius’ opinion seems to have been rejected by the compilers of the Siete Partidas, who codified the Roman law of sale for the kingdom of Castile at approximately the same time as or just after Accursius was teaching in Bologna and composing his ordinary gloss. The Partidas adopted a remedy for price reduction only for the difference between the selling price and the actual price, thus taking the pretium commune as a premise: “tanta parte del precio, quanto fallassen en verdad, que valia menos por razon de la tacha, o de la enfermedad que era en ella.”68 D. FROM THE GLOSSA ORDINARIA TO THE FOURTEENTH CENTURY From the twelfth century onwards, the remedies of Roman law – or at least their names – were used in drawing up the statement of claim or libel (libellus), which means that the law of procedure, in particular of Romanocanonical procedure, is important here. Thus, we have to consider what were the consequences of Accursius’ teaching that there were two actiones quanti minoris: a civil and a praetorian. But there were further developments in legal scholarship after the era of the glossators. Since Accursius’ ordinary gloss gained enormous authority during the Middle Ages it was impossible to teach the Corpus iuris without taking it into account. This did not mean, however, that doctrinal developments had come to an end. From about 1235 a law school developed at Orleans in France that soon became an important centre for legal education, mainly in Roman law. Its great scholars, who taught at the end of the thirteenth and 68 Part 5.5.65 (“so much of the price, as much as it was mistaken in truth, as it is worth less by reason of the defect or disease”). On the one hand, the gloss que valia menos on Part 5.5.64 by Gregorio López de Tovar (ca 1496-1560) states that this provision derives from D 19.1.13pr (pretium singulare), but the gloss fallassen en verdad on Part 5.5.65 rejects the opinion that there is a civil and a praetorian actio quanti minoris. The gloss que valia menos on Part 5.5.64 states that the Partidas incline to the later opinion of Pierre de Belleperche and Cinus of Pistoia that there is only one actio quanti minoris.
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the beginning of the fourteenth centuries, no longer produced glosses, but rather commentaries in the form of written elaborations of lectures given on the Digest and Code (Lecturae). Their ideas, sometimes deviating from those of Accursius, were to be important for the doctrines of the Italian and French commentators of the later fourteenth and fifteenth centuries. (1) Romano-canonical procedure In Romano-canonical procedural law, the earliest ordines iudiciarii required that the plaintiff’s demand was formulated in writing, in what was called the libellus (conventionalis), namely the statement of the claim or libel. According to some jurists, this libel had to contain the name of the action (nomen actionis); according to others, it had only to contain the reason for the claim (causa petendi). Nevertheless, the name of the action had to be announced to the magistrate at a later stage in the litigation. The wording of the libel could be decisive especially when the facts of the case (sale of a defective object) gave rise to various remedies (actio empti and actio quanti minoris) which had the same end: price reduction. Was the use of the remedy set out in the libel restricted to a certain period of time? At what exactly was the claim directed? What had to be proved by the plaintiff? To answer these questions it was important to know whether the claim for price reduction was based on the civil actio empti or on the praetorian actio quanti minoris. If the remedy brought for price reduction because of defects was the actio empti (as found in D 19.1.13pr), its function was to claim the balance between what the plaintiff paid and the lesser sum he would have paid had he been aware of the defect. This action was thus based on the pretium singulare. It was perpetual, so that its use was not restricted to a certain period of time and it only prescribed after thirty years. There were, however, two instances in which it could not be used: sale of a thief or sale of land owing tributum. If the remedy brought for price reduction because of defects was the praetorian actio quanti minoris – that is, one of the aedilician edicts – the aim was to claim the difference between the selling price and the actual value at the time the sale was concluded. This action was thus based on the pretium commune. It was temporal or annual.69 It had to be used within one year; but it was available for the sale of a thief or of a predium tributarium. As we have seen, Azo introduced the term actio quanto minoris civilis; but he taught that the words quanto minoris, as used here, were just an addition (adiectio) to the regular actio empti. Furthermore, Odofredus was of the view 69 See J Inst 4.12pr.
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that the term quanto minoris essem empturus was only a different designation (cognomen) for the actio ex empto civilis. The fact, though, that Accursius in the gloss essem empturus ad D 19.1.13pr presented the actio quanto minoris civilis as a separate and independent remedy, distinct from the aedilician actio quanti minoris praetoria and distinct from the regular actio empti, prompted the jurists who drafted the statements of claims for civil litigation according to Romano-canonical procedure to formulate a separate libel for this remedy, which in earlier times had been considered nothing other than the regular actio empti. This appears to have become the common practice in medieval works on procedural law. Probably Roffredus Beneventanus (ca 1170-after 1244), in his famous treatise on the statement of claims, the Libelli iuris civilis, was the first to present separate formulas for the libel of the actio quanti minoris praetoria and that of the actio quanti minoris civilis. The first is directed at quanto minoris res est; the second, which according to Roffredus was missing in the Arbor actionum of Johannes Bassianus is directed at quanto minoris empturus essem.70 Many more treatises on procedural law were to follow the example of Roffredus.71 The most important of these was the Speculum iudiciale of the canonist Guillaume Durand (ca 1230/31-1296). This work was a perceptive compilation of procedural rules, intended both for legal practitioners as well as litigants. It was widely used during the Middle Ages and gave separate libels for the actio quanti minoris praetoria (ideo illa x peto quod a illa tanto minoris est) and for the actio quanti minoris civilis (propter quod uitium si ego sciuissem, dedissem duo minus; unde ago contra eum, ut illa duo mihi praestet).72 The Aurea practica libellorum (1311-1329) of Petrus Jacobi (Pierre Jame) stated that the phrasing quanti minoris emptor esset empturus was an addition to the civil actio empti;73 but the Aurea practica nevertheless contained a separate statement of claim for the remedy provided with such an addition. In the libel of this remedy, termed the actio ex empto quanto minoris civilis, which only prescribed after thirty years, the plaintiff claimed “as much as he would have paid less for the horse aforesaid, had he known it was inclined to kick with the heels, namely that the aforesaid 40
70 The two libelli can be found in Roffredus, Libelli (n 56) fols 17ra & 101vb, with the reference to the Arbor actionum on fol 101rb. 71 Cf the one by Jean de Blanot (d 1281): Joannes de Blanasco, In titulum de actionibus in institutis commentaria, in De actionibus tractatus (1596) I fols 222-285 at fol 259. 72 Wilhelmus Duranti, Speculum Iuris lib IV partic 3 (De rescindendis uenditionibus) §§ 4 & 6 (1574; repr 1975) II 250. 73 Petrus Iacobi Aurelianensis, Aurea practica libellorum rubr 86 no 4 (1575) 353.
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Tours shillings be restored”.74 Next to this remedy there was the one termed the actio ex empto quanto minoris praetoria, which had to be brought within one year. In the libel for this remedy the plaintiff claimed “as much as the aforesaid horse lacked in value in view of its defect at the time of the contract, which is 60 Tours shillings”.75 (2) The school of Orleans and Cinus The jurists from the school of Orleans, followed by Cinus of Pistoia, rejected the existence of two different actiones quanti minoris, one civil and one praetorian. This rejection can be found, for example, in the Lectura on the Digestum Vetus of Jacques de Revigny (d 1296). Revigny referred to the opinion of Rogerius, as recorded in the gloss essem empturus ad D 19.1.13pr; the latter did not supplement the civil action with a praetorian action and did not distinguish between two ways of estimating reduction in price. Revigny subsequently maintained that, by using the civil action, one could claim as much as the merchandise lacked in value at the time at which the contract was entered into, thereby referring to D 19.1.13.5. Rogerius did not take into account what the buyer would have been willing to pay. Quanti minoris was an addition (adiectio) to an action, not a separate action in itself. This was, of course, the opinion of Azo and Odofredus. Were it otherwise, it could be argued that, if the seller was deceived in a similar way, he would have the actio quanti pluris. Thus, rather than two actions, there was only one action, based on the contract of sale, with the addition of quanto minoris, which can be brought within the first year. In two respects this use of the actio empti by Revigny for price reduction is extraordinary. The action was annual in duration rather than perpetual, and was based on the pretium commune instead of the pretium singulare. Revigny provided one further argument to support his opinion. In C 4.58.2 the emperor declared – Revigny spoke about the jurist, but it was in fact the emperor, either Gordian or Justinian himself – that he could not think of grounds why, more than one year after the sale had taken place, it should still be possible to sue the seller, when the slave he had sold had run away. But the emperor did not say that another action was available. It could be argued that civil actions were perpetual and that was indeed the principal rule; but this case was different. The civil action for price reduction came to an end 74 Iacobi, Aurea practica rubr 86 no 1 (n 73) 353: “quanto minoris fuisset empturus dictum equum, si eum sciuisset calcitrosum, scilicet quod reddat sibi praedictos xl solid. Turon.” 75 Iacobi, Aurea practica rubr 88 no 1 (n 73) 360-361: “quanto minoris ualebat dictus equus, propter illud uitium, tempore contractus, quod est in lx. soli. Turo.”
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after one year. There was indeed an action based on sale with the addition quanto minoris that could be used over a longer period; but this action was intended to achieve rescission, that is, rescission of the contract.76 The last lines of the fragment are difficult to read and contain two corrupt allegations. One of these, the text of D 44.7.35 (the lex In honorariis), is important for a further argument in support of the the view that there was only one action for price reduction. It was to be explained more fully by later generations of learned jurists, as we shall see below. The same opinion as that recorded in the Lectura on the Digestum Vetus, can be found in Revigny’s Lectura Codicis, which was edited in the sixteenth century under the name of Petrus de Bella Perthica. Here a further argument was given as to why it was unnecessary to distinguish between two ways of calculating the quanti minoris. The difference between the selling price and the actual value of the merchandise at the moment the contract was entered into, may be presumed to coincide with the balance between what the buyer paid and the lesser sum he would have paid. This would follow from D 19.1.13.4.77 Pierre de Belleperche (d 1308), another jurist of the school of Orleans, defended an opinion similar to Revigny’s. In two fragments in his Lectura Codicis, Belleperche rejected the idea that there were two different remedies for claiming price reduction. There was only one actio quanto minoris, which could be brought within one year to claim the difference between the selling price and the pretium commune.78 Another fragment in the Lectura refers 76 Jacques de Revigny, Lectura Digesti Veteris ad D 19.1.13, in Leiden, MS d’Ablaing 2 fol 249vb: “Dominus Rogerius non suppleat istam directam, quia queret inter directam et pretoriam, quia una fit quanto minoris esset empturus, alia quantum res ualuisset tempore contractus, quia ego reperio de ciuili quanto minoris que competit ad quanti res ualuisset tempore contractus, infra e. l. Per contrarium [D. 19.1.13.5]. Vnde non considerit ipse uoluntatem quanto minoris esset empturus, quanti minoris res ualet, infra e. § Per annum. Et ego dico quod quanto minoris non est nomen actionis set adiectio. Aliter etiam dicimus quod uenditor eodem modo deceptus haberet quanto pluris. Non etiam dico quod sint due actiones, immo dico quod illa quam ipsi dicunt quanto minoris pretoriam, est adiectio actionis. Non dico quod una sit pretoria, alia ciuilis, immo semper competit actio ex empto cum hac adiectione quanto minoris primo anno. Et dicit iurisconsultus quod non animaduerto quod possit, ut C. de edilic e. l. ii [C 4.58.2], set non diceret sic aliqua competeret. Et si dicas quod ciuiles actiones sunt perpetue, uerum est regulariter, sed non hic. Et est ratio, quia ista actio ex empto cum adiectione quanti minoris est redibitoria ad solucionem contractus et eius iura; uerior arg. infra de ac. et ob. l. In similibus [D 44.7.55]. Sic ergo dico quod non fuit quanti pluris, set adiectiones unius actionis; sic seruanda retractauit pretor, arg. l. In honoriam [D 44.7.35].” 77 Petrus de Bella Perthica [Jacques de Revigny], Lectura super prima parte Codicis ad C 4.58.2 (1519; repr 1967) fol 207rb. 78 Pierre de Belleperche, Lectura Codicis ad C. 4.49.9, in Florence, BML MS Plut 6 Sin 6 fol 208ra; Cambridge, Peterhouse MS 34 (unfoliated): “Dicit glossa, scire debetis, est quanto minoris, ut ff. de edic. e. l. Quod si nolit § Si plures [D 21.1.31.5] et est effectus, quod pretoria est annalis. Est
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to the gloss congredi on C 4.58.2, the case where the buyer wanted to sue the seller because the slave whom he had bought more than one year before had run away. As just stated, according to C 4.58.2, the emperor could not think of any remedy for price reduction after one year; but, according to the gloss congredi, the buyer would still have the civil actio quanti minoris at his disposal.79 Belleperche rejected this opinion. The only possible remedy was that based on D 19.1.13pr. In the view of Belleperche, however, this remedy was not a civil one. If the emperor said in C 4.58.2 that he could not think of any remedy which could be used after one year for reduction of price, then nobody could think of such a remedy. Therefore, prescribing various methods of estimating the quanto minoris would be “applying a provision to words”, which is not allowed. Prices should be established through an objective estimation. For this opinion Belleperche referred to D 35.2.63, which stated that estimating the value of things was not done on the basis of individual affection or interest.80 Thus, while Revigny maintained that the only possible action for price reduction was civil and that, unlike other civil actions, it had to be brought within one year, Belleperche taught that there was only a praetorian action which, as with all praetorian actions, was timelimited. Both jurists agreed in rejecting various ways of estimating the quanti minoris. The ignorant seller was always liable for an objective estimation of the difference in price, based on the pretium commune, as had already been Rogerius’ opinion in the twelfth century. The innovation of the jurists of Orleans was always to restrict to the period of one year the possibility of claiming price reduction because of defects. Cinus of Pistoia (1270-1336) adopted the opinion of Pierre de Bellealia quanto minoris ciuilis et est perpetua, ut Inst. de perpe. act. in prin. [J Inst 4.12.1]. Credo quod non sit nisi una actio quanto minoris que usque ad annum competit tantum, ut infra de edil. act. l. ii in prin. [C 4.58.2], cum idem sit quanto minoris et quanto minoris, ut ff. ad l. fal. Precia [D 35.2.63].” 79 The gloss congredi on C 4.58.2: “redhibitoria uel quanto minoris ex empto uero, ciuili cum sit pertpetua …” 80 Pierre de Belleperche, Lectura Codicis ad C 4.58.2, in Florence, BML MS Plut 6 Sin 6 fol 212ra: Cambridge, Peterhouse MS 34 (unfoliated): “Dico glossa non probat per legem. Breviter credo quod non est reperire nisi unam accionem quanto minoris. Per actionem ex eo contractu agitur quanto minoris, ut supra allegata Iul. [D. 19.1.13pr]. Sed non reperio id est de ciuili. Probo hoc per legem istam. Imperator dicit non animaduerto quo remedio etc. Nullus potest animaduertere si princeps non potest, ut infra de test. l. Omnium [C 6.23.19]. Preterea hoc esset imponere legem uerbis, et non debas, quanto minoris erat res uel quanto minoris erat empturus, set pretia rerum estimacione attendi debent, ideo etc. arg. ff. ad l. falci. l. Pretia [D 35.2.63] et ff. ad l. ac. Si seruum meum [D 9.2.33]. Per legem que de accione quanto minoris pretoria loquet, habet locum quanto minoris empturus esset, sicut lege allegata Iul. [D 19.1.13] loquitur. Tunc glossam non credo ueram licet in iudiciis seruare forte redibitoria proprie vi. mensibus durat. Est alia inpropria redibitoria ut infra e. Si predium [C 4.58.4].”
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perche in his commentary on the Code. Cinus was an early commentator who often referred to the teachings of Belleperche. He described the emperor who had spoken in C 4.58.2 as “full of Jurisprudence and having the entire law in his mind” (legalis philosophiae plenus et qui omnia iura in pectore suo habet). Moreover, in his opinion there was no difference between the two ways of estimating the quanti minoris. To allow various methods of estimating the quanto minoris, as the Accursian gloss did, would be “applying a provision to words”, which, according to the last line of C 6.43.2, was not allowed. Cinus presented one further and rather scholastic argument on why the gloss was wrong. According to the last line of D 19.1.13.14, no actio empti was possible against the ignorant seller, and, according to D 19.1.13.1, the ignorant seller was liable for quanti minoris empturus esset. Thus, the praetorian action was also aimed at quanto minoris empturus esset. Cinus concluded that the gloss was mistaken, no matter what the legal practitioners who persisted in their deeply rooted errors (advocati radicatis erroribus insistentes) might say.81 E. THE ERA OF THE COMMENTATORS The scholars belonging to the era of the commentators, living and working in Italy and France, no longer produced glosses, but continuous commentaries on the texts of the Corpus iuris, sometimes lex by lex, sometimes on only a selection of titles or provisions. Moreover, in this period we can trace an early reception of the learned law into legal practice. Although possible influence on the statutes of Italian cities and the extensive practice of producing consilia fall beyond the scope of this chapter, some attention will be paid to one of Baldus’ consilia, dealing with latent defects, since this consilium has already featured in the secondary literature. The commentators frequently acknowledged the rules concerning the liability of the ignorant seller for latent defects as developed during the previous centuries. There were, however, some new developments concerning the ratio between the two kinds of actio quanti minoris and the question whether one or the other is superfluous. The jurists were confronted with a difference of opinion concerning the very existence of two remedies. The gloss had ruled that there was a civil remedy for quanto minoris esset empturus and a praetorian remedy for quanto minoris res ualet, but according to Pierre de Belleperche, followed by Cinus of Pistoia, there was only one action for price 81 Cynus Pistoriensis, In Codicem et aliquot titulos primi Pandectarum tomi, id est, Digesti Veteris doctissima commentaria ad C 4.58.2 no 3 (1578; repr 1963) I fol 272rb.
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reduction, namely the praetorian one, although aimed at quanto minoris res ualet. (1) Liability of the ignorant seller in case of latent defects The gloss quanto minoris ad D 19.1.13.1 confirmed the general rule, developed during the era of the glossators, that the ignorant seller is liable for reduction in price. We will return below to the rather different question of the number of actions available: only one or two? In the writings of the glossators it was not always explicitly stated that the rule just mentioned was restricted to cases where the ignorant seller had not given any warranties. Most of the time, however, this was beyond dispute. It simply followed from the texts adduced as arguments. In the majority of those texts, mainly cases from Digest title D 19.1, de actionibus empti et venditi, there was no mention of any warranties. The writings of the commentators were sometimes more specific. Paulus de Castro (ca 1360/62-1441), who lectured for some time at Avignon and later in various places in Italy, stated that, in case of warranties, the seller was liable for the buyer’s entire interest. Only when no warranties were given, should a distinction be drawn between the seller who was aware of the defects and the ignorant seller. The latter was generally liable for price reduction.82 The authors who, following the gloss, assumed that there were two actiones quanti minoris acknowledged that there were three situations where the rule that the buyer, by using the civil action, could claim quanti minoris empturus fuisset did not apply. For example, Bartolus de Saxoferrato (1313/14-1357), a student of Cinus, who studied and later taught in Perugia, noted that, in the case of selling or leasing out leaky barrels, the seller or lessor would not be liable for quanti minoris but for the other party’s full interest. He further noted that in two cases the ignorant seller was not liable at all: when he sold a thief or a predium tributarium. He justified the latter two exceptions on the same grounds as had the glossators mentioned above: everyone should know that slaves are thieves, and everyone should know that for provincial tenements tributum has to be paid.83 It seems that there was not much dispute about the applicability of the civil actio quanti minoris. Bartolus’ view can be found in the works, for example, of Bartholomeus de Saliceto (d 1412), who lectured at Bologna, Padua and 82 Paulus Castrensis, In primam Codicis partem commentaria ad C 4.49.9 (1582) fol 232va. 83 Bartolus de Saxoferrato, Digestum Vetus in primum totum Pandectarum commentaria, ed Jacobus Concenatius, ad D 19.1.13 no 5 (1562; repr 2007) fols 774vb-775ra.
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Ferrara,84 and of Paulus de Castro.85 Saliceto held that there was also an existing opinion – not the prevailing one – to the effect that ignorant sellers could not be held liable at all, and that the buyer, when using the civil action, thus claiming quanti minoris fuisset empturus, might say that he would not have bought the object at all, had he known of the defect (with reference to D 14.4.7.2). The latter was the prevailing opinion, which had already been acknowledged by the gloss essem empturus to D 19.1.13pr.86 The commentators also noticed the similarities and differences between D 19.1.21.1 and C 4.49.9. In both these cases the defect existed in the fact that it appeared that either property tax was owed for the tenement which the buyer had purchased (tributum D 19.1.21.1) or more tax than the buyer had expected (capitatio in C 4.49.9). But in D 19.1.21.1 the buyer was refused the civil action for price reduction, whereas in C 4.49.9 this action was granted. As seen above, this difference was supposed to result from the fact that in D 19.1.21.1 the seller had given no information at all, whereas in C 4.49.9 he had provided the buyer with incorrect information. Following the glossators, some commentators, such as Angelus de Ubaldis (1328-1407), a brother of the better-known Bal dus de Ubaldis, also explained the difference between the texts in this way.87 (2) The scope of the Aedilician actio quanti minoris The existence in the Corpus iuris of two different remedies for price reduction in the case of the sale of defective goods gave rise to a number of questions. This inconsistency compelled the glossators to think of reasons why one of the two was not superfluous. It was not difficult to think of cases where the actio empti for quanti minoris empturus esset, which Accursius had considered to be a distinct action, offered the best opportunities. This claim, which took into account the subjective interest of the buyer (pretium singulare), could exceed the claim based on the objective value (pretium commune) and even result in rescission if the buyer maintained that he would not have bought at all if he had known of the defect. In some instances the 84 Bartholomaeus à Salyceto, Commentaria in Digestum Vetus accuratissima ad D 19.1.13pr no 3 (1541) fol 113va. 85 Paulus Castrensis, In secundam Digesti Veteris partem commentaria ad D 19.1.13pr no 2 (1582) fol 121ra. 86 See also Azo, Summa Codicis ad C 4.49 no 21 (n 46) fol 111va. 87 A different explanation could be that the taxes owed in D 19.1.21.1 were outstanding, and those in the case of C 4.49.9 concerned the future. In the case of outstanding payments, it was important whether the seller was aware of their existence or not. See Angelus de Perusio, Super codice nuper reuisa cum multis adiunctis, uidelicet repetitio ad C 4.49.9 (1545) fol 102vab.
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civil actio empti was the only option for recovering part of the selling price. In certain cases the praetorian actio quanti minoris could not be used: the sale of a slave with mental defects;88 the sale of a slave-woman who was no virgin;89 and the emptio simplaria.90 In the Middle Ages, the emptio simplaria was understood as the contract where parties had agreed not to give the warranties mentioned in the aedilician edicts,91 or as the sale of simple things which needed no sustenance (alimentum vitale),92 or as the sale of incorporeal things, such as an inheritance.93 Moreover, the praetorian action was annual in duration, the civil one perpetual. It was more difficult to see what role the additional action could play next to the civil actio empti. The glossators nevertheless found two reasons to justify the existence of the aedilician actio quanti minoris. It could be used in the exceptional cases where the actio empti was not available – the sale of a thief and the sale of a predium tributarium. Secondly, the claim directed at quanti minoris res could exceed the claim quanti minoris empturus esset, because, for instance, what an average person would have given for a defective horse (pretium commune) was less than what a specific buyer – perhaps someone capable of handling such horses – was prepared to pay (pretium singulare). For the rest, the glossators considered that both remedies applied to the sale of practically the same defective things. This opinion was not followed by the commentators. According to Bartolus, the praetorian actio quanti minoris was only given for slaves and animals. That was what D 21.1.1 and D 21.1.38 dealt with. D 19.1.13, on the other hand, speaks about the sale of an unsound beam. As a consequence the latter text could not be dealing with the aedilician action. Here, the civil-law actio quanti minoris was granted. It had a wider application and could be used against the ignorant seller of any kind of defective goods.94 Since the aedilician edicts, as a result of Justinianic interpolations in D 21.1.1pr and D 21.1.63, were no longer restricted to the sale of slaves and certain animals in the Corpus iuris, what prompted Bartolus to defend such a position? How could he maintain that they were? It is quite unlikely that Bartolus wanted to interpret the Corpus iuris in conformity with classical law. As a matter of fact, the commentators could see that the titles on the 88 89 90 91 92 93 94
D 21.1.4. D 19.1.11.5. D 21.1.48.8. Vacarius, Liber Pauperum lib 4 tit 56 (n 37) 164. See Azo, Summa Codicis ad C 4.58 no 6 (n 46) fol 114vb. See the gloss simplarium ad D 21.1.48.8. Bartolus, Digestum vetus ad D 19.1.13 nos 1 & 3 (n 83) fol 774vb.
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aedilician edicts concerned almost exclusively cases dealing with the sale of defective slaves and animals, and only occasionally something else, such as a plot of land; but a return to classical law was incompatible with their approach to the Corpus iuris in general. It is more likely that we are dealing here with a medieval misinterpretation. On the basis of the wording of the edicts and the cases dealt with in the titles D 21.1, de aedilitio edicto et redhibitione et quanti minoris, and C 4.58, de aedilitiis actionibus, it was argued that the use of aedilician actions was restricted to the sale of slaves and animals. This was done for the sole purpose of developing a weapon to attack the view of Pierre de Belleperche and Cinus of Pistoia, who had claimed that the only action for price reduction was the praetorian, and that a civil action for the same purpose did not exist. If the praetorian action only applied to animals and slaves, there must be a civil action; otherwise, it was impossible to explain all the texts which granted remedies for price reduction when other defective goods were sold. When Bartolus and his followers maintained that the aedilician edicts were intended only for the sale of slaves and animals, or that these edicts acquired wider applicability only through later interpretation, this probably does not point at a sincere interest in legal developments prior to the compilation of the Corpus iuris, but rather at creating an argument for contemporary debate. A similar view to that of Bartolus was defended by Raphael Fulgosius (1367-1427), who lectured at Pavia, Siena and Padua.95 Albericus de Rosate (ca 1290-1360), who practised law in Bergamo, had already explained that the praetorian actio quanti minoris was composed first. It had a limited application because it spoke only about defective animals. The civil action, however, mentioned any defective object purchased.96 In fact, this explanation was historically incorrect, as the civil actio empti was older than the aedilician actions. (3) Claiming price reduction: one remedy or various sets of rules? As we have seen, the ordinary gloss maintained there was an actio quanti minoris civilis, distinct from the regular actio empti and distinct from the actio quanti minoris praetoria of the aedilician edicts. This idea was obviously accepted in procedural law, since each of the two actions for price reduction 95 Raphael Fulgosius, In primam Pandectarum partem commentariorum ... Tomus secundus ad D 19.1.13 nos 3-4 (1554) fol 143rb. 96 Albericus de Rosate, In secundam ff. Veteris partem commentarii ad D 19.1.13 no 3 (1585; repr 1977) fol 148vb: “Est et alia differentia, ut dicamus, quod quanto minoris pretoria, prius fuit in compositione et defectiua erat, quia loquebatur de morbosis animalibus emptis. Ciuilis uero loquitur de omni re morbosa empta, ut emptor agere possit quantominus emisset, si fuisset (lege: sciuisset) morbum uel uitium, ut colligere potes hic, dum dicit de tigno uitioso.”
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appears to have received its own libel. The view of the gloss was rejected, however, by the Orleans jurists. Pierre de Belleperche, followed by Cinus of Pistoia, acknowledged the existence of only one actio quanti minoris the praetorian, which had to be brought within one year. The commentators, facing this difference in interpretation, had to think of arguments to adopt a position of their own. Bartolus clearly decided to follow the gloss, as did most of the commentators. First he explained that, according to the gloss essem empturus on D 19.1.13pr, there were two actiones quanti minoris and he then referred to the deviating view, mentioned in this gloss, which appealed to D 19.1.13.5. Bartolus ascribed this dissenting view to Bulgarus rather than Rogerius. This may indicate that in the fourteenth century in some manuscripts of the Digestum Vetus the ordinary gloss to D 19.1.13pr may have had a reading different to that found in later printed editions.97 Bartolus subsequently presented a number of arguments in favour of the view of Pierre de Belleperche and Cinus of Pistoia. Some of them derived from these jurists themselves. First, in C 4.58.2 the emperor declared he was not aware of any action which could be granted for price reduction after the period of one year had lapsed. It was argued that if there had been an actio quanti minoris civilis, which was perpetual, the emperor would have known. Secondly, the two ways of estimating price reduction resulted in the same amount, because it was very unlikely that the buyer, when he was aware of the defect, would have been willing to pay anything else but the estimatio communis. These two arguments were subsequently supported by complicated reasoning, based on the text D 44.7.35, which Jacques de Revigny had already discussed. According to this text, praetorian actions which were reipersecutory were available for a longer period than just one year, if they were in conformity with civil law. Thus, when usucapio was interrupted before the required period of time had elapsed, the actio Publiciana would be available for only one year, because it was not in conformity with the ius civile. Now, Bartolus argued that, if two actiones quanti minoris were in existence, the praetorian one had to be perpetual, since it was given in conformity with civil law. It was, however, an annual action, because it was granted contrary to the civil law. The praetorian action observed the interesse commune, the civil action observed the interesse singulare. This reasoning was obviously intended to lead to the conclusion (although this is not very clear) that it was impossible for the two actions to co-exist. As just stated, Bartolus himself followed the 97 See Van Warmelo, Vrywaring teen gebreke (n 62) 65 where the dissenting view is ascribed to Hugolinus, citing Leiden MS BPL n 6 C.
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gloss. He maintained that the civil action could not be omitted, since the praetorian action was given only for the defective slaves and animals which the aedilician edicts spoke about in D 21.1.1 and D 21.1.38. In D 19.1.13 the actio quanto minoris was given for an unsound beam, and thus the remedy granted there could not possibly be praetorian. Bartolus next refuted the two arguments of Pierre de Belleperche and Cinus of Pistoia. He adduced three examples to demonstrate that there could be an enormous difference between the precium commune and the precium singulare, since the latter depended on the buyer’s personal circumstances. I would not consider buying a slave if I knew he was a murderer, but someone else, a ruler (tyrannus) for example, might possibly like to have him. A doctor would not be willing to buy a horse if he knew it was defective, but a stable man (marescalus) might be willing to buy it, albeit for a small price.98 Moreover, a student would not consider buying a book containing some errors, whereas a scholar (doctor) might not mind so much. Finally, according to Bartolus, the argument derived from C 4.58.2 was not convincing. From the context of the emperor’s statement it appears that he was consulted on the availability of the actio quanti minoris praetoria. He was not asked whether in general an action was available.99 Baldus de Ubaldis (1327-1400), who taught in various Italian law schools, summarised in his commentary on D 19.1.13 more or less what his master, Bartolus, had already said.100 Baldus’ consilium concerning the sale of a defective horse is of more interest. The main problem discussed in this consilium was not so much the difference between the praetorian and the civil actions for reduction in price, but how to prove that the horse that was bought and later died had already been carrying the lethal disease at the time it was sold. It is incidentally worth noting that this problem is somewhat similar to one described by the canonist Panormitanus (Nicolaus de Tudeschis, 1386-1445) on a text of the Liber Extra (X 3.19.4), which dealt with a horse that died three days after the sale because of what appeared to be heart trouble.101 This is not the place to go into details concerning the four different ways in which the plaintiff could furnish the required proof; rather, I will discuss the remedies considered advisable in the case of the consilium, which elucidated the practical consequences of Accursius’ doctrine on the two separate
98 This example is reminiscent of the one in the gloss of Johannes Bassianus on D 19.1.13 reproduced in n 43 above. 99 Bartolus, Digestum Vetus ad D 19.1.13 no 1 (n 83) fol 774vab. 100 Baldus Perusinus, Tomus secundus in Digestum Vetus ad D 19.1.13pr (1541) fol 112va. 101 See Panormitanus, In tertium decretalium librum interpretationes ad X 3.19.4 no 4 (1547) fol 114rb.
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actiones quanto minoris.102 Baldus mentioned three actions, each of which he characterised as a bona via. He noted first, however, that when a pact concerning diseases and defects was concluded between seller and buyer, this pact had to be observed. This followed from D 4.3.37, D 21.2.31 and D 21.1.19.2. He went on to mention the three remedies. If it could be proved that the horse had the disease at the time of the sale, there was the actio redhibitoria and the actio quanto minoris, which in this case would be aimed at quanto minoris essem empturus. These two remedies included restitution of the selling price. For the latter, this followed from D 21.1.43.6. The third action available was the contractual actio empti based on the pact which could also be used for rescission, as followed from D 19.1.11.5. The only action not mentioned here was the actio quanto minoris praetoria. Baldus explained the preference for the civil remedy for price reduction by referring to D 21.1.43.6. The civil actio quanto minoris could lead to rescission when the buyer declared that he would not have bought the horse at all, had he known of the defect, because it took into account the pretium singulare. This was already laid down in the gloss essem empturus on D 19.1.13pr. In the case under dispute, this was apparently what the buyer wanted, namely restitution of the entire selling price, and not just the difference between selling price and pretium commune.103 Some writers, such as Bartholomeus de Saliceto, maintained that only the actio quanti minoris praetoria could be used to claim restitution of the entire selling price. Merely declaring, however, that one would not have bought the thing was insufficient for that purpose. The entire price could only be claimed back with this remedy when, according to the estimatio communis, the horse had no value at all at the time it was sold.104 This had probably not been the case in the example in Baldus’ consilium. For the rest, Saliceto adhered to the opinion of the gloss on the two actions for price reduction and the arguments produced by Bartolus against the teachings of Pierre de 102 For an entirely different opinion, namely that Baldus in this consilium did not see any difference between the praetorian and the civilian way of assessment and merged the aedilician action with the civil one, see Zimmermann, Obligations 323-324. 103 Baldus Ubaldus Perusinus, Consiliorum sive responsorum ... Volumen Quintum consilium 499 (1589) fol 122rb. 104 Bartholomaeus à Salyceto, Commentariorum ... in tertium et quartum Iustiniani Codicis ad C 4.49.9 no 2 (1541) fol 214ra. To emphasise the difference between pretium singulare and pretium commune Saliceto referred again to the three examples mentioned by Bartolus and spoke about a doctor or physician (medicus) who would not have wanted to buy the defective horse. In this phrasing the case recalls one of the classical examples used in the sixteenthcentury school of Salamanca: see Domingo de Soto, De iustitia et iure lib VI q 3 art 2, introd by V D Carro and trans M González Ordóñez (1968) 555.
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Belleperche.105 The same can be said for Paulus de Castro. The only critical remark he made was that Pierre de Belleperche was right in his opinion that quanti minoris civilis is not the title of a specific, independent action, but an addition (adiectio) to the actio empti. On the other hand, he rejected the opinion of Belleperche that the action for price reduction was only aimed at quanto minoris res est. It might be more advantageous to claim quanto minoris fuisset empturus, as was shown by the examples.106 According to Angelus de Ubaldis, legal practice observed the teachings of neither Pierre de Belleperche nor Cinus. He referred to the remark, now ascribed to Belleperche, concerning “practitioners who insist in their deeply rooted errors”, and said that it was the common opinion of the entire world to observe the opposite and to allow the buyer to sue the seller for latent defects for many years after the sale.107 The treatise De actione et eius natura of the Paduan professor (Giovanni) Battista da Sanbiagio (Baptista a Sancto Blasio, ca 1425-1492) contains an extensive commentary (two columns in folio) on the difference of opinion between, on the one hand, the Accursian gloss and, on the other, the Orleans jurists and Cinus. This does not dramatically change our understanding of the teachings of the commentators, but it demonstrates that, on the threshold of early-modern times, and while the process of reception of Roman law was already taking place, there was a lively debate on the seller’s liability for price reduction in view of latent defects. The main issue for Sanbiagio was to consider what kinds of actiones quanti minoris existed. Eventually he appeared to adopt a middle-course between the gloss and Pierre de Belleperche. Sanbiagio started with a discussion of three arguments derived from Pierre de Belleperche and Cinus of Pistoia. First, according to their view, there was only one action for price reduction – the praetorian action for quanto minoris res, which had to be brought within one year. Afterwards there was no action left for the buyer, but there would be, it was argued, if there were an actio quanto minoris civilis, because that action, being civil, would be perpetual. Second, it was very likely that the amount the buyer would have been willing to pay, had he known of the defect, would have coincided with the pretium commune. According to D 35.2.63, the pretium singulare should 105 Salyceto, Commentariorum ad C 4.58.2 no 4 (n 104) fol 220rb. 106 Paulus Castrensis, In secundam Digesti Veteris partem commentaria ad D 19.1.13pr no 4 (1582) fol 121rb. 107 Angelus, Super codice ad C 4.58.2 (n 87) fol 105rab: “et hoc dicit esse uerum quicquid teneant aduocati, sed mundi consuetudo obseruat contrarium quod ubi res uitiosa uenditur ratione uitii in perpetuum uenditorem agitur ad interesse.”
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not be considered when estimating prices. Third, if there were two actions, the praetorian one had to be in conformity with civil law and, because of D 44.7.35, be available for more than one year, although this would not be the case if it was contrary to civil law. Sanbiagio subsequently brought some more arguments into the dispute. Fourth, if there were an action directed at quanto minoris empturus fuisset, it would be possible to claim back the entire selling price and at the same time to retain the merchandise. But, according to D 18.1.1, it was not fair if the seller were deprived of his goods without a quid pro quo, although both Saliceto in his commentary to C 4.49.9 and the gloss essem empturus to D 19.1.13pr seem to have accepted this. Fifth, if the buyer would not have paid anything, had he known of the defect, it seems that he should not use the actio quanti minoris, but the actio redhibitoria. On the basis of all these arguments, Pierre de Belleperche and Cinus of Pistoia came to the conclusion that there was only one actio quanto minoris, namely the praetorian. After having expounded the doctrine of Pierre de Belleperche and Cinus of Pistoia, Sanbiagio put forward two counter-arguments. The common opinion did not agree with the idea that quanto minoris was just an addition to the actio empti of D 19.1.13pr. The gloss empturus essem to D 19.1.13pr had the correct view, because the aedilician action was only available for the slaves, animals and other things, about which D 21.1.1 spoke. Secondly, in C 4.58.2, the emperor was only asked whether the praetorian action for price reduction was available. The entire title C 4.58, de aedilitiis actionibus, dealt with aedilician actions. Accordingly, C 4.58.2 did so too. This text should be understood as referring solely to the praetorian action. It said nothing about the civil action. This followed from D 18.2.16. Furthermore, in case of doubt, it was necessary to stick to the rule that the name of the title (rubrum) was determined by the texts adopted under this title (nigrum).108 Having explained this, Sanbiagio responded to the second and third arguments of Pierre de Belleperche and Cinus of Pistoia that he had just paraphrased. Although the provisions in the Corpus iuris did not express this unequivocally, if the buyer would not have bought at all, he had available the actio redhibitoria, not the actio quanti minoris civilis. Otherwise, the inconvenient consequences just mentioned (the seller losing his goods without counter-performance) might occur. Sanbiagio preferred the opinion 108 Baptista a Sancto Blasio, Tractatus utilissimus solemnissimusque de actione et eius natura Vigesima prima actio (Quanto minoris est) no 45 in Volumen V Tractatuum ex variis iuris interpretibus collectorum (1549) fol 62vb: “et quod notat glossa in c. Bone de confirma. uti. uel inutil. (X 2.30.3) que dicit quod in dubio tenendum est quod nigrum disponat id quod rubrum.”
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of Pierre de Belleperche and Cinus of Pistoia that it was better not to regard the actio quanto minoris civilis as an action of its own separated from the contractual action of sale. D 19.1.13pr spoke about in condemnatione ex empto, while the jurist in all the fragments from D 19.1.11 until D. 19.1.13pr dealt with the actio empti, and the compilers adopted D 19.1.13pr in the title on the remedies for sale. It was true there was only one actio quanti minoris praetoria, namely the one mentioned by Johannes Bassianus in his Arbor actionum and the one Roffredus dealt with in his Libelli iuris civilis.109 There was also, however, the actio empti which, through its wide applicability, could be used for the purposes indicated in D. 19.1.13pr. But Bartolus and Paulus de Castro accepted the majority view that there was an actio ex empto ciuilis quanto minoris emptor empturus fuisset, which differed from the actio pretoria quanto minoris res communiter ualebat. One of Bartolus’ examples was subsequently ridiculed. Suppose that a doctor, knowing a book contained errors, had nevertheless bought it for a higher price than an unlettered person, such as a student. He would have had the civil action, not the praetorian, because if the doctor wanted to declare under oath that he would only have bought it for the actual value, that would be perjury. All this was nonsense, Sanbiagio argued, because the one who knew of the defect did not want to buy at all, and certainly not for more than its pretium commune. D 1.3.5 and the gloss essem empturus on D 19.1.13pr did not refer to such very exceptional situations.110 It becomes clear that in some respects Sanbiagio followed Pierre de Belleperche and Cinus of Pistoia. There was no actio quanti minoris civilis, distinct from the actio empti, in the Corpus iuris. There was the actio redhibitoria for rescission and the actio quanti minoris for price reduction, based on the pretium commune. Thus, price reductions should be estimated according to the actual value of things and not according to the pretium singulare. Rescission should not be claimed by the actio quanti minoris. But whereas Pierre de Belleperche and Cinus of Pistoia had taught that, after one year, the buyer no longer had remedies for latent defects available, Sanbiagio still considered it possible to use the actio empti for the purposes indicated in D 19.1.13pr.
109 It may be noted, though, that Roffredus, Libelli (n 56) – at least the edition printed in Avignon 1500 (reprinted in Turin 1968) – also contains a libellus for the actio quanti minoris civilis, as was noted above. 110 Sancto Blasio, Tractatus Vigesima prima actio (Quanto minoris est) nos 43-48 (n 108) fols 62va-65ra.
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F. CONCLUSIONS In summary, we can say that developments in medieval legal doctrine concerning the ignorant seller’s liability for latent defects took place in two different stages. The era of the glossators was characterised by the formation of a rule of law, the era of the commentators by the debate over whether the principle this rule contained – namely that the ignorant seller is liable for price reduction – offered the buyer the choice between two separate remedies, each with its own features. The starting point of all scholarship was the Corpus iuris civilis, which offered hardly any general rules or principles on liability for latent defects. Apart from the aedilician edicts, the most generally phrased text in the Digest can be found at the beginning of D 19.1.13. For the rest there were only cases, and in some of these the ignorant seller was considered to be liable, such as in D 18.1.45 (garments which had been repaired were sold as new), D 19.1.6.4 (sale of a leaky barrel), D 19.1.13.1 (sale of a runaway slave) and C 4.49.9 (sale of a plot of land which owed a higher capitatio than the seller had stated). In other cases the ignorant seller was regarded as not liable, such as in D 19.1.13.1 (sale of a thief) and D 19.1.21.1 (sale of a plot of land which appeared to be a predium tributarium). It had to be decided which cases reflected the rule and which reflected the exception. In that discussion, the number of the cases played a role (four or five is more than two) as did the question whether the deviation from the principal rule could be rationalised. Indeed, the buyers in D 19.1.13.1 and D 19.1.21.1 could be considered to owe their loss to their own negligence. Second, it had to be decided to what extent the ignorant seller was liable – whether for the buyer’s full interest or merely for reduction in price. Reduction in price appeared to become the standard, and full compensation the exception. This could also be rationalised, such as by the fact that it was very simple for a seller of barrels to check whether or not the barrel leaked. All the cases just mentioned were found in titles dealing with the remedies for sale. As a consequence, the action granted was the contractual actio empti; but when this remedy was used against the ignorant seller of defective goods, it came very close to a different action, one which could be found in the titles on the aedilician edicts. Both actions, the actio empti and the actio quanti minoris, were available for exactly the same situation (sale of defective goods by an ignorant seller) and for exactly the same purpose (claiming a reduction in price).111 This made Johannes Bassianus and Azo emphasise the 111 Although the aedilician edicts imposed a duty on the seller to provide the buyer with informa-
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differences. The actio empti, aimed at reduction in price, was civil and thus perpetual, and because of some texts in D 19.1, de actionibus empti et venditi, was used to claim the balance between what the buyer paid and the lesser sum he would have paid had he known of the defect (pretium singulare). The aedilician actio quanti minoris was praetorian and thus limited in time, and because of some texts in D. 21.1, de aedilitio edicto et redhibitione et quanti minoris, it was used to claim the difference between the selling price and the value of the thing at the time of the contract of sale (pretium commune). The next step in development was made by Accursius who defined the actio empti used for price reduction as an independent and separate action, distinct from the regular actio empti and distinct from the aedilician action for price reduction in price termed the actio quanto minoris civilis. Accursius made the Roman law remedies more systematic than the sources could actually justify, and for this he was criticised. The Siete Partidas did not adopt his view, as embodied in the gloss essem empturus to D 19.1.13pr, while the Orleans jurist Pierre de Belleperche, followed by Cinus of Pistoia, rejected it. In their opinion there was only one action for reduction in price available against the ignorant seller in the case of latent defects – the aedilician actio quanti minoris – which had to be brought within one year and was aimed at the difference between the selling price and the actual value at the time of the sale. In the course of the fourteenth and fifteenth centuries, hardly any commentator opted for the opinion of Pierre de Belleperche and Cinus of Pistoia and almost all followed the gloss. However, the scholarly sources we considered do show that the alternative opinion was very much alive in the doctrinal debate, even at the end of the fifteenth century. Both views – that of the gloss and that of Pierre de Belleperche and Cinus of Pistoia – were provided with many arguments, most of them derived from the Corpus iuris. At the end of the fifteenth century, Giovanni Crispo de Monti qualified the debate concerning the difference in assessment as an old and hackneyed story (antiqua et trita quaestio). He decided not to deal with it in order to proceed without delay to more interesting issues.112 Around the year 1535, it appears that the Imperial Court of Justice (Reichskammergericht) still applied the prevailing view of the medieval doctores. Its assessor Viglius of Aytta (1507-1577) opposed, however, the idea that the actio quanti minoris empturus erat was an independent action, and followed the view of Pierre tion and to give warranties, liability under the actio quanti minoris was not dependent on the fact whether such warranties were given or not. 112 Joannes Crispus de Montibus, Termini omnium actionum cum arbore ad Quanto minoris (1519) [found added to Iason’s De actionibus in the edition of Lyons, 1546].
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de Belleperche and Cinus of Pistoia that price reduction should be based on the objective value of the merchandise. In an extensive report he rejected the doctrine of Bartolus and supported his own opinion with nine arguments.113 One generation later, the academic jurists would definitively abandon the teachings of the gloss essem empturus on D 19.1.13pr. The most important difference between the two approaches was not so much the exact assessment of the reduction in price. This would only have made a substantial difference in very exceptional situations. According to the gloss, however, the actio quanto minoris civilis for price reduction could be used up to thirty years after the sale had been concluded, whereas, according to the alternative view, any action had to be brought within one year. When Roman law was be received into the legal practice of early modern times, this issue of liability for defects required a choice to be made. The gloss retained its authority; but rules of law were no longer exclusively based on the authority of legal texts from a distant past; instead, they were developed by new generations of scholarly jurists and legal practitioners who were increasingly sensitive to the demands of legal practice and reliance on human reason.
113 See R Sprenger, “L’autorité de la ‘communis opinio’ dans le pratique de la Chambre impériale de justice (c. 1535): une application de l’actio quanti minoris”, in A Wijffels (ed), Miscellanea Consilii Magni III, Essays on the History of Forensic Practice [= Verzamelen en bewerken van de jurisprudentie van de Grote Raad, Nieuwe reeks XII] (1988) 161; and R M Sprenger and A Wijffels, “De actio quanti minoris in de praktijk van het rijkskamergerecht ca. 1535. Uit de aantekeningen van Viglius van Aytta”, in D Lambrecht (ed), Lopend rechtshistorisch onderzoek. Handelingen van het tiende Belgisch-Nederlands rechtshistorisch colloquium [= Iuris Scripta Historica III] (1990) 129.
9 The Glossators’ Monetary Law Wolfgang Ernst A. INTRODUCTION (1) Money in Justinian’s laws (2) The glossators’ monetary environment B. GLOSSATORS ON MONETARY ISSUES (OTHER THAN DEBASEMENT) (1) Introduction (2) On the nature of money: the lex origo emendi (D 18.1.1) (3) Coins for bullion? (4) Exchangeability of denarii from different cities? C. GLOSSATORS ON COIN DEBASEMENT (1) Bulgarus and the case of the Bolognese bushel (2) Pillius’ Quaestio “Quidam creditor Lucenses” (3) Azo’s brocard (4) Evaluating the glossators’ achievements D. CANON LAW ON COIN DEBASEMENT (1) Introduction (2) Decretals on instabilities in the fields of money and measurement (a) 2 Comp. 3.25.3 Querelam (later X 3.39.26) (b) 3 Comp. 2.15.4 Quanto personam tuam (later X 2.24.18) (c) 3 Comp. 3.37.3 ex parte Compostellani (later X 3.39.18) (d) 3 Comp. 3.37.5 olim causam (later X 3.39.20) (3) A nominalist minority position? (4) The canon law’s classical position E. CONCLUSION: THE HUMBLE BEGINNINGS OF LEARNED MONETARY DOCTRINES
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A. INTRODUCTION This chapter tries to establish what was the learned law’s view of money in the time of the glossators. Before going into the glossators’ texts, it is necessary to consider what Justinian’s law books contained in this respect, and therefore to turn briefly to the views that the Roman lawyers of antiquity held on the law regarding money and currency. (1) Money in Justinian’s laws The Roman economy was fully monetarised.1 Money for the Romans meant coins, nummi. Roman coins were “commodity money”, but circulated by tale.2 The Roman currency was state-controlled; coins were referred to as materia forma publica percussa. The minting of coins was meticulously organised. There was no free minting. Coins came in two – later three – denominations, brought into an official, rigid relation. Bi- and tri-metallism, the parallel use of copper, silver, and later also gold, required adjustments from time to time, and these were brought about in an orderly way. Public finances, taxation and the administration of justice relied on the Roman currency. Penalties were fixed in amounts of Roman money. Judgements in private law matters must also be rendered in sums of Roman money (condemnatio pecuniaria). A number of Roman contracts required the fixing of a specific amount of money. Given the overwhelming importance of money for the public sector as well as for everyday commerce, non-monetary transactions being marginalised,3 it is no wonder that Roman lawyers dealt with innumerable legal issues involving money. In a nutshell, the Roman lawyers’ approach was as follows:4 coins were considered – and indeed were – personal chattels (literally: pecunia), res nec mancipi. Coins were thus in principle subject to the law applicable to chattels. (Though produced by official mints, coins were the subject of individual property, not state property.) Coins were considered res quae numero pondero mensura constant – goods that get counted, weighed or measured (res fungibiles). The Roman jurists considerably modified the 1 On Roman money see, most recently, the contributions to W V Harris (ed), The Monetary Systems of the Greeks and Romans (2008). 2 This has been ascertained by K Hasler, Studien zu Wesen und Wert des Geldes in der römischen Kaiserzeit von Augustus bis Severus Alexander [= Bochumer historische Studien: Alte Geschichte IV] (1980). 3 The persisting field of non-monetary transactions, as seen from a legal perspective, has been dealt with by A Bürge, “Geld- und Naturalwirtschaft im vorklassischen und klassischen römischen Recht” (1982) 99 ZRG, RA 128. 4 On money in Roman law, see recently the overview by L Winkel, “L’argent en droit romain”, in Argent et Gestion, Neuvièmes rencontres 23 et 24 novembre 2000 [= Collection Histoire, Gestion, Organisations IX] (2001) 97.
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law pertaining to personal chattels when applied to coins. These modifications decisively supported the circulation of money. The legal concepts of commixtio and consumptio nummorum show a clear grasp of money circulating as a means of exchange. Roman lawyers on a number of occasions quite stringently distinguished minted coins, basically standard pieces of silver – commodity money – from silver as bullion.5 Likewise, a corpus nummorum, a hoard of coins, was distinguished from a sum of money stated in abstract terms (quantitas, summa).6 The Romans had a sharp concept of legal tender, or “lawful money”, debating, for example, whether foreign coins were legal tender.7 While there was something like transfer of bank credit, this was not seen as “legal tender”.8 Turning to Justinian’s codification, we find a basic approach to money which faithfully reflects and revives the approach of the Roman lawyers of antiquity. This was so simply because an extensive overhaul of money-related legal issues was neither necessary nor feasible, given the way Justinian’s corpora of law were compiled from older material. The Digest and Code therefore maintain the notion of “money”, coins circulating by tale as the standard medium of exchange. The Digest and Code also contain an abundance of money-related legal problems, great and small, but the relevant texts are scattered throughout: there is no specific title in either body of law devoted to money. The Digest preserves an interesting piece on monetary theory by the jurist Paul – D 18.1.1.1.9 Paul here supports a sharp distinction between sale and barter (this being the majority opinion among Roman lawyers), relying on the qualification of money as a universal means of exchange. In spite of the abundance of legal material addressing monetary problems, the Digest and Code do not accurately reflect the historical development of monetary issues during the times of the Roman Republic and the Principate 5 A striking example is the handling of legacies, by which “all silver” is bequeathed. Silver coins, Ulpian tells us, are not included, D 34.2.27pr-1: “non facile enim quisquam argenti numero nummos computat”. 6 Cf, e.g., D 30.34.1, 3-4: a bulk of coins (corpus nummorum) can be bequeathed but once, whereas several legacies for amounts of money can co-exist. 7 Volusius Maecianus, Assis distr § 45, in E Seckel and B Kübler (eds), Iurisprudentiae anteiustinanae reliquiae (1908) 415; Plinius, Nat hist 33, 46, ed K Mayhoff (1897) 149-150. 8 Recent research has intensively turned around the issue to what extent the Romans used “bank money”: cf W V Harris, “The Nature of Roman Money”, in Harris, Monetary Systems (n 1) 174; J Andreau, “Some Observations on Banking and Roman Law”, in W J Zwalve and E Koops (eds), The Past and Future of Money. Proceedings of the Leiden Congress, August 31st and September 1st, 2006 (2008) 6. It would be difficult, however, to vindicate the status of legal tender for Roman “bank money”. 9 On this text, see P Blaho, “Abgrenzung zwischen Kauf und Tausch in der Dichtung des Homer”, in E Jakab and W Ernst, Kaufen nach römischem Recht (2008) 53 at 55-56.
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(and, of course, were not meant to). Most notably, we miss a discussion of the single most important issue recurring in the history of monetary law, namely, the interplay between fluctuations of the currency, tectonic shifts in the monetary system, and monetary obligations – an issue which must have troubled the third and fourth centuries.10 Justinian’s compilation was meant to serve as the basic law of an empire with a well-ordered, centralised monetary system.11 Deliberations by the Roman jurists on currency crises (which we know did occur) had no place in Justinian’s law books. Justinian’s compilers adapted the money-related texts, which they used for the Digest, Code or Institutes, to the contemporary Byzantine monetary environment. This is most strikingly reflected in a thorough revision of the original Roman denominations.12 Amounts stated originally in sestertii were changed into amounts of aurei, while the original use of denarii remained unaltered.13 Thus, texts of the Digest and Code could be read in the light of the contemporary, sixthcentury, monetary environment. This was unavoidable, given the intention of the Byzantine legislator to make the Digest and Code the law of the land. Wherever in the Digest or Code sums of money are mentioned (for reasons other than illustrative) to fix fines or alimony payments, the coins available in real life had to be used. The Byzantine lawmakers had little reason to deal with currency turbulences which were absent from the monetary environment established in sixth-century Byzantium; and anyhow, in grand-scale codifications issued in aspiring times, the legislators will seldom provide for the possibility of currency disasters or the total collapse of the economy. The other issue conspicuously absent from the monetary discussions in both the Digest and Code is the mingling of money from different currencies. While in the Roman Empire one did have to deal, economically and legally, with a multitude of currencies,14 Justinian’s law texts seem to be based on the idea that, uniform throughout the empire, the environment was that of a self-contained currency, an ideal to which the Byzantine sixth-century, with its strong gold-based currency, tried to live up. 10 Of course, Diocletian’s rulings on laesio enormis (C 4.44.2 and 8) were a response to the inflationary crisis of the late third/early fourth centuries, as was his edict on tariffs. 11 On money in Byzantium, see M F Hendy, Studies in the Byzantine Monetary Economy, c. 300-1450 (1985). 12 S Mrozek, “Zur Geldfrage in den Digesten” (1970) 18 Acta Antiqua Academiae Scientiarum Hungaricae 353. 13 Probably at a rate of 1000:1. 14 Interestingly, our key sources see (n 7 above) are not from the Justinianic texts. In the Digest one can only occasionally assume that a text dealt with the parallel use of different currencies; see, for the case of D 46.3.99, W Ernst, “Rationalia ad D. 46.3.99”, in P Pichonnaz et al (eds), Spuren des römischen Rechts. Festschrift für Bruno Huwiler zum 65. Geburtstag (2007) 233.
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All in all, the Digest and Code offer ample material for the legal aspect of money, dealing both with the idea of money and, predominantly, with a multitude of micro-level issues. But both the Digest and Code fall short when one looks for specific guidance with regard to legal problems caused by tectonic shifts in the monetary environment or transactions involving coins from different currencies. (2) The glossators’ monetary environment While one may debate to what extent features of real life found their way into the glossators’ work, with regard to money there can be little doubt that the glossators knew very well what, at their own time, money was and what money did. The twelfth- and early thirteenth-century glossators lived in a single-coin environment.15 Only relatively small, silver coins of one type were in circulation. It was only from the late 1230s on that the minting of large silver or gold coins, grossi, like the Venetian ducat or the Florentine florin, began in Northern Italy. The additional difficulties that arise with bi-metallism do not concern us here because, in the world of the early glossators, there was only one coin, the denarius, and silver was the only metal used for minting.16 To speak of a single-coin environment is not, however, entirely correct. As a denomination, the Carolingian denarius had indeed survived the break-up of the Carolingian empire. But the coin was now minted by a multitude of local potentates, all using different standards of fineness and faces or designs of their own choice. “Most coinage was struck by and for the profit of the local nobility, lay or ecclesiastical, who proceeded to reduce the weight and fineness of the denier at differing rates, resulting in the regionalisation of currency.”17 In commercial dealings monetary obligations were therefore specified by stating the origin of the denarius, such as denarii from Pavia or Cologne. The denarius was a relatively small coin, a “penny”. As a medium of exchange it was not ideal for large-scale transactions. Therefore, large-scale obligations were often phrased by stating certain weights of silver or gold, 15 On money in the twelfth century, see T J Sargent and F R Velde, The Big Problem of Small Change (2003) 45-53. 16 Digest texts dealing with the interchangeability of smaller and larger coins, e.g. D 45.1.65.1, the latter part of the lex quae extrinsecus, could hardly have real-life meaning for the glossators. Gold coins were not, however, altogether unknown, if only because foreign gold coins were imported. 17 M Blackburn, “Money and Coinage”, in R McKitterick (ed), The New Cambridge Medieval History (1985; repr 2002, 2004) II 538 at 559.
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relying on the use of bullion.18 Scales and standard weights were everyday features of medieval commerce. Insofar as unminted gold or silver, in typified weights (standard bars), was used in transactions, one speaks of a bullion currency. For storing purposes, coins and precious metal were used more or less indiscriminately, often kept not in the form of standard bars but as objets d’art for church and other use (chalices, goblets and the like). Since the work of silversmiths was cheap, only the silver-content counted. The twelfth-century economy thus used, side by side, two rather different means of exchange: bullion and, as pecunia numerata, a single denomination in the form of a small silver coin, albeit in reality coined by a multitude of regionally controlled mints, their products greatly varying in style, face and fineness. In contemporary deeds, sums of money are often stated in librae and solidi. These units do not refer to real-life coins. These units were mere counting aids, denoting multiples of the denarius, the solidus being the term for twelve denarii, the libra being the term for twenty solidi or 240 denarii. Thus, instead of using the decimal system throughout, larger numbers of denarii were simply stated in dozens (the solidus) and sets of twenty dozens (the libra). Contemporaries were well aware that if one referred to sums of money using the libra, this was the libra numeralis, mere moneta imaginaria, “money of account”.19 The libra only became moneta realis once moneta grossa started to be minted. The legal issues resulting from the parallel use of denarii and librae, introducing the intricate problems of bi-metallism to the medieval monetary world, lie outside the scope of this paper.20 A characteristic feature of the currencies in the high Middle Ages was the recurring debasement of coins. The circulation of coins was often limited to a statutory period (typically a year), at the end of which all coins had to be returned to the mint (reprobatio nummorum, renovatio monetae). The incoming coins, having lost weight as a result of use or deliberate clipping, were used to mint the same amount of coins anew (without adding new silver), now all, of course, of diminished fineness. The new coins normally carried the same name as the old ones; they were of the same denomination. 18 Looking into (somewhat older) medieval collections of deed-formulas for contracts of sale, H Siems encountered a characteristic difficulty in determining whether prices fixed referred to coins or to bullion: H Siems, Handel und Wucher im Spiegel frühmittelalterlicher Rechtsquellen (1992) 386 and passim. From a learned legal point of view, using bullion as pretium would have lead to a classification of the contract as barter (permutatio). 19 Like today’s “Special Drawing Rights” (SDR) of the International Monetary Fund. 20 On the monetary doctrine to be found in thirteenth- to fifteenth-century consilia, see E Stampe, Das Zahlkraftrecht der Postglossatorenzeit [= Abhandlungen der preussischen Akademie der Wissenschaften Phil-Hist Klasse I] (1928). For an overview of the later developments, see also H Coing, Europäisches Privatrecht, 1500-1800 (1985) I 471-478.
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Sometimes one could tell the difference owing to a change in the appearance of the coin; sometimes not. If the older coins were taken officially out of circulation, they became pecunia reproba. B. GLOSSATORS ON MONETARY ISSUES (OTHER THAN DEBASEMENT) (1) Introduction The glossators’ monetary doctrines were investigated in Walter Taeuber’s magisterial study of 1933.21 Before Taeuber, no one had delved so deeply into the unprinted sources – such as the annotated manuscripts especially of the Digestum Vetus, the Infortiatum and the Digestum Novum – and it may be some time before they are explored so deeply again.22 Apart from Taeuber, several other authors have made considerable contributions to the field.23 It may be worthwhile to restate briefly Taeuber’s overall insight, gained by years of focusing on money-related glosses, into the specific nature of the legal literature produced in the twelfth and early thirteenth centuries.24 Before Accursius could compile the Glossa ordinaria, stone had to be piled upon stone. An evolutionary story could be written for each and every gloss, even for single words within a gloss, covering its transmission from early authors like Irnerius to Accursius (and beyond). The material for these “histories of glosses” has to be elicited from dozens of manuscripts. The earliest glosses, extremely abbreviated statements, became the basis of all further developments. All sorts of thoughts, ideas and notions – smart and stupid alike – were absorbed into the process of transmission, frequently without attribution to a specific author. The cross-references used to annotate the Romanlaw texts were sometimes triggered by association only, the underlying “train of thought” more often than not obscure to a modern legal mind. Indeed, a mere cross-reference could conceal a sophisticated argument, obvious to contemporary scholars but on first sight meaningless for today’s reader. Older glosses and later additions were reverently treated as a common heritage. The Glossa ordinaria wove a mass of glosses into a single apparatus, wiping 21 W Taeuber, Geld und Kredit im Mittelalter (1933; repr 1968). 22 Older studies, still useful, include W Endemann, Studien in der romanisch-kanonistischen Wirthschafts- und Rechtslehre (1883) II 184-187. 23 P Grossi, Ricerche sulle Obbligazioni pecuniarie nel diritto comune (1960); G Hubrecht, “Quelques observations sur l’évolution des doctrines concernant les paiements monétaires du XIIe au XVIIIe siècle”, in Aequitas und bona fides, Festgabe zum 70. Geburtstag von A Simonius (1955) 133. 24 Taeuber, Geld und Kredit (n 21) 127-129.
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out the intricate stories behind the individual glosses. The generation(s) that followed Accursius still knew of – or had easy access to – the many subtle argumentative nuances which, by reason of previous developments, came, for the thirteenth-century reader, with each of the individual glosses. A legal historian reading the Accursian Glossa ordinaria can only fully apprehend the legal content of the glosses if he or she re-establishes, at least partly, the textual stages of their pre-Accursian history.25 The Roman property-law aspects of money, especially commixtio and consumptio nummorum, could be taken up by the glossators quite easily. Difficulties arose as to monetary obligations. It is easy to see, in retrospect, that the twelfth-century state of monetary affairs required answers to the following questions. Could one discharge a bullion debt by payment of coins? Could one use denarii issued by different rulers for payment? What should the effect of debasement be? All these issues, none of which was addressed head-on in the Roman-law texts, were eventually settled. (2) On the nature of money: the lex origo emendi (D 18.1.1) Paul’s musings in D 18.1.1, the lex origo emendi, on money as the defining element of sale, as opposed to barter, were taken up.26 There was some flexibility in how to read the passage that use and property of money sprang non tam ex substantia praebet quam ex quantitate. If the use of money ex quantitate was taken to refer to money in circulation,27 and the use ex substantia to refer to the use of the silver as material for (to give some examples) melting and production of precious objects, none of these two uses was really excluded, the use ex quantitate was just considered to be comparatively more important. One thus read non tam / quam as “not so much ... as”;28 or even
25 On the Accursian gloss, see most recently H H Jakobs, Glossa magna (2006), and the same author’s collected articles, H H Jakobs, Digesten – Glosse – Savigny. Kleine Schriften zur Wissenschaft vom Römischen Recht, ed W Ernst (2004). 26 The Greek quote from Homer was lost on them. 27 Some of the glosses explaining the words ex quantitate already took quantitas as an abstract, referring to a number of interchangeable (fungible) objects, interlinear gloss Trier MS 838 fol 179r: “ex quantitate: id est ex numero; y.” Other glosses seem to understand quantitas as a specific (corporeal) amount of coins. For both views, see Taeuber, Geld und Kredit (n 21) 332 n 919. On the medieval concept of quantitas, see W Ernst, “Die Konkretisierung in der Lehre vom Gattungskauf”, in W Schön (ed), Gedächtnisschrift für Brigitte Knobbe-Keuk (1999) 49 at 57-60; W Ernst, “Kurze Rechtsgeschichte des Gattungskaufs” (1999) 7 Zeitschrift für Europäisches Privatrecht 583 at 612-615. On the concept of fungible objects in the Middle Ages, see T Rüfner, Vertretbare Sachen? Die Geschichte der res, quae pondere numero mensura contant (2000) 74-92. 28 Marginal gloss Stockholm MS B680 fol 192v: “Ergo ex utroque, sed magis ex quantitate quam ex substantia […] p”; taken from Taeuber, Geld und Kredit (n 21) 332 n 922.
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read it as “as well ... as”.29 The assumption of a dual use of coins was in line with the real-life situation that saw coined silver easily converted into bullion (or silverware of all sorts) and vice versa. It should be noted that in a fully monetarised economy, such a dual use of coins is an oddity, money being defined as a medium of exchange, circulating by tale and hence – ideally – regardless of the inherent substantive value of the coin. It was only later that glossators overcame the dual-use doctrine and began to define money by its circulatory function, negating the use ex substantia and hence reading non tam / quam as “not as ... but as”.30 Azo held that the technical usability of a coin’s metal was as important as the usability as a means of exchange.31 Accursius took Azo’s statement a step further in relying, for the usability as a means of exchange, on the technical usability of a coin’s metal, thus making one of the uses (ex substantia) the precondition of the other (ex quantitate): gloss praebet to D 18.1.1 Note that a coin has two types of usefulness – one deriving from its inherent utility and the other from its ownership. The first derives from the utility of its substance, because a single coin has as much value as the quantity of silver it contains. The second derives from its value, because the value of a coin is level with an equivalent thing, and thus equality in value arises through a coin.32
The notion that “a single coin has as much value as the quantity of silver it contains” (tantum valet unus nummus quantum argenti tantundem in massa) was to become a key reference for the glossators’ (and postglossators’) approach to currency policies. There was a general mistrust of coins functioning as money proper, that is, circulating by tale as units for payment. Rather, coins were commodified, defined as publicly-certified pieces of silver. Since coins were valued according to their inherent metal value, they could not – the glossators held – be given a nominal value exceeding their metal 29 Azo’s marginal gloss “dominumque” ad D 18.1.1: “Id est, utilitatem sui ipsius dominii prebet ex duobus. Hoc est ipsa substantia, quia tantum potest tibi esse carum aurum vel argentum quod in numo, ac si esset in massa. Item potest esse carum, quia per pecuniam facile est omnia invenire. Azo.” BamSB MS iur 11 fol 209r. For variants in other MSS see Taeuber, Geld und Kredit (n 21) 334 note 922. 30 Taeuber, Geld und Kredit (n 21) 332 n 921, with references to Jacobus de Puteo and Hieronymus Butigella. 31 See n 29 above. 32 “Nota quod in duobus prebet utilitatem: sui usus, et sui dominii. Primo ex substantia quia tantum valet unus nummus quantum argenti tantundem in massa. Secundo ex quantitate, quia aequiparatur quantitas nummi aequivalentiae rei, et sic per nummum fit aequalitas in quantitate.” Wording as in the edn of Lyon, 1618. The wording is not substantially different in earlier MSS of the Digestum Vetus, e.g. Basel, MS CI4. See, also for variants in other MSS, Taeuber, Geld und Kredit (n 21) 334 note 925.
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value. This results in a specific demand made on monetary policy-makers based on the reading of D 18.1.1: rulers may not deceive the public by minting underweight coin.33 Ideally, from the legists’ point of view, there should be no seignorage at all.34 Canonists were to support a slightly more liberal, or perhaps more realistic, approach, allowing for a “modest” seignorage.35 (3) Coins for bullion? The glossators’ environment knew two different means of exchange, denarii and bullion. Could a debt stated in bullion be discharged by payment in coins? A dispute can be established from the glosses to D 12.1.2, the lex mutuum, which is a key introductory text to the law on loans.36 One thus turned to the law of loans, even though the debt expressed in bullion need not have been based on a loan. Hugolinus found bullion and coins to be two different genera. Repayment by coins would be numerus pro pondere, hence inadmissible. Azo (and Accursius quoting him), on the other hand, argued that bullion and coin were of the same genus, provided that the fineness was the same. gloss per solutionem to D 12.1.2.1: If therefore I shall have received money, will I have the authority to return a measurement of cereal or a weight of silver? I answer “No” following the argument below in D 46.1.42. It is otherwise if I shall have received silver, for then I return money, as argued below in D 34.2.1. But the silver in the money should not be mixed with base metal. Azo.37
Having first excluded, from the scope of loan contracts, an agreement to pay money for return of cereal or bullion (unminted silver), Azo allowed the repayment in coins for a loan made out in bullion, provided that the 33 Taeuber, Geld und Kredit (n 21) 334. 34 Seignorage is the difference between the costs of minting and the nominal, the face value of the coin. It is the seignorage which made minting a profitable, often hugely profitable, business. On seignorage, see Sargent and Velde, Big Problem (n 15) 50-63. 35 On X 2.24.18, see T Bisson, “Quanto personam tuam (X 2.24.18): Its original significance”, in S Kuttner (ed), Proceedings of the 4th International Congress of Medieval Canon Law [= MIC Ser C Subsidia 5] (1976) 229; F Wittreck, “Conservare monetam. Geldwertstabilität im hochmittelalterlichen Aragon im Lichte der Dekretale ‘Quanto personam tuam’ (1199)”, in A Weber (ed), Währung und Wirtschaft. Das Geld im Recht. Festschrift für H J Hahn (1997) 103; F Wittreck, Geld als Instrument der Gerechtigkeit. Die Geldrechtslehre des Hl. Thomas von Aquin in ihrem interkulturellen Kontext (2002) 103-104. 36 Taeuber, Geld und Kredit (n 21) 161 n 441, 196. 37 BamSB MS jur 11 fol 145r in margine (R61 m): “Si ergo pecuniam accepero, numquid frumentum in mensura vel argentum ad pondus reddere potero? Respondeo, non, argumento infra, de fedeiussoribus l. si ita fedeiussorum accepero [D 46.1.42]. secus si argentum accepero tunc enim reddo pecuniam, ut infra, de auro et argento legatis l. Ia [D 34.2.1]. argenteam tamen non cum here mixtam. Azo.”
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coins themselves were pure. Azo’s prevailing opinion is very much in line with the general focus on silver content. The dissenting opinion of Hugolinus is preserved in the gloss pondere as recorded by Accursius: Likewise, what if I shall have received silver of a particular weight? Do I have the authority to return money? I answer “Yes”: not, however, if it is corrupt, as below at D 34.2.1.1, D 34.2.9, D 34.2.19.1 and C 8.53(54).35.1. But Hugolinus says “No”, as below at D 46.3.99, and he says it may have been particularly provided for in advance in a final will and C 8.53(54).35.1 speaks in particular favour of gift ...38
(4) Exchangeability of denarii from different cities? For the exchangeability of various coins, the glossators found a text in the Digest which was “spot on”. D 46.3.99 – then referred to as the lex Paulus – stated that one need not accept payment in different coins, should this be to one’s detriment as recipient.39 There was a minor dispute over the issue of whether an impending detriment needed to be shown in concreto in order to repudiate the unwanted coins, or whether a different type of coin in itself could simply be seen as detrimental. In the long run the position prevailed that best matched the general approach of the glossators. This was that it is the silver that counts, so that, provided the weight of silver is right, there is no reason to object to a different minting of the coin. This position, however, was to be fully developed only by the postglossators.40 C. GLOSSATORS ON COIN DEBASEMENT (1) Bulgarus and the case of the Bolognese bushel The issue of the Bolognese bushel, though not in itself concerned with money, was to exert great influence on the history of medieval monetary doctrine. There was a lack of uniform and stable standards of measurement. Regional standards of measurement were fixed and often changed by local statutes. One unit of measurement of capacity was the bushel. The obvious question arose of how a governmental redefinition of the bushel affects the obligation 38 Wording as in the edn of Lyon, 1618 (n 32): “Item, quid si accepero argentum ad pondus: nunquid potero reddere pecuniam? Respondeo, sic; non tamen ere contaminatam, ut infra, de auro et argento legatis l. I § finali [D 34.2.1.1] et l. cum auri certum [D 34.2.9] et l. cum aurum § proinde [D 34.2.19.1] et C. de donationibus l. si quis argentum § I [C 8.53.35.1]. Sed H dicit, quod non, ut infra, de solutionibus l. Paulus respondit creditorem [D 46.3.99] et predicta in ultima voluntate specialia dicit. et in 1. si quis argentum [C 8.53.35.1] speciale dicit favore donationis ...” 39 On this text, and its real-life background, see Ernst, “Rationalia ad D. 46.3.99” (n 14); but see, contra Ernst, B Kupisch, “D. 46,3,99”, in H Altmeppen, I Reichard and M J Schermaier (eds), Festschrift für R. Knütel (2010) 617. 40 Sargent and Velde, Big problem (n 15) 77; Taeuber, Geld und Kredit (n 21) 163-164.
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to return a quantity in kind. Our earliest source for the quaestio concerning the Bolognese bushel is the Quaestiones Dominorum Bononiensium;41 from there, we can trace it to Pillius42 and to Albertus Gandinus.43 Quaestiones Dominorum Bononiensium, Quaestio 60 Titius granted his farm to Seius to be cultivated according to the agreement that he, Titius, should annually receive a specific amount of corn, to be measured according to Bologna standards. Afterwards, however, the Bolognese reduced the size of their measure, and even enacted a penalty if anyone measured by other standards of measurement. The question is whether Titius can sue for the agreed amount of corn, to be measured according to the earlier measurement, and if he were to sue for it, whether he would incur the penalty established. Bulgarus said it ought to be decided in favour of the plaintiff. The action on lease establishes this. Defendant Plaintiff44 D 45.1.49 D 50.17.34 D 40.5.24 D 44.7.22 D 16.3.1.9 D 32.75 D 34.2.40 D 12.1.22 D 4.4.3.2 D 2.14.44 D 2.11.7 & D 2.14.10 D 31.88 D 18.1.77; D 18.1.69; D 18.1.34 Nov 115 praef45
To paraphrase the text: Seius thus contracted to cultivate Titius’ land on the terms that Titius was to receive a certain quantity of the harvest, to be measured in Bolognese bushels. Subsequently the Bolognese reduced the 41 Although Bologna is referred to, we do not know whether this was a real-life case or just an academic exercise. 42 Pillius, Quaestiones Sabbatinae (1560), in CGIC IV (1967) 145-147 (quaestio 79). 43 Albertus Gandinus, Quaestiones Statutorum, in BIMAE III 193. 44 The texts on which the plaintiff and defendant founded their arguments were originally thus in columns. 45 Paris MS lat 4603, in BIMAE 2nd edn I 246: “Titius dedit agrum suum colendum Seio hoc pacto, ut unoquoque anno certam modiationem frumenti acciperet, metiendo scilicet mensura bononiensi. Postea vero Bononienses mensuram diminuerunt, et penam etiam statuerunt si quis de cetero alia mensura metiretur. Queritur an Titius possit petere modiationem constitutam, metiendo scilicet mensura prestita, et si petierit, an incidat in penam a talibus constitutam. BULGARUS ait pro actore iudicandum. Hic proponitur actio ex locato./ A/ D. de verborum obligationibus l. cum filius [D 45.1.49]./ D. de fideicommissariis libertatibus l. generaliter [D 40.5.24]./ D. depositi l. I § si quis servum [D 16.3.1.9]./ D. de auro et argento legatis l. medico [D 34.2.40]./ D. de minoribus l. Denique § scio etiam [D 4.4.3.2]./ D. si quis cautionibus l. Si quis [D 2.11.7]./ D. de legatis II l. penult. [D 31.88]./ D. de contrahenda emptione et venditione l. in lege [D 18.1.77], l. Rutilia [D 18.1.69], l. si in emptione [D 18.1.34]./ In Auth. tit. ut cum de appellatione cognoscitur, constitutio pervenit [Nov 115 praef]./ R/ D. de regulis iuris l. Semper in stipulationibus [D 50.17.34]./ D. de actionibus et obligationibus l. cum quis in diem [D 44.7.22]./ D. de legatis III l. Nummis [D 32.75]./ D. si certum petatur l. vinum [D 12.1.22]./ D. de pactis l. cum in eo esset [D 2.14.44] et l. Rescriptum [D 2.14.10].” (The oblique strokes correspond to line-breaks in the main text).Cf also Grenoble MS no 626, in BIMAE I (supplementary volume) 21.
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quantity of the bushel, and made it a statutory offence to use any other standard of measurement. The question is whether Titius can demand the agreed quantity in old bushels, and if he does so, whether he suffers the punishment laid down. Bulgarus favoured judgment for the plaintiff, thereby deciding that the old bushel must be used. The argument advanced for this conclusion needs to be extracted from the cited leges. Most of these texts address issues resulting from changes over time. We select some references to get the general idea. D 18.1.69 deals with the sale of a pond including a strip of land of a certain width around it. It was held that an increase in the surface of the pond owing to a rise in the water level did not affect the extent of the land sold. In D 34.2.40 a bequest of the testator’s “travelling silver” is taken to mean the silver used by the testator while travelling at the time the last will was made. D 50.17.34 and D 32.75 deal with issues of interpretation arising from terms understood differently in different locations. The idea to be taken from these texts is that the place where the contract was concluded controls the language of the contract. Taken together with the previously cited texts the general idea is that the time (and place) of contract making must be taken into account. It is remarkable that the case of the changed bushel is tackled as an issue of interpretation of a contract, given that these cases could equally well be seen as raising such questions as of distributive justice or change of circumstances. (2) Pillius’ Quaestio “Quidam creditor Lucenses” Bulgarus’ solution for the case of the changed bushel was applied to the case of debased coin. The issue is elaborately discussed in one of Pillius’ quaestiones, dating from around 1180, often referred to as Quidam Creditor Lucenses.46 It is one of his quaestiones Sabbatinae – classes given on a Saturday.47 This quaestio is the central achievement of the glossators’ efforts in the field of money, the pinnacle of early glossators’ work, decisively shaping the further development of the legists’ doctrine. The case had arisen in Lucca.48 The cities in Tuscany used the denarius (or denaro), a coin which was still modelled after the Carolingian denarius. At first, the coin was minted only in Lucca, until, sometime shortly after 1150, Pisa, which was in an economic upswing, started minting the same coin. 46 Text with all variants given by Taeuber, Geld und Kredit (n 21) 311; Taeuber has also most meticulously analysed the quaestio and its prehistory: Geld und Kredit (n 21) 119-148, 216-224. For all details not addressed here, the reader may therefore wish to consult Taeuber. 47 On the Quaestiones Sabbatinae, see Lange, RRM I 234-235. 48 On the economic context, see Sargent and Velde, Big Problem (n 15) 139.
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From then on, both cities competed for dominance of the regional Tuscan coin market, some cities opting for the Tuscan (or Luccan) denarius, some for that of Pisa. The coins of both cities suffered a debasement by half or more. The following question was posed by Pillius. If coins from Lucca are given as a loan and, before the repayment is due, debasement occurs, can the creditor demand payment in old denarii or must he accept new ones? Pillius opted for payment in the old coins. Many leges are referred to and arguments advanced for creditor and debtor alike. While the whole set of arguments cannot be laid out here, we shall analyse Pillius’ solution and the key arguments used in the quaestio. Pillius, in his solutio, relies first and foremost on the opinion advanced by Placentinus49 on the basis that the depreciated coins are reproba in partem. This referred to a text of the Digest stating that pecunia reproba cannot be used for discharging debts, D 13.7.24, the lex eleganter.50 This is supported by the rule that the debtor is not discharged by tendering only a part of what is due, D 50.16.114, the lex solvendo. Pillius does not seem convinced that the decision depends simply on choosing between two controlling moments in time, that of the datio and that of repayment of the loan,51 the two opposing rules being tempus dationis inspicitur52 and tempus solutionis inspicitur. The key argument advanced for the creditor was D 12.1.3; then known as the lex cum quid. Pomponius stated that, in the case of a loan, the debtor may not return things of lesser quality (out of the same genus): for example, he may not return new wine for old. This holds, Pomponius says, even in the absence of a particular stipulation to this effect (a cautio) – this was in fact the very legal issue at hand – because, he says, whatever seems to be agreed upon can be seen as being stipulated.53 And it seems, Pomponius concludes, that parties (typically) agree ut eiusdem generis et eadem bonitate solvatur, qua datum sit: items must be returned of the same genus and of the same quality as had been given. 49 “Dominus p. dicit.” 50 As to the legists, this was already noted in an early gloss of Martinus ad D 13.7.24 found in BamSB MS jur 12 fol 139r: “Reprobam pecuniam non liberare solventem. M(artinus).” Reading this gloss narrowly, it only stated that the old coins, when officially out of circulation, can no longer be used for payment. One does not learn, from D 13.7.24.1 or from Martinus’ gloss, how the debtor can discharge the obligation instead. Could he pay with new, typically debased coins, and was it sufficient to pay the initial number of this coins or did he have to make up for the debasement? 51 A concluding remark of doubtful authorship (“dominus tamen – fin”) seems to hint at a distinction depending on whether interest was agreed upon or not, perhaps assuming that the risk of debasement is taken into account in the rate of interest. 52 Or: “tempora primitiva servari debent”. 53 On the original meaning of D 12.1.3, see, most recently, U Babusiaux, Id quod actum est (2006) 61.
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The debtor invoked the absence of a coinage clause by which the creditor could have insisted on repayment being made in old coins. He could try (or did try) to argue, one learns,54 that he was entitled to use the money in circulation at the time of payment, because he had to render objects belonging presently to the genus agreed upon (relying on sit instead of fuit in D 12.1.3). Payment in today’s denarii would hence meet both requirements of same genus and same qualitas, since, within the genus of the day, the quality of the denarii was perfectly good. Indeed, another Roman-law text, D 17.1.52, here also referred to, allowed the debtor, in the absence of a specific stipulation, to use less-than-average quality in order to discharge a generic obligation. The detailed discussion is largely devoted to the proper understanding of eiusdem generis et eadem bonitate. The first issue addressed was whether the old and new coins were from the same genus. A similar issue, in the interpretation of D 12.1.3, had previously been dealt with extensively, and one can assume that the older discussion was known to Pillius and his students.55 The issue dealt with in earlier glosses to D 12.1.3 turned on the example given by Pomponius, namely the inadmissibility of tendering new wine for old. The glossators had asked in what respect new wine was of lesser quality, and whether, inversely, one could tender old wine for new.56 Most important, perhaps, was the question whether the new/old issue was one of genus or one of quality (within the genus). Some glossators tended to assume that wine of different ages constituted different genera;57 but Pillius does not seem to have subscribed to this view, which was so obviously out of tune with Pomponius’ text. In another quaestio, Pillius had also dealt with the case of the changed bushel, and it is there that he addressed the public-law aspect of the problem.58 He approves Bulgarus’ solution, and separates the issue at public law from that at civil law. The statutory regulations were future-oriented, hence not retroactive, and anyway the issue was not about what actually happened in 54 Quidam creditor Lucenses, from “respondit debitor” on. 55 Taeuber, Geld und Kredit (n 21) 129-133. 56 We only give Azo’s gloss, which is already based on an extensive prior discussion, BV MS lat 1408 32m: “Quid si pro novo reddere vetus velit? R Job non liberatur, quia non videtur eque bonum reddere, ut infra Institutionibus de actionibus § huic autem qui [J Inst 4.6.33d]. Sed contrarium est argumentum supra, si servitus vendicetur l. si forte § ultimo [D 8.5.6.7] et infra, de verborum obligationibus ubi non [D 45.1.75]. Nam ibi dicit (iureconsultus), quod est optimum, ipsum quoque bonum est. Hoc tamen, si eiusdem qualitatis est, ut utrumque novum vel vetus. Secus si datum est vetus, redditur novum. Azo.” See Taeuber, Geld und Kredit (n 21) 136 n 369 with variants. 57 In the later words of Baldus: “illud bonum non subalternatur illi optimo, et est ac si essent diversorum generum”. See Taeuber, Geld und Kredit (n 21) 136. 58 Quaestio 79 in Pillius, Quaestiones Sabbatinae (n 42) 146.
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the city (state), but about what ought to happen. This is also a nice little contribution to the delineation of statutory law and ius commune. (3) Azo’s brocard The position first established by Pillius became part and parcel of the glossators’ monetary law. This was due to the authority attaching to the name of Azo, to whom a brocard is attributed in the Brocardica sive generalia iuris.59 This work was published under Azo’s name, and may be traced, at least for the greater part, to Otto Papiniensis, and dated around the end of the twelfth century.60 We may here disregard the disputed issue of the editorship of this collection, since the specific brocard we are looking into is assigned to Azo. The brocard starts with the juxtaposition of two opposing statements, each accompanied by a host of references, mostly to texts of the Digest and Code, but also to other brocards within the same volume: “the same measurement or coined money is owed, as was owed at the time of contracting” (eadem mensura vel moneta debetur, quae erat tempore contractus) and “the reformed money or measurement is owed, whether it be greater or lesser” (superveniens moneta vel mensura debetur, sive maior sive minor sit). In his concluding argument, Azo without hesitation opts for the rule of eadem mensura. He holds (as Pillius had held) that intervening statutes have no retroactive effect on contracts already operative.61 Texts referring to legacies are eliminated by Azo on the ground that they depend on the wording of the last will. Azo’s last, and perhaps most troublesome, point concerns D 12.1.22, the lex vinum, with Julian’s statement “the time of payment is examined” (tempus solutionis inspicitur). The glossators’ dealings with this Digest text deserve a closer look.62 D 12.1.22, the lex vinum, is about the Roman condemnatio pecuniaria. It addresses the question of the moment in time on which the judge must base his money estimate of performance which the defendant has unlawfully denied the plaintiff (aestimatio). Julian discusses a loan of wine, the borrower being sued for redelivery. The question arose whether the value of the wine should be determined at the time its redelivery was due, or at the time of consolidating the law suit (the litis contestatio), or at the time of 59 Brocardica sive generalia iuris (1567) 136, rubrica XII “De Contractibus”. For a critical edition, recording the variant readings of the different MSS, see Taeuber, Geld und Kredit (n 21) 328-330. The solutio of the brocard can also be found (anonymously) in Turin MS F II 14 (AA) fol 109r; Taeuber, Geld und Kredit (n 21) 330. 60 For details on the issue of authorship, see Lange, RRM I 145. 61 “Statuta post contractum facta futuris contractibus dant formam, non praeteritis.” 62 For more details, see Taeuber, Geld und Kredit (n 21) 184-193, 229.
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the judge’s ruling. If a fixed date was agreed upon for the time of delivery, according to Julian this should also be the point in time for the aestimatio. (The moment of litis contestatio was only to be decisive if no time had been agreed upon.) How was tempus solutionis inspicitur to be reconciled with the doctrine based on cum quid that the quality was fixed by (and thus at the time of) the making of the loan? The lex vinum was quite a stumbling block, not least because the glossators did not understand the original context of aestimatio, since they did not subscribe to the strict necessity of condemnatio pecuniaria.63 We shall not go into the details of the way in which the glossators tackled this contradiction.64 Azo distinguished the lex vinum from the lex cum quid on the ground that, in the case of the lex vinum, the measure was unaltered. While D 12.1.3 confirmed that the object matter of the datio – with regard to genus and qualitas – determines the proper object matter of repayment, Azo’s brocard refers to the time the contract was concluded as controlling the issue of the coins to be used for repayment.65 With regard to loans this makes no difference, since the Roman loan, as a so-called real contract, became binding only on the datio.66 However, the applicability of the test is now considerably widened, and the rule could be relied upon with regard to other contracts as well. Shifting from “payment” to “contract” was vital for extending the scope of the rule to contracts other than loans. The idea is now: the contract determines – perhaps indirectly, by reference to the items made over for the “real” contract – the amount of silver the creditor can reclaim. Azo’s brocard explicitly equates the issues of debased coinage and measurements altered by statute. The brocard addresses and solves both types of case in a uniform fashion. There is no distinction between diminutions and enlargements of measurements, and thus the brocard does not invariably favour the creditor; but given that changes of measurements or coinage 63 On the issue of specific performance (as opposed to condemnatio pecuniaria), see T Repgen, Vertragstreue und Erfüllungszwang in der mittelalterlichen Rechtswissenschaft (1994). 64 It should be noted that this text, like D 12.1.3 (lex cum quid), did not deal with money. As with D 12.1.3 (lex cum quid), it would not have made sense at all, for a Roman lawyer, to apply D 12.1.22, the lex vinum, to a monetary obligation, since coins then were not subject to free aestimatio, “since the value of coins is fixed” (cum certa sit nummorum aestimatio), as D 12.3.3, the lex nummis depositis, explained. In Roman times, a number of coins could well be subject to aestimatio, by using another coin with a different face-value, but then the aestimatio was indeed certa, because the Roman currency system defined the various face-values of its different coins as handy multiples/fractions of each other. For the medieval lawyers, the lack of a currency system with coins of different face-values meant that little could be made out of D 12.1.3 (lex cum quid). 65 This idea goes back to Pillius. See section C.(2) above. 66 On Roman financial loans as real contracts, see W J Zwalve, “The Past and Future of ‘mutuum’”, in Past and Future of Money (n 8) 17.
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normally worked against the creditor, the effect of Azo’s brocard may have been more important for the creditor than for the debtor. Later printed editions inserted another element of Azo’s position, which had initially only been part of the solution, into the brocard, which came to be referred to in this language: The same measurement or coined money is owed as was owed at the time of contracting; or, if other money is tendered, the loss must be accounted for.67
Azo’s brocard was to feature as the controlling formula for the coming centuries. From 1250 onwards, we find Azo’s doctrine confirmed in the Bolognese statutes: Of quality of money tendered: We enact that, if money is owed on account of a dowry or of any other legitimate past event, let he, to whom the money is owed, receive money of the same quality that it will have had at the time of the contract.68
(4) Evaluating the glossators’ achievements In the ius commune the issue of depreciation of coinage was linked to the lex cum quid, D 12.1.3. How appropriate was this text for the issue at hand? It is disturbing that D 12.1.3 became a cornerstone of the monetary doctrine of the medieval learned lawyers. The text bears no relation to money at all. True, the text is about mutuum, but money was by no means the only possible subject matter of the Roman mutuum, which covered financial loans and non-cash loans alike. The quality issue dealt with by Pomponius could arise with regard to all possible objects of mutuum, except money. In a well-ordered monetary environment, with coins circulating by tale, the question of the quality of the substance used for discharging the loan, can hardly be raised. Pomponius’ question was meaningful, in the Roman context, only for non-cash loans, for which Pomponius gives a loan of wine as an example. Of course, there was nothing wrong with extending the scope of D 12.1.3 to financial loans as well, in times when coins indeed varied in quality. Nor did D 12.1.3 really deal with changes over time.69 Rather, the text is about properly selecting, from a variety of presently available commodities, 67 “Eadem mensura vel moneta debetur, quae erat tempore contractus; vel si alia moneta praestetur, habeatur ratio damni.” For the editions, see n 59 above. 68 Statuta communis Bononiae (1250) lib IV rub 25, in L Frati (ed), Statuti di Bologna dall’anno 1245 all’anno 1267 (1869) I 406: “Cuius bonitatis pecunia solve debeat. Statuimus quod si ex causa dotis vel cuiuscumque alio casu legittimo ex preterito tempore peccunia debeatur, cuius bonitatis fuerit contractus eiusdem bonitatis fuit et accipiat ille, cui peccunia debetur.” Cf also, for Bolognese rulings predating this statute, Taeuber, Geld und Kredit (n 21) 243-244. 69 Pillius perhaps understood this better than his successors.
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those items which are fit to be used for discharging the borrower. However, the example given by Pomponius – that of old wine/new wine – made it possible to read a temporal aspect into the text, although this was hardly more than an associative link triggered by the terms “new” and “old”. For Pomponius, old and new wine were different commodities available at the same time: new wine was not the “debased” successor of the old wine. Reading the temporal aspect into D 12.1.3 the formula arrived at was simple: tempus dationis inspicitur. Mobilising the lex cum quid (D 12.1.3) to adapt monetary obligations to currency turbulences raised a further problem. The test established by reliance upon D 12.1.3 works for financial loans, but not for monetary obligations arising out of other contracts. Monetary obligations can arise from longterm leases, and indeed from all obligations to make recurring payments, originating, for example, from public law (pensions) or last wills, and, in all of these, the considerable time-lag between the initial agreement and the time for payment renders the obligation susceptible to turbulences in the currency. The test established by Pillius – later adopted by other glossators – does not work for such obligations. Perhaps Pillius was already conscious of the problem, because he subtly shifted his language from tempus dationis inspicitur to tempora primitive servari, the latter phrase being applicable to contracts other than those originating in a datio. Azo’s brocard was unambiguously applicable to all sorts of contract. Another lasting effect of the glossators’ approach was to place the issue of debasement firmly within the framework of interpretation of contracts. But for one small problem, this was a true achievement. Treating the problem as one of interpreting the contract leaves the parties the freedom – and indeed encourages them – to specify, in their contract, which coins should be used. Such clauses, already known in antiquity and still employed in the time of the glossators, raise, with the glossators’ blessing, the problem of “metallism” versus nominalism. If the law lets the parties decide, the only issue remaining is the default rule. For the glossators, the default rule was that money payments must make good the amount of silver represented by the sum owed, while a contractual provision was required to render acceptable the tender of coins of the same denomination. Later, when one turned to nominalism, the situation was reversed, and nominalism needed to be ousted by coinage-clauses, like the gold-clause, or – later on – by index-linking the debt. The small problem is that, if one sees the issue as effectively controlled by sensible interpretation of the contract, there is no solution for obligations arising otherwise than by contract.
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The glossators put money on the same level as other instruments used to make measurements (mensura vel moneta). The linking of money to units of measurement, typically statutorily defined, is a key feature of the medieval approach to currency issues. It was advocated, most notably, by Thomas Aquinas.70 We shall meet the money/measurement parallelism again in the texts of canon law.71 Seeing money as a kind of yardstick has become a commonplace, the story of which has been looked into elsewhere.72 It is sufficient to note that putting money on the same level as other means of measurement is an approach that does not have modern economists’ undivided support.73 Given the blurring of the distinction between coins and bullion, currency issues were handled on the basis of a few Roman-law texts addressing issues of non-cash loans. Solving these issues effectively on the basis of contractual interpretation meant that there was no incentive to develop a specific legal concept of money and provide solutions specifically adapted to the peculiarities of money as distinct from commodities. It seems reasonable to assume that the nominalist position, described in Azo’s brocard by the words superveniens moneta vel mensura debetur, sive maior sive minor sit (“the reformed money or measurement is owed, whether it be greater or lesser”), was not introduced just for the sake of argument, but was or had actually been subscribed to by one scholar or another. We often find that, in the textual transmission of the glossators’ writings, minority positions have been very successfully suppressed. The formation of the ius commune, requiring the development of new doctrines in great number – some altogether alien to the Roman law – may have involved much more scholarly dissension than we now tend to assume, given that texts such as the Glossa ordinaria convey the impression of relative harmony among the glossators.
70 Taeuber, Geld und Kredit (n 21) 227 n 648; on Thomas’ monetary doctrine(s), see exhaustively Wittreck, Geld als Instrument (n 35). 71 See section D. below. 72 On this issue, see W Ernst, “Money as Measure and Measure for Money”, in M Welker (ed), Monetarization and Standardization (2010) (forthcoming). 73 See, most notably, L Mises, Human Action: A Treatise on Economics (1949; repr 1996) II 327-333.
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D. CANON LAW ON COIN DEBASEMENT (1) Introduction Around the turn of the century, a number of decretals dealt with changes in coinage or measurements. The cases that they were meant to settle were less clear-cut than the cases which the civilians presented, in somewhat streamlined versions, to their students in the classroom. The decretals are more ambiguous, the monetary issue often being intertwined with other issues such as prescription. Over time, however, a number of decretals gravitated towards a rule similar to that stated in Azo’s brocard. We shall list, in an overview, this “network” of decretals, before looking for traces of a dissenting opinion. (2) Decretals on instabilities in the fields of money and measurement (a) 2 Comp. 3.25.3 Querelam (later X 3.39.26) 2 Comp. 3.25.3, issued by Urban III in 1187,74 was the first decretal that upheld the position that an older standard of coinage, established by a year-long use of a certain coin, fixed the creditor’s position for the future as well. The dispute, which was ultimately resolved by the decretal, had arisen because the creditor demanded payment in current Paris coin which was actually better than the local coin that had been tendered and accepted for several previous years. One must keep this case in mind if one wants to understand why later references relying on 2 Comp. 3.25.3 stress that the old coin is determinative, even if the new one is better. The decretal was reissued with substantial alterations by Gregorius IX as X 3.39.26. (b) 3 Comp. 2.15.4 Quanto personam tuam (later X 2.24.18) A key decretal turning on the ruler’s power to debase coins was issued by Innocent III on 5 April 1199. Since the decretal has been intensively discussed, there is no need for further exposition here.75 (c) 3 Comp. 3.37.3 ex parte Compostellani (later X 3.39.18) This decretal, issued by Innocent III on 23 March 1206, dealt with difficulties arising from the lack of uniform standards of measurement. The decretal takes a fairly liberal view, and shows some reluctance to require the use of 74 Taeuber, Geld und Kredit (n 21) 104-106. 75 Cf the literature cited in n 35.
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the contemporary bushel where the transaction was gratuitous, it not having been established in the proceedings which bushel had been used earlier.76 (d) 3 Comp. 3.37.5 olim causam (later X 3.39.20) This is the first decretal to deal head on with an issue of debasement. It is a fortunate coincidence that the debasement of the denarius from Lucca, which was so extensively dealt with by Pillius, was also the occasion of one of Innocent III’s decretals. Issued in the year 1200, we find the decretal in the Compilatio Tertia (3 Comp. 3.37.5), and later unchanged in the Liber Extra, referred to as olim causam (X 3.39.20).77 The bishop of Spoleto had a twice-yearly claim for payment against the clerics of a particular church in Rupo. For many decades, payment of the claim, which was for three denarii of Pavia, had been made using denarii from Lucca, since Pavia had discontinued the minting of its own denarii. The denarius of Lucca had lost about half its value and was held to be only half of an original Pavian denarius. The Pope held that the clerics must either use the Pavian denarii or make good the difference. The case also raised the issue of prescription – ignored here – since the “wrong” kind of coins had been accepted over quite a period of time. As to the monetary aspect, 3 Comp. 3.37.5 olim causam worked in favour of the creditor, who is protected against debasement by upholding the coin standard established by the earliest payments. Olim causam thus differed slightly from the civilians’ doctrine. The creditor can insist on payment being continued as before. The standard is not, as the civilians assumed, set by the contract or – in the case of loans – by the coins given to the borrower. Rather, one cannot depart from coinage already used in the past. It was problematic if the old coins, to which the debtor was referred, were no longer available or, as happened not infrequently, were no longer lawful money. In olim causam we find, perhaps for the first time, a clear-cut answer to this problem: if the old coins are no longer in use, the aestimatio is due. The debt expressed in old coins is to be reckoned in new coins. By this way, the debtor has to make good in full the debasement by paying a proportionally higher number of coins. We have seen that this idea had also found its way into Azo’s brocard. 76 See Taeuber, Geld und Kredit (n 21) 85 nn 217, 219, 228. 77 See P Landau, “Die Bedeutung des kanonischen Rechts in der Geschichte der Geldschuld”, in G Dilcher and N Horn (eds), Sozialwissenschaften im Studium des Rechts (1978) IV 165; Taeuber, Geld und Kredit (n 21) 107-108; W Taeuber, “Geld und Kredit im Dekret Gratians und bei den Dekretisten” (1954) 2 SG 445.
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X 3.39.20 olim causam was to become the chief canon-law text referred to on the issue of disturbed currency developments, and as such has been relied upon by civilians as well. We still find it advanced, as an argument against nominalism, in the nineteenth century by Friedrich Carl von Savigny.78 The decretal was also relied upon when the later monetary development saw the introduction of tariffs for various coins, an issue that we shall not look into here. (3) A nominalist minority position? There are plenty of lengthy glosses to olim causam, by contemporary and later authors, and olim causam was also frequently referred to in other money-related glosses within the canon-law corpora. It is interesting to note that several of these glosses registered an alternative position which favoured the use of contemporary coinage (and measurements), a position that, with regard to money, we would refer to as nominalist. The key text upon which this dissenting position was (or could have been) based was C. 32 q. 4 c. 6. To understand why this was so we look into an anonymous gloss that Johannes Teutonicus used, in his Glossa ordinaria, for C. 32 q. 4 c. 6: gloss tempori nostro to C. 32 q. 4 c. 6 It is argued that if heavier coined money is first circulating and later lighter coined money circulates by command of the prince, I shall be freed from my obligation by paying with the lighter. Argument based on D 18.1.71. Contrary texts: X 3.39.20; D 12.1.3; 3 Comp. 2.15.4 [= X 2.24.18] 79
Why was this monetary statement (arguing that if a ruler decrees the introduction of a lighter coin in lieu of a heavier one in circulation, I shall be discharged by using the lighter one for payment) placed at C. 32 q. 4 c. 6 in the first place, in the midst of the law of marriage? C. 32 q. 4 c. 6 is taken from St Jerome, who argued that Abraham had found favour with God in marriage, whereas today’s virgins find favour in chastity: Serviamus et nos legi et tempori nostro – “let’s meet our time and law as they seek us”.80 The reader is assumed to apply this to the monetary issue of coin debasement. We 78 F C von Savigny, Das Obligationenrecht als Theil des heutigen römischen Rechts (Berlin 1851) I 476; cf W Ernst, “Kanonisches Recht in Savigny’s System” (2010) 127 ZRG, KA 275. 79 “Argumentum, quod si primo currebat fortior moneta et modo currit vilior de mandato principis: liberor solvendi viliorem. argumentum D. De contrahenda emptione l. imperatores [D 18.1.71]. Argumentum contra extra, de censibus, olim [X 3.39.20], D. Si certum petatur l. cum quid [D 12.1.3] et extra III de iureiurando, quanto [3 Comp. 2.15.4 = X 2.24.18].” Also found as an anonymous gloss to the Bamberg MS of Gratian’s Decretum, BamSB MS Can 13 fol 207v. See Taeuber, Geld und Kredit (n 21) 104-106. 80 Contra Iovinianum, lib 2.
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are, the association with C. 32 q. 4 c. 6 suggests, to use the coins of our time, regardless of whether or not they seem debased when compared to older coins. To support this position, reference is made to D 18.1.71, a text that allows contracting parties to determine freely measure and price when selling wine. The other (majority) position is explained as well. Does the gloss side with the nominalist position? The placing at C. 32 q. 4 c. 6 suggests that this is so, because the key notion of C. 32 q. 4 c. 6 is the supremacy of present mores and laws over those of the past. Later editions (including Bartholomaeus Brixiensis’ revisions) made sure, however, that the reader was referred to the “proper” exposition of the law, namely by Bartolus and Alexander de Imola, which rephrased the classical doctrine as stated in Azo’s brocard.81 Taueber has assumed that Johannes Teutonicus himself subscribed to the nominalist position. Johannes’ own apparatus to the Compilatio Tertia does not support this theory: Johannes Teutonicus’ gloss vel estimationem to 3 Comp. 3.37.5: It is argued on the School question that payment should be made in old money, although new coined money may be better, and see above 3 Comp. 2.15.4 [= X 2.24.18] and above 2 Comp. 3.25.3 [= X 3.39.26] and D 12.1.3. For contrary argument see C. 32 q. 4 c. 6, D 18.1.71. Johannes82
We find both positions referred to, the canon-law mainstream now additionally supported by a reference to the Digest’s lex cum quid (D 12.1.3) upon which the civilian glossators relied as well. The juxtaposition of both views can also be found in a gloss by Vincentius Hispanus83 to the Compilatio Tertia (at 3 Comp. 3.37.3): Vincentius’ gloss to 3 Comp. 3.37.3 It is debated whether performance should be made according to old measurement, not to new, and in old coined money, although the new may be better, as above 2 Comp. 3.25.3, provided the old is still in circulation. Otherwise, the aestimatio will be paid, according to this contrary argument in C. 32 q. 4 c. 6. Vincentius.84 81 See, e.g., the edition of 1582 published at Rome. 82 Admont Stiftsbibliothek MS 22: “arg. ad questionem dominicalem quod ad ueterum monetam sit soluendum, licet noua sit melior, et supra de iureiur. Quanto, lib. eodem [3 Comp. 2.15.4 = X 2.24.18] et supra eodem Querelam, lib.ii. [2 Comp. 3.25.3 = X 3.39.26] et ff. si certum pet. l.iii [D 12.1.3]. Arg. contra xxxii. q.iiii. Quis ignorat [C. 32 q. 4 c. 6], ff. de contrahend. empt. Imperatores [D 18.1.71] jo.” Interim internet edn by K Pennington: http://faculty.cua. edu/pennington/edit323.htm, accessed 20 June 2009. 83 On him, see K Pennington, “The Decretalists 1190-1234”, in W Hartmann and K Pennington (eds), The History of Medieval Canon Law in the Classical Period, 1140-1234 (2008) 211 at 230-232. 84 BamSB MS can 20, found reproduced, with variants, in Taeuber, Geld und Kredit (n 21) 227 n 652: “Argumentum, ad veterem mensuram solvendum est, non ad novam, et ad veterem monetam,
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Here we meet again the parallelism between measure and money, a commonplace for civilians and canonists alike. An earlier dispute had been settled in a way that could be read as subscribing to a nominalist notion of money. The case is documented in the archives of the Quedlinburg monastery.85 The monastery had undertaken, in 966, to pay a yearly sum of “libra una argenti”, a pound of silver. In Germany, the lighter mark replaced the libra. The abbess kept sending one mark, arguing that a “libra” was now to be taken as a mark. The conflict was settled by arbitration, the archbishop of Mainz being the arbiter. He decided in favour of the monastery, and the pope conceded that the monastery henceforth could pay one mark of silver. The debtor thus could use for payment the number of coins initially fixed, although the coins now being paid were a debased version of them. It is not unreasonable to assume that a “more” nominalist approach had (or had had) some followers among the canonists as well. (4) The canon law’s classical position Early in the thirteenth century a canon-law doctrine had emerged that effectively coincided with the civilians’ doctrine epitomised in Azo’s brocard. In a classical language the canon-law rule was rephrased by Hostiensis in his Summa (ca 1253), taking up the dispute underlying olim causam: Next, if some coinage has been in circulation over forty years, and for individual years, cathedaticum has been paid in that money, and after forty years have gone by the coinage is altered recourse must be had to aestimatio of the prior coinage, unless prescription of payment in the second type of money be absolute … Therefore, payment ought to be made in the old coinage or in an aestimatio of it. And you ought to observe the same if a measure of wine or oil of a specified amount is owed, whether the standard of measurement be increased or indeed decreased.86
If there ever was a nominalist minority position, it had been effectively silenced. It would take roughly four centuries for the nominalist position to licet nova melior sit, supra, eodem titulo, querelam, libro II [2 Comp. 3.25.3] dum tamen vetus in usu sit. alias solvatur estimatio, ut hic argumentum contra XXXII q. IIII si quis ignoret [C. 32 q. 4 c. 6]. Vin.” 85 Taeuber, Geld und Kredit (n 21) 85; Taeuber, “Geld und Kredit Kredit im Dekret Gratians” (n 77) 462, quoting Antonius Udalricus ab Erath, Codex diplomaticus Quedlinburgensis (1764) 103 (not seen). 86 Hostiensis, Summa aurea lib 3 de censibus etc no 8 (1570) fol 304v/304r: “Porro si aliqua moneta currit per annos 40, et singulis annos fuit cathedaticum solutum ad illam monetam, et elapsis 40 annis mutetur moneta, ad estimationem primae redeundeum est, nisi prescriptione solutionis monetae secundi generis sit completa. [...] Ergo ad antiquam monetam, vel aestimationem eius solvi debet. Et idem intelligas si census vini, vel oloei ad certam mensuram debetur, sive augeatur mensura, sive etiam minuatur.”
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be revived, notably by Dumoulin.87 It was to become the position to which all advanced legal systems now subscribe. E. CONCLUSION: THE HUMBLE BEGINNINGS OF LEARNED MONETARY DOCTRINES It is now generally accepted that the various contributions of the authors of the scholastic age cannot be attributed to any shared uniform theory of money. There was no such thing as a uniform “feudal” concept of money, as once advanced by Emile Bridrey.88 Walter Taeuber, who has looked into a huge number of relevant glosses, found for the much narrower field of learned lawyers that their money-related deliberations did not result from a preconceived abstract theory of money.89 The surviving glosses therefore cannot be put together in order to arrive at “the” general theory of money prevalent in the age of the glossators. There was no “grand design” to which all glossators would have subscribed, nor any concept of money over-arching law, philosophy and theology. The glossators did not turn to ideas of distributive justice, which might easily have been employed to deal with the contractlaw problems caused by unforeseen currency turbulence. As in other fields of law, the glossators were anxious to stay close to the Roman texts. Each single lex was read on its own merits and interpreted in a way to make sense of the text in the light of the glossators’ own monetary environment. Mostly, the glossators relied on texts dealing with loan, disregarding the fact that monetary obligations arise out of other contracts as well. The loan-related texts, upon which the glossators relied, did not deal with financial loans at all, but with non-cash loans, because only in non-cash loans is quality an issue. The texts relied upon and the way they were construed betray a particularly medieval understanding of money (coins). The commodification of money is the most striking feature of the time. The power of coins to discharge an obligation was acknowledged only insofar as the coins effectively contained silver. The power to discharge an obligation was not linked to the coins being money – a mere means of exchange which can in turn be used to purchase other goods. With a little exaggeration, one could say that the glossators did not have any concept of money at all. Coins themselves were demonetised. Owing to the commodification of money, the idea that money, functioning 87 On Dumoulin’s contribution, see W Taeuber, Molinaeus’ Geldschuldlehre (1928). 88 E Bridrey, Nicole Oresme: La théorie de la monnaie au XIVe siècle (1906; repr 1978). 89 Taeuber, Geld und Kredit (n 21) 331-339.
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as a medium of exchange, could call for theories and rules of its own did not occur. To have a general (legal) theory of money would have been at odds with the prevailing notion that coins were a commodity and governed by the laws applicable to commodities in general. The commodification of money – of coins – was not the glossators’ doing. The commodification of money was a fact of life for which the glossators merely provided a matching legal approach. Given the state of monetary affairs, the distinction between precious metal – bullion – and “money”, minted coins, could not be perceived, from a legal perspective, as strictly as within a fully developed monetary system. To abstain from nominalist doctrines was a sheer necessity.90 Given that the silver content of coins was in flux, not only every now and then but practically all the time, the idea that coins, simply by their identical denomination, could be interchangeable regardless of their silver content would have been ludicrous. The field of money proves that the glossators were capable of reading the Roman-law texts in a way that extracted from these texts a contribution to the pressing legal issues of the time. The glossators thus tackled – and mastered – the task of adapting the Roman-law texts to a monetary environment which posed questions unheard of in the time of the Roman lawyers. It is to be admired, I think, that all issues, great and small, were looked into and answers were provided, based on ingenious interpretations of sometimes unrelated law texts of antiquity. It would take centuries for later doctrinal lawyers to undo the legal commodification of money and to restore an approach to money as a specific means of exchange. The canon-law doctrine emerged rather erratically, owing to the peculiar facts of the actual cases which the popes had to address. By and large, canonists and civilians were marching in the same direction, but not quite to the same tune. While the civil lawyers saw the debasement issue as one of interpretation of contracts and thus employed means of interpretation to establish, as between the contracting parties, the “correct” standard of coinage, the canon-law approach was more broadly based on a preference for old over new coinage, the old coinage being preferred because it had already been relied upon in the past. The idea of a parallelism between money and measure was employed by civilians and canonists alike. Canonists occasionally advanced 90 Speaking of nominalism, one should bear in mind that the argumentative juxtaposition of nominalistic and “metallistic” (or “valoristic”) concepts of money belongs to a much later period, namely the eighteenth and nineteenth century, when a huge battle for and against paper money was fought. If we speak of nominalism today, in an environment of pure token money, we have yet another problem in mind, the problem of inflation. Debasement of commodity-money and inflation, in times of token money, while showing similar effects, are different issues.
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leges from the Corpus iuris civilis, and since these leges were the ones the civilians relied upon for the issue of debasement, it is fair to assume that the canonists were acquainted with the legists’ monetary doctrines. Like their civilian counterparts, canon-law scholars abstained from grand theories. They did not fully develop the pros and cons of nominalism or “metallism”. Since debasement unsettles what can be seen as the just equilibrium of contracts, one might expect notions of distributive justice to be mobilised. That this did not happen seems even more surprising for the canonist side, especially in the light of recurring theoretical criticism of monetary nominalism voiced later on from a specific canon-law perspective.91
91 It has been held, as recently as 1974, that canon law must take a stand against nominalism, G Hubrecht, “La monnaie en droit canonique” (1974) 18 L’année canonique 115.
10 Citations and the Construction of Procedural Law in the Ius Commune Richard H Helmholz A. INTRODUCTION B. THE SOURCES (1) The Roman law (2) The canon law C. WORKING OUT THE DETAILS (1) The necessity for citation (2) Assignment of the day for appearance (3) The citation’s contents D. ENGLISH COURT PRACTICE E. CONCLUSION A. INTRODUCTION The subject of this volume is the creation of the ius commune. It is a large subject, even an unwieldy one. Where should a student begin? A possible starting point, the one taken in this chapter, is to select a vantage point and use it to examine in detail the ways in which the law was formed. It has long seemed to me that procedural law might provide a profitable view. So I picked it as a topic, finding in subsequent investigation that it does provide a good example of some of the ways by which the mature ius commune came into being. There were other ways, no doubt, and they may provide greater insights into the process. However, this one shines a light on the nature of the work done by the medieval jurists. This chapter concerns only one aspect of procedural law: that relating to citations, the process by which parties were summoned to appear before a court. The choice was not quite random. It was influenced by my own experiences in working through the records of the English ecclesiastical courts, some of which are the source of a brief description of court practice placed at the 247
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end of this chapter. But it was more than that. Chaucer’s summoner and the disreputable reputation of the men who delivered citations in English court practice,1 together with the disputes about citations found in the records of litigation, were also spurs for this choice. The subject is of intrinsic interest. How law suits should be begun is a problem faced by every legal system.2 And as my investigation went forwards, more and more the choice began to appear an appropriate one for studying the construction of the ius commune. I cannot say that it was typical. Indeed some things point to the existence of special characteristics in the law of citations. However, the subject does tell us something worth knowing. Three specific parts of the law of citations have been included in the chapter’s examination. First is the question of its necessity. Did one have always to issue a formal citation before adjudication? Second is the question of time. How long an interval had to come between service of the citation and the required appearance in court? Third is the question of the citation’s contents. How much information had to be placed in it to establish its validity? Other questions could have been selected, of course, for example, asking about the expenses of citation or about proof of service. There is material aplenty. Long folio treatises devoted exclusively to many aspects of subject came to be written.3 However, some limits were required. The task was to investigate how the ius commune came into being. The three topics chosen were important and are illustrative.4 B. THE SOURCES The starting point for examination, however, cannot be the work of the medieval jurists. It must be with the formal sources of the ius commune, the Roman law and the canon law. That is where the ius commune itself began. Doing so produces an apparently strange result. A survey shows how little the medieval jurists had to work with. Not nothing, of course, but much less than one might have expected for an aspect of court practice that would come to be called the fundamentum of any valid judicial sentence.5 Less also than 1 See S L Rogers, All Things Chaucer: An Encyclopedia of Chaucer’s World (2007) II 420-421. 2 S F C Milsom, “Trespass from Henry III to Edward III: Part III” (1958) 74 LQR 561 at 572-574; reprinted in S F C Milsom, Studies in the History of the Common Law (1985) 72-74. 3 See the treatises listed in M Lipenius, Bibliotheca realis iuridica (1757-1789; repr 1970-1971) I 212-213. 4 A useful description in English is contained in A Bevilacqua, Procedure in the Ecclesiastical Courts of the Church of England with its Historical Antecedents in Roman and Decretal Law (1956) 13-40. 5 See, e.g., Glos ord ad X 1.2.10 sv non conventi: “[C]itatio est principium sive fundamentum
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one would have supposed by starting from the rule that the medieval church vivit iure Romano. At least in this area of the law, one cannot fall back on the stock notion that the canon law simply took over an established part of Roman law. The institution was there, together with texts that could serve to shape the law in specific ways, but for several reasons the Roman law proved quite incomplete. Most of the detail necessary in a workable law of citations had to be discovered or created.6 (1) The Roman law In its earliest days, Roman law seems to have required not only that a complainant notify the defendant of his intent to initiate proceedings against him (the in ius vocatio); sometimes he had physically to bring an unwilling defendant to court.7 The summons was, however, a private act, and it is not always easy to collect its basic elements from the Justinianic texts alone.8 They do, however, contain information about the initiation of litigation and the process of bringing parties before a court. For instance, a text in the Digest envisioned three preliminary edicts, separated by ten days, then a peremptory edict, after which the magistrate could proceed to sentence whether the person summoned came or not (D 5.1.72). One text from the Code made a similar point, speaking of three denunciationes as effective against a contumacious party (C 7.43.9). Other texts, almost incidentally it seems, mentioned citation as an ordinary part of court procedure in specific instances, one without which any judicial action might be suspect.9 Some of them seem to have been based on a legal principle that both parties must be heard by the judge before their interests could be adversely affected.10 Whatever the potential inherent in them, the presentation of the subject seems disappointing at first sight. The Corpus iuris civilis did not contain a full or organised treatment of the process of citation. The Institutes had
ordinis iudiciarii”; Robertus Maranta (d ca 1530), Speculum aureum (1549) pt VI tit De citatione no 1: “[E]t dicitur fundamentum ordinis iudiciarii”. 6 K Pennington, “The Penal Process and the Protection of Rights in Canon Law”, in P Dugan (ed), Proceedings, Gratianus Series (2005) 45 at 53: “Although founded on Roman law, the ordo was new”. 7 Twelve Tables I:1, in M H Crawford (ed), Roman Statutes (1996) II 584-585; H F Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn (1972) 175-176; Kaser, ZPR2 § 10. 8 E Metzger, “Lawsuits in Context”, in J W Cairns and P J du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) 187 at 187-188; J M Kelly, Roman Litigation (1966) 6-15. 9 See, e.g., D 40.5.26.9. 10 See, e.g., D 42.1.47; D 1.7.39.
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virtually nothing on the subject.11 Neither the Digest nor Code had a title called De citationibus, and their most relevant titles, both called De in ius vocando (D 2.4; C 2.2), consisted mainly of cases in which a specific class of persons could not lawfully be cited – for instance, the Digest’s texts noted that children could not cite their parents (D 2.4.6), no one could cite a person who had taken refuge in his house (D 2.4.18), and a girl below puberty who was in another’s power was exempt from service of process (D 2.4.22). Only slightly more useful was the eleven-law title in the Code (C 7.43) in which it was stated that a sentence could be given against an absent person if that person had earlier been cited and deliberately absented himself.12 The likely explanation for the incomplete, indeed meagre, treatment of the citation – that the compilers of the Digest had to draw upon sources describing a procedure that had become obsolete by the sixth century – would have been quite unknown to the medieval jurists.13 They could not have known that Tribonian and his associates had felt obliged to leave much out because it was no longer relevant. In fact, official citation by the authority of the government had taken a more prominent place in practice. However, the men who formulated the medieval ius commune had to deal with the Roman law’s texts as they found them, working without any “historical sense” of the way the Digest had been put together, and what they found would have seemed inadequate for the task. Roman law thus treated the citation as a normal part of court procedure, but it contained no coherent or adequate treatment of the citation. No law set forth the contents required in a valid citation, although it seems to have been assumed that it should contain the name and authority of the judge before whom the defendant was being called to appear.14 Apparently, use of both oral and written citations was envisioned, at least under some circumstances.15 This aspect of procedural law must have appeared to the medieval jurists to have been an area of the law outside the main interests of the Roman jurists. They found many individual texts scattered throughout the Digest that touched upon the citation, and they made use of them. They were quite capable of making imaginative leaps in doing so – as in reading laws restricting rights gained by prescription to show that usage without citation 11 It was mentioned, for example, in J Inst 4.6.12. 12 Quomodo et quando iudex sententiam proferre debeat praesentibus partibus, vel una parte absente. 13 I am grateful to Professor Wolfgang Ernst for raising and discussing this point with me. 14 See P Collinet, La procédure par libelle (1932) 103-104; L Wenger, Institutes of the Roman Law of Civil Procedure, trans O H Fisk (1940) 94-99. 15 D 2.13.1.1; Collinet (n 14) 97, 99-100; see also Glos ord ad D 2.4.21 sv nemo extrahi.
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of the party affected was a nullity.16 Many leges thus proved relevant to the jurists through the process of analogy. However, they did not define what information had to be conveyed to summon a party to litigation. They did not tell readers what a citation had to be or contain. That was a product of later choice. (2) The canon law The medieval canon law was not much more directly informative about the citation, although it too contained texts relevant to the subject. Gratian’s Decretum (ca 1140) had little to say about the mechanics of court procedure, including this one.17 The Gregorian decretals (1234) contained no title expressly devoted to citations, nor did the Liber Sextus (1298). All these sources did include multiple texts devoted to stating jurisdictional rules, and some of them would become important in determining the validity of any citation.18 The texts also made certain advances on the existing Roman law. For example, a papal decretal of Urban III (1185-1187) used the word citatio to describe the opening step of litigation, purporting to make its issuance determinative of a judge delegate’s continued power to deal with the matter assigned to him after the death of the person in whose name he exercised jurisdiction (X 1.29.20). Similarly, papal decretals used the term in holding that a summons to court might be made in a defendant’s church or his house if he could not otherwise be found (X 2.14.10; X 2.14.3). A decree from pope Clement V’s council of Vienne (Pastoralis cura) stated emphatically that no person could lawfully be cited to appear outside the jurisdiction to which he belonged. The text was placed in the Clementines (Clem 2.11.2), and a long explanation of its meaning was incorporated into the glossa ordinaria. These texts stated rules of law. They could be read to emphasise the citation’s importance. However, only indirectly did they describe (or affect) the contents of the citation itself. No part of the corpus of the Church’s emerging law focused directly upon that question. It is to be contrasted with the libel and the litis contestatio, both of which were accorded a separate title in the Decretals (X 2.3.1-3; X 2.5.1). This did not mean, of course, that the canon law was useless in the construction of a law of citations. Indeed its texts turned out to be vital in 16 C 7.22.1, cited in the marginal gloss to X 1.2.10 and Glos ord ad id. sv non conventi. 17 See E Jacobi, “Der Prozeß im Decretum Gratiani und bei den ältesten Dekretisten” (1913) 3 ZRG, KA 223 at 265-270. 18 For example, could a defendant ignore a citation from a judge who lacked jurisdiction? Or must he appear and make a proper exception against the asserted jurisdiction?
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several respects. As noted, several of the Decretals mentioned the existence of citations, even requiring that a written record of their issuance be made (X 2.19.11). Evidently, the citation was to be considered a necessary part of the church’s procedural law. Some of the texts would also prove useful by way of analogy, and several were important for their statement of a principle of fair treatment of defendants. For example, Gratian’s Decretum contained a quaestio involving a bishop who was publicly accused of the commission of a crime. A papal letter stated that if the matter could not be settled peaceably, the bishop was to be cited to appear before the next provincial synod and be given adequate forewarning, including a written notice of the accusations so that he could be prepared to respond (C. 5 q. 2 c. 1). Gratian concluded that some sort of notification was obviously necessary; without it the bishop could not be required to respond, even if he were otherwise required to be present at the synod.19 The Decretals contained a text stating the principle even more forcefully. It was a papal letter from pope Gregory I refusing to decide a dispute without having heard both parties (X 2.12.1). The text made no specific mention of citation, but it did provide a good reason for requiring one, and it would later be taken up and employed for that purpose. The Decretals also contained a papal letter that would be similarly fruitful, one from pope Innocent III requiring particularity in stating the claim in a civil action over land (X 2.3.2). The defendant was entitled to know exactly which of the several parcels of land he owned was at issue before he could be required to respond in a cause being initiated against him. None of these texts was detailed or definitive, it may justly be said. Both could either have been distinguished or said to relate to something other than the formal citation used in court practice. However, they raised a matter of principle that was related to the purpose any citation served. They become important in an evolving law of citations. They both gave one reason for requiring citations in the first place – to give anyone to be adversely affected by civil or criminal litigation the chance to prepare a response to the case against him. C. WORKING OUT THE DETAILS The resources available to the medieval jurists for working out a sensible law of citations in the years around 1200 thus amounted to more than a blank page. The citation was an established part of the ordo iuris. It was in 19 d.p. C. 5 q. 2 c. 4.
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regular use in European courts. Its existence was mentioned in the laws of the Frankish peoples,20 and it was noted in some of the texts of the canon law. Principled reasons for requiring citation of a party to litigation when his interests were likely to be adversely affected were also stated in several places in both the canon and Roman laws. The necessity of prior notification in analogous situations, such as diocesan synods or monastic elections, was stated in the canon law. As a model of sorts, such texts were available to the commentators. Still, considerable work remained to be done. The earliest writers on the law did not do that work. The first decretists, writers on Gratian’s Decretum, were not encouraged by their text to discuss questions of court procedure, and for the most part they did not.21 The civilians, some of whom wrote expressly about procedure, were not greatly different. For instance, Placentinus, author of a Summa known as Cum essem Mantue (ca 1160), described the various actions available under the civil law without describing how the parties were to be summoned.22 Johannes Bassianus, writing in the 1180s, began his discussion of procedure with the libel rather than the citation. He did take note that in principle the defendant should not be obliged to respond to a plea in the absence of a written petition, but he seems not to have been thinking of a citation, but rather the plaintiff’s statement of claim. He did not comment on the citation.23 The Summa known as Ulpianus de edendo, written ca 1200, included a brief section entitled “De in ius vocando” and mentioned the existence of the apparitors who did the work of citing defendants, but did not describe the citation’s contents.24 Similarly Pillius, thought to have been a teacher at Bologna and to whom an Ordo iudiciorum from the late twelfth century has been ascribed, noted that the judge “should warn the pars rea to appear” at the start of any cause. However, he recorded no more about this part of the process.25 He referred 20 See, e.g., Lex Salica I:1, in E A T Laspeyres (ed), Lex Salica ex variis quae supersunt recensionibus (1833) 15; see generally A Engelmann, Der Civilprozess: Geschichte und System II § 35 (1890; repr 1970) 40-42. 21 See, e.g., J F von Schulte (ed), Paucapalea, Summa über das Decretum Gratiani (1890; repr 1965). 22 Placentinus, Summa De actionum varietatibus, ed L Wahrmund [= QGRKP IV pt 3] (1914; repr 1962) 1-4. 23 Johannes Bassianus, Summa Quicumque vult, ed L Wahrmund [= QGRKP IV pt 2] (1925; repr 1962) 1-8 at 7: “Reus enim non debet respondere, nisi scriptae petitioni.” 24 G Haenel (ed), Incerti auctoris ordo iudiciorum (Ulpianus de edendo), Tit. De in ius vocando (1838) 5-6. 25 Pillius Medicinensis, Summa de ordine iudiciorum, in F Ch Bergmann (ed), Pillius, Tancredus, Gratia, Libri de iudiciorum ordine (1842; repr 1965) 4. The same minimalist treatment is found in Damasus Bononiae, Summa composita, de ordine judiciario, in A Wunderlich (ed), Anecdota quae processum civilem spectant (1841) 46-47.
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his readers to the Novels, rather than to the Digest’s texts on procedure, perhaps because he knew that the texts from the title De in ius vocando no longer fitted the procedural pattern of litigation current in his times. Much the same was true of the earliest decretalists, commentators on then current papal decretals.26 Real progress on the subject seems to have begun only with Tancred of Bologna, whose influential Ordo iudiciarius appeared between 1214 and 1216. This treatise contained a separate section devoted to citations, using that name rather than the title De in ius vocando taken from Roman law,27 and it dealt with the subject in greater detail. With it in hand, one can turn directly to the three questions to be examined. (1) The necessity for citation The first question is whether or not a citation was required before process could be initiated against any person. An affirmative response seems axiomatic; it is a matter of fundamental fairness that a person be warned and given a chance to explain himself before his person or his property can be put in jeopardy. So it seemed then too. The rule was regarded as part of the law of nature by jurists in earlier centuries,28 and it was also stated, at least by implication, in some of the basic texts of the Roman and canon laws.29 What was not so clear was that it could stand as an absolute rule. Practice of earlier centuries, including actions taken by some strong and saintly men, had sometimes paid no attention to any such requirement. They acted.30 They had right on their side and they knew it. The Church’s sanction, excommunication latae sententiae, under which anyone committing certain acts in effect excommunicated himself, also seemed to stand against any argument that citation was necessary.31 The law itself provided sufficient warning. Anyone 26 See, e.g., Bernard of Pavia, Summa Decretalium, ed E A T Laspeyres (1860; repr 1956) 32-35; Bonaguida de Arezzo, Summa introductoria super officio advocationis in foro ecclesiae, in Wunderlich (ed), Anecdota (n 25) 166-171. 27 Tancred, Ordo iudiciarius pt II tit 3, in Bergman (ed), Libri (n 25) 132. 28 See, e.g., Panormitanus (d 1445 or 1453), Commentaria super Decretalium libros (1615) ad X 1.33.8 no 1. 29 See, e.g., C 7.43.7. See generally M Schmoeckel, “‘Neminem damnes, antequam inquiras veritatem’: Die Entwicklung eines hohen Beweisstandards als Vorgeschichte der Verdachtsstrafe”, in M Bellomo and O Condorelli (eds), Proceedings of the Eleventh International Congress of Medieval Canon Law (2006) 539. 30 Some pertinent evidence is collected in R H Helmholz, “Excommunication and the Angevin Leap Forward” (1997) 7 Haskins Society Journal 133; A L Winkler, “The Excommunicated Castle: Clerical Power and the Natural World”, in A Duggan et al (eds), Medieval Studies in Memory of Leonard Boyle, O.P. (2005) 231. 31 See P Huizing, “The Earliest Development of Exommunication latae sententiae by Gratian and
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who violated the law knew at once that he had incurred the church’s most serious penalty. In addition, there were practical problems. What if citation became impossible for practical reasons? Suppose the person to be cited hid himself whenever the process server appeared. Was the legal system to be powerless to do justice? The question of the citation’s necessity was therefore a real problem. When we look at the earliest proceduralists in the ius commune, what do we see? As noted above, the best starting point is Tancred’s Ordo.32 It made an advance on most contemporary canonical and decretal collections. His treatment also drew upon both Roman and canon law to state that no defendant should be declared contumacious unless he had been lawfully called to court.33 Tancred went on to state that although it was permissible to proceed against a defendant who ignored a single peremptory citation, equitable principles should move judges to cite the party again and wait for him to appear. In short, he at least opened up the subject to considering broader questions of how to do justice. It is true that Tancred’s treatment was not comprehensive. He devoted more space to stating the Roman law’s rules excepting certain persons and seasons from lawful citation than he did to discussing either the requirement of citation itself or the contents necessary in any written citation. Perhaps Tancred’s decision to devote a separate section to it as a part of statement of the ordo iuris was as important as any of his actual conclusions, but his treatment shows signs of fresh thought, based upon the underlying purpose of the citation. The thirteenth century witnessed a multiplication of works devoted to the ordo iuris.34 Not all of them discussed the citation, but most of them did, generally (as it appears to me) following the lead given by Tancred. Aegedius de Fuscarariis, for example, whose work dates from just after the mid-point of the century, described the citation as the foundation of the ordo and went on to discuss what it should contain. He also provided forms to be used in preparing one.35 He asked what would happen if a person lawfully cited did
the earliest Decretists” (1955) 3 SG 277; E Vodola, Excommunication in the Middle Ages (1986) 28-35. 32 Tancred, Ordo iudiciarius pt II tit 3 (n 27) 132. 33 Tancred, Ordo iudiciarius pt II tit 3 (n 27) 132. The two citations were to D 42.1.53 and X 2.8.1, the latter mentioned by Tancred only as furnishing a possible argument. 34 See generally L Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung (1984) 33-153; K W Nörr, “Die Literatur zum gemeinen Zivilprozess”, in Coing, Handbuch I 383-397; Lange, RRM § 54 I 443-445. 35 Aegidius de Fuscarariis, Ordo iudiciarius, ed L Wahrmund [= QGRKP III pt 1] (1916; repr 1962) 5.
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not appear, and answered his question after a fashion,36 but Aegedius did not confront directly the question of whether adequate citation was necessary for all valid sentences. He only hinted that it might be. When we reach the Speculum iudiciale of William Durantis, the most influential proceduralist of the early ius commune, whose treatise dates from the end of the thirteenth century, we seem to be in a different world. He followed Tancred in devoting a separate section to the subject, but he was anything but brief in his discussion of it. Indeed, he was prolix in the extreme. For example, where Tancred had simply mentioned peremptory citation, neither defining it exactly nor discussing its implications, Durantis devoted three folio pages to it. He stated that a special peremptory citation could be the basis of a valid sentence, though he also outlined the contrary view that was (apparently) held by some.37 He devoted many lines to the question of whether a citation could be peremptory in effect if it did not state in so many words that it was. In some sense this change in emphasis was appropriate. Single citation, presumed to be peremptory in nature, in place of the original threefold citation, had become the norm in ecclesiastical court practice.38 Durantis did not say this, but the attention he devoted to it may have been more than a result of his own habitual verbosity. But what did Durantis say about the necessity of citation? Very little actually. He raised the question of whether a person known to be contumacious had to be cited, giving brief textual authority for both sides of the question.39 He also opened up the difficult question of what status a citation “of all interested persons” had in law, discussing it inconclusively but at length.40 Such citations to appear and object to some step in litigation became a regular feature of court practice – as in the citation of all persons who had an interest in the estate of a decedent – and the matter deserved discussion. Durantis took it up, but he did not really face the larger question of the citation’s necessity and its practical effects. For all its length, his treatment of the centrality of the citation in canonical process disappoints. It appears that the question of the citation’s necessity only crystallised around the formal adoption of summary process in the canon law at the start of the fourteenth century. In the decrees Saepe and Dispendiosam, the church accepted and defined legal process simpliciter et de plano absque iudiciorum 36 Aegidius de Fuscarariis, Ordo iudiciarius (n 35) 11. 37 William Durantis (d 1296), Speculum iudiciale (1574; repr 1975) Lib II pt 1 § 3 no 8. 38 The commentators read a text in the Clementines to authorise use of a single citation; see Glos ord ad Clem 5.11.2 sv citationem. 39 Durantis, Speculum iudiciale (n 37) Lib II pt 1 § 4 no 19. 40 Durantis, Speculum iudiciale (n 37) Lib II pt 1 § 4 nos 20-23.
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strepitu et figura.41 The announced purpose of this reform measure was to cut down on unnecessary delays in litigation.42 The decrees had the inevitable if incidental effect of requiring a decision about which parts of the ordo iuris could be omitted and which could not. The citation belonged with the latter; indeed it was expressly so stated in Saepe. The initial jurist to devote his attention to the Church’s law on summary procedure, Johannes de Lignano, began his coverage with the question, “First is the question whether a citation is necessary?” answering it with a strong affirmative.43 It was required by natural and divine law. Indeed God had himself given the lead, as shown by the example of Adam in the Garden of Eden, whom God cited with the words “Adam ubi es?” He surely knew of Adam’s whereabouts, but he notified him anyway. Thereafter affirmation of the centrality and the necessity of the citation was a regular part of treatises dealing with procedure in the ius commune. Panormitanus, for example, reasoned that the purpose of summary procedure was to exclude “the pernicious subtlety of actions”, not to take away any form of defence available to defendants under divine law and the ius gentium.44 Therefore, it followed, citation was a necessity. It could not lawfully be removed by local statute or contrary custom. This view became a standard point of departure among procedural writers in later centuries. It was particularly apt for the criminal law. A representative example comes from the work of Jodocus Damhouder. He began his coverage of criminal procedure with the statement that citation was “of the substance” of any criminal cause, stating that its necessity was shown by the divine, natural, canon, and civil laws.45 Similarly, Julius Clarus began his own discussion of the law of citations with the statement that, “before all else, the defendant must be legitimately cited … otherwise the process and sentence and everything that follows against him are ipso iure void”.46 The point was established. As an accepted rule, its force for court practice seemed unequivocal. Despite such apparently conclusive statements, however, some commentators did go from this starting point to consider situations where citation might not be required by the law. Some were in cases one might expect. 41 Clem 2.1.2; Clem 5.11.2. 42 H K Briegleb, Einleitung in die Theorie der summarischen Processe (1859). 43 See Johannes de Lignano (d 1396), Super Clementina “Saepe”, ed L Wahrmund [= QGRKP IV pt 6] (1928; repr 1962) 1. 44 Panormitanus, Commentaria (n 28) ad X 2.1.6 nos 1 & 6: “perniciosam subtilitatem actionis non autem naturam actionis”. 45 J Damhouder (d 1581), Praxis rerum criminalium (1601) C. 13 no 1. 46 Julius Clarus (d 1575), Practica criminalis (1595) Lib V q. 31 no 1.
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A person already in court need not be cited by normal process; it would have been a pointless formality.47 A pope might validly confer a benefice on a supplicant without citing other parties who might have an interest in it, for example. Acting from the fullness of papal power, he could be presumed to have acted within the bounds of reason.48 If such exceptions were relatively narrow and unambiguous, others were not. They were more open-ended and debatable. If it were absolutely certain and notorious that a defendant had no defence to a claim made against him, reasoned Sebastianus Vantius and some others, a formal citation might be omitted.49 Such a person should not be able to hide behind a formal requirement to escape punishment. Similarly, the person who declared publicly that he would not come to court under any circumstances might be dealt with summarily.50 If he declared that no citation would have any effect on him and rode away, it seemed that none should be required. Process against the person who hid himself and could not be reached by ordinary methods also called upon juristic ingenuity to devise a remedy. Some jurists concluded that no citation would be necessary in these circumstances.51 The man’s contumacy would be undeniable. If a citation were to be required before he could be declared contumacious for disregarding a prior citation, the requirement would have been an invitation to paralysis. Therefore, a citation to have him declared contumacious would be superfluous. The general principle held that he should be given a fair warning and a chance to prepare himself, but that would not apply to the truly contumacious. There thus came to be many limitations to the rule, and modern readers are sometimes tempted to regard the process of elaboration of possible exceptions as a kind of a game, or worse. Adding to the list of exceptions does seem to have been something like a sport. The Neapolitan jurist Robertus Maranta compiled a total of thirty-one limitations to the rule,52 and it was said (by him) that another commentator had been able to put together a list of 115 exceptions to the rule requiring citation. However, for our purposes, the lesson that is more helpful for understanding the formation of the ius commune is that the exceptions occurred in situations where the purpose of the law was not
47 See, e.g., S Scaccia (fl 17th cent), De iudiciis causarum civilium, criminalium et haereticalium (1663) Lib I, c. 88 no 23. 48 A Gabrielius (d 1555), Communes conclusiones (1593) Lib II concl 1 nos 13 & 25. 49 S Vantius (d 1570), Tractatus de nullitatibus processuum (1567) tit ex defectu citationis no 20. 50 Gabrielius, Conclusiones (n 48) Lib II concl 1 no 317. 51 See, e.g., Panormitanus, Commentaria (n 28) ad X 1.33.8 no 2. 52 Maranta, Speculum aureum (n 5) pt IV tit De citatione nos 6-38.
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violated.53 The reason for citation was to give the person being cited a chance to be heard in his defence, just as God listened (briefly) to Adam’s explanation for his behaviour. Saepe and Dispendiosam, which were placed in the Clementines, stated the rule that followed from the example. Citation was not one of those elements that could be omitted, even in summary process. This had an effect both on court practice and on juristic thought. It established the basic principle. However, commentators could also look behind the texts to the reasons for the law. Those reasons turned out to admit of exceptions – just how many was open to the fruits of ingenuity and speculation. If the process of thinking about the reason for requiring citation permitted the jurists to make exceptions to the rule, it also worked the other way. Although excommunication latae sententiae seemed to permit, and even to require, punishment without citation, in fact the law was interpreted to require citation before a person could be denounced as excommunicate.54 The sentence of excommunication, in theory, retained its automatic character, but the denunciation by which it was made effective in practice required citation. The reason was that the person might have something to say in his own defence, and that value was what the citation provided. In this case, therefore, the ius commune was formed by taking an institution found in the Roman and canon laws and applying to it a principle ascribed to the law of nature. That principle could be found recognised in several texts of both laws. Its relevance to an institution of obvious and growing importance – the citation – seemed obvious. The spur for the process was the adoption of summary procedure in the early fourteenth century and the explicit statement in the decree permitting abbreviation of process that citations were not among those parts of the ordo that could be omitted. With this start, the jurists moved ahead. They developed the law of citations by thinking through the implications of the natural law’s rule that every person was entitled to be heard, and applying it to the exigencies of actual litigation. The result was to produce a complex body of law, one full of amplifications and limitations, and limitations of the amplifications, and amplifications of the limitations. Basic agreement among the jurists about the requirement of initial citation in most situations nonetheless remained intact.
53 See K W Nörr, “Von der Textrationalität zur Zweckrationalität: das Beispiel des summarischen Prozesses” (1995) 81 ZRG, KA 1; K W Nörr, “Rechtsgeschichtliche Apostillen zur Clementine Saepe”, in O Condorelli (ed), Panta Rei: Studi dedicati a Manlio Bellomo (2004) IV 225. 54 Antonius de Butrio (d 1408), Commentaria in Decretales (1578) ad X 5.39.9 no 3: “Tertio nota quod excommunicatus a canone est denunciandus”. For English practice, see F D Logan, Excommunication and the Secular Arm in Medieval England (1968) 139.
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(2) Assignment of the day for appearance How much time must intervene between the service of a citation and the party’s appearance before the judge? This is the chapter’s second subject. Obviously, the interval could not be as short as an hour, but it need not be as long as a year. What then should it be? This was an obvious question; obvious once the church had created a system of public courts. Some of the earliest proceduralists recognised it as a question.55 One may begin again with Tancred. He found his starting point, not in the Corpus iuris civilis,56 but in Gratian’s Decretum, where it was raised, albeit indirectly, in three different places and with three different results. Tancred appropriately began his discussion with a qualification: “according to the opinion of some”, he wrote, the answer is as follows.57 Then he took up the three possibilities he had found in the Decretum. The first (C. 5 q. 2 c. 2) came within a Causa supposing that a bishop had been slandered by a malicious writing which the writer could or would not prove. The canon, a decree of pope Silvester, stated that the writer should be punished, but that he must first be cited to appear and that no action could be taken against him for seven days. Thereupon further and more severe sanctions could be added to the first if he defaulted, but again not before additional time had elapsed, first another seven days, then two days and then two days and then one final day. This suggested a period of seven days might be proper in most situations. The second (C. 4 q. 5 c. 1), a decree from the Council of Carthage, held that no bishop could be suspended from communion without being given a warning and a chance to respond; the hearing must be appointed to take place no less than a month from the time of the initial warning. This suggested a month. The third (C. 24 q. 3 c. 6), again taken from a church council, set thirty days as the appropriate period of penance for a cleric who had acted wrongfully in excommunicating a person he should have known was innocent; but since it required a threefold citation, the period envisioned was actually longer. On that account ninety days might seem to be the appropriate interval between citation and appearance. Tancred buttressed the last with a citation to a text in the Authenticum, which was commonly inserted into early editions of the Code.58 All of these canons rested upon a principle: that some delay between 55 See Damasus, Summa (n 25) 46-47, giving a period of thirty days for each citation, but allowing judges to set a lesser period, citing D 5.1.72. 56 The Novels contained texts providing for ten days and for twenty days (Nov 53.3.1-2); the Codex Theodosianus provided for a period of forty days (CTh 2.6.1, 2.18.2) and one of twenty days (CTh 1.16.10), but none of these texts figured in Tancred’s treatment. 57 Tancred, Ordo iudiciarius (n 27) 132-135. 58 C 7.43.8; see also Nov 112.3.
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warning and hearing must occur, evidently to give the accused a chance to consider and respond. However, they were not in agreement on just how long that delay had to be. The principle did not answer the question. Tancred found a possible resolution; his response was twofold. First, he assigned a short period of seven days to cases in which the judge and the defendant were in the same city. Where they were “in the next city or not far away”, the longer period of a month would apply. If they were multum remoti, however, they must be cited by three citations separated by thirty days apiece, although this was somewhat undercut by Tancred’s admission that there could be one peremptory citation in place of the three. In any case, he brought some coherence to the possibilities raised in the Decretum. It made sense too – the further the distance, the longer the appropriate period of time. The distinction may have been something he hit upon himself.59 None of the texts actually mentioned the distance involved as a factor in setting the appropriate time. It was open to a commentator to look behind the words of the texts, however, in order to discern their true meaning, and Tancred’s suggestion fitted that way of thinking. So it might seem. In fact, it turned out to have been something of a feint. Having made this distinction and pronounced it “reasonable enough”, Tancred swept it all away. He continued, “[T]he general custom of the church holds the contrary”. There must certainly be some delay between citation and punishment. The judge cannot lawfully eliminate it. However, just how long the delay had to be was “arbitrary”, something to be determined by the judge’s discretion according to the quality of the parties, the difficulties of the cause, and the nature of the circumstances. Tancred supported this result with several citations from Roman law and papal decretals. None of the specific texts he mentioned actually required the result Tancred embraced, but some came close. For instance, a text from the Digest observed and endorsed the judicial practice of abridging proceedings during their course, according to the nature of the cause and the attitudes of the parties (D 42.1.2). A text from the Code also allowed procedural latitude to judges (C 7.45.4). Neither dealt specifically with citations or named any actual intervals of time, but their spirit certainly supported his conclusion.60 This resolution meant that Tancred’s initial attempt at harmonisation of the relevant texts from the Decretum became unnecessary, except as they tended 59 It might be said that the second was appropriate because it involved a bishop being judged by his metropolitan, and they would not have been in the same city, though they would also not have been separated by long distances, at least in Italy. 60 The others were X 2.28.4; X 2.28.5; C. 5 q. 3 c. 1; C. 3 q. 2 c. 8; C. 3 q. 3 c. 2; and D 5.1.72.
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in the same direction, which he may reasonably have considered they did. His usage illustrates the possibility of making “creative” use of prior canons, but the result he chose was based most directly upon a solution that had been worked out in practice. Other jurists of the time took the same tack.61 In this case, therefore, customary usages, tempered by an assessment of the