Dmitry Poldnikov1
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation

Binding force of contracts: views of XVI th century school of Salamanca

2011. No. 2. P. 39–50 [issue contents]

Poldnikov Dmitriy - Associate Professor of the Department of Theory of Law and Comparative Law, Law Faculty, National Research University Higher School of Economics, PhD (history).  E-mail: dpoldnikov@hse.ru
Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.

This article presents the view of the School of Salamanca of the late medieval scholastics (16th century) on the binding force of contracts – a key problem of contractual theory. The legal theory of binding contracts of the School of Salamanca is represented as a requisite chain between the medieval civil law and contractual doctrines of the followers of natural law promoted in the Modern Age. The lack of the binding principle of all the legal agreements in Roman law until the 16th century was in line with the view of medieval civil law scholars to defy the rule promises must be kept (pacta sunt servanda) from canon law. The representatives of the School of Salamanca gave a rationale to the rule in all the legal systems of Continental Western Europe. The contractual theories of the school were being formed in Spain’s golden age – the period of cultural, political and economic rise, caused by the political unification of the country, colonial conquests and the leading role of the Spanish monarchs in Western Europe. Being influenced by the new trends, Spanish theologians and legal scholars of the 16th century legal scholars (Domingo se Soto, Francisco Suárez, Luis de Molina, Leonardus Lessius etc. got engaged with the reform of medieval legal doctrines ius commune on the basis of moral theology, the philosophy of Thomas Aquinas and canon law. The development of contractual law resulted in an original theologian and legal theory well represented in the treatises entitled collectively De iustitia et iure. The typical features of the theory were a successive description from the general to the particular, distinguishing common principles of contract law and rules for certain contracts. One of the provisions was represented with the principle of the binding authority of all promises both mutually beneficial and gratuitous except they are given on an actual basis (causa) and accepted by the creditor. When formulating the principle, the representatives of the School relied on the concept of promise in canon law, Catholic theory on Christian virtues and views of Aristotle and Thomas Aquinas as to the nature of contractual relations. On the basis of the obligation of a contract, later scholars determined the order of concluding a contract on the basis of offer and acceptance and discussed the binding force of unaccepted promises. The significance of the theories of late scholars of the School of Salamanca is seen not only in their own interpretation of the ius commune principle but the influence on the theory of promise developed by Hugo Grotius in De jure belli ac pacis libri tres (1625)and some other scholars of the Modern Age.

Citation: Poldnikov Dmitry Jurevich (2011) Problema obiazatel'nosti dogovorov: vzgliad Salamankskoi shkoly XVI veka [Binding force of contracts: views of XVI th century school of Salamanca ] Pravo. Zhurnal Vysshei shkoly ekonomiki, 2, pp. 39-50 (in Russian)
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