Формирование учения о договоре в правовой науке Западной Европы (XII– XVI вв.)

M. : Издательство Проспект, 2016.

Poldnikov D.

This book presents the results of the first comprehensive investigation of how the general theory of contract emerged in the Western European legal science in the 12th through 16th centuries. The author studies legal treatises of the leading jurists of the Middle Ages and early Modernity, as well as non-legal (theological, ethical, philosophical) sources of the Antiquity and the Middle Ages, in order to uncover the preconditions, periods and principal results of the generalisation of casuistic provisions on agreements, contracts and promises according to the Roman laws, church canons, and local laws around the general concept of contract as the act of just exchange of goods or services or the act of liberality between private persons. The theory of contract is presented as the combination of two models of contract in the medieval ius commune: agreement-based (in the commentaries on Roman law) and promise-based (in the church canons). It is argued that the synthesis of the two models in the 16th century is due to the efforts to reduce the Roman classical law to an art (as in the case of the French humanists) or to explain every rule of positive contract law through the ideal concepts of natural law and commutative justice (as in the case of Spanish legal thinkers).  The book is addressed to legal historians, comparatists and students who focus on the foundations of European legal tradition in the domain of contract law and private law.

Keywords: reception of Roman law, glossators, рецепция римского права, глоссаторы, post-glossators, contract law, кауза договора, постглоссаторы, канонисты, вторая схоластика, history of private law, methodology of law, School of Salamanca, theory of contract, canonists, causa, теория договора, история частного права, методология юридической науки