Kanonistyczne uzasadnienie swobody umów w zachodniej tradycji prawnej
The Canon Law Justification of Freedom of Contract within the Western Legal Tradition

Author(s): Piotr Alexandrowicz
Subject(s): Law, Constitution, Jurisprudence, Civil Law, Canon Law / Church Law
Published by: Wydawnictwo Naukowe Uniwersytetu Adama Mickiewicza
Keywords: freedom of contract; contract law; canon law; contract theory
Summary/Abstract: This monograph provides a historical overview of the justifications for freedom of contract, which was developed in the Medieval study of canon law, its impact in the modern era and its relevance for present-day discussions on the freedom of contract. Canonists were the first in the Western legal tradition to put forward solutions for private law that reflect the contemporary model of freedom of contract. To support their concept they used three arguments: the first was rooted in the authority of the sources of law available to them at the time; the second imposed an obligation to abide by the rules of the contract stemming from the concept of a sin of breaking one’s promise; the third was related to the importance of the concluded agreements for strengthening social order. The argumentation used in the Medieval teaching of canon law has met with various receptions in the modern era. Some movements took it on board (the canonists, the second scholasticism), some others rejected it (legal humanism), while for others it served merely as a useful example (Dutch jurisprudence, usus modernus Pandectarum), and ultimately it was functionally similar to some (the school of natural law). As a result of the establishment of a general theory of contracts at the turn of the eighteenth and the nineteenth centuries, which presumed the freedom of contracting, the question of the binding power of the concluded agreements lost its relevance. The answers to this question can be found by referring to the forgotten Medieval canonist tradition or the English theory of contract. Both these sources provide similar arguments, which can be useful in the discussion on the limits of the freedom of contracts alongside legal dogmatics.

• Details
• Contents