Early modern comparative contract law

• Published in: Comparative legal history (Hart Publishing (Oxford, England)) Vol. 12; no. 1; pp. 4 - 28
• Main Author: Alexandrowicz, Piotr
• Format: Journal Article
• Language: English
• Published: Routledge 02.01.2024
• Subjects: canon law; comparative method; contract law; Roman law
• ISSN: 2049-677X; 2049-6788
• DOI: 10.1080/2049677X.2024.2349850

Contract law was one of the main subjects discussed in the early modern legal genre of differentiae iuris civilis et canonici ('differences between civil and canon law'). Similar topics were covered in both late medieval and early modern differentiae - hence this genre offers a good opportunity for comparative historical research dedicated to selected topics of contract law (such as those discussed here: the actionability of bare agreements, stipulation for the benefit of a third party, overreaching in contract formation and the lease of a house to a scholar). An examination of the sources proves that the authors of early modern differentiae applied the comparative method in their works. This involved the presentation of sources and rationales from the two bodies of law, the interpretation of sources and arguments in favour of the solutions offered, references to the then-current legal literature and practice and most importantly the preferred method of reconciliation for conflicting laws.