Pacta sunt servanda: Canon Law and the Birth and Dissemination of the Legal Maxim

Introduction

The 'pacta sunt servanda' maxim is nowadays a common saying, which, apart from its presence in legal scholarship, can easily be found in various press releases or even heard in ordinary speech. It conveys the simple message that promises or contracts should be kept, and it is one of the legal maxims best recognized outside the hermetic legal bubble. Obviously, the practical significance of the rule of law behind these three words is a broadly debated issue within the topic of freedom of contract. The meaning of 'pacta sunt servanda' was different in various legal orders and evolved over the course of time. What seems to be a still undeveloped issue, however, is the very origin of these three words put in a row.

This paper has two aims concerning only selected issues from the vast history of freedom of contract and the contribution of medieval canon law towards it. The first objective of this paper is to offer an elaboration on the author(s) and date(s) which should be linked to the landmark of the formulation of the 'pacta' maxim within canon law jurisprudence. To reach this objective, firstly a brief overview of the discovery of freedom of contract in medieval canon law will be presented, and this will be followed by a study on the evolution of the legal formulas developed by the canonists. The second objective is to outline the nature and significance of one of the important means of dissemination of the canonists' doctrine, i.e. the famous 'summarium' from the Decretals: 'pacta quantumcunque nuda servanda sunt' (X 1.35.1). As a consequence, it is beyond the scope of this paper to examine the history of freedom of contract or the growing significance of the 'pacta sunt servanda' maxim in modern civil law jurisprudence.¹ The study will focus only on the 'pacta' maxim but obviously there were other relevant canon law adages which were of importance for contract law, such as those linked to the linguistically parallel concept of 'fides servanda' (e.g. frangenti fidem fides non est servanda, fidem frangenti fides frangitur).²

The principle: 'pacta sunt servanda'

In very general terms, contract law can be governed by one of the two models. In the first, contractual nominalism, the state provides the protection of parties' rights in courts only when they have concluded agreements listed in the statutes. In the second, contractual freedom, the state declares that it will protect all agreements which meet the general criteria specified in statutes, such as good faith, accordance with local customs, or consistency with legal provisions. The history of contract law in Western legal tradition is a movement from contractual nominalism (evolving over centuries) to contractual freedom (with its various limitations).

The first model was typical for ancient and medieval Roman law.³ Only selected types of agreements (nominate contractscontractus) which were entered into with the application of specified norms provided the parties with full protection. Over the course of time this group of agreements was enlarged and came to include also innominate contracts and certain types of informal agreements (pacta) which, for various reasons, also gave rise to a claim (while typically a party to the 'pactum' was given only passive protection, namely exception). The flexible contract of stipulation provided the parties with an additional tool for addressing a very wide range of services which may be transmitted through contracts. Nevertheless, Roman contract law moved towards freedom of contract, but it never reached it and remained a model founded within the framework of contractual nominalism. Medieval Roman law accepted the same model, adding several innovations and new conceptualisations which, however, did not shift the very nature of this model of contract law.⁴

The new approach was developed for the first time within the Western legal tradition by the jurisprudence of late medieval canon law. The subtleties of canon law of agreements in the Middle Ages have been profoundly described.⁵ It is also often stated that the canonists developed the principle of freedom of [End Page 196...