Representation and Ostensible Authority in Medieval Learned Law
Guido Rossi
Studien zur europäischen Rechtsgeschichte 319
Frankfurt am Main: Klostermann 2019. XII, 598 p.
ISSN 1610-6040
ISBN 978-3-465-04390-4
Persistent link to the online version:
https://dx.doi.org/10.12946/steurg/319
When is it possible to hold valid an act done unlawfully? To answer the question, medieval civil lawyers focused mainly on the case of a slave elected praetor in the mistaken belief that he was a Roman citizen. Most jurists argued that the validity of an act should depend on the validity of its source. But whilst early civil lawyers thought that the source was the person vested with some specific powers (such as the judge, the notary, etc.), later on they began to conceive of the person as representative of an office, and to ascribe the acts directly to the office itself. This evolution – and so, the foundations of the concept of ostensible authority – was due to the influence of canon lawyers, who had to deal with a similar problem: what if a bishop was secretly heretical?
Contents
Foreword | XI
Main abbreviations | XII
1 Introduction | 1
Part I: From Accursius to Bartolus (via France)
2 The Accursian Gloss | 17
3 Postglossators and Common Mistake: a tale of Odofredus, Jacobus de Arena and Butrigarius | 61
4 Ultramontani & Co | 89
5 A fragile synthesis: Bartolus de Saxoferrato | 161
Part II: Canon law and the development of the concept of toleration
6 From Gratian’s Decretum to its Gloss | 189
7 Innocent IV and toleration | 241
8 Toleration in the aftermath of Innocent IV | 283
Part III: Baldus de Ubaldis and the limits of representation
9 Toleration without representation: Albericus de Rosate | 317
10 Baldus’ writings on the lex Barbarius | 333
11 The anatomy of representation | 345
12 Baldus and the lex Barbarius | 397
13 Extensions of the lex Barbarius to other cases (or vice versa) | 463
Part IV: Barbarius post Baldum
14 From the lex Barbarius to the brocard error communis ius facit | 489
Conclusion | 529
Appendix | 535
Bibliography | 539
Index | 581
