Theologians and contract law : the moral transformation of the ius commune (ca. 1500-1650)

Extremely vast. Extremely difficult. Extremely useful. These unambiguous adjectives prominently appear in the introduction to the Spanish Jesuit Pedro de Oñate’s (1568-1646) four-volume treatise On contracts. They are meant to capture the essential features of contract law. The myriads of contracts concluded every day, Oñate warned his readership, make up an ocean that is deep, mysterious and capricious. Contracts are the inevitable means enabling man to navigate his way either to the salvation or to the destruction of his material goods – and of his soul. Therefore, he considered expert knowledge of the complex field of contract law to be indispensable for confessors who needed a nuanced solution to practical cases of conscience. Each contract was thought to express a moral choice for either virtue or vice, for avarice or liberality, for justice or fraud. To live is to enter into contracts, according to Oñate, and to live a God-pleasing life is to conclude contracts in a manner that is consistent with the imperatives of Christian morality. To help confessors decide how Christians of all trades, including princes and businessmen, have to live their lives, this Spanish Jesuit expounded what such a Christian view of contracts should look like. Oñate’s work stands at the end of a vibrant tradition of scholastic contract law, which will be subject to meticulous analysis in the chapters that follow. Scholastic contract law evolved all across Europe over a period of more than half a millenium. By the 1650s, it had come to fruition in the works of major theologians of the Spanish Golden Age, such as Domingo de Soto (ca. 1494-1560), Tomás Sánchez (1550-1610), and Leonardus Lessius (1554-1623). It had left its mark not only on the Catholic moral theological tradition, but also on canonists such as Diego de Covarruvias y Leyva (1512-1577), civilians such as Matthias van Wezenbeke (1531-1586) and natural lawyers such as Hugo Grotius (1583-1645). Slowly but effectively, the Roman law of the late medieval period used all across Europe, the ius commune, was transformed into the image of Christian morality. The consequence of this transformation, in Oñate’s own words, was the restoration of ‘freedom of contract’ (libertas contrahentibus restituta). This ‘freedom of contract’ granted contracting parties the possibility to enter into whatever agreement they wanted on the basis of their mutual consent. They could then have their contract enforced before the tribunal of their choice. The following pages intend to analyze theologians’ conception of this principle of ‘freedom of contract’ and its limits