French law had reached a significant level of growth and sophistication by the early
14th century, largely through the suppression of the judicial duel, the transformation and
elaboration of the appeal, and the institution of the enquête as the system of proof. Louis
IX must receive major credit for these accomplishments. But French law, so far as legal
doctrine was concerned, had become an amalgamation of the revived Roman law, with
influences from canon law and the great body of customary law.
The working of this amalgamation can be seen in contractual obligations, a field of
legal activity that grew at a remarkable rate in the 13th and 14th centuries. The revival of
towns and economic activity in the 11th century, a much larger commercial class
produced by the new urban centers in the 12th and 13th, and the striking population
growth of the same period were basic factors behind the noticeable rise in contractual
activity. Beaumanoir in his great law book gave prominent space to contract, and it is a
subject that illustrates how Roman law, canon law, and customary law contributed to the
theoretical and practical aspects of this field of legal doctrine. Those who judged and
those who counseled in cases on contract knew that the language of a contract and its
clauses must be clear, so that the business or object sought in the agreement was made
certain and could be determined beyond doubt when the need arose. These qualities of
the contract made it valid and could in litigation ensure forced execution if required.
A second requirement of the contract as a legal instrument was that the object of its
provisions must be possible. If the thing agreed upon did not or could not exist, the
contract was invalid. An example without intent of fraud is the agreement to deliver a
horse that, unknown to its owner, is already dead. An example involving fraud is the
promise to sell a thing that he knows does not belong to him.
The third quality of a valid contract required that it be lawful, that its provisions not go
against legal concepts or ideas that were considered mandatory. The most complex of the
three conditions, in Christian Europe it played to a more moral than juridical viewpoint.
Roman law had taught that the law could not be set aside by the agreement of parties, that
a contract made contra bonos mores was tantamount to being made contra legem.
Adopting this view, the medieval church taught that an oath that put the soul or the life of
a Christian in peril could only nullify the obligation that it was supposed to enforce. The
postglossators of the 13th century and the canonists came together in supporting the view
that a contract was invalid if it tended to defeat a law made for the public utility (utilitas
publica) but its validity was not harmed if it worked against a law that concerned only
private utility (utilitas privata).
The books written on customary law in the 13th century promoted the view that
“agreement conquers law,” but they recognized at the same time that the only agreements
that should not be kept were those made against Holy Church or the common profit, or
against good customs (contre bonnes meurs). In this way, customary law supported basic
legal concepts that came originally out of Roman and canon law. Customary law also had
its own view of “public order” in its treatment of inheritance. The widow whose dead
husband’s property was sold to satisfy his debts to the king could reclaim parts to fulfill
her dower.
Franklin J.Pegues
[See also: BEAUMANOIR, PHILIPPE DE REMI, SIRE DE; CANON LAW; CAS
ROYAUX; COUTUMES; ENQUÊTEUR; GRATIAN; JUGE-MAGE; JUGE-
Medieval france: an encyclopedia 1010