In 12th century the church needed a special body of contract law to control economic relations between ecclesiastical corporations. The canon law of contracts is considered as an area of civil jurisdiction which is operated by canon law. In this law, canonists used texts of Justinian which were rediscovered by the glossators. Because Roman law was a great source for canonists due to its massive improvements in the field of contract law. In later periods, canonists not only used ideas of glossators in theory of contract but also made some additions to Roman law.
Canonists added new principle into Romanist legal science that was called penitential discipline. According to this principle, promises are binding regardless of being “clothed” or “naked”. But it did not mean that all promises are legally binding. Therefore, the agreement that had a proper causa assumed as legally binding. “There was causa if the promisor had in view a definite result, either some definite legal act or something more comprehensive such as peace. And in order that morality might be safeguarded, it was not only necessary that the promisor should have an object but that this object should be reasonable and equitable.” (Harold J. Berman, 1983)
In contract law, it was required to keep balance of gains and losses between both sides. It was called “just price” principle. If one side was given less than “just price”, he or she could sue the opposite side. Thus the contract was considered as an invalid contract. According to “Law and Revolution” by H. Berman, if there was a misrepresentation or a mistake about the market price, Romanists created different remedies for the victim. The principle of “just price” was applied not only in Roman law but also in canon law. Canonist used this principle in marriage contracts to help victims.
One of the important factors in contract law is usury. According to the article “What does the church say about the usury” by Cathy Caridi, the meaning of this term has changed over time. In the past, the church prohibited the usury due to religious aspects. It was accepted as a sin. However in later times, the situation has changed because of improvement on economy. The church itself needed the money for endowing fairly large-scale enterprises. Judge of the United States Court of Appeals Circuit John Noonan indicated, ‘The purchase of annuities by churches and pious institutions was on a very large scale… The papacy itself often had large idle sums on deposit in banks.” Thus canonists started to create the law of usury. The church somehow allowed the usury in contracts in the meaning of “interest”. Nowadays usury is banned in most countries by Catholic Church according to the Code of Canon law.
In conclusion, canon law contracts have played a crucial role to control the economic relations. It was based on Roman contract law. Despite some differences among other contracts, canon law contracts also helped to develop the theory of contract law.
- Harold J. Berman, Law and Revolution, 1983, pp 245- 250
- Coriden, A Text and Commentary, p. 38 (commentary on Canon 22).