Representation and Ostensible Authority in Medieval Learned Law

Guido Rossi

Studien zur europäischen Rechtsgeschichte 319
Frankfurt am Main: Klostermann 2019. XII, 598 S.

ISSN 1610-6040
ISBN 978-3-465-04390-4

Zitatlink für die Online-Ausgabe:

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?


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

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