Aequitas canonica e periculum animae nello svolgimento del patto nudo in diritto canonico

Canon law made a fundamental contribution to the performance of nuda pacta, and more in general to obligations arising from promises. Indeed, the canonists asserted that the legally binding force of various types of agreements did not depend on their form or their solemnity, nor on part performance by one of the parties, but rather on the intention of the parties at the moment of entering into the agreement. While it was true that canon law required a party to keep his word because of ratione peccati, it was the ratio scandali. On the contrary, the main criterion ad servandam aequalitatem rerum inter homines was that of commutative justice: the virtue regulating relations between individuals. Only through such a practical/moral remedy could proportionality and congruity be ensured in the duties arising from the agreement.Generally speaking, the canonists took up two different stances on the issue: one advocated action based on canon law itself, the other, more moderate opinion, which continued to define the problem in spiritual terms. It was not meant to exalt the will and agreement of the parties, but rather the ethical concern of repressing sin. It was a different way of understanding the origin of such an obligation, as “non est gerendum aliud in corde et aliud esprimere in ore”.