La promesa entre el derecho y la moral : de obligacion juridica a obligacion en conciencia : reflexiones para su estudio historico

Usually, legal rules taken from the Justinian Compilation, reworked by successive authors, have served as a vehicle for the development of legal science in Continental Europe. In some cases, however, like that one here studied, such provisions have been revealed as the greatest obstruction to open up new ways of interpretation, coming from multiple situations in eveyrdaylife. This has happened, specifically, in the case of the actionability of the pacts, principle inferred from what has been formulated in D. 2.14.7.4. This rule, insistently quoted both by the Bolognese civilists and the 16th-century humanist lawyers, became quickly the most constant and effective bulwark against the recognition of freedom of contract. At least, until canonists proposals, assumed as their own by the theologians of the School of Salamanca, succeeded in leading even the most recalcitrant jurists to subscribe to the opposite principle: “pacta quantunque nuda, servanda sunt”, though not in general. In the theoretical construction of the nude promise, the contribution of Canon law to the reading of Roman sources represents, in fact, a moment of both continuity and innovation. The ‘moral’ value of obligation -or what is the same, the commitment contained in it, through the ‘given word’- would become a required reference point for a new construction of the obligatory link. Thus, if the problem of the relationship between contract and promise can be summed up in the exact definition of these two concepts, depending on the legal relevance of the former and on the moral sense of the second, it is undeniable that from a certain point in time, the obligation in conscience, considered only on the basis of its ethical connotation, would be attributed an strictly technical meaning, making it, as such, punishable in judgement. The means, therefore, to rule out the old doctrines would be the development of the meta-legal principle of good-faith, which would end up being understood as an expression of values of fairness and correction in the legal area. And as such it remains operational, in our view, in the conflict between ius communitatis and ius commune odiernum in order to settle the principles of the European contract law.