Libertas contractus. Paolo Comitoli SJ (1545–1626) on freedom of contract in light of early modern private law

Abstract

The paper presents the results of research devoted to the concept of freedom of contract in the writings of an early modern Italian Jesuit, Paolo Comitoli. He claimed that freedom of contract was one of the attributes of contracts and it was essential for the consent of parties entering into a contract. He distinguished between three types of this freedom. Freedom of will was a prerequisite in case of any and all human actions including contracts. Voluntariness was tantamount to a requirement for the will of the parties, which led to the consent to the contract, and it was the result of a voluntary decision which was not disturbed by any vices. Freedom of ownership enabled the parties to conduct a transfer of the object of contract in its broadly understood sense. Comitoli’s concept of contractual freedom was an expression of his belief that voluntary consent of the wills of the parties as the foundation of contractual consent was the basis and the main cause of a contract.