EQUITÀ NEL DIRITTO MEDIEVALE E MODERNO: SPUNTI DELLA DOTTRINA

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Antonio Padoa-Schioppa *
(*) Autore principale:
Antonio Padoa-Schioppa | antonio.padoaschioppa@unimi.it

Abstract

The ethical and legal aspects of the of the idea of aequitas have been discussed widely since the early age of the Glossators, always on the basis of the fundamental definitions given by Aristoteles and by Cicero, as well as with reference to several (and dissenting among them) texts of the classical and postclassical Roman law present in the Justininan Corpus iuris. This article aims at focusing some significant phases of an uninterrupted debate, that is still open and alive in the present asset of the legal doctrines: from Irnerius and the four Doctors of the XII Century to the aequitas of the classical canon law, from the Commentators of the XIV Century (Baldus de Ubaldis) to the early italian city statutes and the mercantile jurisdiction of the guilds, from the English Equity to the Milanese highest Court (Senatus) of the XVI-XVIII Centuries, from Cuiacius to Grotius. At the centre of this debate are the ways suggested and discussed in order to shape a correct relationship between ius strictum and ius aequum, a aspect of the legal world that both the doctrines and the courts have had to deal with in any time.

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