Full Description
This volume sets out to explore the relationship between individual will (voluntas) and the legal rule. What unfolds in the following pages is a wide-ranging itinerary, moving between past and present, most notably ancient Rome and the contemporary world.
The guiding question is as radical as it is enduring: in what way can voluntas (a psychological impulse internal to the individual) come to determine the legal rule? European private law tradition rests on the premise that legally binding acts - contract and will, to mention only two paradigmatic cases - derive their force from individual will. From the Roman sources arises, with exemplary force, the notion of lex privata: the idea that private will itself may generate binding legal norms. Such a premise immediately leads to further questions. Above all, it compels reflection on the authenticity of that will: what if voluntas is compromised? The law of defects (error, dolus, metus) opens the problem of whether distorted or corrupted will can truly sustain the validity and effects of a legal rule.
The reflections gathered in this book approach the European civil law tradition as a broad and unified phenomenon, one in which law is inseparably bound to the historical and cultural contexts in which it takes shape.
Contents
Introduction. Part 1: Hypothesis. Individual will as a norm 1. Will and knowledge 2. The contract between will and norm 3. Voluntas as lex. The ancient roots of a modern legal idea Part 2: Problems. Individual will and decision-making 4. The legal force of the individual will: Reflections at the intersection of political philosophy and legal theory 5. Voluntas and lex contractus in the interpretation of standard clauses 6. Legal voluntas ex machina. The impossibility of non-performance in the age of code Part 3: Dynamics. Individual will in action 7. Will and rule in civil proceedings 8. The will in the per formulas procedure in Roman Law. The actio Part 4: Pathology. Imperfect individual will 9. Error and contractual synállagma in Ulpian's thought 10. Error and last will in Ulpian's thought 11. The will in the performance of the obligation: Between coercibility and spontaneity 12. Omissive fraud during negotiations from the perspective of contractual liability Part 5: Absence. Fragile dimensions of individual will 13. Invitus. The unwilling between state of mind and declaration 14. The absent voluntas: Roman semantics and modern dogmatics 15. Free will and remedies against violence in Roman provinces. Cases and issues in epigraphic and papyrological sources 16. Invitus and legal practice. Technical language as imperative Part 6: Arbitrium beyond individual will 17. The determinative will of contractual content: The Russian roulette clauses 18. Limits to the will of a party, between arbitrariness and potestativity: The case of the Russian roulette clause
