The Defence of Contributory Negligence in ( Medieval ) Canon Law and in Conflict Resolution in Italy inthe Early Modern Period

• Autores: Emanuel G.D. Van Dongen
• Localización: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte.: Kanonistische Abteilung, ISSN 0323-4142, Vol. 131, 2014, págs. 580-607
• Idioma: inglés
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• Resumen

  • This article deals with the approach of (medieval) canon law to the situation in which an injured party contributed to the occurrence of his damage ('contributory negligence'). It is studied how this legal problem was solved and, thereby amongst other things, it is also studied whether or not the medieval (Roman) doctrine of culpae compensatio - which meant that the culpa of the wrongdoer could be compensated by the culpa oft he injured party - was applied by the canonists in their comments on cases of accidental homicide committed by clerics. Furthermore, this article is also concerned with later developments, i.e. the way conflicts were solved in the early modern period in Italy, by studying consilia and early modern decisions. A (new) concept, namely that of culpa admixta, came into existence, which was a legal qualification given to the act of the injured party in situations in which harmful action by a wrongdoer is mixed with fault on the part of the injured party. As the role of the injured party was qualified as culpa admixta, this cancelled out the injured party's right to claim damages, without looking any further at the seriousness of the respective faults. This article also studies different concepts and/or ways in which the 'contributory negligence' of the injured party was dealt with, among which was the approach where only preponderant contributory negligence cancels out the injured party's right to claim damages.