Designing a System of Contractual Liability: Jacques Cujas Inspired by Roman Law

Jacques Cujas is one of the most respected and esteemed jurists in Western legal tradition. According to prevailing views, he was primarily focused on the interpretation of Roman law. However, this perception does not take fully into account the diversity of his contributions. Preliminary results arising from this research article indicate that under the veil of the reconstruction of ancient Roman law, Cujas presented new ideas and challenged traditional ways of approaching risk and liability. His innovative interpretation of a crucial classical text about liability rules was not limited to historical explanations of Roman law, but instead was intended to find practical solutions. The result was the first coherent liability system based on an improved reading of the Digest. This pilot study focuses on the process of designing a system of contractual liability. The research is based on the analysis of Cujas’s creative interpretation of a cornerstone text about Roman liability rules. It shows how recourse to the humanist method led to a profound change in the interpretation of fundamental legal concepts. In his commentary on classical liability standards (D.50.17.23), Cujas added several contracts that were unknown to Roman law (eg the contract of divorce). Moreover, he held that a group of four legal relationships (mandate, managing of others’ affairs, loan for use, and guardianship) should include an extremely high standard of liability. The author also redefined remaining liability criteria and allocated them to particular contracts. Thus the study argues that one of the most respected members of the historical school of French legal humanism was at the same time an ingenious liability system designer. Further research will determine if and how consistently Cujas applied this system throughout his work.