I. The Research Project aims to survey the Latin works of 16th century Portuguese jurists, many of them unknown in their content, which were the most relevant in their time in the area of Private Law, with a projection on subsequent scientific discussion, and which remain of interest for the knowledge of Portuguese and European Law today, as well as the translation and publication of two representative works selected from among them.
II. More than any other, Roman Law and, more directly, the so-called subsequent Romanistic Tradition, which occurred during the long period of ius commune, were decisive in shaping current private law. Many of today's legal solutions in Private Law, in crucial areas such as the Law of Obligations, Property or the Law of Succession, but also in the General Theory of Civil Law, were drawn up on the basis of historically delimited, tried and repeated schemes based on Roman Law and the Roman Tradition, which reached the codification period in the 19th century through its protagonists.
Without the study of these "vehicles", the understanding of such solutions cannot be complete, nor can a serious scientific study of law be made; without their study and consideration, the science of law today would become anhistorical.
The issue becomes even more acute if we consider that large-scale reforms of private law are being trialled and are on the horizon within the European Union, with a view to unification. The various working groups set up, initiatives and projects presented in the meantime are a prime example of this, ranging from the Unidroit Principles on International Commercial Contracts, the Principles of European Contract Law, the Trento Project, the Pavia Group / Accademia dei Giurisprivatisti Europei, Draft Common Frame of Reference - Principles Definitions and Model Rules of European Private Law (DCFR) prepared by the Study Group for a European Civil Code (1998) and the Research Group on Existing Private Community Law or Acquis Group (2002), and based on the revised version of the Principles of European Contract Law; more specific initiatives also exist, such as in Insurance Law, with the Principles of European Contract Law (2009/2015) prepared by the Project Group on a Restatement of European Insurance Contract Law (1999).
Acceptance of the results of these initiatives depends on the existence of common foundations between the laws of the member states; these foundations, when they exist, are to be found in Roman law and the Roman tradition; the history of law thus emphasises the international nature of legal phenomena in Europe. History plays a fundamental role in the construction of European law, as is well recognised. A fruitful example of the study and conscious use of the common bases and the European historical-legal acquis was in the field of buying and selling, in the 1980 Vienna Convention on the Contract for the International Sale of Goods (CISG), drawn up on the basis of historical-comparative work by Ernst Rabel, which would become a fundamental model for later initiatives, such as the aforementioned PECL or the DCFR, or for European Union legislation, such as the important Directive n.º 1999/44/EC on the sale of goods. 1999/44/EC on the sale of consumer goods and, mediately, in Directives 2019/770 and 771, which already include the sale of goods with digital elements and the supply of digital content.
Awareness of the historical formation of law is still absolutely essential in various areas of Private Law, and it is enough to think about how the gratuitousness of certain Romanesque contractual schemes, such as mutuum, mandatum or depositum, is still the basis of the corresponding regimes in the Civil Code. The same goes for the great unitary contractual type of locatio conductio, the understanding of which is crucial to understanding how it was tripartite in the medieval and subsequent schools and from there gave rise to autonomous contracts of enormous relevance, such as the works contract, the employment contract, the transport contract or the charter contract; contracts which, depending on the evolution that took place during the period of the ius commune, do not take on the same configuration in nearby legal experiences, such as the German, Italian, Spanish or French.
It is also necessary to take into account the persistence of certain solutions in current law, some of which in contractual types of enormous importance, such as the purchase and sale, which still has aspects regulated in nineteenth-century laws with a Romanesque basis (e.g. the purchase and sale of animals), the purchase and sale of animals) or which retains solutions, such as the one that still exists in terms of cancellation for non-payment of the price (Article 886 of the Civil Code), from the beginning of the 19th century that can only be seen in their break with the scheme of the Ordinances, the content of which was profoundly coined by the ius commune.
III. However, studying the works from the ius commune period that shaped the content of Private Law up until the 19th century codifications is arduous and only possible for a few. The overwhelming majority, especially the most important ones, are written in Latin. Some even predate the printing press in the 15th century and its generalisation in the 16th, and are therefore still in the form of manuscripts, the reading of which requires the aid of palaeography; others, although drawn up at a time when the printing press was already widespread, remained in manuscript form, many because they were drawn up in a university setting, without going to press.
In fact, although access to these works has been astonishingly facilitated in the last two decades by digitizing and making them available to the public via the Internet, the truth is that they remain little known and little worked on. The problem is even more acute in Portugal: in countries such as Germany, France, Italy, Spain, the United Kingdom and the Netherlands, relevant works by jurists from the ius commune period have been re-edited and translated, facilitating their access.
In Portugal, such an endeavour has been attempted in an unsystematic and fragmentary way, with only a few important works known to have been translated, many in the field of public law and political thought, and few of these with a critical and auxiliary apparatus. A survey, as far as possible exhaustive, of jurists and works from the period of the ius commune in Portugal has yet to be confirmed and completed: in addition to manuals, articles and doctoral dissertations on specific areas, there are some general repertoires that help with the task, but not all of them are specifically designed for the area of law, nor do they consider all the writings and versions that specialised studies have shown; in Brazil, the study of this period and its protagonists has also been done.
Therefore, on the eve of the second quarter of the 21st century, the vast majority of works by Portuguese authors from the ius commune period are still unknown or untranslated, if not, in the case of manuscripts, still to be published.
IV. The research project we have set ourselves has a very broad scope. Firstly, the period of the ius commune, even though it has various nuances, covers around seven centuries, from the 11th to the 18th, and has seen many protagonists. Therefore, in order to ensure that the project can be carried out within a foreseeable and reasonable timeframe, it is necessary to break it down into phases and limit it in time. Not because it is chronological, but because of the significant changes in perspective and method that Humanism imposed - even on those who remained faithful to previous methodologies - and, from a certain perspective, the considerable scientific "leap", both quantitative and qualitative, that took place during this time of transition: there is a greater number of known jurists and works; the training of Portuguese jurists and, in some cases, their professorship abroad is attested to; the press is generalized, with a greater dissemination of works; the density of research, which already takes into account the scientific acquis of previous centuries, increases; Portuguese law was consolidated with the publication, in the middle of the 15th century, of the "Ordenações Afonsinas" and, in the first half of the 16th century, the "Ordenações Afonsinas" (also presented as a time of transition, of rights being confined to national spheres, in which common law, especially Roman law, slowly but gradually became less relevant: This transition is also something that needs to be better understood and that micro-studies on jurists and their works will more easily allow).
It is also from this period, or more specifically from the 15th to 17th centuries, that the works of Portuguese jurists have had the greatest impact throughout Europe: Just think of Pedro de Santarém, whose treatise on insurance saw dozens of editions all over Western Europe; Aires Pinhel with his monograph on the rescission of purchase and sale; Álvaro Valasco with his study on emphyteusis; Jorge de Cabedo, António da Gama, Gabriel Pereira de Castro with their collections and jurisprudential commentaries; or Serafim de Freitas and his famous study in contradiction to Grócio, which would later involve Selden, on freedom of navigation on the seas.
There is already a very relevant set of known authors and works for the survey and selection, which, so to speak, have already been "pre-selected", facilitating subsequent work. The selection criteria will not always be easy and there are cases of transitional authors who lived between the 15th and 16th centuries and between the 16th and 17th centuries and whose works also oscillated between the two centuries.
On the other hand, the existence of canonists cannot be ignored, although they are not directly included in the following list, and the fact that many of them dealt in depth with private law issues. The nationality of the authors is also a problem: in the 16th century during the Philippine dynasty - and even before - the mobility between Portuguese and Spanish professors was remarkable; it will therefore be necessary to use a criterion that, while not rigid, allows for a coherent selection. There are also important jurists who taught but whose works are little known (Heitor Rodrigues (?- 1579); and there is also a significant set of manuscripts, which unfortunately is degraded (e.g. ms. 2745 BUC), with unexplored legal texts, possibly also by unknown authors.
The following is a merely perfunctory and illustrative list of some jurists and known literary production in the 16th century:
Luís Teixeira (147?-153?):
- In subtilem perutilem & necessarium digestorum titulum de rebus dubiis commentaria simul cum repertorio exactissime emendata (1507; 1531);
Manuel da Costa (1512? - 1563):
- Cap. si pater de testament. lib. sexto (Salamanca 1569);
- Commentaria in l. si ex cautione C. de non numerata pecunia, sc. adversus defendentem se hac exceptione - probandum actori esse numeratam pecuniam (Coimbra 1549);
- Commentaria in par. et quid si tantum leg. Gallus ff. de libe. et posthu. (Coimbra 1548);
- Commentaria in par. si arbitratu ... de conditionibus et demonstrationibus (Coimbra 1551);
- De acquirenda haereditate ff. l. 29 tt. 2;
- De suo et alieno posthumo commentaria in par. posthu. instit. de legatis in difficilem leg. si filius haeres D. de liberis et posthumis scholia (Coimbra 1552);
- In celeberrimas iuris Caesarei leges et paragraphos commentarii (Salamanca 1584);
- In nonnulas leges et paragraphos commentarii (Lyon 1564);
- Iuris Caesaris leges & paragraphos commentarii & de maioratu bonorum patrimonialium & de regni successione (Salamanca 1584);
- Selectarum interpretationum circa conditiones et demonstrationes et dies libri duo (Coimbra 1551);
- Omnia quae quidem exstant in ius canonicum et civile opera (Lyon 1576; 1584);
Aires Pinhel (1512-1563):
- De acquirenda possessione (BUC, ms. 2745);
- De collat. bon. (BUC, ms. 2745);
- De injusto rupto (BUC, ms. 2745);
- De legatis 2.º (BUC, ms. 2745);
- De in integrum restitut. (BUC, ms. 2745);
- Mille assertiones in Jure civili (Coimbra 1545);
- De bonis maternis commentaria, quibus materiae successionis jura feliciter explicantur (Coimbra 1557);
- Ad rub. et leg. II C. de rescindenda venditione commentarii (Coimbra 1558);
António de Gouveia (1510?-1566):
- Ad D. D. T. Senatusconsultum Trebellianum (reimpr. Paris 1864);
- Ad l. Gallum liber (Tolosa 1554);
- Ad l. X tit. ad l. Falcidiam (Lyons 1556);
- Ad tit. de vulg. et pupillari subst. (Tolosa 1554);
- De iure accrescendi liber (Tolosa 1545);
- Ex libro lectionum iuris variarum (Tolosa 1552);
- Lectionum variarum iuris ciuilis libri duo (Lyons 1561);
- Opera iuris ciuilis (Lyons 1561);
António da Gama (1520-1595):
- Decisiones Supremi Senatus Regni Lusitaniae (Lx 1578);
Álvaro Vaz or Valasco (1524-1593):
- Consultationum et decisionum, ac rerum iudicatarum (Lx 1588);
- Quaestionum Iuris Emphyteutici (Lisboa 1591);
- Praxis Partitionum et Collationum inter heredes (Coimbra 1605);
Pedro Barbosa (1530-1606):
- Commentarii ad interpretationem tituli Pandectarum de judiciis;
Francisco de Caldas Pereira e Castro (1543-1597):
- Tertia pars excelentissimo tractatus de Uniuerso Iure emphyteutico, complectens Eligendi, seu Nominandi ad emphyteusion potestatem, tam ex contractu, quâm vltima voluntate, & electionis reuocationem (Coimbra 1604);
- Analyticus Commentarius siue ad typum instrumenti emptionis, & uenditionis tractatus ... (1616);
- Tractatus de emptione, et uenditione, tum pragmaticis cum gymnastis ad modum utilis, ac necessarius diuque ab utrisque exoptatus nunc primum post auctoris orbitum in lucem prodit ... (1617);
Luís Álvares Nogueira (16th century):
- Repetitio ad rub. D. de legatis I (Lyons 1553);
- Repetitio ad Rub. D. De legatis I (cum comment. Emmanuelis a Costa, Si ex cautione) (Coimbra);
- Repetitio ad tit. D. de rebus dubiis (Lyon 1553);
Fernando Paes (16th century):
- Tractatus in forensi actione utilis de excusandis parentibus a publicis muneribus ob numerum liberorum (Lisboa, 1559);
Manuel Mendes de Castro (16th century):
- Ad celebrem Justiniani constitutionem commentarii (Salamanca 1587);
- De annonis civilibus libri XI Cod. singularis & noua repetitio, scholis & foro versantibus non inutili (Madrid 1592);
- Repetitio l. cum oportet VI de bon. quae lic. in potest. constitut. ex matr. (Augsburgo 1608);
- Practica Lusitana (Coimbra 1676).
The pre-selection of one or more works to edit does not seem simple. While it is true that researchers already have a pre-understanding of which of the known works and those they have already analysed make the most sense to edit on the basis of the criteria defined above, it is also true that in order to make such a judgment of merit with certainty, it is necessary to go through and get to know the content, relevance and size of all or a sufficiently large sample of the works in question relatively well, which at the moment remains to be done, and cannot even be achieved with the help of existing repertories.
This is one of the reasons why, instead of presenting a work already selected for translation, we opted for a more comprehensive project, with room for choice, which involves a prior survey. The other main reason lies in the timeliness of such a survey, given the inadequacy of those currently available.
It should be noted that recent studies have shown that there are more copies than were actually known and, among these, texts with appreciable potential: basing ourselves solely on the existing repertoires could therefore prove to be limiting and restrict the potential of this project and its contribution to the production of knowledge.
The present exploratory phase of this project will also be decisive and useful for collecting copies and selecting one of them, the most up-to-date and complete, for translation and editing. The results of the survey will be used to a large extent in the prefatory and introductory texts of each of the two books to be published. It is not possible at the moment to propose the publication of a stand-alone monograph with the results of the survey, since it would ultimately have to be extended over more than two years and to a larger number of libraries in various European countries, and given that previous, relatively recent attempts aimed exclusively at this endeavour, despite the expenditure of considerable effort and time, did not achieve such a result. The survey should therefore be seen as essentially exploratory and, to a considerable extent, its results can be used as part of the body of information to be included in the introductory studies of each of the texts to be published.
V. This research project will therefore involve, as detailed in the following section, a survey of the Latin works of 16th century Portuguese jurists, based on known repertoires and materials, and the selection, from among those identified, of two works by two different jurists, preferably one from the first and one from the second half of this century, the first from a printed edition and the second - accumulating the knowledge and method acquired from the first - from a manuscript, on subjects of Private Law, in specie the Law of Obligations, Rights in Rem or the Law of Succession, with repercussions on the subsequent discussion up to the present day, for translation and publication. In this way, an intangible, cultural, national but also genetically common, European heritage will be brought to light, which, in part, is yet to be discovered; and which, to a very large extent, even when it is discovered, its content is ignored or unknown, due to a lack of linguistic competences and skills on the part of today's jurists and, vice versa, due to a lack of legal competences and skills on the part of coeval philologists.
It is intended to be a project, in phases, but in continuity, with the intention that, on the basis of the experience accumulated in this first phase for the 1500s, it will be possible to move on to the following ones in the years that follow the realisation of the Project.
VI. The translation of a legal work cannot be done without a minimum understanding of the material problems involved, the models of solution or the discursive rules of the time in which the jurists wrote.
It therefore has to involve actively multidisciplinary work between jurists and philologists; multidisciplinarity and the pooling of efforts is not easy and is the reason why many Portuguese legal works remain untranslated. On the other hand, the survey, selection of works, palaeographic reading (when necessary) and Latin translation involve non-legal, philological and palaeographic knowledge, in which jurists are typically not proficient. The project therefore necessarily involves philologists, Latinists and palaeographers alongside jurists, so the team of researchers and consultants will have to be, as proposed, interdisciplinary, in partnership with CEC-FLUL and IVRIS.
VII. This research project is aligned with the guidelines of intergenerational balance and non-discrimination according to gender in the composition of the Principal Investigators, Researchers and Consultants.