Abstract:
The paper investigates the meaning of, and the role played by equity in the continental European legal tradition. In this perspective, the article outlines the historical origins of the Western notion of equity in the Greek and Roman world, and examines how equity became a core instrument of law-making in the age of ius commune. Through the survey of French, German, and Italian law, the paper then clarifies the place of equity in the private law codes. In particular, this comparative analysis shows that, in spite of the wave of legal positivism affecting European legal thought in the XIXth-XXth centuries, equity was, and still is a powerful technical tool in the hands of jurists to instill flexibility into legal rules when the circumstances of the case so require.
Bussani, Mauro and Fiorentini, Francesca, The Many Faces of Equity: A Comparative Survey of the European Civil Law Tradition (2007). D. Carpi (ed.), The Concept of Equity. An Interdisciplinary Assessment, Winter, Heidelberg, 2007, pp. 101-134.
First posted 2013-01-13 09:30:54
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