Casuistry, Anti-Probabilism and Contracts: Paolo Comitoli SJ and His Responsa Moralia

Abstract

Early modern moral theology, that is the so-called second or late scholasticism with its casuistry, dedicated considerable attention to contract law. Theologians approached contracts as a morally significant subject, though they took into account not only theological merits but also the standard legal doctrines, from both civil and canon law. This paper examines the contractual cases of conscience in the Responsa moralia of the Italian Jesuit Paolo Comitoli (1545–1626). This collection of moral cases, spanning over eight hundred pages, covered numerous topics, including contract law.Although Comitoli was not among the most distinguished scholars of his time, he stood out from his peers as he contributed to both the epistemological debate and the contractual doctrine. His engagement with the former is evident in the widely recognised view that he was – untypically for the Jesuits of his time – an antiprobabilist, meaning he held that in a disputed moral case with dissenting authorities, one should favor the more probable opinion of the learned authors. His contribution to the latter is demonstrated in his work Doctrina de contractu, where he extensively developed a sophisticated theory of contracts, including a new definition and twelve attributes of a contract. This paper focuses on the characteristics of Comitoli’s contractual cases and on the application of his epistemological doctrine in contractual casuistry.