Annulling Inherited Contracts

1. Lothar’s ‘Capitulare Olonnense ecclesiasticum primum’ ( 825 ), ch. 10: De praecariis

In 825, emperor Lothar issued a capitulary known as the ‘Capitulare Olonnense ecclesiasticum primum’ ^[7]. Chapter 10 of this capitulary, De praecariis, allowed for rectors of churches to annul without penalty precarial grants that had been made by their predecessors “unreasonably” ( inrationabiliter ) ^[8]. This was not a blank check for abbots to annul any contract they wished ^[9]; presumably to show that a predecessor had made a contract “unreasonably,” one had to show that he had acted in bad faith, corruptly, or in a way that he knew would be harmful to the church in question – not simply that the resulting contract had had unfavorable results.

This decree reiterated and expanded a similar decree included by Lothar in an earlier capitulary ( the ‘Capitulare Olonnense’ from 822–823 ), namely that if a bishop should make an emphyteutic lease of xenodochia, monasteries or baptismal churches pertaining to his church to anyone, whether on account of affection to a relative or desire for a gift or for the sake of friendship, and bind his successors from changing it by a fine, rectors of churches are granted the power to modify the lease without payment of the written penalty ^[10]. De praecariis made this decree applicable to all rectors of churches ( not merely bishops ); to all precarial grants ( not just to emphyteutic leases of xenodochia, monasteries or baptismal churches ); and allowed for annulment on grounds that these were made “unreasonably” ( not only on account of nepotism or a bribe ). Similar ideas were also to be found in other pieces of Carolinian legislation ^[11].

A chapter of Charlemagne’s ‘Capitulare Haristallense’, as reworked in Italy ca. 830 ( according to Bougard ) in the so-called ‘Forma Langobardica’, further expanded the provisions of De praecariis ^[12]. It specified that precarial grants made by bishops, abbots and abbesses at their own initiative and arrangement might be revoked by them whenever it was pleasing for them to recover, for the benefit of the church, that which they had given as a benefice. And a chapter of a capitulary issued by Charles the Bald in 876 mandated the return of ecclesiastical properties that had been alienated by their rectors to the detriment of the church, out of fear or as a personal favor, by means of libelli or emphyteutic leases ^[13].

As attested by the surviving manuscript evidence compiled by Mordek and the ‘Capitularia Project’, Lothar’s De praecariis evidently enjoyed comparatively widespread circulation in early medieval Italian capitulary collections containing all or parts of the capitulary of which it is a part ^[14]. The entire capitulary or sections thereof, including ch. 10, are to be found in eight manuscripts that were produced or present in 9^th- to 11^th-century Italy ^[15]. De praecariis was also included in the ‘Liber Papiensis’ ( or ‘Liber Legis Langobardorum’ ), a set of related 11^th- and 12^th-century manuscripts that include Lombard laws, selections of Carolingian capitularies and later legislation ^[16].

Of particular interest in terms for assessing monastic interest in the text is the evidence for the circulation of a redacted version of the capitulary, which includes ch. 10, at Italian monasteries. This version of the text contains chs. 1–5 and 8–10; not included is ch. 6, establishing an educational system with schools in select cities throughout Italy ( each of which was to serve as an educational center for nearby cities ) ^[17]; and ch. 7, regarding bishops’ responsibility for the reform of their canonical communities. Both of these texts were addressed primarily to bishops.

This redacted version of the ‘Capitulare Olonnense ecclesiasticum primum’ is to be found in two manuscripts from monastic contexts that contain similar collections of capitularies: Vatican, Biblioteca Apostolica Vaticana, Chigi F. IV. 75 and Cava de’ Tirreni, Biblioteca della Badia, 4 ^[18]. The capitulary collections contained in both of these manuscripts are organized by ruler from Charlemagne to Lothar ^[19].

Chigi F. IV. 75 contains the sole surviving copy of a chronicle written by Benedict, a monk at the monastery of Monte Soratte ( fols. 1r–58v ); this is followed by a separate codicological unit ( fols. 59r–109v ) that contains a selection of texts, including a capitulary collection ^[20]. This unit is written in a hand different from, but roughly contemporaneous with, the two hands that copied Benedict’s chronicle; recent scholarship has tended to date it to the first decades of the 11^th century. As I have argued elsewhere at greater length, there is good reason to conclude that this collection of texts was written at the central Italian monastery of Sant’Andrea in Soracte or in Flumine, an imperial monastery near the Tiber river, ca. 40 km north of Rome, in the present-day region of Lazio, or that it was at least based on a collection of legal materials that was available to Benedict of Monte Soratte when he composed his chronicle there in the late 10^th century ^[21]. The monastic provenance of this section of the manuscript is also signaled by a slip of the pen: the penalty clause of an apocryphal constitution of the emperors Theodosius II and Valentinian III included in the capitulary collection is prominently labeled as EX CODICE Monachorum Sententia: “a decree from a codex of monks” ( Fig. 1 ) ^[22]. As Kaiser has remarked, we have here a misreading/mistranscription of the text’s exemplar, but it is telling that the scribe was thinking about a “codex of monks” as he copied this text ^[23].

Meanwhile, as convincingly demonstrated by Walter Pohl, Cava dei Tirreni 4 was written shortly after 1000 in the monastery of Montecassino ^[24]. This manuscript includes, among other texts, all the Lombard legislation from Rothari to Aistulf and a collection of capitularies similar to that in the Chigi manuscript.

These two monastic capitulary collections thus attest to the circulation of De precariis in monastic contexts. Both manuscripts also include a piece of related legislation: the ‘Capitulare Haristallense’ in the ‘Forma Langobardica’, including the reworked decree ( ch. 14 ) on the right of bishops, abbots and abbesses to revoke precarial grants ^[25]. These two manuscripts are thus among the only four surviving manuscripts to do so, the other manuscripts being the two extant manuscripts of Lupus of Ferrières’ extensive collection of legal materials, the ‘Liber Legum’ ( although we may note that in these manuscripts ch. 14 is not separated out as its own chapter ) ^[26]. ( Not included, however, is Lothar’s ‘Capitulare Olonnense’ of 822–823; as mentioned above, ch. 1 of this capitulary regards the revocation of emphyteutic leases made by bishops ^[27]. )

De praecariis was also excerpted and copied on its own or compiled with other legal texts in ecclesiastical contexts. This indicates that ecclesiastical users of Carolingian legislation singled out this text as particularly relevant for their concerns.

De praecariis is found in the ‘Lex Romana canonice compta’, a 9^th-century north Italian compilation of legal materials ^[28]. This collection has recently been described, by Antonia Fiori, as “a systematically ordered collection of Roman law fragments gathered for ecclesiastical use.” ^[29] More specifically, Pavia, but also the monastery of Bobbio, have been proposed as the provenance of the collection ^[30].

Significantly, Lothar’s De praecariis is the only excerpt of a Carolingian capitulary to be found in the collection; the rest of the collection ( more than 350 legal texts ) consists of excerpts of Roman law ( primarily from the ‘Epitome Iuliani’, the ‘Code’ and the ‘Institutes’ ) ^[31]. As Mor has convincingly suggested, the compilation is arranged according to topic ( although there are no formal divisions in the text ) with ‘intermediary’ texts ( that is, texts relevant to both topics ) often forming the transition between ‘sections’ ^[32]. Noteworthy in this respect is that De praecariis is the last piece of legislation included in the ‘section’ related to church property, and is followed by a ‘section’ of legislation regarding monks ^[33]. This ‘section’ begins with a piece of legislation on the election of abbots ^[34]; we may see here a logical transition of the sort suggested by Mor. De praecariis regards the right of a rector of a church to annul contracts; a logical next question for a textual compiler might be how, in a monastic context, this successor is to be determined ^[35].

De praecariis also appears in the opening pages of a north Italian manuscript, Modena, Biblioteca Capitolare, O. I. 2 ( Fig. 2 ) ^[36]. This manuscript contains Lupus’ ‘Liber Legum’, a text that includes the ‘Capitulare Olonnense ecclesiasticum primum’ in its entirety ( fols. 178r–179r ). In addition to the inclusion of the capitulary within the main text of the manuscript, however, De precariis is also included in the opening pages of the manuscript, at the bottom of fol. 4r ^[37]. These opening pages contain an excerpt from Isidore’s ‘Etymologies’ on family relationships and their degrees ( fols. 2r–4r ) followed by a diagram of these relationships ( fol. 4v ); De precariis ( at the bottom of fol. 4r ) is written ( as the editors of the ‘Capitularia’ project have observed ) in a different hand from the Isidore text that precedes it ^[38]. Presumably we have here a particularly relevant text that was added to blank space in the manuscript.

This manuscript has traditionally been dated to the late 10^th century, although more recently scholars have suggested that it may be considerably older, perhaps dating to as early as the late 9^th century ^[39]. We can be sure that it was in the library of the cathedral of Modena in the late 10^th century: the liturgical calendar added to the end of the manuscript includes the feast of S. Geminiano, the patron of Modena. Although this calendar was written in a later hand than the rest of the manuscript, it speaks strongly in favor of a Modena provenance ^[40]. Nevertheless, we cannot entirely exclude the possibility, as numerous scholars have suggested, that it was written at, or based on materials from, the monastery of Nonantola, in particular, as argued most recently by Antonio Pagano, during the abbacy of Guido, ca. 959–969, who was also bishop of Modena ^[41]. Certainly the issue of annulling contracts was of concern to Guido; in a diploma confirming him as abbot of Nonantola, Otto I also granted Guido the right to annul all contracts that were made “unjustly and contrary to the law.” ^[42]

Altogether, then, the evidence points to active ecclesiastical, and at times specifically monastic, interest in this text in the 9^th century and beyond. De precariis was a text worth compiling in capitulary collections and in ‘civil law’ collections more generally, and might even, as in the Modena manuscript, be singled out and recopied on its own.

2. Otto III’s ‘Capitulare Ticinense’ ( 998 )

In addition to recording and recopying legislation relevant for annulling contracts by their predecessors, ecclesiastics were actively involved in its promulgation. Evidence for this comes from a legislative text known as the ‘Capitulare Ticinense’ ^[43]. This text ( as it survives ) describes itself as an imperial edict ( imperiali ędicto ) and statute ( constitutionem ) issued by Otto III but made public by the archbishop Gerbert at a synod held in Pavia in September 998 ^[44].

The ‘Capitulare Ticinense’ was a far-reaching decree that limited the validity of leases ( libelli ) and emphyteuses ( emphiteosis ) issued by bishops and abbots. Taking its starting point from the principle that ecclesiastical properties were to be of use to churches and by extension to the Ottonian realm ( res publica ), such charters were to expire with the death of their author ( and not be binding on their successors ), and bishops and abbots were given free license to redeem property that had been alienated from their communities by means of charters issued by their predecessors.

Because of the text’s mention of Gerbert, archbishop of Ravenna, the ‘Capitulare Ticinense’ has been most immediately associated with Gerbert and his monastery of Bobbio ^[45]. In 983 Gerbert wrote to Otto II lamenting the dispersal of the monastery’s properties by means of leases ( libelli ). 15 years later, shortly after issuing the ‘Capitulare Ticinense’, Otto III issued a diploma confirming the property holdings of Bobbio and declaring invalid the alienations of properties carried out during the previous 15 years without the authority of the abbot Gerbert ( in the form of precarial grants, exchanges, or in leases or other written documents ) ^[46].

Clearly, as many scholars have noted, Otto III’s decree responded not only to Gerbert’s complaints, but to a more widespread concern among Italian monasteries in the late 10^th century regarding properties that had for all intents and purposes been alienated from their monasteries ^[47]. Similar diplomas were likewise issued for other monasteries in Italy, such as Nonantola under the newly installed abbot Leo ^[48].

Despite the apparent monastic interest in recovering lost properties, Otto III’s decree is only to be found in four manuscripts: in Gregory of Catino’s late-11^th/early-12^th-century ‘Regestum Farfense’ and ‘Chronicon Farfense’; in an 11^th- to 12^th-century addition to an 11^th-century copy of the Decretals of Burchard of Worms ( Florence, Biblioteca Medicea Laurenziana, Plut. 16.21, fol. 244v ); and as a later addition in the margins of a late-9^th/10^th-century collection of legal materials ( Paris, Bibliothèque nationale de France, Lat. 3877, fol. 70v ) ^[49]. The ‘Capitulare Ticinense’ was not included in 11^th-century manuscripts of the ‘Liber Papiensis’, which, as previous scholars have reasoned, helps explain the relatively limited subsequent circulation of the text. Indeed, as Vocino and West have recently commented: “We certainly cannot prove whether a ruler approved this text or had it read out, or tried to enforce it, or whether some courtier or cleric perhaps drafted the text in the hope that he would.” ^[50]

In terms of assessing monastic interest in the decree, what is particularly interesting is the inclusion of the text in Gregory of Catino’s ‘Regestum Farfense’ and ‘Chronicon Farfense’. ^[51] Gregory clearly understood the decree as a legislative text: he introduces it as a “constitutio of the sacred law of the lord emperor Otto” ( Fig. 3 ) ^[52]. Yet the presence of this legislative text within the register and chronicle proper, rather than in the register’s prefatory material, is anomalous. Gregory’s prefatory material for the ‘Regestum Farfense’ includes a compilation of legislative texts ^[53]; but the materials that he included within the register proper ( and in the chronicle ) consist primarily of legal documents issued by, directed to, or immediately concerning, the monastery.

Moreover, in the ‘Regestum Farfense’, the ‘Capitulare Ticinense’ is transcribed among the documents pertaining to the abbacy of Ingoaldus ( 815?–830? ); in the chronicle, Gregory has correctly regrouped the text with other documents issued by Otto III. This suggests that the decree was preserved at the monastery in the form of a loose sheet of parchment, which by the late 11^th century had been mistakenly filed, in Farfa’s archive, among documents from the early 9^th century. Gregory, when copying the documents into the register, came across the document in his stack of materials and decided to copy it among the documents at hand even though he did not otherwise include ( or the monastery’s archive did not otherwise preserve ) such loose sheets containing legislative texts.

The evidence from Farfa, then, points in two directions. On the one hand, it clearly indicates monastic interest in the text. This is unsurprising: we have substantial evidence that 10^th-century abbots of Farfa were unhappy with the contracts agreed upon by their predecessors ( or by competing claimants to the office of abbot ). In particular, we may note that Otto’s decree was issued in September 998, a few months after a new abbot, Hugo, was confirmed by Otto as abbot of Farfa; and that in 999, Otto III issued a diploma for this Hugo, annulling all documents ( scripta ) issued by Hugo ( the abbot ) on the orders of the bishop Hugo, and those made by the bishop Adam and those by which the abbot Alberic had donated lands of the monastery ^[54]. Following older scholarship then, we might even imagine that the monastery’s abbot, Hugo of Farfa, had advocated for or been involved in drafting the ‘Capitulare Ticinense’ ^[55].

On the other hand, the fact that the ‘Capitulare Ticinense’ was misplaced and seemingly only accidently preserved with documents of the early 9^th century suggests that although Hugo may have advocated for this piece of legislation, it was not thereafter regarded as a particularly useful text. Explanations for this are not difficult to find. Firstly, we may note that while many abbots must have been delighted at the idea that the contracts of their predecessors were not valid unless renewed by them, they may have been less pleased that their own contracts would expire at their death ^[56]. Secondly, although Otto III supported the right of abbots to annul contracts not useful to their communities, his successors were not similarly inclined. In 1037, Conrad II issued a decree ( which was included in the ‘Liber Papiensis’ ) that affirmed the rights of those who had received a benefice from bishops, abbots and abbesses to the property in question, prohibiting them from being divested of their property unjustly ^[57]. And if we turn to Hugo’s arguments, directed to Conrad II ( before Conrad issued his decree ), in favor of the monastery’s rights to certain properties, we find that he steers clear of trying to annul the contracts of his predecessors in favor of a different tactic: arguments regarding the validity of these contracts per se.

3. The Strategy of Hugo, abbot of Farfa

Hugo, abbot of Farfa ( 998–1009, 1014–1027 and 1036–1039 ), was engaged in multiple property disputes. Of these, the longest-lasting was an ongoing property dispute with members of the Crescentii family: Count Benedict and his sons, John and Crescentius, regarding three properties located in the vicinity of Farfa. The properties in question were the castellum Tribucum ( today Tribuco di Ponte Sfondato ) to the southwest of the monastery, the closely associated curtis S. Gethulii, and, to the north, the castellum Buccinianum ( Bocchignano ) ^[58]. Hugo describes the monastery’s dispute in two texts, the ‘exceptio’ and the ‘querimonium’. The focus of these texts is above all the disputed ownership of the castellum Tribucum, a conflict that Hugo frames in terms of the illegitimacy of a series of documents issued by previous abbots of Farfa: in particular, a tertiogenerum ( that is, a three-generation emphyteutic lease ) that was drawn up by Hugo’s predecessor, the abbot John. I will focus on one set of arguments that Hugo makes in these texts, revolving around his claim that the abbot John never actually completed the lease in question ^[59].

4. An Excerpt from Justinian’s Code ( C. 7.38.2 ) in a Nonantola ( ? ) Manuscript

We will return to Hugo’s rationale for arguing based on Roman law in the conclusion, but first let us examine a second piece of evidence that indicates ecclesiastical interest in using Roman law to recover alienated property.

The evidence comes in the form of an excerpt from Justinian’s Code ( C. 7.38.2 ) to be found at the beginning of a 9^th- or 10^th-century manuscript, Walters MS. PC.2, arguably written at Nonantola ( Fig. 4 ). The manuscript in question, now in a private collection in Virginia, contains Paul the Deacon’s ‘Historia Romana’ followed by the earliest surviving copy of the so-called 17^th book of the ‘Historia Romana’, consisting of excerpts from Paul’s ‘Historia Langobardorum’ ^[89]. Preceding the ‘Historia Romana’ is the excerpt from the Justinianic Code; following the ‘Historia Romana’ is a list of Roman emperors from Augustus to Leo III ( r. 717–741 ) and a short text describing the Lombard kings and the Lombard migrations. We can be confident that the manuscript was in Nonantola when an 11^th/12^th-century hand added a short text at the end of the manuscript about the abbot Leo of Nonantola ( excerpted from a letter written by Peter Damian ) ^[90].

The excerpt of Justinianic law specifies that lands, whether belonging by right to the state or to temples ( iuris rei publicae vel iuris templorum ), that have been sold or otherwise alienated by tenant-farmers ( coloni ) of the emperor should be restored by those who hold them wrongfully and counter to the law, unless those tenants have claim to them by prescription ^[91]. The summary of this text in the ‘Summa Perusina’ makes clear that it was understood by early medieval readers to refer to church properties. The text there reads: “Whoever has purchased fiscal or ecclesiastical property ( res fiscales vel ecclesiasticas ) [ … ]” ^[92]. Also relevant in terms of contemporary understandings of this text is that, according to Krüger’s edition, an alternate reading, to be found in 11^th/12^th-century copies of the Code, is colonis seu/siue emphiteuticariis, that is, this law was interpreted as applicable to all emphyteuticaries ^[93]. Clearly, then, at least some readers and users of this text understood the force of this law to be that church lands, which had been alienated by emphyteutic leases, should be restored to their ecclesiastical owners. Moreover, there is further evidence of particular ecclesiastical interest in this text: this same law was written, in an 11^th-century hand, in free space in a 9^th-century canon law manuscript possibly from Lorsch ( Fig. 5 ) ^[94].

What remains unclear is where and when the Walters manuscript was written. But in addition to the evidence of the manuscript’s later whereabouts ( at the monastery of Nonantola ), we may contextualize the Justinianic excerpt alongside two further pieces of evidence, from the nearby bishoprics of Modena and Bologna. Altogether these point to active ecclesiastical interest in excerpting Justinian’s Code in the area around Nonantola.

The text cited in the Walters manuscript is from Justinian’s Code, not the ‘Summa Perusina’. This is relatively unusual for the period. The most recent study of the reception of the ‘Corpus Iuris Civilis’, by Charles Radding and Antonio Ciaralli, concluded that with the exception of the ‘Lex Romana canonice compta’, the ‘Collectio Anselmo dedicata’, and the ‘Excerpta Bobiensa’, citations of the Code are rare between the years 600–1000 ^[95]. Indeed one of the few examples that Radding gives is that of two constitutions to be found in Modena, Biblioteca Capitolare, O.I.4, fol. 6v ( Fig. 6 ) ^[96]. The main part of this manuscript contains part one of the Pseudo-Isidorian decretals; the excerpts from Justinian’s Code are found in a separate codicological unit in a hand judged by Bischoff as dating to the 10^th century ^[97]. Moreover, we may note that this hand is quite similar to that which copied the excerpt of Justinian’s Code in the Walters manuscript. We may conclude, then, that either at Nonantola or at Modena ( or at both the monastery and the cathedral ), ecclesiastics were mining a copy of Justinian’s Code for their own purposes. The context that readily comes to mind, which would explain both the similarity in hands and the locations of the surviving manuscripts, is the abbacy of Guido, bishop of Modena ( ca. 959–969 ), a context which, as we have seen above, has also been proposed for the extensive legal collection, a copy of Lupus’ ‘Liber Legum’, that survives in the cathedral of Modena ( Modena, Biblioteca Capitolare, O. I. 2 ) ^[98].

There is one further piece of evidence that might support this hypothesis: a forged document, arguably created ca. 969, which incorporates a very short excerpt ( five words ) from Justinian’s Code ( C. 2.3.7 ) regarding pacts ^[99]. The document, which survives as a 13^th-century copy in Bologna’s archives, presents itself as the resolution of a dispute, by the Lombard king Ratchis, regarding the relative borders of the dioceses of Bologna and Modena ^[100]. The decision favors Bologna, thereby locating Nonantola in the diocese of Bologna. This document has similarities in form and content with other diplomas produced by the monks of Nonantola; it may have been produced there or at the nearby bishopric of Bologna. In either case it again suggests active use of Justinian’s Code by ecclesiastics in the area around Nonantola in the mid- to late-10^th century.

5. Conclusions

In the 12^th and 13^th centuries, north Italian city-states experienced, in the words of Jean-Claude Maire-Vigueur, a “documentary revolution.” ^[101] Writing was employed with increasing frequency and took on new forms in a wide range of administrative and judicial contexts. In part, this proliferation of the text was responding to new problems of communal life ^[102]; it has also been associated with the ‘rediscovery’ of Roman law ^[103]. Similarly, but significantly earlier, we have seen in the case of Hugo how Roman-law arguments might derive from, but also foster, a predilection for documentation ( produced and preserved at the monastery ).

More specifically, we may contextualize Hugo’s, and other monastics’, use of Roman law within a more widespread interest in and knowledge of Roman law in early-11^th-century Italy – which modern scholars associate above all with an emerging class of legal professionals in urban centers ^[104]. For example, jurists in Pavia, as Radding has shown, used Roman law to make sense of Lombard law and invoked it for topics not addressed by Lombard law ^[105]. By no means did such professionals advocate for an exclusive use of Roman law; yet two pieces of legislation indicate that Roman law was increasingly deemed appropriate to particular contexts, namely in Rome and with regard to religious persons and ecclesiastical property.

A decree issued by Conrad II, likely in 1027 while he was in Rome for his coronation ( and thus shortly after Hugo had penned his ‘querimonium’ ), stipulated that all cases judged in Rome were to be decided by Roman laws ( Romanis legibus ) ^[106]. Wickham has plausibly suggested that this decree was enacted “by local request” ( p. 366 ): Roman judges desired that their expertise would hold sway in cases judged in Rome, even when this involved a party ( like the monastery of Farfa ) who could claim to be subject to a different law ( see further below ). Meanwhile, a piece of legislation attributed to Louis the Pious, but that is found only in the 11^th- and 12^th-century manuscripts referred to as the ‘Liber Papiensis’, stipulates that every ecclesiastical order should live by Roman law and that emphyteutic leases that cause churches to incur losses should not be observed but destroyed according to Roman law ( secundum legem Romanam ) ^[107]. By including this piece of legislation, which is not found in any other surviving capitulary collections, the jurists compiling these law collections endorsed its content, rendering Roman law appropriate to cases such as Hugo’s property dispute with the Crescentii. In his ‘querimonium’ directed to the emperor Conrad, Hugo was thus pursuing an argument in line with Rome’s judges and contemporary compilers of the ‘Liber Papiensis’ in Pavia.

But more than that, Hugo’s strategy, and the evidence from S. Lorenzo in Campo di Ravenna and Nonantola, suggests a different interpretation of this legal shift underway. Not only was it driven by judges and notaries, but also by ‘consumers’ of documents ^[108], including monastics, as they looked to find innovative ‘solutions’ to old ‘problems’. This comes into particular relief when we take stock of some of Hugo’s varied legal strategies.

It was by no means to be expected that Hugo would put Roman law to use in his appeal to Conrad II in 1026/1027. Indeed, to the contrary, Hugo himself had previously emphasized Lombard law as most relevant to the monastery of Farfa. In 998, the monastery of Farfa was accused by the presbyters of S. Eustachio of illegally possessing one of the church’s properties in Rome ^[109]. In a court case held in Rome, Hugo and his advocate attempted, successfully, to reframe the dispute in terms of a Lombard law of Aistulf ( Aistulf 18 ), by insisting on the monastery’s right to be judged under Lombard law.

Moreover, in the ‘exceptio’ and ‘querimonium’, Hugo likewise mobilizes a range of arguments. For example, in a later phase of the conflict than that discussed above, Hugo recounts that while Guido claimed to be abbot of Farfa ( 1009–1013 ), Guido signed a tertiogenerum for the castellum Tribucum and half of the curtis S. Gethulii with one or both of the sons of Count Benedict ^[110]. Hugo argues that this document is invalid on the grounds that Guido was not a legitimate abbot. Hugo recounts how he ( Hugo ) renounced the office of abbot and left the monastery ( 1009 ); thereafter the community elected Guido in his stead and Guido was consecrated by the pope, but, as Hugo takes pains to emphasize in the ‘querimonium’, Guido’s election was never confirmed by the emperor ^[111]. Hugo then narrates that when the emperor Henry II came to Rome to be crowned, he ( Hugo ) disputed this charter in the presence of Henry; the Roman and Lombard judges who were present all agreed that this charter was not valid because it had been made by an abbot who had not been confirmed by the emperor, since, Hugo adds, as all know, Farfa is an imperial monastery ^[112].

Justinianic law, as summarized in the ‘Epitome Iuliani’, specified that monks should choose their abbot, who would then be confirmed by the bishop ^[113]. There is no mention of imperial authority. But Hugo’s strategy had earlier precedents at the monastery ^[114]. More specifically, the basis for Hugo’s claim that imperial confirmation was necessary to ratify the community’s choice of abbot is to be found most explicitly in a diploma issued 998 ( preserved in the ‘Regestum Farfense’ ) in which emperor Otto III reinstated and confirmed Hugo as abbot of Farfa. Otto declares that Farfa’s abbot is to be first elected by the monastery’s congregation, then presented to the emperor and then consecrated by the pope ^[115]. Moreover, the diploma specifies, “if someone should otherwise presume [ to be abbot ], he will be condemned by imperial censure, and whatever documents he has drawn up regarding the possessions of the monastery will be entirely annulled.”

Hugo, then, by no means restricted himself to one particular type of legal argument; he was a flexible thinker whose arguments varied from one occasion to the next. As I have already indicated, we can be sure that Hugo was familiar with Otto’s decree on annulling contracts. It is also very likely that he was familiar with Lothar’s legislation on precarial grants. However, Hugo did not attempt to mobilize this legislation or line of reasoning against the Crescentii. Instead he decided to take a different tack, including drawing on the principles of Roman law. Why?

As already indicated above, Hugo’s reasoning may have been motivated by the emperor Conrad’s disinclination to annul preexisting contracts ^[116]. It may also have been motivated by Conrad’s upcoming imperial coronation, to which Hugo refers explicitly in the ‘querimonium’: Roman law for a Roman emperor ^[117]? Certainly the cultural connotations of Roman law would have been readily apparent to contemporaries; for example, the so-called 17^th book of Roman history found in the Walters manuscript discussed above ( composed of excerpts from Paul the Deacon’s ‘Historia Langobardorum’ ) includes a description of Justinian’s codification of Roman law ^[118].

Hugo also had a more straightforward reason not to argue along the lines of Lothar’s De praecariis and Otto’s ‘Capitulare Ticinense’. This is because, as Hugo reveals near the end of his texts, he too, after he had resumed being abbot in the aftermath of Guido’s tenure ( 1009–1013 ), had signed a questionable lease for the castellum Tribucum; this too was liable to be revoked by a successor as irrational. Hugo reports that after 1014 when Pope Benedict VIII had come to an agreement with John and Crescentius ( the sons of Count Benedict ) without him, he ( Hugo ) granted half of the castellum Tribucum to Oddone and Crescentius, the sons of Octavianus, on the condition that they would defend the monastery. In the ‘exceptio’ he specifies that he granted them this for free ( nullo alio accepto pretio ), a detail he omits when addressing the emperor Conrad in the ‘querimonium’ ^[119]. Instead, in the ‘querimonium’ he is at pains to emphasize that had he not done this the monks would not only have lost the castella, but also perhaps their lives ^[120]. Hugo’s choice to argue on the basis of procedure, not content, then, reflects a strategy that was also intended to safeguard his own contracts.

More generally we may postulate that Hugo, and other monastic users of law, mobilized Roman law because, or rather when and where, it was of use. Individual laws were excerpted, contextualized with ( and within ) other texts and documents, and interpreted to the advantage of their users. To be sure, theirs was a markedly different approach from that of later ‘professional’ legal commentators and compilers of Roman law, and presumably it is for this reason that they have been by and large excluded from the grand narrative of the ‘rediscovery’ of Roman law. But seen on their own terms and, stepping back, if we regard the ‘problem’ of annulling unfavorable contracts more generally, what begins to emerge, I suggest, is a long history of innovative legal thinking forged, preserved, and mobilized by ecclesiastical legal practitioners.