‘Summula de presumptionibus’: a translation

This is an English translation of the ‘Summula de presumptionibus’, based on the edited version that will be published for the CLCLCL project, as an appendix to a doctoral thesis on ‘The development of legal texts in late twelfth-century England and Italy’.

Further information about the ‘Summula‘ and a transcription of one of its manuscripts may be accessed here.

There are a few words which are unclear in the original allegations, either due to errors or extensive abbreviation. In the translation, these have been replaced with a highlighted question mark in square brackets.


Translation Copyright © David De Concilio, 2019.

Cite as: ‘Summula de presumptionibus’: a translation, transl. David De Concilio, in Civil Law, Common Law, Customary Law Project Publications, St Andrews, 2019 [https://clicme.wp.st-andrews.ac.uk/online-texts/summula-de-presumptionibus-a-translation/].


Here begins [the summula] on presumptions

 

‹1.› The topic[1] under discussion recurs often, and it is very necessary during trials, especially whenever we dispute on uncertainties. ‹2.› Moreover, an uncertainty may arise regarding either an extrinsic or an intrinsic fact (say, will or consent), and regarding the interpretation of the law or of any authentic document. ‹3.› Furthermore, when the uncertainty arises regarding an extrinsic or an intrinsic fact, it may be about the substance of the fact or its quality. ‹4.› Now we set out in order, one by one, the cases where the uncertainty depends upon the substance of an action.

 

 

1. About the essence of an extrinsic fact

 

‹1.› When the uncertainty turns on the essence of an extrinsic fact (what is or what is not, what was done or what was not done, what will be or what will not be), one should presume according to these topics established by the eighth synod (D. 81 c. 26), namely:

‹1.1.› According to the legal characteristics of the person taking action.

‹1.2.› According to the legal characteristics of the person with whom action is taken.

‹1.3.› According to the time.

‹1.4.› According to the place.

‹1.5.› According to the course of action.

‹1.6.› According to the frequency.

‹1.7.› According to whether there is an association or an individual.

‹1.8.› According to former familiarity.

‹1.9.› According to what happens often in practice.

‹1.10.› According to age.

‹1.11.› According to necessity.

‹1.12.› According to the case where somebody avoids answering in court or proving his innocence through the purgation.

‹1.13.› From to the lack of clues, one can consider that some necessary things have been omitted.

‹1.14.› According to common repute of everyone

 

‹2.› One should presume for someone or against someone according to the legal characteristics of the person taking action, as it is said by:

‹2.1.› D. 81 c. 26.

‹2.2.› C. 12 q. 1 c. 1.

‹2.3.› D. 68 c. 2.

‹2.4.› C. 12 q. 1 c. 21.

‹2.5.› C. 18 q. 2 c. 21.

‹2.6.› C. 18 q. 2 c. 24.

 

‹3.› According to the legal characteristics of the person with whom action is taken.

‹3.1.› D. 81 c. 26.

‹3.2.› C. 18 q. 2 c. 24.

‹3.3.› C. 18 q. 2 c. 25.

‹3.4.› Ps. 17:25-26.

‹3.5.› Prov. 22:24-25.

‹3.6.› C. 3 q. 5 c. 3.

‹3.7.› C. 2 q. 7 c. 58 and C. 2 q. 7 c. 59.

‹3.8.› Jn 3:20.

 

‹4.› According to the time.

‹4.1.› D. 81 c. 26.

‹4.2.› C. 1 q. 1 c. 106.

‹4.3.› C. 1 q. 1 c. 104.

‹4.4.› C. 27 q. 1 c. 3.

‹4.5.› C. 7 q. 2 c. 1.

‹4.6.› C. 31 q. 1 c. 4.

 

‹5.› According to the place.

‹5.1.› D. 81 c. 26 and D. 81 c. 9.

‹5.2.› C. 18 q. 2 c. 21 § 2.

‹5.3.› C. 18 q. 2 c. 24.

‹5.4.› C. 18 q. 2 c. 25.

‹5.5.› D. 56 c. 1, B. 2 c. 114.

 

‹6.› According to the course of action.

‹6.1.› D. 81 c. 20.

‹6.2.› C. 18 q. 2 c. 21.

‹6.3.› C. 33 q. 5 c. 2.

‹6.4.› C. 30 q. 5 c. 1.

 

‹7.› According to the frequency or to long duration.

‹7.1.› D. 81 c. 20.

‹7.2.› C. 18 q. 2 c. 21 § 2.

‹7.3.› C. 18 q. 2 c. 24.

‹7.4.› D. 34 c. 1.

 

‹8.› According to whether there is an association or an individual.

‹8.1.› D. 81 c. 26.

‹8.2.› D. 81 c. 20 and D. 81 c. 32.

‹8.3.› C. 18 q. 2 c. 21.

‹8.4.› C. 18 q. 2 c. 24.

 

‹9.› According to former or subsequent familiarity and action.

‹9.1.› C. 1 q. 7 c. 17.

‹9.2.› C. 2 q. 1 c. 7.

‹9.3.› C. 2 q. 7 c. 23 and C. 2 q. 7 c. 24.

‹9.4.› C. 11 q. 1 c. 25.

‹9.5.› C 12 q. 2 c. 18.

‹9.6.› D. 27 c. 6.

‹9.7.› D. 28 c. 10.

‹9.8.› D. 61 c. 5 and D. 61 c. 6.

‹9.9.› B. 2 c. 116.

 

‹10.› According to what happens often in practice.

‹10.1.› D. 98 c. 2.

‹10.2.› C. 16 q. 2 c. 1.

‹10.3.› D. 98 c. 3.

‹10.4.› D. 28 c. 13.

‹10.5.› C. 8 q. 1 c. 16.

‹10.6.› C. 16 q. 2 c. 1.

‹10.7.› D. 79 c. 10.

‹10.8.› C. 15 q. 1 c. 2.

 

‹11.› According to age.

‹11.1.› D. 34 c. 7.

‹11.2.› C. 12 q. 1 c. 1.

‹11.3.› D. 50 c. 63.

‹11.4.› D. 20 c. 3.

‹11.5.› C. 20 q. 1 c. 12.

‹11.6.› C. 18 q. 2 c. 21.

‹11.7.› D. 34 c. 1.

‹11.8.› C. 33 q. 2 c. 14 and C. 34 q. 2 c. 19.

‹11.9.› D. 86 c. 23.

‹11.10.› C. 35 q. 6 c. 3.

 

‹12.› According to necessity.

‹12.1.› D. 81 c. 31.

‹12.2.› D. 81 c. 24 and D. 81 c. 27.

‹12.3.› D. 32 c. 16.

‹12.4.› C. 1 q. 3 c. 13.

‹12.5.› D. 28 c. 13.

‹12.6.› D. 89 c. 6.

‹12.7.› C. 12 q. 2 c. 19.

 

‹13.› According to the case where somebody avoids answering in court or proving his innocence through the purgation.

‹13.1.› D. 34 c. 1.

‹13.2.› D. 81 c. 22.

‹13.3.› C. 3 q. 9 c. 10.

‹13.4.› C. 4 q. 5 c. 1.

‹13.5.› C. 24 q. 3 c. 6.

‹13.6.› B. 1 c. 161.

 

‹14.› From to the lack of clues, one can consider that some necessary things have been omitted.

‹14.1.› D. 68 c. 2.

‹14.2.› D. 4 de cons. c. 110, D. 4 de cons. c. 111.

‹14.3.› D. 4 de cons. c. 112 and D. 4 de cons. c. 113.

‹14.4.› D. 1 de cons. c. 18.

 

‹15.› According to common repute.

‹15.1.› C. 35 q. 6 c. 4.

‹15.2.› C. 2 q. 5 c. 13.

‹15.3.› C. 2 q. 5 c. 16 and C. 2 q. 5 c. 6.

‹15.4.› B. 2 c. 236.

 

 

2. About the quality of an extrinsic fact

 

‹1.› This is what is presumed regarding the substance of an extrinsic fact (for someone or against someone) and from these topics you can broadly understand a fact, and you can distinguish by yourself, in individual titles, what is presumed for someone or against someone. ‹2.› § When on the other hand the fact is certain, but there is uncertainty regarding its quality (whether it is good or bad, just or not unjust, or whether the doubt concerns greater or lesser measure, or to what extent [someone is] free or serf, and so about the other uncertain cases that will show up), one presumes according to the topics that John Chrysostom indicated in the chapter C. 23 q. 8 c. 14, namely:

‹2.1.› According to the time.

‹2.2.› According to the place.

‹2.3.› According to the cause.

‹2.4.› According to the will.

‹2.5.› According to the difference between people.

‹2.6.› According to care or diligence and to its contrary.

‹2.7.› According to standing of a person.

‹2.8.› According to necessity.

‹2.9.› According to the consequence of a deed and to the preceding action.

‹2.10.› According to the course of action.

 

‹3.› According to the time.

‹3.1.› C. 22 q. 5 c. 21.

‹3.2.› D. 54 c. 15.

‹3.3.› C. 23 q. 8 c. 14.

‹3.4.› C. 33 q. 4 c. 8, 9, 10, 11.

‹3.5.› D. 86 c. 14.

 

‹4.› According to the place.

‹4.1.› C.J. 7.67.1.

‹4.2.› C. 22 q. 5 c. 21.

‹4.3.› C. 32 q. 5 c. 13.

‹4.4.› D. 56 c. 1.

‹4.5.› C. 16 q. 1 c. 5.

‹4.6.› D. 86 c. 14.

 

‹5.› According to the cause: here I interpret ‘cause’ broadly, in order to include the necessity, the office, the obedience and all the legitimate and illegitimate causes.

‹5.1.› C. 23 q. 1 c. 4.

‹5.2.› C. 3 q. 5 c. 6.

‹5.3.› C. 22 q. 2 c. 14 and C. 22 q. 2 c. 12.

‹5.4.› D. 86 c. 14.

‹5.5.› C. 32 q. 4 c. 3.

‹5.6.› C. 23 q. 5 c. 8.

‹5.7.› C. 23 q. 8 c. 14.

 

‹6.› According to the will, because the will and the purpose discern the offence.

‹6.1.› C. 22 q. 2 c. 14.

‹6.2.› C. 22 q. 2 c. 5.

‹6.3.› C. 22 q. 2 c. 3.

‹6.4.› D. 63 c. 28 pars 4.

‹6.5.› D. 50 c. 48.

‹6.6.› C. 22 q. 2 c. 3.

‹6.7.› C. 15 q. 1 c. 10.

‹6.8.› C. 23 q. 8 c. 14.

‹6.9.› C. 23 q. 5 c. 19.

‹6.10.› C. 22 q. 5 c. 13.

‹6.11.› C. 23 q. 5 c. 47.

 

‹7.› According to the difference between people.

‹7.1.› C. 23 q. 8 c. 14.

‹7.2.› C. 23 q. 5 c. 19.

‹7.3.› C. 23 q. 5 c. 8 and C. 23 q. 5 c. 13 and C. 23 q. 5 c. 9.

‹7.4.› C. 5 q. 5 c. 2. ‹7.5.› [?]

‹7.6.› D. 34 c. 1.

‹7.7.› C. 16 q. 7 c. 4.

‹7.8.› D. 88 c. 10.

‹7.9.› D. 86 c. 14, D. 86 c. 17.

‹7.10.› D. 50 c. 5.

 

‹8.› According to care or diligence and to its contrary.

‹8.1.› D. 50 c. 49 ‹8.2.› and D. 50 c. 50.

‹8.3.› D. 50 c. 51.

‹8.4.› C. 23 q. 5 c. 41.

‹8.5.› D. 50 c. 5.

 

‹9.› According to standing of a person.

‹9.1.› C. 32 q. 5 c. 13.

‹9.2.› D. 40 c. 1 and D. 40 c. 5.

‹9.3.› C. 25 q. 1 c. 4.

‹9.4.› D. 50 c. 16.

‹9.5.› D. 19 c. 5.

‹9.6.› C. 27 q. 1 c. 3.

‹9.7.› C. 11 q. 3 c. 3 and C. 11 q. 3 c. 14.

‹9.8.› C. 1 q. 3 c. 8.

 

‹10.› According to necessity: do understand this broadly.

‹10.1.› C. 5 q. 5 c. 3.

‹10.2.› C. 3 q. 5 c. 1 and C. 3 q. 5 c. 2.

‹10.3.› C. 35 q. 6 c. 1.

‹10.4.› C. 16 q. 2 c. 1.

 

‹11.› According to the consequence of a deed and to the preceding action.

‹11.1.› C. 22 q. 2 c. 21.

‹11.2.› C. 22 q. 2 c. 18.

‹11.3.› C. 3 q. 5 c. 2.

‹11.4.› C. 5 q. 5 c. 2.

‹11.5.› C. 33 q. 1 c. 1.

‹11.6.› C. 2 q. 7 c. 18 and C. 2 q. 7 c. 24.

‹11.7.› C. 2 q. 7 c. 15 and C. 2 q. 7 c. 16.

 

‹12.› According to the course of action.

‹12.1.› C. 2 q. 7 c. 15.

‹12.2.› C. 2 q. 7 c. 16 and C. 2 q. 7 c. 20.

‹12.3.› C. 22 q. 2 c. 2.

‹12.4.› C. 22 q. 5 c. 21.

‹12.5.› D. 43 c. 1.

‹12.6.› D. 41 c. 1 and D. 41 c. 2 and D. 41 c. 4.

‹12.7.› C. 32 q. 4 c. 5.

‹12.8.› C. 1 q. 2 c. 2.

 

 

3. About the substance of an intrinsic fact

 

‹1.› We have seen from which topics we should dispute on the uncertainties concerning the extrinsic facts. ‹2.› It remains to be seen from which topics [we should dispute on the uncertainties] concerning the intrinsic facts, i.e. the will or the consent and its incidents, therefore let us adduce arguments concerning these dubious facts. ‹3.› When there is an uncertainty regarding the essence of the will or the consent, one is presumed to have consented to something or its contrary according to the following reasons:

‹3.1.› According to persistence or to long duration and to its contrary.

‹3.2.› According to a grave illness of mind or of body and to its contrary.

‹3.3.› According to silence and to its contrary.

‹3.4.› According to negligence and to its contrary.

‹3.5.› According to duress.

‹3.6.› According to other external signs.

 

‹4.› According to persistence or to long duration and to its contrary.

‹4.1.› C. 17 q. 2 c. 1.

‹4.2.› D. 63 c. 10.

‹4.3.› C. 2 q. 3 c. 5.

‹4.4.› C. 1 q. 3 c. 2.

‹4.5.› D. 1 de pen. c. 20, D. 1 de pen. c. 21.

‹4.6.› C. 1 q. 1 c. 111.

‹4.7.› C. 20 q. 2 c. 1 and C. 20 q. 2 c. 2.

‹4.8.› D. 82 c. 5.

‹4.9.› C. 32 q. 2 c. 12, C. 32 q. 2 c. 14.

 

‹5.› According to a grave illness of mind or of body and to its contrary.

‹5.1.› C. 17 q. 2 c. 1.

‹5.2.› C. 32 q. 7 c. 26.

‹5.3.› C. 15 q. 1 c. 5 and C. 15 q. 1 c. 6.

‹5.4.› C. 15 q. 1 c. 7.

 

‹6.› According to silence and to its contrary.

‹6.1.› D. 54 c. 20 and D. 54 c. 11.

‹6.2.› C. 20 q. 2 c. 2 and C. 20 q. 2 c. 1.

‹6.3.› D. 27 c. 1.

‹6.4.› D. 28 c. 8.

‹6.5.› C. 32 q. 2 c. 14.

 

‹7.› According to negligence and to its contrary.

‹7.1.› D. 83 c. 3 and D. 83 c. 5.

‹7.2.› D. 86 c. 3.

‹7.3.› C. 2 q. 7 c. 55.

‹7.4.› C. 23 q. 3 c. 8.

‹7.5.› C. 23 q. 8 c. 12.

 

‹8.› According to duress or the contrary.

‹8.1.› C. 33 q. 5 c. 2.

‹8.2.› D. 50 c. 32.

‹8.3.› C. 1 q. 1 c. 111.

‹8.4.› C. 31 q. 2 c. 3.

‹8.5.› [?].

 

‹9.› According to other external signs, namely according to crying, clamor, escape and to similar things.

‹9.1.› C. 31 q. 2 c. 1.

‹9.2.› C. 34 q. 1 and 2 c. 3.

‹9.3.› C. 20 q. 3 c. 4.

‹9.4.› C. 1 q. 1 c. 111.

 

 

4. Regarding the quality of an intrinsic fact

 

‹1.› We have seen from what topics we can conjecture who wished what or its contrary. ‹2.› But since this has to do with good or bad intention, with bad faith or sincerity, and since according to this the will or consent is judged good or bad, let us see according to which topics we can classify all of this. ‹3.› And so, according to almost all the topics from which we can infer the extrinsic facts (good or bad), we can evaluate also the consent and the will, which is to be appreciated or condemned; ‹4.› nevertheless, we want to summarise some of these, in order to add some concordances according to which we are able to choose in a more appropriate way:

‹4.1.› According to the legal characteristics of the person.

‹4.2.› According to the cause.

‹4.3.› According to the aim or the intention.

‹4.4.› According to the office, duly or unduly exercised by the person.

‹4.5.› According to obedience.

‹4.6.› According to the consequence of the action and the preceding act, which is a general topic in every judgement.

 

‹5.› According to the legal characteristics of the person.

‹5.1.› D. 88 c. 10.

‹5.2.› C. 11 q. 3 c. 14.

‹5.3.› D. 84 c. 1, 2 and 3.

‹5.4.› C. 23 q. 8.

‹5.5.› [?] and C. 16 q. 7 c. 4.

‹5.6.› C. 9 q. 2 c. 10.

‹5.7.› C. 23 q. 4 c. 51.

‹5.8.› D. 40 c. 1.

‹5.9.› C. 14 q. 5 c. 10.

‹5.10.› D. 50 c. 5.

 

‹6.› According to the cause by which or for which [something is done].

‹6.1.› C. 11 q. 3 c. 68.

‹6.2.› C. 23 q. 8 c. 34.

‹6.3.› D. 50 c. 42.

‹6.4.› C. 24 q. 2 c. 3.

‹6.5.› D. 50 c. 46 and D. 50 c. 43.

 

‹7.› According to the aim or the intention or to the cause because of which [something is done].

‹7.1.› C. 11 q. 3 c. 66.

‹7.2.› C. 23 q. 5 c. 19.

‹7.3.› C. 22 q. 4 c. 20 and C. 22 q. 4 c. 21.

‹7.4.› C. 23 q. 4 c. 24.

‹7.5.› C. 23 q. 5 c. 8.

‹7.6.› C. 15 q. 1 c. 13.

 

‹8.› According to the office, duly or unduly exercised by the person.

‹8.1.› C. 23 q. 4 c. 51.

‹8.2.› D. 50 c. 5.

‹8.3.› C. 23 q. 8 c. 33.

‹8.4.› C. 15 q. 1 c. 2.

‹8.5.› C. 23 q. 5 c. 8.

‹8.6.› C. 23 q. 4 c. 6.

 

‹9.› According to obedience.

‹9.1.› C. 23 q. 5 c. 19.

‹9.2.› C. 23 q. 5 c. 13 and C. 23 q. 5 c. 15.

‹9.3.› C. 23 q. 1 c. 4.

‹9.4.› C. 14 q. 5 c. 12.

‹9.5.› C. 11 q. 3 c. 97.

 

‹10.› According to the consequence of the action and the preceding act.

‹10.1.› C. 33 q. 1 c. 1, C. 33 q. 1 c. 2.

‹10.2.› D. 45 c. 11.

‹10.3.› C. 23 q. 4 c. 44.

‹10.4.› C. 1 q. 1 c. 111.

 

 

5. Regarding the interpretation of the law or of a document

 

‹1.› § Now let us see when the uncertainty arises regarding the interpretation of the law or of a document. ‹2.› When therefore we dispute in trials against opponents about  the interpretation of a canon, of a law or of any authentic document – they interpreting it for themselves, we to the contrary in our favour, as very often happens – it should be examined whether the controversy is recent and specific, or if instead it has already been previously dealt by wise men with differing opinions. ‹3.› If the controversy is recent and specific, one has to resort to those [principles] which Isidore says to observe in the establishment of the laws: D. 4 c. 2. Each element of that chapter is to be examined carefully. ‹4.› Indeed, if you demonstrate that the interpretation of your opponent deviates from any of those elements [prescribed by Isidore], you will prove that his interpretation is contrary to the intention of the legislator and therefore badly interpreted, because everything that is contained there has been carefully observed by the legislator at the time of the establishing of the law. ‹5.› Furthermore, since everything covered here is established with a greater or lesser degree [of plausibility], demonstrating that your interpretation of the aforesaid things is more fitting than his, you will prove that your interpretation is better. ‹5.1.› So continue with the concordances; ‹5.2.› [the law] in fact shall be:

‹6.› Righteous: because human life is governed through it, as it is said in the penultimate chapter (D. 4 c. 1) and in the antepenultimate (D 3 c. 4).

‹7.› Just: in order to not diverge at the end from the natural equity, otherwise it will be invalid, as it is said by D. 8 c. 1 part 2; all the chapters of the same distinctio are arguments in support.

‹8.› Possible: because if it prescribes the impossible, the infringement would not be charged; argument in support: C. 23 q. 4 c. 22.

‹9.› In accord with the nature of the affairs, or in accord with the good habits which arise from the nature; argument in support D. 29 c. 2 and D. 8 c. 2; ‹10.› or in accord to human nature, since ‘all art is an imitation of nature’, etc.

‹11.› In accord with the custom, since laws are repealed by contrary custom, as it is said by D. 4 c. 3 and D. 4 c. 6.

‹12.› Suitable to the place: because in some places, some [things] can be laid down that are not adopted elsewhere, as it is said by the arguments in support D. 31 c. 13 and D. 31 c. 14.

‹13.› Suitable to the time: because all things ought to be appropriate to their times, as it is said by C. 23 q. 4 c. 42 and D. 29 c. 1 and C. 1 q. 7 c. 6.

‹14.› Necessary: because the law should not be laid down but for necessity, as it is said by D. 29 c. 2.

‹15.› Advantageous: because otherwise it would be burdensome and thus to be rejected, even if it is not bad, as it is said by D. 12 c. 12.

‹16.› Clear: and as much as concerns the words, or at least the sentence, to ensure that it will not contain anything in deception, i.e. fraud, as it is said by the argument in support C. 32 q. 1 c. 2 and C. 14 q. 3 c. 3, and in all the other chapters of the same quaestio (C. 14 q. 3).

‹17.› Not accommodated to some private individual, because the interest of many ought always be placed first, as it is said by C. 8 q. 2 c. 2.

 

‹18.› Moreover, if you can prove by some subtlety that the interpretation of your opponent is against some authority, you will prevail, because in matters of doubt one should follow what is not against the rules of the lawgivers, as it is said by D. 14 c. 1, Dig. 1.3.19. ‹19.› § However, if a controversy is not recent, but one over which the conflicting opinions of the wise men spread in the past, apart from the aforesaid observations do pay attention to the opinion supported by the older men and that will prevail; argument in support: D. 50 c. 28. ‹20.› Furthermore, pay attention to the opinion supported by the majority and by the best men and this prevails.

‹21.› When instead the majority is on one side, while the more authoritative men are on the other, they have equal authority, as it is said by the arguments in support D. 19 c. 6, D. 20 c. 1 and D. 20 c. 3, D. 9 c. 3 and D. 9 c. 5 and D. 9 c. 9. ‹22.› Moreover, the opinion of the majority will prevail even if it is not the more authoritative one, as it is said by the arguments in support D. 65 c. 2 and 3, D. 79 c. 10.

 

‹23.› While concerning the validity of documents and attestations, and when something there is deleted or overwritten, this [argument] is quite clearly contained in the laws, but nevertheless we want to add it [here], because if a mendacity is found in part of the document or of the attestations, the rest is made void.

‹24.› If a mendacity is found in part of the document or of the attestations, the rest is made void.

‹24.1.› C. 3 q. 9 c. 17.

‹24.2.› D. 9 c. 7.

‹24.3.› C. 3 q. 10 c. 1.

‹24.4.› C. 12 q. 2 c. 18.

‹24.5.› C. 2 q. 1 c. 7.

‹24.6.› C. 3 q. 5 c. 7.

 

‹25.› On the contrary.

‹25.1› The contrary is supported by the writings of Origen, Cyprian, Augustine and many others who wrote both false and true things.

‹25.2.› D. 9 c. 4 and D. 9 c. 10.

‹25.3.› C. 1 q. 1 c. 34 and C. 1 q. 1 c. 35.

‹25.4.› D. 4 de cons. c. 43.

‹25.5.› D. 37 c. 13.

‹25.6.› C. 3 q. 5 c. 8.

 

‹26.› Moreover, we want to provide those titles particularly necessary because of their frequent use, although they are knowable on the basis of the previous ones: namely, whether one should presume in support of the Church or the contrary, when it is uncertain about whose should be something which a prelate possessed when alive or dead.

‹27.› In this case one should presume for the Church

‹27.1.› C. 12 q. 1 c. 21.

‹27.2.› D. 28 c. 13.

‹27.3.› C. 12 q. 3 c. 1.

‹27.4.› C. 12 q. 3 c. 2 and C. 12 q. 3 c. 3.

‹27.5.› C. 12 q. 4 c. 1 and C. 12 q. 4 c. 3.

‹27.6.› B. 3 c. 118.

‹27.7.› C.J. 5.51.10.

 

‹28.› § On the contrary.

‹28.1.› C. 12 q. 1 c. 20.

‹28.2.› C. 16 q. 3 c. 11.

‹28.3.› C.J. 5.16.6.

‹28.4.› [?].

‹28.5.› C. 12 q. 5 c. 1.

‹28.6.› C. 12 q. 4 c. 2.

‹28.7.› C. 12 q. 4 c. 1.

‹29.› Do recall the solution from the aforementioned chapter of Burchard, namely B. 3 c. 118: there is a distinction based on whether it was certain that he had the wealth before ordination or not.

 

‹30.› When the presumption does not admit proof to the contrary.

‹31.› This should also be noted: that the presumption is either of the judge or of the law. When the judge presumes something from the fact, if the presumption is violent[2] it remains valid until proven otherwise. ‹32.› When instead it is the law that presumes, either it suspends the judgement on the condition that nothing is decided about what is presumed, in which case evidence to the contrary is admitted; or [the law] presumes so violently that it establishes also the punishment [3] on the ground of what is presumed. ‹33.› In this case evidence to the contrary is not admitted, unless the law adjudges it. You can look at it in ‹33.1.› C. 11 q. 1 c. 25.

‹33.2.› D. 54 c. 15.

‹33.3.› D. 87 c. 9.

‹33.4.› C. 11 q. 3 c. 20.

‹33.5.› C. 33 q. 1 c. 1, C. 33 q. 1 c. 2.

‹33.6.› C. 12 q. 2 c. 24.

‹33.7.› D. 16 c. 14, ‹33.8.› D. 20 c. 2.

 

‹34.› On the contrary.

‹34.1.› D. 81 c. 20 and C. 2 q. 5 c. 13.

‹34.2.› C. 3 q. 9 c. 10, C. 11 q. 3 c. 36, C. 11 q. 3 c. 37.

‹34.3.› C. 32 q. 1 c. 2, C. 35 q. 2 and 3 c. 11.

‹34.4.› C. 12 q. 3 c. 1.

 

 

6. Explicit

 

‹1.› I wrote this [summa] on presumptions, albeit not perfectly, so that thanks to it you may obtain the material for exploring more widely and fully; ‹2.› nevertheless, this plumb line does not contain the truth, but what is probable and discernible for the activity of disputing, so that the profit from this instruction may train the orator more than the judge. ‹3.› And also, in order that the concordances in the previous topics may establish some presumption for someone or against someone, do study them diligently yourself in each title; for in one title there is not one concordance for or against, but some for and some against, that determines the presumption, which I did not proceed to distinguish because of excessive length.

 

 


[1] See E. Stump, ‘Topics: their development and absorption into consequences’, in The Cambridge History of Later Medieval Philosophy, ed. N. Kretzmann, A. Kenny and J. Pinborg (Cambridge: Cambridge University Press, 1982), 273: ‘’Topic’ is the infelicitous but by now standard translation for the Latin technical term ‘locus’, designating a logical concept variously understood throughout ancient and medieval philosophy’.

[2] It is said ‘violent’ the strongest type of presumption, with regards to its effects on the judgement: see  A. Fiori, ‘Praesumptio violenta o iuris et de iure? Qualche annotazione sul contributo canonistico alla teoria delle presunzioni’, in Der Einfluss der Kanonistik auf die europäische Rechtskultur, vol. 1, eds. O. Condorelli, F. Roumy and M. Schmoeckel (Köln: Böhlau, 2009), 75-106, 94.

[3] See Fiori, Praesumptio violenta, 95.