Autodefensa y tutela publica de los derechos: la prenda extrajudicial medieval

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A new trend in current private law sees the use of mechanisms that allow the creditor in a relationship to self-execute its rights, thus omit- ting the intervention of the courts. This article intends to shed light on this phenomenon by presenting a historical perspective: the medieval legal ins- titution of the prenda extrajudicial and, more specifically, the political conditions that make possible its appearance and consolidation during the Rev. hist. droit, 97 (1) janv.-mars 2019 E. MARZAL YETANO [p. 31-68] Spanish Middle Ages. This institution represented a specific form of self-de- fense, the main mechanism in the hands of the creditor to compel the deb- tor to fulfil its obligation. The most technical aspects of this institution have been thoroughly analysed by legal historians. However, the interpretation of- fered has often been strictly technical and non-connected with the medieval political reality, leaving many cases without explanation (those cases where the legal regime was particularly flexible). This work aims at reviewing these analyses and exploring the idea that self-execution, beyond its private law technical dimension, is the result of political organization. Contrary to the traditional interpretation done by legal historians (that concentrate on the conflict between royal and local powers), I will follow Otto Brunner's analytical structure of the middle Ages, and will thus focus on the situation of permanent multilateral confrontation between independent entities, which derive their power from their capacity of self-defense. In this article, I will thus reevaluate the analytical scheme traditionally used to study this insti- tution, by arguing that in reality there existed two different institutions, depending on whether it was used in the relations between lordships or inside one specific lordship.
Idioma originalCastellà
Publicació especialitzadaRevue Historique de Droit Français et Étranger
Estat de la publicacióPublicada - 1 de gen. 2019

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