On 15 June 1243, Abdella Alfenechi of Lleida and Alfarag of Saragossa walked into the local notarial office in Ciutat de Mallorca (today known as Palma de Mallorca) alongside Bertrandus de Teviza, from Tortosa.Footnote 1 The three men wanted to form a partnership in which each invested in a trading venture to Tunis undertaken by Abdella Alfenechi and Alfarag of Saragossa. Identified by the notary as Muslims (sarraceni), Abdella and Alfarag contributed £13 to the partnership while Bertrandus (a Christian) contributed £28 minus 5 shillings (s.), of which 212s. were contributed by his brother-in-law Dominicus de Calidus.Footnote 2 Dominicus also contributed an additional 70 masmudinas.Footnote 3 This investment was guaranteed by Guillelmus de Sala for Dominicus de Calidus.
In many ways, this partnership was like any other; the men each made a series of complex promises to behave well and to encourage each to trust one another.Footnote 4 As such, Abdella Alfenechi and Alfarag of Saragossa made an agreement to act legally and in good faith, as well as to speak the truth: Nos dicti Abdella et Farag facimus nos legaliter gerere et bonam fidem et legalem inde tibi portare et in omnibus verum dicere sic quod non decipiamus alter alterum (‘We, the said Abdella and Alfarag, commit ourselves to act legally, in good faith and legality towards you, and in all things speak the truth, so that we do not deceive one another’).Footnote 5 It was then agreed that after Abdella Alfenechi and Alfarag of Saragossa returned to Tortosa from their venture, half of the profit was to be taken by Bertrandus de Teviza on behalf of Dominicus de Calidus.Footnote 6 The other half was to be split into thirds, each for Bertrandus de Teviza, Abdella Alfenechi and Alfarag of Saragossa. Bertrandus de Teviza was also to cover all the expenses for the journey, paying sailors and any passage fees. He promised to uphold and fulfil his side of the bargain with reference to law and faith: promitto attendere et complere in fide legale nostra (‘I promise to attend to and complete [the contract] according to our faith and law’).Footnote 7
Historical discussions of the term fides normally point to two main strands of meaning, the religious and the secular/legal. The term fides can be translated in a variety of ways. It can be ‘faith’, ‘trust’, ‘trustworthiness’, ‘honesty’, ‘faithfulness’, ‘confidence’, ‘guarantee’, ‘proof’, ‘credence’, ‘belief’, amongst a wide variety of other words.Footnote 8 Within these meanings there are religious, legal and relational implications.
In this article, I will argue that in commercial contracts the word fides and related terms took on an entangled meaning such that the religious and the secular functioned as one. This allowed the term to do trust work, building trust between individuals from different religious communities.Footnote 9 Currently, when historical scholars use and explore the term fides there is normally a presumption that the word is working within a community: in secular seignorial understandings, the term refers to loyalty to the community, or community hierarchy; in Roman legal understandings, individuals had to be loyal to other citizens, also within the same community; and in religious understandings, the term itself created a community of people of one faith, Christians, and spoke to the relationship that individuals had either to each other or to God. However, none of these understandings enable us to explain how the term functioned in interreligious relationships, creating trust between people of different communities. Indeed, on the basis of charters from twelfth- and early-thirteenth-century Yorkshire, Paul Hyams has argued that English Jews were unable to participate in the culture of ‘giving faith’ such that they faced legal and social incapacities in business activities with their Christian neighbours.Footnote 10 Although drawing on materials separated by both time and space, his work presents a stark contrast to the situation in the Crown of Aragon.
Here I argue that fides took on a relational meaning, calling upon the particular community of the merchant to reinforce their reputation as trustworthy, even when that community was not shared by the other party to the contract. By placing an individual and their trustworthiness in relation to their own community, the word functioned to create and maintain trusting relationships both between co-religionists and between members of different religious groups. The term was used to create and maintain interpersonal trust; merchants used their social relationships as evidence of goodwill and provided a road to social (and religious) reputational punishment should they fail to uphold their obligations. As such, I argue that faith language actively affected the relationships, modifying the mindset and expectations of the parties involved in contracts. I do not seek to argue that this understanding of fides supersedes existing understandings of the term but rather to show that the term was used in interesting ways in this particular socio-cultural context, combining a variety of previous understandings.
In the thirteenth and fourteenth centuries, Mallorca and Barcelona were important centres of trade with mercantile connections across the Mediterranean. Barcelona was the centre of political and economic power in the Crown of Aragon while Mallorca was an important way point for merchants. Both were home to a majority Christian and minority Jewish population. Yom Tov Assis highlights that Jews in Catalonia were considered to be property of the king, with royal protection, and were encouraged to emigrate to newly conquered possessions, such as Mallorca, as a part of the Crown’s overseas policy to control new lands.Footnote 11 Muslim communities were also present in the Crown of Aragon. The Christian conquests of Barcelona (801) and of Mallorca (1229–32) meant the removal of the majority of the Muslim population. In Mallorca, most defeated Muslims were captured and apportioned to the conquerors as spoils of war though a small minority remained in south Catalonia, Aragon and Mallorca.Footnote 12
Part of the remaining Muslim population, Abdella Alfenechi and Alfarag of Saragossa were not alone in making a promise ‘on good faith’. Though not appearing in every contract, promising good faith was nothing unusual. Out of the 1,432 contracts I have examined in detail from Barcelona and Mallorca written between 1240 and 1350, 161 used the term fides.Footnote 13 These contracts were identified predominantly from examination of eighty-six notarial registers in Barcelona and Mallorca, which I then transcribed into a database.Footnote 14 In order to create a comparable set of sources, contracts were considered relevant and recorded in the data set if the included reference to long-distance trade, through inclusion of words relating to a journey, a ship or a distant location. This meant that all contracts in the collection were written by notaries for merchants and investors, creating socio-economic relationships in the context of high risk.Footnote 15 Though most contracts did not include the term fides, an important minority did. For example, on 4 August 1265, Jacobus Ferrandi invested £27 3.5s. plus an additional £26 in the form of two decorative garments for a person and a horse (duobus guarnimentis completis de corpore et equo) in a venture undertaken by Raimundus Bucharii. Bucharii was to travel to the Barbary coast and promised to sell the invested money and goods ‘in good faith’ (promitto vendere bona fide).Footnote 16 Similarly, on 15 July 1316, Petrus Just appointed Jacobus de Porio and Petrus de Plano as his agents. He agreed to send his ship to Aigues-Mortes or Ardes (sic: Arles) to pick up merchandise for the agents and then take it to Cyprus. He promised that he would fulfil the agreement ‘in good faith and without any deceit or fraud’ (promito … accedere et complere vobis … bona fide et sine aliquo dolo et fraude).Footnote 17 Both contracts were between Christian male parties and demonstrate the most common uses of the term fides.
Though the trust language and specifically faith language used by Abdella Alfenechi, Alfarag of Saragossa and Bertrandus de Teviza followed the same patterns as those contracts between Christians, it was certainly not a given that commercial contracts would use fides language; most agreements did not include references to faith and promises, and relationships of trust could be made without reference to faith.Footnote 18 For example, in October 1247, Jacobus Aragonaris received investment from Arnaldus Gerrad in his voyage from Mallorca to Tortosa. Jacobus promised Arnaldus that he would use the money to buy goods in Tortosa and then return with profit to Mallorca. The agreement included no words related to fides.Footnote 19 Faith language could also appear in different forms. For example, on 25 March 1340, Stephanus des Frexe and his son Johannes received £22 16s. from Petrus Stephanus. This was to be combined into a common fund and taken to Constantinople for trading purposes. Johannes des Frexe alone promised to be faithful and lawful, rendering a true and full account of the business to the investor: promito ego dictis Johanne esse vobis fidelis et legalis et inde varum et iustum compotum reddam vobis (‘I, Johannes, promise to be faithful and lawful to you and will render a true and proper account to you’).Footnote 20 Indeed, I have previously demonstrated that contracts written by notaries for merchants in Barcelona and Mallorca were far from standardised and copied texts but instead full of variations and reflect a series of conscious and unconscious choices to build and maintain relationships of trust which were particular to each individual situation.Footnote 21
The varied and situational creation of trusting relationships is visible when trust is understood in a multifaced manner. Ian Forrest and Anne Haour take trust to be constantly negotiated through physical and linguistic performances. Seen as cultural and economic, a human decision and emotion, trust does not arise naturally from culture but is created. It requires learning and negotiation, rather than possession of an essential similarity, and can take a lengthy time to build up though can be lost quickly.Footnote 22 This understanding of trust allows us to examine trust in a multifaceted way considering how institutions and individuals can foster and maintain trust. Parties to contracts chose to collaborate with the notary to create agreements which suited each situation. The variety of approaches to trust in the contracts indicates that trust was never a given, but required constant thought and effort.Footnote 23 Trust needed work each time that it was required. Merchants did ‘trust work’ by employing trust language as well as making individual decisions and actions to construct relationships as required in each moment.
The use of faith language (language related to fides) was one such choice which built trust. Most partnership agreements were between co-religionists. In contrast, while they shared social connections and perhaps all lived in Tortosa (though this cannot be confirmed), Abdella Alfenechi, Alfarag of Saragossa and Bertrandus de Teviza did not share a religious community. Nevertheless, they chose to use the language of faith in the creation of their agreement. What, therefore, did it mean for Abdella Alfenechi, Alfarag of Saragossa and Bertrandus de Teviza to make obligations to each other on faith?
This article will first explore the various secular, legal and religious concepts which were tied to the term fides and then turn to the way that fides was used in discourses related to notaries. I will argue that all these understandings can be seen as relational in nature. We will then turn to fides in commercial documents from Mallorca and Barcelona in the thirteenth and fourteenth centuries to show how, by focusing on the relational side of the concept, the term functioned to build and maintain trust in relationships between individuals from differing religious communities.
Fides creating community: religious, legal and seignorial meanings
The word fides can be first identified as a term in Roman law, meaning equity. Reinhard Zimmermann and Simon Whittaker note that the notion of ‘good faith’ (bona fides) had its origin in Roman law, gaining influence in relation to iudicia stricti iuris, claims which were to be adjudicated according to strict law. A defendant might request the insertion of the notion of ‘good faith’ into the procedural formula which defined the issue to be tried by the judge. It was worded in the alternative and known as the exceptio doli: ‘if in this matter nothing has been done, or is being done, in bad faith by the plaintiff’. The addition sought to create a just solution, locating dolus (deceit) not in personal misconduct, but instead in an inequity or injustice that would come from the action being allowed to succeed. The phrase gave the judge ‘an equitable discretion to decide the case before him in accordance with what appeared to be fair and reasonable’.Footnote 24
Fides as found in Roman law, then, allowed for errors and duress to be taken into account in determining a case and whether an actio empti (an action employed on behalf of a buyer to compel a seller to perform his obligations or pay compensation) or venditi (an action employed on behalf of a seller, to compel a buyer to pay the price, or perform any special obligations included in a contract of sale) could be granted.Footnote 25 Ian Forrest points out that the term was used to refer to the need to honour the spirit as well as the letter of obligations and that good faith was a reasonable defence if one acted upon facts which were later revealed to be false.Footnote 26 Judges were now not having to determine whether a claim asserted under the procedural formula did or did not exist. Instead, the bona fide clause meant that judges could consider the relationship of the parties in a variety of ways, including their conduct.Footnote 27 In this thinking, bona fides stood in contrast to ius strictum (strict law), as old and formalised actions were softened with reference to equitable considerations with the goal of achieving just results.Footnote 28 This was particularly important, Whittaker and Zimmermann emphasise, in relations between merchants. Good faith or aequitas (equity) law allowed for a form of flexibility, convenience and informality required by an international community of merchants.Footnote 29
Roman legal definitions of bona fides related to the behaviour each person owed another and their community. Martin Josef Schermaier points out that bona fides in Roman law did not lead to uncertainty ‘due to a concrete and uniform understanding of what accorded with both fides and bona fides’. This was rooted in Roman social ethics, linked to duties of fidelity and faithfulness for both citizens and non-citizens. Fides was understood as meaning ‘remaining faithful to one’s word’.Footnote 30 Schermaier points out that ‘faithfulness to one’s word is a precondition of any legal intercourse’. In contrast, bona fides is does not require performance itself but requires parties to ‘act honestly’, influencing ‘the way performance is made’. He notes that the move from these concepts of fides to bona fides is unclear: how ideas of the fidelity one owed to others came to shape legal precedents.Footnote 31 Importantly, however, bona fides was seen to bind Roman citizens and foreigners equally, speaking to the ethical values of society and a standard of behaviour.Footnote 32 Examining usage of the term separate from law in the Roman period, Richard Heinze emphasised the connection between the term fides and concepts such as guarantee, credibility and trustworthiness looking to the works of Cicero and Plautus. He emphasises the relationality of the term, as one would only be considered trustworthy through recognition from another person.Footnote 33 The term, he argues, was particularly tied to concepts of reputation and moral standing in early usage, arguing that a Roman citizen felt morally bound to fellow citizens in a wide variety of ways by his fides, while also secured by the fides of others and also of his gods.Footnote 34
Though medieval jurists inherited the Roman legal concept of bona fides, they did not define ‘good faith’ or ‘equity’ in order to determine how parties should act but instead described how they should act through classification of Roman legal texts. This meant that they remained ‘amorphous concepts’; their use of the term was not clearly explained and arguments about bona fides and the enforceability of contracts according to ius gentium sometimes conflicted with Roman law.Footnote 35 Medieval jurists before Baldus de Ubaldis (1327–1400) used the terms to describe three types of conduct expected of the contracting parties: firstly, that each should keep his word; secondly, that neither should take advantage of the other through deception, misleading or driving ‘too harsh a bargain’; thirdly, that each should abide by the obligations that an honest person would recognise even if they were not expressly undertaken.Footnote 36 As such, the jurists concluded that agreements must be kept as a matter of faith, equity and the ius gentium. Footnote 37 Baldus de Ubaldis, whom James Gordley labels as the only medieval jurist able to give ‘a relatively coherent account’ of what ‘good faith’ and ‘equity’ meant, went a step further. Strongly influenced by Aristotle (whose works became available in western Europe in the late twelfth and early thirteenth centuries) and Thomas Aquinas, Baldus identified equity (or good faith) with the principle that no one should be enriched at the expense of another and that a contract made without a causa (reason) was unenforceable.Footnote 38 Notably, the canon lawyers did identify ‘good faith’ with a good conscience as well as with the religious sense of ‘good faith’.Footnote 39
Fides was also used in the creation of a relationship between vassal and lord. It was common for vassals to swear to be faithful/loyal (fideles) to lords and kings, creating power inequalities and ideas of obedience.Footnote 40 Susan Reynolds notes that the process of vassalage took place through the ritual of commendation, later known as homage. This involved the actions of kneeling, placing one’s hands in the lord’s hands and declaring oneself to be a ‘man’ of the lord. This was followed by a kiss, symbolising accord and friendship. After doing homage, the vassal took an ‘oath of fealty or fidelity’, though the oath could also be taken by subordinates who were not vassals. Despite the oath of fealty and the ritual of commendation being separate actions, Reynolds emphasises that the obligations which were created by the process of vassalage related to being ‘faithful’; the vassal ‘owed fidelity or fealty’ nonetheless. As such, both vassals and subjects who were not vassals were required to be faithful and might be described in the Carolingian period as fideles. Footnote 41 This was a particularly asymmetric relationship, as the inferior party ‘put his faith into the hands’ of the superior party.Footnote 42 Fideles could also refer to faithful service provided by individuals chosen and appointed to a specific role of trust within a community; Wendy Davies finds the word referring to individuals considered to be of a good reputation who were trusted to give evidence in court in later ninth- and tenth-century northern Iberia (Asturias-León, Pamplona and Navarre). These individuals, she notes, were considered to have the trust of the community.Footnote 43 These trusted men are perhaps particularly comparable to the trusted individuals identified by Forrest as jurors, informants and witnesses who were called upon to represent their parishes when English bishops required local knowledge or reliable collaborators in the thirteenth to fifteenth centuries.Footnote 44
Beyond legal and seignorial meanings, the term fides was also understood to mean religious ‘faith’. In theological discussions, faith could mean two particularly different things. As Forrest notes, the faith by which we believe (fides qua) dealt with believing something unseen and was greatly debated by scholastic theologians because fallen humanity had lost the capacity for direct sight/understanding of God.Footnote 45 Faith in which Christians were supposed to believe (fides quae) was the focus of pastoral theology, embodied in the ‘articles of the faith’ contained in the Creed.Footnote 46 Peter Biller has demonstrated that in religious contexts in the twelfth and thirteenth centuries, the words fides, lex and secta were most analogous to our modern sense of ‘religion’, referring to a set of beliefs, cultural practices, institutions and shared identity. Religio, on the other hand, had a different meaning before the Reformation, meaning something closer to worship or devotion.Footnote 47 The term fides was therefore related to the creation of a group of believers or a religious community. Davies, for example, identifies the use of fides in charters from later ninth- and tenth-century northern Iberia as specifically referring to the Christian faith or the faith of the Christians.Footnote 48
Indeed, Teresa Morgan has shown that Greek pistis and Latin fides developed in meaning in Graeco-Roman and early Christian writings to create communities through an individual’s relationship with God.Footnote 49 She considers how the terms operated socially, alongside the relationship with God. Rather than understanding pistis and fides to function either as a cognitive process, an action, a relationship or an aspect of community, Morgan emphasises that multiple processes and meanings can coexist.Footnote 50 Rather than a body of beliefs or a function of the heart of mind, the terms pistis and fides represented a relationship which created the Christian community.Footnote 51
As such, Morgan has shown that pistis and fides were essentially relational, affecting the formation of personal relationships both between individuals and with institutions such as the church.Footnote 52 ‘Faithfulness’ came to relate to one’s relationship to God and to the wider Christian community, speaking to the way in which individuals belonged to a religious community based on shared practices.Footnote 53 Fides spoke to the feeling of belonging to a ‘community of the faith’ as well as being in good faith with one’s neighbours.Footnote 54 Fides thus came to mean the relationship Christians had with one another, the identity they might share as a group and their relationship with God.Footnote 55
Fides was about the creation of communities but also about the unknown and uncertain. Forrest highlights that relationships both between humans and with God involved the concept of belief as an attitude towards an unknown being or future, or trust in something uncertain.Footnote 56 Even faith in God was relational because the relationships one had with other humans formed part of the discussion. For the ‘ordinary Christian’, Forrest argues, the lexicon of faith was used to form relationships, on both individual and collective bases which fed into how they ‘conceived of their faith in God’.Footnote 57 Forrest turns to Augustine here, who demonstrated that much that we take on trust is invisible. For Augustine, friendship was only possible if faith is kept between people, such that faith is placed in another person without physical evidence of trustworthiness (with the opposite leading to social collapse).Footnote 58 He used this argument to compare interpersonal trust and faith in God.Footnote 59 In this explanation, the relationality of faith, even faith in God, comes to the fore. One cannot be a faithful Christian without faith/trust in humans in their community and friends.
But this is a community of shared faith. The idea of creation of a community of the faithful does not quite explain how the term fides functioned in relationships of trust across religious communities. Indeed, if anything, this understanding should take us further from an explanation of the term in a contract between Abdella Alfenechi, Alfarag of Saragossa and Bertrandus de Teviza. Forrest notes that these religious and community understandings also came with the concept of exclusion, creating boundaries to invoke belonging and exclude those who therefore do not belong.Footnote 60 One implication of the creation of an out-group in this manner would be an increase in in-group trust and a decrease in the potential trust of strangers.Footnote 61 In this view, faith language would then have excluded Abdella Alfenechi and Alfarag of Saragossa as members of a different religious community, making them unable to participate in the culture of ‘giving faith’, as Hyams has argued.Footnote 62
Furthermore, the religious and the secular cannot always be so neatly separated in the late medieval context. Faith in God and the related faith between humans were also integral to faith in agreements.Footnote 63 There is an instant resonance between the faith in the unseen and commercial relationships of trust – belief in the intentions of the other party which cannot be seen or known. Forrest points out that concepts of religious faithfulness were sometimes compared to contracts. For example, baptism could be seen as a binding contract and Laurence of Spain (c. 1180–1248) compared godparents to guarantors (fideiussores) of a contract such as a debt because godparents were responsible for the godchild’s adherence to religion, just as guarantors were answerable for a debt.Footnote 64
Indeed, the use of faith language affected the court within which a broken agreement might be resolved. The making of a promise on faith meant that a break of the promise could be tried in a church court as a breach of faith, evidenced particularly in the English context.Footnote 65 Forrest argues, for example, that a promise using fides was ‘stronger and more formal than the naked word’.Footnote 66 Hyams, too, argues that while the use of fides ‘implies trust between the human parties’, it really denoted that a promise was given with both human and Heavenly witnesses. This meant that if it was breached, the agreement became a breach of faith, or fidei laesio, allowing the injured party to present the case to an ecclesiastical court. For Hyams, ‘making faith neatly leaps the gap, then, between human trust and faith in God’.Footnote 67
Kiril Petkov seeks to trace changes in the relationship between fides and religious and legal meanings in the eleventh to fourteenth centuries. He emphasises the origins of the term in the concept of ‘loyalty’ (taken from the earlier Roman meanings), arguing that it came to have a strong connection to ideas of peace. He argues that the term was used to create specific obligations, creating a binding promise or contract.Footnote 68 He traces the strengthening of religious meanings of the term to the end of the thirteenth and the beginning of the fourteenth centuries, arguing that the term came to be tied closely to canon law and subject to ecclesiastical jurisdiction. This meant that religious and moral sanctions for the breaking of a promise made on faith were made stronger.Footnote 69
Hyams presents the separation between religious and secular connotations of the term less strongly. He notes that fides and fidelitas were used both to refer to religion and in various secular senses at the same time. Rather than considering the mixed meanings as a problem which needs to be explained and unpacked, he takes the varied connotations as simple fact – the words are referring to more than one thing at once.Footnote 70 Hyams looks at more than eighty charters from Yorkshire in the twelfth and early thirteenth centuries which contain reference to making or giving faith, often into the hands of a named third party. He emphasises that the giving of faith was public, done in front of witnesses, often with a related performative action, such that ‘the resulting publicity intensified pressure on the parties to stay true to their word, or suffer damage to their reputation’. He emphasises that a promise given on faith was engaging both Heavenly and human witnesses.Footnote 71
This understanding of the functionality of fides and related language returns us to concepts of public commitments and reputation. Forrest has shown how the concept of fidelity could encompass both ‘allegiance to a specific person and the more general character trait of reliability’.Footnote 72 For Forrest, the phrase ‘I give you my faith’ was a giving of a promise but also something of oneself. It was rooted in ideas of public commitments and could mean something akin to ‘I commit myself to fulfil my obligation and I am prepared to be held to it’. This was an expression of trust in the other person but also the acceptance of the possible sanctions if there was later mal- or nonfeasance.Footnote 73 This understanding calls directly upon the relationship each person had to their community and places the reputation of the promisor within the support, or later punishment through sanctions such as social and economic exclusion, of the community.Footnote 74 With this view, we can get much closer to understanding the work done by fides language and how it affected trusting relationships between people of different communities.
The term fides, therefore, carries a wide array of connotations. It could refer to the relationship between an individual and God, of one Christian to another, of the identity of Christians as a group, of the collective relationship Christians had to God, an ethic or behaviour of constancy derived from the legal concept of equity, while also tying a vassal to his lord.Footnote 75 These deep and often implicit metaphorical connections between these various connotations cannot be effectively unpacked in each specific use of the term in the Middle Ages; it is normally impossible to determine the conscious intentions in each individual usage. Rather, we should think about these implications functioning together and seek to understand the effect of the term in specific cases. The term fides, carrying connotations of the relationship between the parties and God, used the religious faith and character of the party as a support for their reputation in secular business. Roman concepts of public honour and reputation were never lost or made completely separate, but came to be combined with new understandings. Indeed, the relational and public community connotations of fides are particularly highlighted when we look to usage of the term in relation to notaries and their documents, an area to which we now turn.
Fides and the notary
A particular important use of the term fides for the current discussion of commercial relationships is the fides held or wielded by notaries. In medieval legal commentaries, fides was used to refer to the reliability and moral and professional reputation of a person or document within the wider, public community. The person and writings of the notary were considered to possess fides. In Catalan scholarship, this is commonly labelled as fe pública or public faith. Scholars argue that this meant that documents written and signed by a notary were considered ‘trustworthy’. They could be used as proof of a contract, both with other interested parties and in the courts.Footnote 76 Importantly, the work of the notary was considered to be public in two senses: the notary was public, in that they were an official appointed by an administrative or legal authority, and they conducted their work in public, in front of witnesses. Both these understandings of public fed into the fides that they possessed and placed them in relation to their community.
Notaries first became common in western Europe in Italian towns in the twelfth century before spreading to southern France and Catalonia. They produced everyday documents, such as marriage agreements, wills and testaments, postmortem inventories, debt notes, contracts of sale, as well as records of court proceedings. Notaries were considered to differ from previous scribal practice because they were ‘public workers’, nominated and given authority by public institutions (such as municipal authorities or the Crown).Footnote 77 In Catalonia, notaries were professionalised, either studying at the schools of Bologna or Lleida or through an apprenticeship lasting eight years in a notarial office. At the end of their training, they took an exam in front of royal officials and powerful men (prohoms) of the city or region.Footnote 78 Ignasi J. Baiges explains that, as such, notaries were considered professional figures with scribal knowledge and labelled as ‘public notaries’ who were given ‘public faith’ by an authority figure or institution.
The concept of the notarial profession with public faith, Maria Teresa Ferrer i Mallol and Arcadi Garcia i Sanz argue, was tied to the importation of common law to southern Europe.Footnote 79 Despite complications created by a system of federated monarchy, with smaller territorial units each allowed their own law, from the twelfth century onwards and following developments in the rest of western Europe, law in the Crown of Aragon became a combination of the ius commune and local customs.Footnote 80
Originating in Bologna, the academic study of law expanded rapidly, centring on the Corpus iuris civilis (the Justinianic corpus) and the Decretum, a compilation of excerpts created by Gratian (or possibly Gratian and a collaborator) between 1140 and 1150. This collection drew on Church councils, writings of the Church Fathers, and other sources deemed authoritative by Christians.Footnote 81 Together, civil law and canon law formed the ius commune (‘common law’), which was applied in cases where local laws or customs did not conflict with it.Footnote 82 Modern scholars recognise Justinian’s legal texts as the product of diverse contributors addressing varying needs and philosophical currents. In contrast, medieval jurists approached these texts as a unified and coherent whole, interpreting each passage in relation to all others.Footnote 83 Introduced through trade routes with Italy, the ius commune reached Catalonia by the late twelfth century and became well-established in academic settings, legislative frameworks and local practices by the thirteenth century.
Garcia i Sanz argues that the notion of ‘public faith’ originated with Pope Alexander III (1159–81), who proclaimed that documents produced by public notaries (per manum publicam or ‘by public hand’) should be regarded as reliable and trustworthy records of the transactions they described, even after the writer’s death.Footnote 84 According to James A. Brundage, this established these documents as ‘public instruments’ whose authority did not rely on the presence of witnesses, seals or other means of authentication. The notary’s official statement that he had written and validated the document with his personal sign served as a guarantee of its trustworthiness and reliability.Footnote 85
Canon law codes and commentaries by predominantly Italian jurists of the later fourteenth century defined the position of the notary and his documents using the term fides, firmly connecting the concept of trustworthiness with the public position of the notary. The perpetual trustworthiness of both authentic and public documents was normally referred to by commentators with the word fides, though they rarely define the term. Francesco Zabarella (born in Padua in 1360 and educated at Bologna) and Johannes de Imola (born in 1372 and educated at Bologna) wrote that authentic writing made (facit) or employed/used (adhibetur) fidem.Footnote 86 The future archbishop of Palermo Nicolò de Tudeschis, known as Panormitanus (born in Catania in 1386 and educated in canon law in Bologna and Padua under Zabarella), similarly wrote that authentic writing made its own faith so that ‘it did not require another support to prove its validity’ (ad sui validitatem non requirit alius adminiculum).Footnote 87 Zabarella stated that not all authentic writing made faith (facit fidem) but that public writing made faith, even if the witnesses died, if written by a notary.Footnote 88 Panormitanus also uses the term fides to define notarial writing specifically: the ‘writing of the notary, without any other assistance, gives faith’ (scriptura tabellionis sine alio adminuculo facit fidem).Footnote 89
That public/authentic writings ‘create faith’ is further emphasised when the commentators consider the status of private writings. We learn from Panormitanus that ‘a private instrument is not trusted’ (priuato instrumento non creditur).Footnote 90 When signed and approved by witnesses, he states, private writing is not known as public, though one could say it was written publicly (presumably publicly meaning in public as opposed to in secret, rather than by a public hand).Footnote 91 Zabarella also directly addresses the legal state of private writing, stating that writing is called private because ‘it does not make faith’ (non facit fidem) unless it is helped by witnesses who were present.Footnote 92 Imola too focuses on the lack of fides in private writings.Footnote 93 In this, we can see explicitly that the work of the notary is public in both senses, and particularly as witnessed and in public.
Similarly, the legal position and related fides of the protocol comes under question by commentators. Notaries kept copies of all the contracts they drafted in volumes commonly called ‘protocols’. Owing to the nature of contract creation, these protocols often contained abbreviated versions of the contracts.Footnote 94 There are long discussions about whether the protocol ‘makes faith’ and whether a different notary from that who writes the protocol can write and sign the extended document which was to be handed to the parties and still give it faith. Johannes de Imola concludes that the protocol does make faith itself: ‘I am satisfied that the protocol makes faith’ (satis eredo quod prothcollum faciat fidem).Footnote 95 The fides that the notary and his documents possessed related to the trustworthiness or reliability of the person or writing. This was particularly tied to the ongoing nature of the trust. Imola states, for example, that ‘public instrument makes faith: even if the witnesses die or the notary dies’ (instrumentum publicum facit fidem: licet testes inscripti decesserint. et idem dic etiam si notarius obsit).Footnote 96
The complex position held by notaries, at once skilled individuals working for private clients yet appointed by public authorities and creating documents which held a particular status within the law, is central to understanding the way that fides worked in discussions of their work.Footnote 97 Laurie Nussdorfer suggests that notaries became indispensable due to emerging forms of public authority. Developing law faculties and legal education placed a heightened value on written evidence, giving rise to the concept of the ‘public credibility’ (fides) associated with the notarial art.Footnote 98 Invested with this credibility (or fides) by public authority, notaries came to possess a quality of ‘public trustworthiness’.Footnote 99 Indeed, the importance of the position and writing of the notary to the public, to the community, was central to the role itself. They were people trusted to create and protect contracts, to record the everyday lives of the locality and create relationships of trust. I have previously demonstrated that the terms notary and public were deeply connected and often used to define each other by legal commentators.Footnote 100 The notary was a person officially trusted by the community.
Nussdorfer argues that notaries acted as ‘brokers’ of public trust, bridging the gap between public officials and independent professionals.Footnote 101 More than brokers, however, notaries can be seen as creators of trust, collaborating with clients to actively create documents. Nussdorfer describes the notary’s designation as a ‘public person’ as a ‘legal fiction’.Footnote 102 However, the notary’s role and the authority that they held were crucial for establishing relationships of trust. Their position as collaborators and publicly trusted people was not merely theoretical but an essential aspect of how trade contracts were created and operated in practice. The role of the notary was dynamic, as they acted as collaborators and negotiators, adapting the text of documents and including a variety of different phrases and words to meet the needs of the specific parties involved in contract creation.Footnote 103 This has implications for how we understand notaries and their fides. The notary was trusted as a public person in both senses, as a public official and as someone who worked in public. Both these features highlight that it was the position of the notary and his documents in relation to the wider community and within the law that mattered to the commentators. The fides possessed by the notary and his documents spoke to the reliability, and moral and professional reputation, of a person or writing within the wider, public community.Footnote 104
Commercial fides and relationality as a solution to interreligious trust
We have seen that fides has a variety of religious, legal and seignorial meanings and was also used to describe the authority of the notary. What do all these meanings have in common? They all speak to the relationship between a person and their community, placing the reputation and reliability of a person in conversation with either a religious, social or legal community. Religious understandings of the term show how communities of the faithful were built using the idea of fides. In seignorial settings, the relationship between a peasant and a lord was defined by fides, by the behaviour and loyalty that one owed another. In law, fides was rooted in public commitments and the good behaviour which citizens owed to each other. In notarial culture, the position of the notary and his documents in relation to the community and the law was defined by fides. It is this relationality of fides which allows us to understand how the term could build and maintain trust in relationships between merchants of different religious communities.
Each understanding of fides emphasises witnessing and the community as a solidifier of personal reputation and a part of the creation of trust. Forrest highlights the importance of witnesses and ‘the open and public manner in which everyone had conducted themselves’, arguing that communal witnessing or communal memory was necessary for the creation of trust. For Forrest, an individual’s ability to function in medieval society was determined by their own character but also by how they appeared to others, on the formation of a shared attitude towards the individual, related to the coexistence of rumour, gossip and defamation.Footnote 105 We can look to a wide array of literature on the concept of medieval fama (reputation) in support of the impact an individual’s standing in public had on the ways in which they could function in society.Footnote 106 Indeed, Steven A. Epstein has emphasised the importance of doing mercantile business in public, in order to protect one’s reputation.Footnote 107 In a situation analogous to Forrest’s bishops who sought to create an ‘institutionally sanctioned form of social memory’, the merchants of Barcelona and Mallorca can be seen to use social memory, to use the communities of which they are a part as social institutions in and of themselves, to provide witness to and support of their activities.Footnote 108 The community acted as a guarantor of trust, providing evidence of good actions and intentions, but also the possibility of punishment.
Indeed, as the previous discussion has shown, I am not the first to emphasise fides as a term tied to community, witnessing and reputation. Morgan argues that ‘Pistis is a relational concept whose meaning is always defined in part by the relationship in which it operates’.Footnote 109 It is about the trust which one gives as well as the trust that one is given. Morgan noted that we need not distinguish completely between trust as strictly interpersonal and as a shared commitment to ideals, social formations or institutions. Rather than a secure idea, interpersonal trust defers to ‘proofs, arguments, shared beliefs, institutions, and the views of a wider community, all of which themselves depend on trust and further beliefs’.Footnote 110 Hyams, too, notes that fides came to be associated with proof and as part of an effort to convince others that one can be trusted.Footnote 111
Forrest also points to how trust was located within groups and networks, pointing to the complex credit networks which existed in medieval English villages/communities. The complex relationships which coexisted meant that each promise was more than a matter of trust between one lender and one borrower. Each relationship impacted many people in the local community in mutually dependent obligations. As such, he emphasises, ‘faith was not merely given by the borrower to the lender, with onlookers as witnesses; all interested parties – which might mean the whole community or the whole network – wanted to be reassured that a new obligation was underwritten by faith’.Footnote 112 Trust in these circumstances was related both to one’s own image and to the expectations of a variety of other people.Footnote 113 The tie between fides and the community could work in reverse; Forrest notes that ‘loss of trust was widely associated with isolation’, while a variety of scholars have pointed to punishments or sanctions related to loss of reputation or the breaking of obligations.Footnote 114
It was exactly this relationship between an individual and a community which was the important part of fides in commercial relationships. It did not matter that parties were different communities. What mattered was that the term called upon one’s relationship with and one’s standing in a community. Fides terms did trust work, building relationships of trust by calling directly upon the relationship each individual had to their community and placed the reputation of the promisor within the support, or later punishment, of the community. A relational and trust-work understanding of fides terms explains how a variety of trust relationships were created, between members of the same community and members of different communities, as evidenced in the two following examples of interreligious trade contracts from Barcelona: firstly, between Borracius Mancofa, Stephanus Bordelli and David de Apiaria, an example of Christian merchants using fides language to secure their relationship with a Jewish merchant; and secondly, between Bonjuha Bonavia, Issach Bonavia and Jacobus de Forebus, an example of Jewish merchants using fides language with a Christian investor.
Fides in the commercial wild
On 7 August 1314, Borracius Mancofa, Stephanus Bordelli and David de Apiaria, the latter a Jewish merchant, stood before the notary Pere de Torre in his office in Barcelona. The contract written by Pere de Torre records that Borracius Mancofa and Stephanus Bordelli received goods from David de Apiaria and agreed to transport him, along with his mother, family, servants and slaves to Cyprus. The text of the contract was quite detailed, as Borracius Mancofa and Stephanus Bordelli provided options for David de Apiaria to decide at a later point whether he wanted to send the ship on to Narbonne from Cyprus with his goods and family. The agreement ended with a statement by David de Apiaria promising that he would fulfil his side of the agreement, without using any faith language.Footnote 115 This was followed by a shorter statement by Borracius Mancofa and Stephanus Bordelli in which they agreed to uphold their side of the contract, ‘in good faith’: super omnibus aliis predictis et singulis complebimus et accendimus vobis bona fide et sum aliquo dolo et fraude (‘concerning all the other aforesaid matters and each one individually, we will fulfil and agree with you in good faith and without any deceit or fraud’). Though Borracius Mancofa and Stephanus Bordelli were of a different religious faith to David de Apiaria, the men chose to secure their promise by employing the language of fides. The combination with dolo et fraude recalls legal meanings of the phrase, emphasising their good intentions (though, as we have seen, promises were still made by merchants, and indeed were legally binding, without the use of fides language).Footnote 116
This was not the first time that Borracius Mancofa and Stephanus Bordelli had agreed to ship the goods of another merchant. Earlier that same year, on 14 June 1314, the pair used Pere de Torre’s services to create an agreement with Petrus Terrache, Mancho de Canali, Guillemus Pebrery and Salvator Falicii, all citizens of Barcelona, to ship their goods to Sicily. In this agreement, following very much the same form as that with David de Apiaria later in the year, Borracius Mancofa and Stephanus Bordelli similarly agreed to uphold their side of the agreement ‘in good faith’: omnia supradicta et singula promitimus nos dicti Borratius Mancofa et Stephanus Bordelli accedere et complere vobis dictis mercibus et rebus et bona fide et sine aliquo dolo fraude (‘we promise, for all of the above and individually, Borratius Mancofa and Stephanus Bordelli, to perform and fulfil for you, the said goods and things, in good faith and without any deceit or fraud’).Footnote 117 Petrus Terrache, Mancho de Canali, Guillemus Pebrery and Salvator Falicii then made a statement to uphold their side of the contract. Though the folios of the agreement have suffered damage, making a full transcription challenging, it appears that they did not make their statement on good faith.
In comparing Borracius Mancofa’s and Stephanus Bordelli’s behaviour in these two agreements, we can see that the Christian investing party (Petrus Terrache, Mancho de Canali, Guillemus Pebrery and Salvator Falicii) was not treated any differently from the Jewish investing party (David de Apiaria). In very similar contracts, written by the same notary and with the same travelling merchants – one party to the agreement who undertook the trading venture using the investment – promised to conduct their business ‘on good faith’. The investing parties received the promise which was backed up by the fides language but did not use faith language themselves. These agreements suggest that there was not an issue for a Christian travelling party to make a promise using fides language to an investing party who was of a different religious community. The agreements between Borracius Mancofa, Stephanus Bordelli and David de Apiaria contained no additional clauses or promises; though the agreement was more complex (as David de Apiaria was expressly given the option to make future decisions about the location of the next voyage of the ship with his goods), the parties did not choose to include additional trust language. The choice to include fides language, alongside references to lawful behaviour and honesty, highlights the reputational meanings of fides/faithfulness; the terms call upon one’s reputation, loyalty, and trustworthiness in relation to their community.
Jewish merchants also made use of faith language to build trust and elevate their promises. On 2 June 1316, Bonjuha Bonavia and Issach Bonavia, sons of Abram Bonavia and Jews of Barcelona, received an investment of £30 from Jacobus de Forebus, a Christian merchant of Barcelona. The investment was to be used for trade in Narbonne and Provence. In the agreement, written by the notary Pere de Torre, Bonjuha and Issach Bonavia made a promise to Jacobus de Forebus to be faithful: Promittentes esse fideles etc (‘we promise to be faithful etc.’).Footnote 118 A promise to be faithful, made from Jewish merchants to a Christian investor, cannot have simply referred to religious faith, while a strictly legal understanding would miss the deep religious connotations of the word. Indeed, the combined religious, secular and legal connotations of fideles suggests that Bonjuha and Issach Bonavia were choosing to secure their promise by calling upon their reputation for reliability and honesty in relation to their community. That Jacobus de Forebus was not part of the community did not matter. Bonjuha and Issach Bonavia could rely on their social reputations to create trust in their future intentions and behaviours.Footnote 119
For the term fides to function as a part of a relationship-building phrase in these agreements – as well as the contract between Abdella Alfenechi, Alfarag of Saragossa and Bertrandus de Teviza which opened this work – the meaning would need to be shared in some way between the different communities. Focusing on the term as either religious, legal or notarial cannot provide an understanding which allows the word to function as trust language. Rather, the faithfulness in the contracts represented and affirmed loyalty and trustworthiness, calling upon the reputation of the parties in relation to their communities, rather than invoking their faith in relation to God or solely calling upon Roman legal understandings (which by this time could not be neatly separated from religious meanings). This relational and trust-work based conception of the term allows us to understand the way in which trust language was functioning across religious boundaries. Meanings rooted in public commitments centred on faithfulness in business dealings and the trustworthiness as merchants, using the social institution of the community to support claims to reliability and provide a path for enacting reputational damage if needed.
Conclusion
The agreements discussed in this article all demonstrate that there was some form of shared culture of trust, or at least a shared trust language, between individuals from different religious communities. There was a shared concept of the ways in which one might seek to build trust with another party, through a deeply relational, networked and interpersonal usage of fides – one that connects, rather than separates. Though Forrest observes that one consequence of faith was the belief that ‘a firm faith in God was protection against doubt and heresy’, he also highlights that Jews and Muslims were regarded as ‘the faithful’ of an erroneous faith, though a faith nonetheless.Footnote 120 Such thinking was present in Catalan intellectual circles where it was understood that, though the three main religions conceived of God in different ways, they all worshiped the same God. This was argued by Ramon Llull in his Book of the Gentile, for example.Footnote 121
The easy use of fides in contracts between members of different religions challenges the idea that the conclusions made by Hyams might have a more general applicability. He finds that there are no cases in England ‘or elsewhere of a Jew swearing his faith in this way or giving faith with his right hand’. This shows, he argues, a ‘serious defect in the legal and everyday social capacity of English Jews to pursue their business activities with their Gentile neighbours’; indeed, he goes so far as to call this a ‘gulf of faith’.Footnote 122 In the examples I have presented here, however, we find the opposite, albeit in a different context. Rather than revealing a gulf of faith, the contracts of Mallorca and Barcelona show that there was a shared understanding of methods of trust-building using faith language, which was used by members of all three religious communities.
One way to push this finding further is to consider how a shared understanding of fides language interacted with and/or supported inequalities in power and agency in medieval Catalan trade. Forrest points out that while the language of faith suggests equality and, indeed, unity, its use was tied up with intellectual hierarchies and tight boundaries of belonging and control.Footnote 123 Though space limits investigation here, how the social standing and wealth of individuals intersected with use of fides in inter-community relationships deserves future attention.
To conclude, by considering the wide connotations of fides together and understanding the term relationally, this article has revealed how a shared culture of trust operated through faith-related language between individuals from different religious communities. By placing an individual and their trustworthiness in relation to their community, fides functioned to create and maintain trusting relationships both between co-religionists and between members of different religious groups. Fides allowed merchants to use their social relationships as evidence of goodwill and provided a road to reputational punishment in case of failure or betrayal. The notarial contracts from Barcelona and Mallorca demonstrate how the term was used to create and maintain interpersonal trust and presents an example of merchants choosing to ‘trust trust’.Footnote 124 They trusted that the trust in the community, and in relation to the community, would be sufficient and effective in creating the relationships required for long-distance (and risky) trading ventures.
Acknowledgements
This research was supported by the Art and Humanities Research Council and St John’s College, University of Oxford. The author would also like to thank the University of Maryland for its support. Thank you to James Cogbill for commenting on an earlier version of this article and to Ian Forrest for encouraging me to develop this idea.
Competing interests
The author declares none.
Author biography
Annabel Laura Hancock is a Postdoctoral Associate Member of the Faculty of History, University of Oxford, and conducted research for this article during her time as a Visiting Research Scholar at the Department of History, University of Maryland.
Open access
