The Case of the Deliberate Wine Spill

Herbert Hausmaninger (Vienna)

“Licet autem venditori vel effundere vinum, si diem ad metiendum praestituit nec intra diem admensum est. effundere autem non statim poterit, priusquam testando denun­tiet emptori, ut aut tollat vinum aut sciat futurum, ut vinum effunderetur.

[“Now the vendor may legitimately pour the wine away if he has set a time for its measuring out and it is not measured within that period. He cannot, however, thus pour it away, so to speak, out of hand; he must first warn the purchaser, before wit­nesses, that he should remove the wine or realize that if he does not the wine will be poured away. All the same, if he does not pour it away when he would be entitled to do so, he is to be commended; he can further charge rent for his casks, so long as he has an interest in the vessels which hold the wine being empty (as, for instance, if he would have let them out) or if he would have to hire other containers. It is, though, the more appropriate course for him to hire other containers and to hold back the wine until the purchaser pays him the rent thereof or else to sell the wine in good faith; in short, he should mitigate the purchaser’s loss so far as he can without detri­ment to himself.”]

A certain quantity of wine, comprising the contents of several casks (dolia),¹ was sold with the agreement that the wine was to be measured out to the buyer prior to a specific date.

The first sentence of this text from Ulpian’s commentary on the ius civile of Sabinus was probably written by Sabinus³ who held that in this case the seller

¹ The terminology of the text changes between dolia (casks) and vasa (containers).

² The textual reference “ut... tollat” indicates that measuring and delivery were to coincide in time.

³ O Gradenwitz, “Das Ausgieβen des Weines und L.1 §3 de periculo et commodo”, (1929) 37 BIDR 54; P Apathy, “Mora accipiendi und Schadenersatz”, (1984) 101 SZ 199 n.38, citing E Rabel, was authorized to pour out the wine.⁴ Whether the following restriction that would permit this extreme measure only after setting an additional grace period and expressly threatening effundere was formulated by Sabinus, Ulpian or a third person is not immediately clear.⁵ But three other texts (Cato, de agricul­tura 1, 148(1)-(8);⁶ Ulpian D. 18.1.6.4;⁷ Pomponius D. 33.6.8)⁸ provide a per­spective that suggests an author after Sabinus whose name had been cited by Ulpian but was subsequently omitted by Justinian’s compilers.⁹ I would thus assume the following development leading up to Ulpian D. 18.6.1.3:

(1) Cato drafted a model contract between wine producer (seller) and wine merchant (buyer), according to which the buyer is to take delivery on 1 January. If the buyer fails to appear, the seller is to measure out the wine unilaterally (into smaller containers), but keep it until 1 October. Then he may do with it as he pleases (e.g., pour it out).¹⁰

(2) In a contract that contains no delivery date, the veteres (republican jurists) referred to in Ulpian D. 18.6.1.4 consider the time of the new harvest (prob­ably around 1 October) as an implied term.¹¹ If the buyer fails to take deliv­ery, the seller may measure out the wine and spill it.

(3) If a contractual delivery date is set, as in Ulpian D. 18.6.1.3 (e.g., 1 January), Sabinus grants an unrestricted right to destroy the wine when the buyer fails (through his own fault) to take timely delivery.¹²

Grundzuge des romischen Privatrechts, (2nd edn, 1955) 140, and P Jors, Geschichte und System des romischen Privatrechts (1927) 128 and n.2.

⁴ Gradenwitz, supra n.3, 55, considered pouring out the wine so barbaric that effundere must have had a different meaning, viz. pouring into different containers. J-G Wolf, Error im romischen Vertragsrecht (Cologne-Vienna, 1961), 131 and n.71, contradicts: pouring out the wine is necessary in view of the new harvest “und wird einer rigorosen Profitgesellschaft wie der romischen kaum als Rucksichtslosigkeit aufgefallen sein”.

⁵ Gradenwitz, supra n.3, at 54, n.2, supposes a pre-Ulpianic gloss to Sabinus; Apathy, supra n.3, at 199, n.38, thinks of Ulpian.

⁶ “(1) Vinum in doliis hoc modo venire oportet... (5) Vinum accipito ante K. Ian. primas. (6)

Si non ante acceperit, dominus vinum admetietur. quod admensus erit dominus, pro eo resolvito........

(8) Locus vinis ad K. Octobres primas dabitur. si ante non deportaverit, dominus vino quid volet faciet.”

⁷ D. 18.1.6.4 (Ulp. 28 ad Sab.) “Si doliare vinum emeris nec de tradendo eo quicquam convenerit, id videri actum, ut ante evacuarentur quam ad vindemiam opera eorum futura sit necessaria: quod si non sint evacuata, faciendum, quod veteres putaverunt, per corbem venditorem mensuram facere et effundere..

⁸ D. 33.6.8 (Pomp. 6 epist.): “Si heres damnatus sit dare vinum, quod in doliis esset, et per legatarium stetit, quo minus accipiat, periculose heredem facturum, si id vinum effundet: sed legatarium petentem vinum ab herede doli mali exceptione placuit summoveri, si non praestet id, quod propter moram eius damnum passus sit heres”.

⁹ See infra n.15.

¹⁰ On Cato’s contract clauses see U von Lubtow, “Catos leges venditioni et locationi dictae”, in Symbolae Taubenschlag III (1957) 396; Wolf, supra n.4, 128.

¹¹ The decision of the veteres with respect to the vintner, who is in urgent need of his vessels, is extended by Gaius, D. 18.6.2 pr, to the wine merchant: “si vero mercator est, qui emere vina et vendere solet, is dies spectandus est, quo ex commodo venditoris tolli possint”.

¹² cf. D. 18.6.5 (Paul 5 ad Sab.) “Si per emptorem steterit, quo minus ad diem vinum tolleret, postea, nisi quod dolo malo venditoris interceptum esset, non debet ab eo praestari”.

(4) An unnamed jurist after Sabinus but before Pomponius imposed a restric­tion: effundere should only be permissible after an express warning has been given to this effect and the buyer has been granted an additional grace period.

(5) A broader view was taken by Pomponius in D. 33.6.8: If the legatee does not take timely delivery of a bequest of wine, effundere by the heir appears to be “risky” (periculose). This language suggests that Pomponius may imagine situations in which it might be permissible even among non­professionals and without the need for an additional warning. He would probably have approved effundere in transactions between producers and merchants, e.g., when the buyer could not be reached to be given the warn­ing yet the seller was under pressure to act. The vagueness of Pomponius' formulation suggests the lack of a clear standard and the need for special attention to the particular circumstances of each case.

(6) Whereas Ulpian endorses the view of the veteres (above point 2) permitting an immediate winespill in case of the seller's urgent need of the containers, he requires a warning and a grace period in the absence of such pressing need.

The temporal perspective emerging from these texts may be reinforced by a logical one: the second sentence (effundere autem non statim...) should for rea­sons of style and structure neither be attributed to Sabinus nor to Ulpian. It would sound awkward as an afterthought written by the author of the apodic- tic statement of the first sentence.

That Ulpian himself was aware of the range of situations and approved effun­dere even without additional warning is clearly demonstrated by the text imme­diately following in his Sabinus commentary,^[148] when in the absence of express agreement on a delivery date he approves the holding of the veteres that the need for empty containers in view of the new harvest constituted the latest possible delivery date, after which effundere of the wine would be permitted.

In addition, Ulpian’s circumspect discussion after laudandus in D. 18.6.1.3 would have to be viewed as misplaced emphasis if the jurist had been primarily obligated to address an unlimited right of destruction and had dealt with this problem cursorily by setting a grace period. It therefore seems more likely that Ulpian reported a view held by another jurist after Sabinus (and later eliminated by Justinian) who had suggested such a restriction.

Ulpian’s concern was thus not to develop further legal restrictions of the seller’s right to pour out the wine, but to suggest less radical procedures based on economic concerns. He envisages three possible patterns:

(1) The seller sues the buyer for the profit he could have made by leasing the containers (which would be empty if the buyer had taken delivery in time) to a third party.

(2) The seller himself rents containers, e.g., for his own harvest, suing the buyer for these costs or claiming them by virtue of his ius retentionis when the buyer sues for delivery of the wine.^[149]

(3) The seller sells the wine bona fide to a third party.

In these variants suggested to the seller by Ulpian, the jurist distinguishes the first-mentioned right to sue (by means of actio venditi) for damages (lost prof­its)^[150] from two other options which he labels commodius. This label usually sig­nals technical, in particular procedural, efficiency, a behaviour that appears to the jurist as more skilful and practical than another available alternative. Roman jurists frequently emphasize the more desirable role of defendant in a lawsuit, either because he does not bear the burden of proof^[151] or because he may exercise a right of retention^[152] by virtue of an exceptio doli or automatically on account of the bona fides-clause in the action brought by the plaintiff. Ulpian proposes as his first commodius option that the seller deliver the wine to the delaying buyer only after the latter has paid rental expenses incurred by the seller for other containers. His second option is that the vendor sell the wine for the account of the buyer to a third party. Which of these options will be more beneficial to the seller should depend on the specific circumstances of the case (such as the willingness of the buyer to take delivery and/or the potential of the market to absorb the wine). But clearly Ulpian favours vendere vinum bona fide, which he places last for emphasis. And he tries to make this variant attractive to the seller by assuring him that no special effort will be required of him in this respect.

Although Ulpian’s laudandus est introduces only a legally non-binding rec­ommendation, this suggestion opens a number of interesting legal perspectives. Legally speaking, the grace period offered to the buyer frees the seller from any reproach of dolus on his part. Nevertheless, the buyer will probably have con­sidered effundere an intolerable provocation. In anger, he will most likely have sued the seller even if jurists will have counselled against it. Occasionally he may even have found a compassionate judex whose sense of bona fides was different from Ulpian’s. In other cases, where the absence of the buyer made warning and grace period difficult or impossible, a potential dolus-claim by the returning buyer will have rendered effundere by the seller even more risky. Why then did Ulpian refrain from turning his moral appeal to conserve economic values (laudandus est potius) into a new and stricter legal standard of good faith? There is no doubt that his authority would have allowed him to create new law if he had wanted to. Why did he abstain from formulating the principle of min­imization of damages (quam minime detrimento sit...) as a legal requirement in cases of mora creditoris? I would suggest the following reasons:

(1) Roman vintners or wine merchants will rarely have resorted to the extreme measure of spilling the wine.^[153] Respect for the product, fear of loss of goodwill among clients, and desire to avoid litigation were probably aspects that were carefully weighed before taking the final step of pouring out the wine.

(2) Yet occasionally there must have been special circumstances in which effundere appeared to be a legitimate measure of last resort. An unexpect­edly rich harvest of high quality could marginalize Ulpian’s suggestions to rent other containers (which were not available) or sell the wine (which found no takers). The strict rules of republican law may have survived in more or less frequent contract clauses of classical law. The practice and ethics of the wine trade may have insisted on a framework of rule and exception in which effundere maintained its (reduced and restricted) place.

(3) To impose a general legal duty on the seller to minimize damages in favour of the delinquent buyer would have upset the delicate balance of interest in the transaction. It seems appropriate to impose a duty of care and custody on the seller up to the point of delivery to the buyer or the latter’s delay. But from that point forward, pressure on the buyer to take delivery seems more justifiable than continuing duties of care by the seller.

If Roman business practice and ethics provided no immediate reason for Ulpian to resort to more stringent legal regulation,^[154] why then did he proceed to give “gratuitous” economic advice?^[155] Although it is unusual for a Roman jurist to offer such non-legal advice, we may observe that it is also unusual for him to criticize the law.^[156] Yet numerous examples show that Roman jurists like mod­ern scholars reflected on the effects of legal rules, occasionally finding them to be inadedquate and suggesting improvement. In some instances Roman jurists felt able and/or willing to perform the task themselves, in others they were reluc­tant to assume this active role. In this they were similar to modern judges wait­ing for a problem to become “ripe” for judicial decision-making. The more we explore Roman legal science the more we are impressed by its multifaceted breadth of argument and depth of vision.^[157]

Ulpian may have reflected on a desirable future course of the law in which a stricter interpretation of the good faith requirement would no longer permit the spilling of the wine even after giving an appropriate warning. He may have wanted to put the business community on alert concerning this potential devel­opment rather than imposing the new standard with immediate effect. One is reminded of the “admonitory” decisions (Appellentscheidungen) of the German Constitutional Court pointing out to the legislature how to provide conditions that fully conform to the Constitution. The Court gives this advice when it exercises its decisional option to declare a statute “barely constitutional” (noch Verfassungsmafiig) in order to give the legislature time to adjust.^[158]

But one may also envisage a more modest thrust of Ulpian’s proposal than that of quasi-legislative activism: the jurist may simply have exercised the time- honoured function of his profession in the realm of cautelary jurisprudence. Even the most prestigious jurists were not above giving advice in simple day-to- day legal transactions. Is so doing, they were undoubtedly aware of the general importance of this “preventive law” in avoiding social conflict and legal con­frontation. Even if Ulpian had had no reform agenda, his advice offered indi­rectly to the general public in his prestigious commentary would have resulted in more respect for economic values, less social friction and less contract litiga­tion.