CELSUS ON UNDERGROUND PIPES

Where ruta caesa concerned property that the seller retained after the sale, the buyer acquired ownership of accessories that were classified as part of the property, aedium or pars aedium.

These categories were recognised as alternatives in Firmus’ question about pipes in D.19.1.38.2, an hae aedium essent, an ut ruta... quae aedium non essent. While Proculus’ response ignores the categories, Celsus addresses them directly when he states that the pipes should belong to the buyer on the grounds that they were attached to the building, ut inserta et inclusa aedificio partem eius esse. His opinion is part of a larger juristic discussion of what belonged with a property, not just among contemporary jurists (for example, lavolenus on grain bins, discussed previously) but also in the Republican era and later in the writings of Ulpian. In these discussions, the jurists broaden the category of part of the property, working with the traditional criteria of physical attachment to address the complexities of the real estate market, for example, by making the categories flexible enough to cover the sale of an estate with many working parts and not just a building with part attached by masonry or plaster. Celsus’ opinion in D.19.1.38.2 both recognises these social needs and connects them with the legal dialogue about parts of the property.

Celsus urged that the pipes should be classified as part of the property because they were built in and connected to the building, inserta et inclusa, though the two parts of this expression probably should not be taken together. The first term, inserta, seems out of place because it is used of buildings and real property only in this passage of the Digest. Inserere usually applies to writing, that is, inserting a phrase or clause into a legal document.^[650] It seems likely, then, that the text was disrupted in compilation and that inserta was not originally part of Celsus’ description of the pipes.

Instead, inserta shows that Celsus discussed contracts in a now lost part of his commentary on this case. On this reconstruction, Celsus directly addressed Proculus, reconciling their views by recommending that the pipes be treated as if they had been specified in a contract. In this reconstruction, Celsus adopts a similar strategy to Iavolenus in the case about the pipes and castellum, where the castellum is included as part of the property even though it is not in the written contract.

The other part of Celsus’ description of the pipes, inclusa, resonates with the juristic discussion of ‘part of the property’, specifically with the issue of physical attachment that involves joining metal, like the pipes in D.19.1.38.2. The verb inclusa connects Celsus’ rationale to a case that tested the limits of part of the property, first in relation to real estate and then movables (D.41.3.30.1 (Pompon. 30 ad Sab.)). This case was not about sale but more generally claims for ownership when different people owned different parts of an object that, when joined, were considered a unified whole, a situation analogous to the division of accessories between buyer and seller. The first part of the case involves columns and roof tiles owned by someone other than the landowner: could he claim them after they were built into someone else’s building? In general, the answer was ‘no’, not while the building was standing, but he could claim them back if at some point it was demolished.^[651] In the second part of the case, the rule was generalised from buildings to movable property through the example of a gemstone and its gold setting. Though the comparison between buildings and jewellery is made by Pomponius, a younger contemporary of Celsus, it may have already been in discussion at the time of D.19.1.38.2. Indeed, Celsus’ use of the term inclusa invokes the analogy because this verb is the usual word describing gems set in gold and silver in the Digest.^[652]

Soldering pipes may seem far from delicate welding in gold, and indeed the two processes are distinguished by jurists and laymen alike.⁴² But for Celsus, any kind of metal joining has the same legal outcome and, as a result, he classifies the lead pipes as part of the building.

Celsus may not have been the first to take this approach to ‘part of the property'. Cassius considered an arm welded onto a metal statue as part of it, even if it originally belonged somewhere else because it seems the join was not visible, in contrast to lead soldering which leaves a seam.⁴³ The same principle may have been applied to buildings as early as Labeo, whose opinion lavolenus cites in a case about plant pots. Whether the pots were ceramic or lead, they were part of the property if they were permanently attached to it, ‘if they were bound to the buildings in such a way that that they were permanently installed, (si ita illigata sint aedibus, ut ibi perpetuo posita sint, D 33.7.26pr (lavolen. 5 Post. Labeo.)).⁴⁴ The type of attachment is vague - illigata can include tying with straps or soldering - and perhaps this is the point.⁴⁵ By diversifying the type of attachment, the category ‘part of the property' could take into account construction techniques and typical building features neglected by the early definitions of ruta caesa, just as in lavolenus' opinions on grain bins and roof tiles.⁴⁶ Celsus takes a similarly expansive view of part of the property

⁴² For ferruminare or ferruminatio for welding metals or fusing with heat or glue: for example Plin. N.H. 34.116 (gold), 34.136 (stones in a furnace), 36.176 (cement), 36.199 (glass and sulphur), 37.28 (crystals); D.6.1.23.5 (Paul. 21 ad Ed.) (no material specified); D.41.27pr (Pompon. 30 ad Sab.) (silver to silver). For plumbare for soldering with lead only: Cato, On Agriculture, 21.5 (parts of the olive press); Tac. Ann. 2.69 (lead tablets); Plin., N.H. 34.161 (silver is not joined with lead because of different melting points); Front. Aq. 124; D.41.27pr. (Pompon. 30 ad Sab.) (lead to lead); D.19.1.17.8 (Ulpian. 32 ad Ed.) (adplumbare, faucets onto pipes). There is some slippage in D. 34.2.32.1 (Paul. 2 ad Vitell.), where joins of gems and fine metals are described with all three verbs: includo, illigo, and replumbo.

⁴³ D.6.1.23.5 (Paul. 21 ad Ed.): ‘Non idem in eo quod plumbatum sit, quia ferruminatio per eandem materiam facit confusionem, plumbatura non idem efficit'. (It is not the same for something that has been soldered because welding makes a join with the same material, soldering does not do the same.) Even if the arm is removed, it does not revert to its prior owner. See Maddalena (1971) pp. 184-5.

⁴⁴ D.33.7.26pr (Iavolen. 5 Post. Labeo.): ‘Dolia fictilia, item plumbea, quibus terra adgesta est, et in his viridiaria posita aedium esse Labeo Trebatius putant. ita id verum puto, si ita illigata sint aedibus, ut ibi perpetuo posita sint'. (Labeo [and] Trebatius think that ceramic jars, and likewise those made of lead, that are filled with dirt, in which plants are planted, are part of the property. I think that this is true also if they are attached to the buildings in such a way that they are installed permanently). Though the case concerns accessories in legacy rather than sale, the jurists compared these two legal contexts and attempted to apply the same rules in both: for example, for an explicit comparison, D.19.1.17.2 (Ulpian. 32 ad Ed.) (citing Trebatius).

⁴⁵ Labeo may have soldering lead in mind if D.50.16.242.2 (Iavolen. 2 Post. Labeo.) (lead on roof tiles) comes from the same context and, as assumed by Riccobono (1915-17), p. 482, was the opinion of Labeo not Iavolenus'.

⁴⁶ As noted in Meincke (1971), p. 143, the superficies rule applied to materials and construction of all types.

in D.19.1.38.2, and, if the analogy implied by inclusa was part of his original opinion, he also addresses the traditional legal categories in his rationale.^[653] Yet his attitude towards these categories and the distinctions on which they depend seems decidedly untechnical, for example, when he treats jewellery and plumbing in the same way. In his rationale, Celsus explicitly recognises the inadequacy of a legal category that protected buyers only when they carefully inspected the property and knew how to apply the relevant legal categories. Some buyers and sellers might rise to the occasion, but Celsus is concerned to make the law more broadly effective by adapting it to the needs of typical Roman landowners, who were not often closely engaged in the management of their estates or well versed in the law.^[654]

<< | >>

↑

Source: Plessis P.J. du. (ed.). New Frontiers: Law and Society in the Roman World. Edinburgh University Press,2013. — 256 p.. 2013

CELSUS ON UNDERGROUND PIPES

More on the topic CELSUS ON UNDERGROUND PIPES: