Consensual contracts

(Inst.Gai.3.135.-8., Inst.3.22.)

The consensual contracts were bilateral and bonae fidei (see Birks, Obligations, 65). Their origins are uncertain, but they were certainly not the earliest contracts to have emerged in Roman law.

Obligations contracted by mere consent are exemplified by sale, hire, partnership and agency, which are called consensual contracts because no writing, nor the presence of the parties, nor any delivery is required to make the obligation actionable, but the consent of the parties is sufficient (lnst.3.22pr.-l.)

9.3.1 Sale (emptio venditio)

(Inst.Gai.3.139.-4I., Inst.3.23., D.19.1., C.4.38., 49.)

Sale was in practice the most important of all Roman contracts. In archaic law, sales were affected either by mancipatio (as a real sale) or by stipulatio. Both required a certain amount of form—understandable in early Rome, but something of an inconvenience when Rome's economic activity started to grow quickly. The need to recognize the validity of agreements that were made without the necessary form contributed to the development of a separate contract of sale: 'From the begin­ning of the second century BC the pulse of trade began to beat too fast for the leisurely methods which had suited the cautious Roman peasant well enough. The kinds of things dealt in multiplied indefinitely and the dealers were often peregrini, men outside the native cautelary tradition.

How was the contract of sale formed? The essential requirements were that there should be an agreement about the thing sold and the price.

9.3.1.1 Agreement

An agreement of wills (consensus) orally, in writing, or even by messenger was required. This could be proved in several ways. The conduct of the parties often constituted such proof, e.g. shaking hands or exchanging rings. There was no need, however, to prove that the parties had made the agreement in each other’s presence (potentially an advantage over mancipatio and stipulatio):

Paul, Edict, book 33: Sale is a contract of the law of nations and so is concluded by simple agreement; it can thus be contracted by parties not present together, through messengers, or by correspondence. (D.18.1.1.2.)

Ulpian, Sabinus, book 28: It is obvious that in contracts of sale there must be consent; the sale is invalid if there is disagreement either as to the fact of sale or the price or any other matter. (D.18.1.9pr.)

The practice of giving arra ('earnest money’) made proof of agreement relatively straightforward. Arra was a token of good faith and seriousness of purpose, given by the buyer to the seller to cement the bargain. The idea was not a specifically Roman one—there were Greek and Egyptian models for the practice. The arra could consist of money (in which case it amounted in effect to a deposit) or of some other item of value, e.g. a ring. It did not have to be of particular commercial value, although the seller occasionally demanded something valuable as a penalty should the buyer default—if the buyer did so, he forfeited the arra.

At no stage of Roman law was arra regarded as necessary for the validity of a con­tract of sale. Its function was to provide proof of serious intent·,

A contract of sale is concluded... even if no arra has been given. For what is given by way of arra is [merely] evidence of a contract of sale having been concluded. (Inst.Gai.3.139.)

Gaius, Provincial Edict, book 10: The common practice of giving earnest In respect of a pur­chase does not suggest that without the earnest there would be no contract but facilitates proof of the fact of agreement on the price. (D. 18.1.35pr.)

The practice of giving arra was considered in Workers Trust and Merchant Bank Ltd v Dojap investments Ltd [1993] AC 573 (see 11.3.3).

Another form of proof, increasingly common during the Empire in the case of important contracts of sale, was the use of writing. But that practice brought with it a complication—if the parties agreed to put their contract into writing, when did it become binding? Wasit whenthe parties agreedon the essentials, i.e. price and sub­ject matter, or when the contract was put into writing? Justinian decreed that such a contract was not binding until put into writing. Until that time, either party could withdraw; but if arra had been given, it would be forfeited by the party refusing to abide by the contract (cf. Lee, Elements, 302, as well as Birks, Obligations, 44-9).

9.3.1.2 The thing sold

Paul, Edict, book 33: There can be a valid sale of anything which one may have, possess, or sue for; but there can be no sale of anything which is excluded from commercium by natural law, the law of nations, or the observances of the state.

The general rule was that anything (both corporeal and incorporeal) could be sold unless it was excluded from commercium. But there were some exceptional catego­ries of things that need comment:

(a) Prohibited things A number of 'observances of the state' forbade the sale of things in certain circumstances. For example, a ban was introduced in the early Empire on the selling of houses with a view to their demolition for profit. And there were restrictions on the sale of dotal immovables (see 5.2.5.3-4) and on the sale of property belonging to wards (see 5.4.1.3).

(b) Things excluded from private ownership Such things could not be the subject of a valid contract of sale if the purchaser knew the facts:

A buyer who knows he is buying a sacred or religious place, or a public one... achieves noth­ing at all. However, if he is misled by the seller and buys them as private or secular, he can bring an action on purchase against the seller, on the ground that he has not been allowed to remain in possession. The action will allow him to recover his interest in not being misled. (lnst.3.23.5.)

Pomponius, Sabinus, book 9:... you cannot wittingly buy a freeman or anything, the aliena­tion of which you know to be forbidden; for instance, sacred or religious land or land excluded from private dealings, such as those public lands which are not in private possession but are for public use, such as the Field of Mars. (D.18.1.6pr.)

What if the purchaser did not know that he was buying such things? It seems that a sale in such circumstances could have legal effect:

Pomponius, Sabinus, book 9: The purchase of a freeman or of sacred or religious land who or which cannot be held as property is considered valid, so long as the purchaser does not know, [Paul, Sabinus, book 5] [5]: because it can be difficult to distinguish a freeman from a slave. (D. 18.1.4-5.)

The contract was valid only to the extent of allowing the purchaser to recover the value of his bargain, but not for other purposes—a freeman bought mistakenly as a slave could not be considered 'sold', once the truth was discovered, because there was no sale.

(c) Things belonging to the purchaser A sale of property to a man who already owned it was a nullity—the seller has nothing to sell in such a situation. Indeed, if the seller had acted dishonestly, he would probably be liable for theft. If the buyer- bought property in which he had a proprietary interest, but not an absolute one, the sale was valid to the extent to which the buyer's title had been incomplete, e.g. where he was a co-owner:

Pomponius, Submits, book 9: Again, if a thing which he owns in common with someone else should be sold to the purchaser, it must be said that, the price being apportioned, the pur­chase is valid in part, in part invalid. (D.18.1,18pr.)

(d) Non-existent things

Pomponius, Sabimis, book 9: There can be no sale without a thing to be sold. (D,18.1.8pr.)

A distinction has to be drawn between things which have ceased to exist before the contract was made, (i.e. 'perished things'), and those which come into existence after Its making, (i.e. ‘future things’):

(i) Perished things A sale of property that had perished or had lost its identity before the contract was made was void:

Paul, Sabbius, book 5: Even though there is agreement on the thing, if the thing ceases to exist before the sale, the contract is void. (D.18.1.15pr.)

The rule could apply even where only a part of the subject matter had perished: Marcian, Rules, book 3: Should a man buy together, for one price, two slaves, one of whom is dead at the time of the sale, there is no purchase of the other one, either. (D.18.1.44.)

However, consider the following text concerning the sale of a house that had been partially burned down at the time of the making of the contract (the parties not knowing this):

Paul, Plautius, book 5:...

it is the later scenario which appears to conflict with the case of the two slaves in D.18.1.44. In both situations part of the subject matter has perished, and yet there is a valid contract in one case, but not in the other. It is arguable, however, that the two situations are distinguishable. In the case of the two slaves, the subject matter of the contract (i.e. two slaves) did not exist at the time of the making of the con­tract because only one slave was alive: whereas, in the case of the burned house, a house did exist at the relevant time (or at least half a house) even though it was a damaged house. But this attempt to reconcile the texts is fraught with difficulty— what is 'half a house? Is half a house worth having? Is it a house?

In the previous discussion, it was assumed that neither of the parties knew about the state of the house when making the contract. Would knowledge of the facts have made a difference? If both knew that the house had been burned, the contract was void. If the buyer knew, but the seller did not, the sale was valid. And if the seller knew, but the buyer did not, then:

Paul, Plautius, book 5:... no sale exists, if the whole house was destroyed before the contract was made; but if any part of the building remains, the contract stands, and the vendor must make good his damages to the purchaser. (D.18.2.57.2.)

(ii) Future things A contract to sell things with a potential existence was normally valid, an exception to the general rule that there could not be a sale if there was no thing to be sold. The selling of potential agricultural produce, e.g. 'next year's crop of wheat', was a common practice that necessitated legal recognition, an interest­ing example of how the law was shaped by economic realities. The position was the same as regards the sale of unborn children of slave girls.

A distinction was made between the sale of an 'expected thing' (emptio ret spera- tae) and the sale of a 'chance' (emptio spei). Both were valid contracts, but the for­mer was a conditional sale, whereas the latter was an absolute one. If a buyer agreed to buy an expected thing, the operation of the contract was conditional on the thing materializing in the future—if nothing materialized, there was no obliga­tion. But if the buyer bought a chance, he took the risk that the thing might never materialize, and had to pay the agreed price whatever happened:

Pomponios, Sabinas, book 9: Sometimes, indeed, there is held to be a sale even without a thing, as where what is bought is, as it were, a chance. This is the case with the purchase of a catch of birds or fish... (D. 18.1.8,1.)

The distinction could be difficult to draw in practice. Much depended on the inten­tions of the buyer—did he intend to pay only if something materialized? If so, then he bought an expected thing; otherwise, he bought a chance. Some things naturally fitted one category more than another. For example, 'next year's fruit crop' could be regarded as an expected thing—there was bound to be some sort of crop, even if it was a disappointing one. But 'the next catch in the fisherman's net' was likely to be regarded as the purchase of a chance—there could easily be no catch whatsoever. However, what if the sale was of 'the next haul of the trawler's nets'? Neither cat­egory springs obviously to mind.

Could an inheritance be sold? Strictly, an heir could not sell his position as heir. Subject to that, an existing inheritance (i.e. where the testator or intestate has died) could be sold, as could rights in it, but not a future inheritance:

1’omponius, Sabinas, book 9: The sale of the inheritance of a living or non-existent person is a nullity because the thing sold is not in existence. (19,18.4.1.)

The rule was necessary to dissuade unseemly dealings and speculation about the chances of succeeding to the estates of living persons.

(e) Res aliens ^another's property') Things belonging to a third party could be validly sold if the seller and buyer were unaware of the third party's rights. In such a case, the purchaser had to return the property to the owner and could sue for breach of the seller's duties to guarantee against eviction. What if either the seller or the buyer, or both, knew of the third party's title? In such a scenario, the prop­erty would most probably consist of stolen goods:

Paul, Edict, book 33'. Again, if both parties to a sale know that the object sold is stolen, no obligation is created on either side; if the purchaser alone knows, the vendor will incur no obligation, though he can obtain nothing under the contract unless he voluntarily per­forms what he agreed to do; but if the vendor knows and the purchaser does not, both parties are bound by the contract.... (0.18.1.34.3.)

That was the contractual position, but there could also be delictual liability for theft for dishonest handling of property belonging to another.

(f) Generic things Could there be a valid contract of sale in respect of things described generically—non-specific goods of a defined class, e.g. ‘100 bottles of olive oil'? The texts are inconclusive but it seems that if the source of the goods was suffi­ciently identified, there would be a valid contract; e.g. a sale of '100 bottles of olive oil from my store', or a sale of wine from a particular vat, would be valid (cf. D. 18.1.35.7.). Otherwise, the general rule was that it was not possible to have a sale of generic goods, because sale in practice was a market transaction where goods would most probably be described specifically when purchased. See Zimmermann, Obligations, 236 ff.

9.3.1.3 The price

Ulpian, Sabimis, book 1: There is no sale without a price. (£>.18.1.2.1.)

Agreement on the price was an essential of the contract of sale. In the course of time, a number of rules emerged clarifying this requirement:

(a) The price had to consist of money This rule was certainly controversial, and possibly not established till the late classical period. Paul provides an interesting historical perspective:

Paul, Edict, book 33: All buying and selling has its origin in exchange or barter. For there was once a time when no such thing as money existed and no such terms as 'merchandise' and 'price' were known; rather did every man barter what was useless to him for that which was useful, according to the exigencies of his current needs; for it often happens that what one man has in plenty another lacks. But since it did not always and easily happen that when you had something which I wanted, I, for my part, had something that you were willing to accept, a material was selected which, being given a stable value by the state, avoided the problems of barter by providing a constant medium of exchange. That material, struck in due form by the mint, demonstrates its utility and title not by its substance as such but by its quantity, so that no longer are the things exchanged both called wares but one of them is termed the price. (D.18.1.1pr.)

Here, we. come across one of the celebrated disputes between the Proculians and the Sabinians. The latter argued that the price in sale need not consist of money—that exchanging things constituted a sale, e.g. my cow for your ox (cf. Inst.Gai.3,141.; fnst.3.23.2.). The Proculians took the view that sale and exchange were dissimi­lar, the distinguishing factor being that sale consisted of the exchange not of two things, but of money for a thing. However, is money not a thing?

It was the Proculian view that eventually prevailed. Because the seller and buyer had different duties in the contract of sale, and their respective remedies were dif­ferent, it was essential to determine which party was the buyer, which the seller, a very difficult task if the price did not have to consist of money:

Paul, Edict, book 33: Still the view of Nerva and Proculus is the sounder one; for it is one thing to sell, another to buy; one person again is vendor and the other, purchaser; and, in the same way, the price is one thing, the object of sale, another; but, in exchange, one cannot discern which party is vendor and which, purchaser. (D.18.1.1.1.)

Did the price have to consist exclusively of money? The texts suggest that the price could consist of money plus the performance of a service:

Pomponius, Sabinus, book 9: If I sold you a building in exchange for a fixed sum of money plus your promise to repair another building of mine, I may sue on the purchase to force this repair; but if our agreement was only that you repair it, a contract of sale is not construed as having been made,... (0.19.1.6.1.)

There is a paucity of texts dealing with the question of whether the price could consist of money plus a thing, e.g. 'my cow and 1,000 sesterces for your horse'. The most plausible view is that this was a sale—the Sabinians would think so, and so probably would the Proculians as it is quite feasible to describe me as the buyer and you as the seller in the previous example.

(b) The price had to be genuine (verum) The price must not be a sham—it must be intended by the parties to be paid. If the price was derisory or a sham, there was a gift, not a sale. What if the price was low though not derisory? The adequacy of the price was generally irrelevant, as in the case of consideration in English contract law. An exception to the general rule was made in the case of husband and wife—a sale at a low price could be deemed to be a gift, and thus a nullity:

Ulpian, Disputations, book 7: If someone, intending a gift, sells something below its worth, the sale is valid. For we say that a sale is wholly void only when it is made entirely as a gift; but when the sale is made at a cheap price for reasons of liberality, there is no doubt that the sale is good. At least, in general, as between spouses, a sale made at a low price by way of gift is of no effect. (D.18.1.38.)

In the later Empire, a rule was introduced (cf. C.4.44.2.; C.4.44.8.) whereby, if the price paid for land was less than half its market value at the time of the sale, the seller could rescind the contract unless the buyer made up the difference. This rule, known as laesio enormis ('huge loss'), was likely prompted by the desire to protect small landowners against powerful neighbours and speculators. It has traditionally been thought that the rule was decreed by Diocletian, but Zimmermann believes that it was enacted by Justinian consequent on his taxation reforms (which had precipitated the sale of smallholdings by peasant farmers): 'Christian teaching, as well as stoic moral philosophy, demanded an infusion of ethics and of humanitas into the law and it was in this spirit that the Emperor was supposed to render aid to the weak and poor and to relax the rigours of the law* (Obligations, 261). It is unclear whether the application of this rule was subsequently extended to movable property.

Laesio enormis was subjected to much analysis in the medieval period and applied well beyond its original limits. Its more recent history has been erratic. It is to be found in the French Civil Code: Article 1674 (unchanged in the 2016 revision) retains the original restriction to sales of land but applies only if the seller has suffered a loss of more than seven-twelfths of the market price. The rule was excluded from the BGB, but Zimmermann considers that modern concepts of consumer protection and equality of exchange have led to ‘a renaissance' of laesio enormis (Obligations, 268 ff,). For the later history of laesio enormis in the European ius commune, see Dias, R., 'Laesio Enormis: The Roman-Dutch Story', in Studies in. the Roman Law of Sale, 46-63.

(c) The price had to be certain, or at least ascertainable There had to be certainty of price as well as of subject matter. The parties had to agree on the price, otherwise the contract was void. The common law rule that a reasonable price can be implied:

Obligations: Common Principles and Obligations Arising from Contracts 271 (if none had been agreed) was unknown in Roman law. But if the price., though not fixed, was ascertainable by reference to verifiable facts, the contract was valid through the operation of the maxim certain est quod cerium reddi potest—'that is certain which is capable of being made certain':

Ulpian, Scibinus, book 28: A purchase 'for what you paid for it' or 'for what I have in my cash box' is valid; there is no uncertainty of price in so obvious a sale: The case is one of ignorance of its amount rather than of the real existence of the price. (0.18.1.7.1.)

What if the parties agreed to allow a third party to fix the price in the future? Strictly, there was no sale—the price had not been fixed; nor could it be said to be ascertainable by reference to existing facts. Some jurists, however, argued that the contract was valid (cf. Inst.Gai.3.140.). Justinian settled the controversy by ruling that the sale was conditional on a third party, named by the seller and buyer, fixing the price.

Once the parties had agreed on the subject matter and the price, the contract was 'perfect', i.e. fully made. Important legal consequences followed from the making of the contract; both parties acquired certain duties, and the risk of damage to the property sold was transferred to the buyer.

9.3.1.4 Transfer of risk and accretions

Paul, Edict, book 33: It is essential to know when a sale is perfect because we then know who bears the risk in the thing; for once the sale is perfect, risk is on the purchaser. (D.18.6.8pr.)

Thedoctrine of risk deals with an important and difficult question—whoistobearthe loss if the property sold is damaged, lost, or destroyed before delivery if neither party is at fault? It seems that the loss must fall on one of two parties (see Gordon, W, M., 'Risk in Sale in Roman Law', in Collatio laris Romani 1,123-30, and Gordon, W. M., 'Risk in Sale—From Roman Law to Scots Law', in Studies Litewski, 115-24, where Roman­law foundations of this aspect of Scots law are discussed), The default rule appears to have been as follows (for a summary, see Birks, Obligations, 94-6). Before the contract became 'perfect', the risk of the loss lay with the seller (res perit domino). A contract of sale was deemed to have become ‘perfect’ when the parties had agreed on the object of sale and the price. When the contract became 'perfect', the risk of the loss passed to the buyer:

Where a contract of sale is made, which as we have said happens as soon as the price is agreed if the contract is not in writing, the risk passes immediately to the buyer. This is so even if the thing has not yet been delivered.... In such cases the buyer must bear the loss and he must pay the price despite not having obtained the thing. (Inst.3.23.3.)

This seems a harsh and illogical rule, at least from the buyer's perspective. He was not even the owner of the property until delivery, since the making of the contract of sale did not affect a transfer of ownership. Yet, even though the damage occurred. While the property was in the seller's possession, the rule was that the buyer bore the loss. An economic justification for the rule could be offered—placing the risk _: of loss on the seller would probably discourage commercial activity. But might not such activity be affected by imposing the loss on buyers?

■0 However, on closer examination, the buyer's position seems more tolerable. The Seller had to assign to the buyer any actions that were available against third parties in respect of damage (actual or prospective) to the property. Further, if the seller was in mora, e.g. because of late delivery, then he bore the risk of any damage caused to the property between the agreed and the actual date of delivery. And the buyer could attempt to avoid being saddled with the risk of loss by making a suitable agreement with the seller. In any case, the buyer was entitled to any accretions or fruits (of the purchased property) that arose after the sale was completed. So, if A bought B's flock of sheep, and lambs were born after the agreement was made but before delivery, A was entitled to the lambs as well as to the sheep:

Pomponios, Quintus Mucius, book 39: When we convey a thing, we transfer ownership of it together with all that would pertain to it, if it had remained ours, (£>.18.1.67.)

Although the position of the buyer as regards risk was not as disadvantageous as appears at first sight, nevertheless the separation of risk and ownership in the con­tract of sale was one of the more questionable doctrines of Roman civil law. The rule was probably conditioned by the early nature of sale—essentially, a cash transac­tion where the agreement and the transfer of ownership were virtually simultaneous: 'Where every sale is executed immediately, both risk and ownership are bound to pass at one and the same time, namely when the contract is concluded. It was only with the rise of the fully executory contract that a divergence became possible' (Zimmermann, Obligations, 29(f). Modern systems have generally eschewed the Roman rule and tend to regard risk as passing to the purchaser when he becomes owner.

9.3.1.5 Duties of the seller

7’he seller had four principal duties: to care for the property before delivery, to deliver it with vacant possession, to warrant against eviction, and to warrant against defects.

(a) Care of property before delivery Since the risk of loss passed to the buyer only when the contract became 'perfect', the seller had the duty to care for the property until delivery. It seems odd that there should have been a duty to care for one’s own property (which belonged to the seller until delivery) but that was one of the consequences of the separation of risk and ownership in Roman law. Injustinianic law, the standard of care expected of the seller was that of the bonus paterfamilias; hence, he was liable for even slight acts of negligence. So, the rule that the risk of loss passed to the buyer was really quite narrow in application—the buyer bore the loss only if the seller was blameless (such as through accident). It is possible that in the classical period the seller was liable for custodia, which can be defined as strict liability for the safety of the property apart from loss caused by circumstances beyond the seller's control, e.g. natural events or vis maior ('overwhelming force'). Thus, the seller would not be in breach of custodia if a slave died, before delivery to the buyer, from natural causes or by being struck by lightning. Vis maior included disasters such as floods, storms, earthquakes; also violent theft (i.e. robbery):

Neratius, Parchments, book 3: ifI should be held responsible for a thing because of a sale and it is taken away from me by force, then although I should guard it, still it is better that there be no further consequence than my having to provide the buyer with the actions for recovering it; for safekeeping is of slight avail against force. (D.19.1.31pr.)

Vis maior is often described as 'act of God' but, in view of the inclusion of robbery,, ‘overwhelming force' would be a more accurate and theologically less objectionable translation.

(b) Delivery with vacant possession This duty required the seller to deliver the pur­chased property with vacant possession. As regards delivery, it had to be made at

Obligations: Common Principles and Obligations Arising from Contracts 273 the agreed place and time, providing that the buyer had either paid the price or was able and willing to do so. In the absence of agreement about the time of deliv­ery, the seller's duty was to deliver at once, allowing a reasonable time for ensur­ing (where necessary) that the property was in a deliverable state. If the place of delivery had not been agreed, it was assumed to be the place where the thing was situated when the contract was made. But the parties usually agreed on the place and time of delivery.

The seller had to deliver not only the purchased property but also any fruits or accretions coming into existence after the making of the contract. Moreover, any accessories had to be delivered, i.e. things expressly or implicitly sold in conjunc­tion with the 'main' property. Accessories included, for example, any clothes that were worn by a slave when he was sold; similarly, the trappings of a beast of burden were comprised in its sale. The sale of land carried with it all fixtures on the land.

The seller's duty was to deliver the property with vacant possession, i.e. legally protected possession—the seller had to put the property under the buyer's exclu­sive and effective control. It followed that the property had to be free of charges or encumbrances other than those agreed on. It was not, however, part of the seller's duty to transfer ownership, i.e. to make the buyer the owner:

Ulpian, Edict, book 32: And in the first place, the seller must provide the object itself, that is, deliver it. if the seller was its owner, his act [of delivery] makes the buyer the owner also; if he was not, his act obligates the seller only for an eviction, provided that the price was paid or security was given for it, (D.19.1.11.2.)

The phrase ‘obligates the seller only for an eviction' emphasizes that the seller was not in breach of his duty to deliver vacant possession simply because he failed to transfer ownership. The rule that the seller did not have to make the buyer the owner of the purchased property appears rather questionable, prima facie, but at least it had the merit of commercial convenience as it obviated the need for the seller to prove ownership,

(c) Guarantee against eviction Although the seller did not have to make the buyer the owner, a guarantee was implied in classical law that the buyer would not be evicted. The guarantee could not prevent an eviction—the rightful owner was entitled to recover his property by legal process—but it entitled the buyer to sue for damages when evicted.

The evolution of this duty of the seller demonstrates a gradual improvement in the buyer's position. In archaic and pre-classical law, an evicted buyer had no remedy unless the property had been transferred to him through a mancipatio, in which case the Twelve Tables allowed him to recover double the price by the actio auctoritatis. So, it became the practice to insist that the seller should make a stipu­lation to compensate the buyer in case of eviction—usually for double the price as regards valuable things (stipulatio duplae) (ci. Sententiae Pauli, 2.17.1.-4.). By the classical period, it was regarded as a breach of good faith for the seller to refuse to _: make the necessary stipulation—he could be sued for his failure to do so:

■ Paul, Satrinus, book 5: If the vendor does not give the undertaking for double the price and is sued on that ground, he must be condemned, as a defendant, for double the price. (D.21.2.2.) 'The next stage in the evolution of this duty occurred during the classical period. The guarantee against eviction came to be implied in all contracts of sale, the actio empti ('the action on the purchase') being allowed for the recovery of a simple.. indemnity, i.e. single damages. But buyers still insisted on a stipulation for double the price (or more) in appropriate cases. However, in certain circumstances, the actio empti was preferable—it allowed unliquidated damages to be recovered rather than a fixed sum.

(d) Guarantee against defects At the outset a distinction has to be made between patent and latent defects in the property sold. Patent defects were those of which the buyer was aware, or which were so obvious that he should have been aware of them. The general rule was caveat emptor—'let the buyer beware', Hence, the seller was not liable for such defects, even if he had given an express undertaking as to soundness:

Florentinos, Institutes, book 8: There are, further, even some undertakings which do not bind the vendor, the case being such that the purchaser cannot be unaware of the facts; an instance is that of one buying a slave who has lost his eyes and stipulating for his soundness in which case, the stipulation is taken to refer to the rest of his body rather than to that in respect of which the purchaser has deceived himself. (D.18.1.43.1.)

As regards latent defects, i.e. those other than patent, the position was more com­plicated. In archaic and pre-classical law the seller was generally not liable for latent defects. However, if he gave an express undertaking as to the fitness of the goods, he would be liable for its breach. In the middle Republic, dishonesty by the seller made him liable under the actio empti, since fraudulent behaviour came to be regarded as inconsistent with the requirement of good faith in the contract of sale. Accordingly, the seller became liable for failure to disclose defects known to him, but not known to the buyer:

Ulpian, Sabinus, book 28: If the seller concealed a servitude which he knew was owed, he will not escape an action on the purchase unless the buyer was also aware of this fact; anything done contrary to good faith comes underthe action on purchase. (D.19.1.1.1.)

Florentinus, Institutes, book 8: A seller must warrant the absence of fraud on his part, and it is fraud not merely If one uses obscure language, but also if one is guilty of artful concealment. (D.18.1.43.2.)

In the late Republic the sharp practices of slave and cattle dealers prompted the issuing of edicts by the aediles, which had a major effect on the evolution of the contract of sale (cf. D.21.1.1.2. and Metzger, Companion, 158-9). The edict that dealt with slaves ran as follows:

Ulpian, Curule Aediles’ Edict, book 1: Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway, a loiterer on errands, or still subject to noxal liability; all these matters they must proclaim indue manner when the slaves are sold. If a slave be sold without Compliance with this regulation or contrary to what has been said or promised in respect of him at the time of his sale... we will grant to the purchaser and to all other Interested parties an action for rescission in respect of the slave. (D.21.1.1.1.)

The edict applied to physical and character defects in slaves who were sold in the open market. It demanded that the seller should declare the slave's known defects ; and undertake that the slave was free from undeclared defects:

In the part op the edict of the curule aediles regulating the sale of slaves the following words appear::. 'Care must be taken that the descriptive notice of each slave be so written that it can be clearly understood what disease or defect each has, and which of them is a runaway or a, vagrant or not free from noxal liability.' (Auius Gellius, Attic Nights, 4.2.1.)

What if the seller refused to give the undertaking? The buyer might well desist from the transaction in such a case but, even if he went ahead, he was given remedies:

Gaius, Curule Aediles ’ Edict, book 1: Should the vendor not give an undertaking on the matters contained in their edict, the curule aediles promise against him an action for rescission within two months and an action for diminution within six. (D.21.1.28.)

The action for rescission (actio redhibitoria) entitled the buyer to recover the full purchase price, with interest, on returning the slave to the seller. But this action was available only if serious defects were discovered, i.e. those that undermined the usefulness of the thing sold. For less serious defects, the appropriate action was the 'action for diminution' (actio quanti minoris), which did not rescind the sale but allowed the buyer to recover part of the purchase price, i.e. the difference between the slave's actual value at the time of the sale and the price paid.

What was the position if the seller gave the necessary undertakings, but the slave proved defective? Then the buyer could bring the actio redhibitoria for rescission, within six months of the sale, or the actio quanti minoris for diminution of the price (time-limit of one year). In effect the edict introduced an implied guarantee of quality that applied even where the seller was unaware of the defects:

Ulpian, Curule Aediles' Edict, book 1: This edict was promulgated to check the wiles of ven­dors and to give relief to purchasers circumvented by their vendors. It must, though, be recognized that the vendor is still liable, even though he be unaware of the defects which the aediles require to be declared. There is nothing inequitable about this; the vendor could have made himself conversant with these matters; and in any case, it is no concern of the pur­chaser whether his deception derives from the ignorance or the sharp practice of his vendor. (D.21.1.1.2.)

The last few words of this text emphasize the conceptual progress achieved in this.■ edict. The buyer is indeed not interested why his purchase is defective. What he i requires is an effective remedy irrespective of the culpability of the seller. The edict ) gave the buyer just such a remedy, thereby increasing what modern economists ■I sometimes refer to as 'consumer confidence'. Liability for latent defects of which ? the seller is unaware is taken for granted in modern society, but it is a legally sophis- J. treated concept, and one that represents a major achievement of Roman law. The :: aediles introduced similar provisions for the sale of certain beasts of burden (later extended to other cattle):

Ulpian, Curule Aediles' Edict, book 2: Those who sell beasts of burden must declare with all due

. publicity any disease or defect which the beasts have. (D.21.1.38pr.)

( Under these edicts, liability was also imposed for 'what has been said or prom­ised' by the seller. Such statements (dicta promissave)—often made in order to assert

■ some particular quality of the thing sold—extended liability beyond the implied guarantee.

:These provisions, restricted in scope at first to the sale of slaves and cattle in the market, nevertheless proved to be seminal. They were extended to sales of slaves and cattle outside the market, and then to sales of anything, anywhere (cf.,0.21.1.Ipr.). It is not clear when these extensions occurred but Ulpian says:

.Ulpian, Curule Aediles’ Edict, book I: St must be realized that this edict applies to all sales, not only those of slaves but also those of anything else. (D.21.1.63.) This text has been suspected of interpolation: it is arguable that the extension of the edict to all sales probably did not occur until Justinian. But Ulpian was writing some 200 years after the introduction of the edicts. It is very probable that by that time; the extension had occurred. After all, these edicts dealt with the sale of res mancipi in very public places. Everybody would have known of the aediles' provisions. It is scarcely conceivable that the new practice would have been confined to the sale of just slaves and cattle for over 500 years, even allowing for the innate conservatism of the Romans. See further Honore, A. M., in Studies in the Roman Law of Sale., 132. This collection of essays contains a number of excellent contributions on the issue of latent defects (see, e.g. the contributions of Nicholas, Rogerson, and Stein), see also Pugsley, D„ ‘The Aedilidan Edict', in Daube Noster, 253-64.

The Roman rules concerning latent defects have had an enormous influence on modern systems. For example, they have been substantially incorporated in French, German, and Roman-Dutch law. Article 1641 of the French Civil Code (unchanged in the 2016 revision) implies a guarantee by the seller against latent defects that render the thing sold unsuitable for the use for which it was intended; s. 459 BGB (prior to 2001, see now s. 434 BGB) is similar. In South Africa, the actio redhibitoria and actio quanti minoris continue to provide remedies for sale of defec­tive goods, albeit with some modifications (see Evans-Jones, R., 'The Actio Quanti Minoris in Mixed Legal Systems', in Studies Litewski, 79-92). In English law, the fundamental common law principle has been caveat emptor, and it was not until the Sale of Goods Act 1893 that guarantees about the fitness of goods were implied in every sale. That Act, and the developments preceding it, were unquestionably influenced by the Roman rules.

9.3.1,6 The actio empti

This action was the main remedy for the buyer in the contract of sale for breach of the seller's duties. As regards defective goods, it is not clear what the relationship was between the actio empti and the actions introduced by the aediles. The remedies clearly overlapped although there were important differences. Damages could be recovered under the actio empti (and not just a reduction of the price) and the action was not subject to the short limitation periods of the aedilitian remedies. On the other hand, the actio empti could be brought in respect of defective goods only if the seller knew of the defects. In late law, it appears that the remedies were assimilated (with the shorter limitation periods normally applicable). See Zimmermann, Obligations, 322 ff.

What was the measure of damages under the actio empti? The general rule was that the measure was based on the buyer's interest in the thing sold. That allowed the buyer to recover for consequential loss. As regards defective goods, consequen­tial loss could normally be recovered only if the seller knew of the defect. Attempts were made to limit the type of consequential loss that was generally recoverable under the actio empti:

Paul, Edict, book 33: When the seller is responsible for nondelivery of an object, every benefit to the buyer is taken into account provided that it stands in close connection with this matter, If he could have completed a deal and made a profit from wine, this should not be reckoned ; in, no more than if he buys wheat and his household suffers from starvation because it was: not delivered; he receives the price of the grain, not the price of slaves killed by starvation. (D.19.1.21.3.)

Inconsistency in the texts makes it difficult to state the rule on remoteness of darri-y age with any precision. If the seller had behaved fraudulently, it seems probable; that he was liable for all resulting damage, however remote. Justinian ensured a degree of certainty by ruling that the buyer could not recover more than double the price of the property that he had bought.

9.3,1.7 The duties of the buyer

The buyer had to pay the price and any interest that was payable in the case of late payment; he had to accept delivery of the property; and he had to reimburse the seller for expenses.

(a) Paying the price

Ulpian, Edict, book 32:The seller has the action on sale to obtain whatever the buyer ought to provide to him. [20] The following matters are included in this action: First of all, the price for which the object was sold; next, after the day of delivery, interest on the price, since it is entirely equitable that the buyer pay interest on the price after he enjoys the object. (D. 19.1.13.19.-20.)

The buyer had to pay the price at the agreed time or, if no time had been agreed, then at the time of delivery. Until the buyer paid the price, he was not entitled to sue under the actio empti. But he did not have to pay the price if the seller had failed to deliver, or was unable to do so, or was in breach of any of his other duties. If the buyer delayed payment without good cause, the seller was entitled to any interest agreed between the parties, providing that it did not exceed the Legal maximum (6 per cent under Justinian). In the absence of any agreement on interest, a judge could award an amount up to the legal maximum,

(b) Accepting delivery The buyer had to accept delivery at the agreed time and place but could delay acceptance if the seller was in breach of his duties. What if the seller was not in breach? Then the buyer would be liable for not accepting deliv­ery, and the seller's duty to safeguard the property would no longer apply unless the seller acted in bad faith:

Pomponlus, Quintus Mucins, book 31: It should be Icnown that once the purchaser is in delay, the vendor is no longer liable for negligence, but only for bad faith.... (D. 18.6.18.)

(c) Reimbursing expenses The cost of safeguarding the property between the ; making of the contract and the delivery was borne by the buyer. Hence, the seller ; was entitled to recover expenses that had been properly incurred:

Ulpian, Edict, book 32: By an action for sale, he also recovers his expenditures on the object of sale, for example, any outlay on buildings that were sold.... likewise, if before delivery

_: money was spent for care of a sick slave or if something [was spent] for training which it was probable the buyer wished to be spent, tabeo states further that if something was spent for the funeral of a dead slave, it too can be recovered by a suit on sale, provided that he did not die due to the seller’s fault, (D.19.1.13.22.)

The seller's remedy was the actio venditi, under which the measure of damages was assessed on the basis of the seller's interest in the sale taking place.

9.31,8 Variation by pacta

The legal effects of the contract of sale could be varied by a broad range of pacta— special terms or clauses agreed by the parties (see 9,8). If the terms were agreed at the time of the contract, they were fully enforceable; but pacts made thereafter generally had effect only as a defence. For example, if the seller agreed to reduce the original price, he would be bound by that pact—the buyer could rely on it if the seller sued for the original price. But if a buyer consented to pay more than the original agreed price, the seller could no t enforce such a pact. Among the most com­mon pacts were the following:

(a) Seller's right to withdraw This was a clause reserving to the seller the right to call off the sale (and thus recover the property sold) if the price was not fully paid by a certain date (cf. D.41.4.2.3.), It was in effect a forfeiture clause, of particular relevance where the buyer received the goods first and was meant to pay later. Of course, a seller could sue a buyer for the price under the actio venditi, but a forfeiture clause gave the seller the choice whether to sue for the price or to withdraw from the sale:

Ulpian, Edict, book 32:... once the forfeiture clause becomes operative, the vendor must decide whether he wishes to exercise its provision or to hold out for the price and, once hav­ing opted for forfeiture, he cannot (ater change his mind. (D.18.3.4.2.)

This text makes clear that the seller could not sue for the price once he had opted to withdraw from the contract. There were circumstances, however, where the seller could bring the actio venditi for compensation in addition to relying on the forfei­ture clause, e.g. if the buyer had damaged the property.

(b) Seller's right to accept a better offer This was a clause allowing the seller to call off the sale if he received a better offer within a certain date (cf. D.18.2.1.). The original buyer had the right to be informed of the later offer so that he could try to match it. Who decided whether the offer was better or not? It was primarily a mat­ter for the seller, but his decision required a certain element of objectivity: it was not the case that an offer was better simply because the seller said so. For example, the offer had to be genuine, not a sham. It is clear that factors in addition to the price were relevant in deciding which offer was the better one:

Ulpian, Sabinus, book 28: A better offer can be seen in an increased price. But even without addition to the price, there is a better offer if easier or earlier payment be proposed, as also if a more convenient place of payment be suggested.... an offer is also deemed better, if made by a more reliable person. (D.18.2.4.6.)

(c)Seller's right of first refusal This clause allowed the seller to buy the property back if the buyer should decide to sell it in the future. If, in the event of the buyer reselling, offers were received from other parties, the original seller had to match the offers to secure the purchase (cf. D.19.5.12.).

(d) Buyer's right to reject This was a clause enabling the buyer to reject the goods if they were found to be unsatisfactory after a period of trial, i.e. sale on approval (cf. D.18.1,3.). Such a clause would often be used in cases where an extended trial might be necessary, e.g. sale of a slave or a beast of burden. In the sale of certain consumables such as wine, sale on approval was the usual practice:

Ulpian, Sabinus, book 28: If a quantity of wine be sold for a lump sum, the vendor is liable, only for its safekeeping. It will be apparent from this that if the wine be not sold with a pro­vision for tasting, the vendor has no liability for acidity or mustiness and that all risk is on the purchaser. At the same time, it is hard to believe that anyone would buy wine without a proviso that it is to be tasted. Hence, if a period for tasting be fixed, the purchaser may taste when he can and, until he does taste, the risk of sourness and mustiness is on the vendor... (D.18.6.4.1.)

In such cases, an extended trial was obviously inappropriate. The seller normally specified that the tasting should be carried out within a few days. If the buyer did not taste within the specified period, he was deemed to have approved the pur­chase. If the property that was held on approval was damaged or destroyed without the buyer's fault, the seller bore the loss.

9.3.2 Letting and hiring (locatio conductio)

(Inst.Gai.3.142.-7., lnst.3.24., D.19.2., C.4.65.)

Hire was a bilateral bonae fidei contract whereby a person (the locator) let out a thing, or his services, or the completion of a piece of work to another person (the conductor) (see Metzger, Companion, 159-62 as well as Birks, Obligations, 97-128). The contract of hire had certain similarities with sale—it was formed under similar rules:

Gaius, Common Matters, book 2: Lease and hire is dose to sale and purchase, and it is formed by the same rules of law. Sale and purchase is contracted if the price is agreed upon; similarly, lease and hire is considered to be contracted once the rent is agreed upon. (D.t9.2.2pr.) (cf. lnst.3.24pr.)

So close was the similarity, that there could be some uncertainty as to whether the parties had agreed a sale or hire (see Prichard, A. M., 'Sale and Hire', in Studies in the Roman Law o f Sale, 1-8):

Gaius, Common Matters; book 2:... in some cases the question frequently arises whether the contract is sale and purchase or lease and hire. For example, if a goldsmith and I agree that he make for me, from his own gold, rings of a fixed weight and form, and if he receives, for example, three hundred [in payment], is this sale and purchase or lease and hire? The general view is that there is a single transaction which is predominantly sale and purchase. But if i give my gold and a fee is set for labor, this is undoubtedly lease and hire. (D. 19.2,2.1.)

For the sake of exposition, three different types of hire can be distinguished—hire of a thing, hire of services, and hire of a piece of work. The foundation of the contract of letting and hiring, in its various forms, was the notion of a performance (the con­tractually agreed use and enjoyment of a thing, services or the completion of a piece of work) for an agreed period of time in return for the payment of an amount of rent.

9.3.2.1 Hire of a thing (locatio conductio rei)

This occurred where the conductor was allowed the use and enjoyment of a thing by the locator in return for payment of rent. The contract was made when the par­ties agreed on the subject matter of the hire and on the amount of payment. As in sale, certainty was required but the contract was valid if the payment was readily ascertainable. Payment normally had to consist of money, although there was an important exception in the case of agricultural land—part of the produce of the land was frequently used as payment (see Thomas, J. A. C., 'The Nature of Merces' (1958) AJ, 191-9). The thing that was hired would normally be a corporeal thing, and something not consumable through use. In certain respects, a greater range of things could be hired than could be sold, since some of the restrictions on selling things did not apply to hire, e.g. a husband could hire out dotal immovables.

C. It was usual to agree a period of duration for the hire, failing which either party bould renounce at any time. If they did specify the duration, the hire would nor- jihally terminate on the expiry of the relevant period. But in the case of agricul­tural land, an implied reletting was possible on a year-to-year basis, In practice, This meant that the conductor would continue as tenant unless he was given notice to quit before the expiry of the original period. However, the implied extension was regarded as a new lease rather than a continuation of the old. Also, hire could end through the destruction or termination of the subject matter, or through the misconduct of either party. Thus, if the locator substantially prevented the conduc­tor from enjoying the property, the latter could terminate the contract and sue for damages:

Paul, Edict, book 34: A tenant farmer, if he is not permitted to enjoy, may rightly sue forthwith for the entire five-year period even if the farm's owner should permit enjoyment during the remaining years; the owner is not discharged from his obligation because he will permit enjoyment of the farm in the second or third year.... (D, 19.2.24.4.)

What if the locator sold the property to a third party? The sale did not automatically terminate the contract of hire, but it could amount to a substantial interference with the rights of the conductor if the third party exercised his rights as owner. The conductor could sue the locator for damages but could not insist on the continuation of the hire—he could be evicted. To that extent, 'sale broke hire', to use a maxim employed by medieval lawyers. Misconduct by the conductor, justifying termination of the contract, occurred primarily where he grossly abused the property or failed to pay the rent. The death of either party did not terminate the contract, unless the parties had agreed the contrary.

What were the duties of the parties?

(a) Duties of the locator The locator had to deliver the property to the conductor, who received custody (detentio) of it, but not possession. Any accessories that were normally required for the use of the property had to be handed over. For example, in the case of the lease of a farm, it seems that the tenant was to be provided, inter alia, with storage jars, a press and grinder, and cauldrons in which olives could be washed with hot water (D. 19.2.19.2.). See Frier, B. W. 'Law, Technology and Social Change: The Equipping of Italian Farm Tenancies' (1979) 96 ZSS (rA), 204-28. Since the locator had to ensure that the conductor was able to enjoy the property for the period agreed, it was customary—where the property was sold before the expiry of the hire—for the buyer's agreement to be secured not to interfere with the enjoyment of the conductor. The locator had to maintain the hired thing in good repair throughout the period of hire (unless damage had been caused by the negli­gence of the conductor). Thus, if the conductor incurred reasonable expenses in the maintenance of the property, he was normally entitled to recover them. Consider the following text that would not be out of place in a modern tenancy agreement: Papinian, Care of Cities: Each person is to keep the public street outside his own house in repair and clean out the open gutters and ensure that no vehicle is prevented from access. Occupiers of rented accommodation must carry out these repairs themselves if the owner fails to do so and deduct their expenses from the rent. (D.43.10.1.3.)

What if the hired property was defective? It had to be fit for the use normally ; expected of it; consequently, the locator was liable for damage caused by undis­closed defects of which he was aware or should have been aware. The standard of care expected of the locator was that of the bonus paterfamilias.

(b) Duties of the conductor The conductor had to accept delivery of the hired prop-y erty, and normally had to pay for the hire either by a Lump sum or by instalments? (i.e. rent), the latter being more usual in cases of hire for long periods. Security for the payment of the rent could be expressly agreed (see 9.5.4), and was implied in the )

Obligations: Common Principles and Obligations Arising from Contracts 281 hire of land, e.g. the produce of agricultural land, was regarded as the security, the locator having a lien (hypotheca) on the crops:

Pompontus, Readings, book 13: As regards rural land the crops are impliedly taken to be hypothecated to the owner of the land, even if not agreed in so many words. (D.20.2.7pr.)

Hie essential character of the property had to be preserved; and it could not be used by the conductor in an unauthorized way. He had to exercise the care of a bonus pater­familias in his dealing with the property. At the end of the period of hire, the property had to be returned substantially in its original state, subject to normal wear and tear. Allowing the property to decrease in value could amount to a breach of this duty:

Ulpian, Edict, book 32: Likewise, the lessee should take care in no way to lower in value the thing's legal or physical condition, nor to allow it to become lower. (D.19.2.11.2.)

What happened if the property was destroyed or damaged during the period of hire without the conductor’s fault? The risk of accidental or unpreventable loss was normally on the locator. For example:

Ulpian, Edict, book 32:...if an earthquake so completely destroys the land that it no longer exists, the owner bears the loss: for he must present the land to the lessee for his enjoyment. (D.19.2.15.2.)

What if the loss was only partial, e.g. if the damage resulted in a bad harvest rather than a ruined harvest? The position was that the tenant was entitled to a rebate or remission of the rent if the damage was caused by exceptionally abnormal condi­tions, but not otherwise. See De Neeve, P. W., 'Remissio Mercedis' (1983) 100 ZSS (rA), 296-339 and Frier, B, W., 'Law, Economics and Disasters Down on the Farm: "Remissio Mercedis" Revisited' (1989-90) BIDR (31-2), 237-70. The rule, the legal foundation of which remains controversial, has been adopted (with variations) by modern systems, e.g., French and German law. See Zimmermann, Obligations, 371 ff.

The duties of both parties could be varied by agreement, the rules being similar to those in sale. The remedies available to the parties for the enforcement of their respective duties were the actio locati for the locator and the actio conduct! for the conductor. The measure of damages was the plaintiff's 'interest' in the performance of the contract.

As we have seen before, tenants generally did not have proprietary interests in Roman law: the law of landlord and tenant was essentially contractual, deter­mined largely by the rules of locatio conductio tel. In the cities, tenants tended to live in insulae—large blocks of flats—where the activities of careless neighbours and the dangers of fire and structural collapse were constant worries, providing a, fecund source of juristic activity, Bruce Frier emphasizes that those consulting the :■ jurists tended to be rich, so that the jurists created a law of 'upper-class' leasehold: y 'Wherever we can assess the content of the real or hypothetical cases discussed.by the jurists, these cases reflect the upper classes—either upper class tenants or. the entrepreneurial middlemen who rented and then subleased mru/ae' (Landlords r and Tenants in Imperial Rome (1980), 52, and generally). A similar attitude may be detected in juristic discussion of agricultural tenancy (Kehoe, D. R, Investment, Profit and Tenancy (1997), 237-40 and generally).

9.3.2.2 Hire of services (locatio conductio operarum)

in this type of hire, the locator placed his services at the disposal of the conductor in return for payment. The rules were largely similar to those applicable to the hire of

a thing. For example, both parties were subject to the bonus paterfamilias standard of care. The locator thus had to perform his services with due diligence—if he professed some particular expertise, he had to prove competent for the work he undertook (see further 10.2.4.2). The conductor could incur liability through failure, for exam­ple, to provide safe premises or a safe system of work.

What was the effect of death on this type of hire? The basic rule was that the death of the locator terminated the contract, but not necessarily the death of the conductor. If the service had not been a purely personal one, the death of the con­ductor did not end the contract—his heirs were bound. In any case, the locator was entitled to payment for the duration of the hire:

Paul, Rules, sole book: A man who leases out his labor should receive wages for the entire term if he is not responsible for his labor not being rendered. (D.19.2.38pr.)

This principle was perhaps too widely stated, as it seems that if the locator found alternative employment, he might not be able to sue for all the wages that he was prevented from earning by the death of the conductor:

Ulpian, Edict, book 32: When a scribe leased out his own labor and his employer then died, the Emperor Antonius together with the deified Severus replied by rescript to the scribe's peti­tion in these words: 'Since you allege that you are not responsible for your not providing the labor... it is fair that the promise [of wages] in the contract be fulfilled if during the year in question you received no wages from anyone else'. (D.19.2.19.9.)

Which services could be hired? Only those that were typically performed by slaves (operae illiberales) (see Thomas, J. A. C., 'Locatio and Operae’ (1961) 64 BIDR, 231- 47 for a comprehensive discussion of this aspect). Slaves often performed menial tasks, but we have seen that their services could be used in an extensive range of activities. Operae illiberales thus came to have a wide meaning, so that the services that were excluded from the contract of hire were confined to 'liberal' pursuits. The rationale behind this development was that those engaged in such pursuits would not wish to perform their services in return for anything as sordid as money. For example, Ulpian tells us that philosophers could not be hired as they should avoid 'mercenary activity' (D.50.13.1.4.), Other services that could not be hired included. those of jurists, advocates, physicians, surveyors, and teachers in higher educa­tion. How did all these worthies make a living? The practice was to grant them an. honorarium, enforceable through the contract of mandate (see generally 9.3.3).

The distinction between operae illiberales and other services can seem confusing., For example, the Romans did not generally regard engagement in the creative arts as a liberal pursuit. The position as regards teachers provides some insight into how : the distinction was made. Those in higher education could not be hired, but other ^: teachers could be. It thus seems that the distinction between liberal pursuits and other services depended to some extent on the status of the person performing the ;■ service, and not solely on the nature of the service.

9.3.2.3 Hire of a piece of work {locatio conductio opens)

This type of hire was a hybrid form of the two types already considered, occurring) where the locator placed a thing with the conductor in order for the latter to do some work in relation to it, e.g. X gives Y some bronze with which to make a statue. The. principles relevant to the hire of a thing (see earlier) were largely applicable to loca- c tio conductio operis; but, whereas in the other types of hire it was the conductor who paid, in the hire of a piece of work it was the locator. The conductor could subcontract? the work unless he had promised to do it personally.

If the materials belonged to the person who was working on them, the agreement was normally regarded as sale rather than hire, e.g, where Y made a bronze statue for X out of Y's materials. But building contracts under which the builder supplied the materials were regarded, exceptionally, as hire. It was common to agree in build­ing contracts that payment should be made in instalments, subject to satisfactory progress. See Martin, S.D., 'A Reconsideration of Probatio Opens' (1986) 103 ZSS (rA), 321-37. The approval of the tocatorwas tested objectively—he could not disap­prove of the work without reasonable grounds. The standard of the bonus vir, the 'upright' man, applied:

Paul, Edict, book 34:clf it is provided in a lease clause [of a job] that the owner is to judge the work acceptable, this is construed to mean that what they had called for was the judgment of an upright man, and the same rule holds had they provided for judgment by some third party.... (D.19.2.24pr.)

This test was applied generally in the hire of a piece of work, not just to building contracts. The work had to be completed within the time specified or, if no time had been agreed, within a reasonable time (taking into account the nature of the task)- Both parties were required to show the standard of care of a bonus paterfamilias, the locator in relation to the materials supplied, the conductor as regards his work. See Martin, S. D., 'The Case of the Collapsing Watercourse: Builders' Responsibility for Damage in Classical Roman Law' (1986) 4 LHR, 423-37. Inexperience was not a defence—an important principle in practice (and one adopted by modern systems):

Ulpian, Edict, book 32:... inexperience should also be counted as fault; if someone contracts to pasture calves or to repair or to adorn something, he should be held responsible for fault, and it is fault when he errs due to inexperience, since, as Celsus says, it was obviously as a craftsman that he took the job. (D.19.2.9.5.)

If the materials were damaged or destroyed while the conductor was working with them, the risk initially lay with him:

Ulpian, Edict, book 32: If a fuller takes in clothes for cleaning and mice then gnaw at them, he is liable on the lease [of a job] because he should have guarded against this. (D.19.2.13.6.)

But if destruction was through vis maior, the risk lay with the locator—he would have to make payment even though he received nothing in return. Similarly, it seems, if the loss occurred after the locator had accepted the work, a rule incorpo­rated by s. 644 BGB. See Zimmermann, Obligations, 401 ff. As regards death, the general rule was that the contract was not terminated by the death of either party;

; their respective heirs were bound.

Jf A placed cargo for carriage in B's ship, the agreement could amount to the hire /of a piece of work. Special rules were introduced for such contracts, among them a rule adopted from the maritime code of Rhodes:

. Paul, Sentences, book 2: The Rhodian law provides that if cargo has been jettisoned in order to lighten a ship, the sacrifice for the common good must be made good by common contrlbu- : tion. [Paul, Edict, book 34] [2]:,., the owners who have lost the cargo for whose carriage they contracted may sue the captain on their contracts. Then, the captain may bring an action on his contracts of carriage against the others whose goods have been saved, so as to distribute / the loss proportionately. (D,14.2.I,-2pr.)

/The rule ensured that all concerned shared the loss proportionately, the amount of /the contribution depending on the respective values of the property that had been /Saved and lost. It is probable that, in practice, the captain retained the cargo until./each party had made the appropriate contribution, thus avoiding the cumbersome litigation mentioned in the text. If the jettisoned property was eventually saved, the Rhodian law no longer applied—any contributions that had been made could be recovered. Jettisoned goods remained the property of their owners—they were not treated as abandoned (see 7.2.3.3).

The Rhodian-Roman rules were adopted by maritime powers in the medieval period throughout Western Europe and survive in modern law—e.g. in the German Commercial Code. The Court of Admiralty, staffed largely by civilians, adopted the rules into English law. And the principle of shared contribution in situations of common danger was applied by medieval lawyers beyond the maritime sphere, e.g. in the case of fire. See Zimmermann, Obligations, 409 ff. See most recently, Aubert, J. -J. 'Dealing with the Abyss: The Nature and Purpose of the Rhodian Sea-law on Jettison', in Beyond Dogmatics, 157-72; as well as Aubert, 'Commerce', in Cambridge Companion, 233-4.

9.3.3 Mandate (mandatum)

(Inst.Gai.3.155.-62., lnst.3.26., D.17.1., C.4.35.)

Mandate was a bonae fidei contract made when a promisor gratuitously agreed to perform a service requested by another, the mandator (cf. Inst.Gai.3.162.). The origins of the contract are unclear but probably lay in requests between friends to perform a particular service in legal proceedings, e.g. to act as a guarantor, or as a representative in legal proceedings. (See generally Watson, A., Contract of Mandate in Roman Law (1961) and Metzger, Companion, 165-8, as well as Birks, Obligations, 118-28). The use of mandate later widened considerably—the contract acquired great commercial significance. Tor example, it was used to appoin t general business managers and agents. Mandates as contracts should not be confused with mandata as a form of imperial decree (see 2.3.2.6).

9.3.3.1 The essentials of mandate

The promise had to be made gratuitously, otherwise the agreement would amount to hire:

Paul, Edict, book 32·. There is no mandate unless it is gratuitous. The reason is that it derives its origins from duty and friendship, and the fact is that payment for services rendered is incom­patible with this duty. For if money is involved, the matter rather pertains to hire. (D.17.1.1.4.) (cf. Inst. 3.26.13.)

However, if an honorarium was agreed, it could be enforced from the early Empire. under the cognitio extraordinaria procedure. In this way, the theory that mandate was gratuitous was preserved, since payment could not be recovered by a 'normal* ; action before a judge, yet the promisor was allowed a reward for his services—a. triumph of Roman pragmatism, if not strict logic.

Only services that were moral, legal, and possible could be enforced (cf. Inst. ? 3.26.7.). Moreover, some texts suggest that the mandator had to have an 'interest' in the service in the sense that it had to concern him. Ulpian states:

Ulpian, Edict, book 31: The action on mandate is competent when the person who gave the man­date first has an interest; but if he ceases to have an interest, the action on mandate does not lie; what is more, the action only lies to the extent of his interest. (D. 17.1.8.6.) (cf. Inst. 3.26pr.)

It did not matter if the mandate was in the interest of the promisor as well, or of some third party, as long as the mandator retained some interest himself. However, ; another text by Ulpian seems to deny the need for the mandator to have an interest;.

Ulpian, Edict, book 31: Should I give you a mandate that is not in my interests, for example, that you should stand surety for Seius or lend to Titius, I will have the action on mandate against you.... (D. 17.I.6.4.)

The texts could be reconciled if 'interests' in the latter passage was interpreted as apparent interests. An interest might not be apparent on the face of the transac­tion, but nevertheless still exist. Suppose that Seius, in the previous example, was my debtor—then it would certainly be in my interest that you should act as his surety, even if this interest was not apparent from the actual terms of the mandate. Regardless of such attempts to reconcile the texts, it is not obvious why in principle an interest should have been required of the mandator.

9.3.3.2 The duties of the parties

Their duties did not arise simultaneously—the contract can thus be described as imperfectly bilateral. The promisor's duties commenced as soon as he promised to carry out the request; but the duties of the mandator were mostly contingent on the performance of the service.

(a) Duties of the promisor. His primary duty was to perform the mandate, subject to the right of renunciation. In carrying out the task the promisor could do whatever was reasonably necessary to achieve it, but he could not exceed his powers—he could not act ultra vires (cf. Inst.3.26.8.). The strict application of the ultra vires rule could cause unfortunate results. Suppose that A gave B a mandate to buy a chariot for A for 1,000 sesterces, and B bought it for double that amount, What amount can B recover from A—2,000 sesterces, 1,000, or nothing? The Sabinians took the strict line that B should recover nothing as he had not complied with the mandate. The Proculians felt that the Sabinian view was rather harsh—in effect, A had acquired a chariot for nothing while B had lost 2,000 sesterces. The Proculian view was that the promisor should be able to recover up to the limit of his author­ity, (i.e. 1,000 sesterces in the previous example):

Paul, Edict, book 32:... if I specified a price and you bought at a figure in excess of this, some [authorities] have held that you do not have the action on mandate, even though you may have been prepared to let the excess go [Gaius, Common Matters (or Golden Sayings'), book 2]:... But Proculus is of the opinion, and rightly, that [the buyer] will have an action up to the limit of the price specified. This is certainly the more liberal view. (D.17.1.3.2., 4.)

The promisor could not profit from the mandate; he had to render a proper account. and had to transfer any proceeds or rights acquired through his performance:

Paul, Sabinus, book 11: Nothing obtained as a result of a mandate ought to be left in the hands of the person who undertook the mandate... (D.17.1.20pr.)

Which standard of care applied to the performance of the request by the promisor? ■. Before the classical period, the promisor was liable only for dolus, but it seems that. the bonus paterfamilias standard had become the rule by the end of the era. The. imposition of the more exacting standard was probably a reflection of the growing ; practice of paying the promisor an honorarium—as the promisor was no longer act­ing gratuitously, in reality, there was a case for expecting a higher standard of care.. from him. (See Gordon, W. M., 'The Liability of the Mandatary', in SynteleiaArangio- ; Ruiz 1, 202-5, who argues that the liability of the mandatary varied between dolus ■ and culpa according to circumstances; similarly, MacCormack, G., 'The Liability 7 of the Mandatary' (1972) 18 Labeo, 156-72 and Norr, D., 'Reflections on Faith, : Friendship, Mandate' (1990-2) IJ, 302-10.)

(b) Duties of the mandator His chief duty was to accept the performance of the promisor, including any liabilities and expenses that had been properly incurred in carrying out the request. The mandator was subject to the bonus paterfamilias stand­ard of care as regards the task requested of the promisor, e.g. if the mandate con­sisted of the renovation of a vil la, the mandator had to provide a sa fe system of work.

The remedies available to the parties were the actio mandati directa for the man­dator, and the actio mandati contraria for the promisor. If the promisor was found liable, infamia resulted. This seemingly harsh rule had its origins in archaic law when the condemnation of the promisor was possible only if he had acted fraudu­lently, i.e. with dolus.

9.3.3.3 Termination of mandate

Several factors could bring about the termination of mandate, for example, a man­date could end by mutual consent, or if the promise became impossible (in the nature of things) to perform, or on the completion of the task. However, the causes of termination that require particular comment were renunciation and death.

(a) Renunciation The basic rule was that the contract could be renounced, with­out liability, by either party before the promisor had commenced performance. But, if the promisor's renunciation prevented the mandator from obtaining a simi­lar service from another person, the promisor would be liable to that extent. What if the renunciation took place after the promisor had commenced performance? It would be effective in that it ended the mandate, but the party renouncing would be liable for any damage or expense caused to the other party. A mandator who renounced had to give notice to any third parties dealing with the promisor, since they were entitled to treat the mandate as continuing until otherwise informed.

(b> Death The death of either party ended the mandate. However, if it was the mandator who died, his heirs had to give notice to the promisor and had to reim­burse him for expenses incurred up to that time. What if the mandate consisted of a promise to do something after the death of one of the parties? If it was to be performed after the promisor's death, the mandate was void because of the rule of classical law that an obligation could not begin with an heir. If the mandate was to be performed after the mandator’s death, it seems that it could be upheld in some circumstances:

Ulpian, Edict, book 31: Marcellus also tells us that if a man has given a mandate for the erection of a monument to him after his death, his heir can bring an action on mandate. (D. 17.1.12.17.)

This text is hard to reconcile with passages attributed to some other jurists, but it is more consistent with the position under Justinian, who was generally prepared to enforce mandates that were to be performed after the mandator’s death.

9.3.3.4 The contract of mandate and Roman approaches to agency

Mandate could be put to many uses, especially in the field of commercial relations. It could be used, for example, to affect an assignment of obligations, or to guarantee loans, or to appoint business managers and representatives (see Aubert, J-J., Business Managers in Ancient Rome (1994), ch. 2). The most important function was the use of mandate to create a form of agency. In modern legal systems, the agent creates con­tractual relations directly between his principal and the third party, but generally acquires no rights or liabilities himself through his agency. Roman law had no strict

Obligations: Common Principles and Obligations Arising from Contracts 287 equivalent but developed a broadly similar position through the use of mandate. To appreciate the complexity of this development, an example will be used. A mandator entered into a contract of mandate with the promisor in terms of which the promi­sor agreed to achieve a certain result (e.g. buy a racehorse at auction) as set out in the contract. The promisor's acts could not, prima facie, create contractual relations between the mandator and a third party, owing to the existence in Roman law of the principle of privity of contract (see 9.2.6). But, since the promisor had to transfer to the mandator any rights or obligations (using cessio in lure) resulting from the perfor­mance of the promise under the terms of the contract of mandate, the promisor was acting in effect as an agent (albeit indirect). It was not true agency, in the modem sense, because the mandator could not sue on the contract made by the promisor with the third party—only the promisor could sue or be sued. He had to avail him­self of the contractual remedies of the contract of mandate against the promisor.

This unsatisfactory state of affairs whereby a third party did not have any legal recourse directly against the mandator had undergone various stages of develop­ment until, in Justinianic law, a third party had certain legal remedies directly against the mandator. The earliest developments in this regard occurred within the Roman familia, the final stage outside it. First, legal remedies were developed to address the use of slaves and sons-in-power as commercial agents. It is not clear whether the legal remedies were first created for slaves and extended to sons-in- power or vice versa. Finally, these remedies were extended through juristic interpre­tation to all forms of agency, even where the promisor was an independent person who was sui iuris.

The use of persons with no contractual capacity such as slaves as agents deserves closer attention. Slaves had no contractual capacity and any transactions that they entered into were either void or could not be directly enforced against them. These restrictions proved inconvenient in the rapidly expanding world of Roman com­merce that necessitated the use of slaves as agents. The praetors therefore made a crucial intervention in the late Republic by allowing actions directly against the paterfamilias (who normally would also be the owner of the slave) in certain circum­stances. These actions, collectively known as actiones adiecticiae qualitatis (medieval terminology), enabled parties, who had contracted with slaves acting as business agents, to sue the latter directly. These actions were not based on the notion of man­date (as there could be no legally binding contract of mandate between paterfamil­ias and slave) but created an 'exceptional' liability for the paterfamilias, hence the terminology actiones adiecticiae qualitatis. The actions were all founded on a 'debt' incurred by the slave acting as a business agent on behalf of the paterfamilias. In the formulary procedure, the actions were usually worded by inserting the name of the business agent as the person who had incurred the debt, but citing the paterfamilias as the person who would be subject to the condemnatio (see Aubert, 'Commerce', in Cambridge Companion, 228-31).

(a) Actio de peculio (D.15.1.,2.) Where slaves demonstrated particular economic skill, owners gave them a fund of assets (peculium) with which to engage in com­merce. The fund, though technically the property of the owner, was administered de facto by the slave on the basis that he had been granted free administration of it. If creditors were to sue on account of debts incurred by the slave when trading using his peculium, the slave could not be sued directly as he did not have legal standing in a court of law. Creditors instead had to use an action which was based

on the existence of the fund (peculium) given to the slave (see Inst.4.7.4.). The pater­familias (as owner of the slave) had to be sued, but his liability was limited to the extent of the value of the peailium at the time of judgment after an assessment of the value of the peculium would be made. Such an assessment took into account all the assets, but also allowed the paterfamilias and other members of the familia to deduct any money owed to them as preferred creditors. Because of the notion of 'free administration' of the peculium, the action was used where the paterfamilias did not know the details of the transactions from which the liability arose (see Johnston, Roman Law in Context, 99-105), but there were drawbacks in suing on the basis of the peculium (see Johnston, D., 'Peculiar Questions', in Thinking Like a Lawyer, 5-13). The creditors could bring this action against the paterfamilias· as long as the value of the peculium could support such claims. Since its value was not assessed until the time of judgment, an element of faith (or commercial caution) on the part of the creditors must have been required. The effect of the action was primarily to limit the liability of the paterfamilias to the value of the peculium, based on the assumption that the value of the peculium would always be smaller than the owner's entire estate. See Kirschenbaum, Sons, Slaves and Freedmen (1987), 47-71 for a comprehensive assessment of the actio depeculio.

(b) Actio de in rem verso (D.15.3) This action, often employed in conjunction with the actio de peculio, was used where a slave used the benefits obtained from commercial transactions to enrich the estate of the paterfamilias. This occurred, for example, where a slave borrowed money to pay the debts of the paterfamilias:

Ulpian, Edict, book 29: The actio de in rem verso is not a useless provision: it is not as if the actio depeculio were enough. For as Labeo quite rightly says, it may be that the property has been turned over [to the master] and the actio de peculio is not available. What if the master has taken away the peculium without dolus malus? What if the peculium has ceased to operate because of the slave's death and the year for the action has ended? (D.15.3.1.1.)

What constituted a benefit? It seems that the rule was directed at the necessities, not the luxuries of life:

Ulpian, Edict, book 29: Labeo says that a slave who spends money to feed or clothe himself is treated as conferring a benefit on the master if he does so in accordance with the master's usual practice, that is, within the limits of the provision which the master normally made. [4] But he will not be treated as conferring a benefit if he uses borrowed money to adorn his master's house with stucco or other useless luxuries,.. (D. 15.3.3.3.^1.)

The paterfamilias' liability was limited to the extent of his enrichment at the time of condemnation. On this action, see MacCormack, G., 'The Later History of the "Actio de in rem verso" (Proculus—Ulpian)', (1982) 48 SDHI, 318-67. See also extensively, Kirschenbaum, Sons, Slaves and Freedmen (1978), 72-88.

(c) Actio tributoria (D.14.4) This action had limited application. When a slave used his peculium in trade with the knowledge of the paterfamilias and incurred debts which exceeded the value of the peculium, the praetor could force the pater­familias to liquidate the assets comprising thepeculium and to divide the proceeds amongst the creditors. Liability was limited to the part of the peculium actually used in trading (rather than the whole of it). The paterfamilias could not deduct anything that was owed to him before awarding each creditor his share. Creditors who suspected that the paterfamilias had acted unfairly in the division of the pear-. Hum among the creditors could sue him with this action to force a fairer division of the assets among creditors (cf. Inst.Gai.4.72.; lnst.4.7.3.).

(d) Actio quod iussu (D.15.4.) The paterfamilias was fully liable (without limita­tion) under this action for a commercial transaction that he had expressly author­ized (iussum) a third party to enter into with his slave (cf. Inst.Gai.4.70.; Inst,4.7.1.J. Authorization could take various forms:

Ulpian, Edict, book 29: Authorization in this connection may be given by will or by letter or orally or through an intermediary and either specifically for a single transaction or generally. So a person who states publicly, 'do any business you like with my slave Stichus; it will be at my risk', is taken to have authorized all kinds of transactions unless there is a specific exclusionary clause. (D.15.4.1.1.)

It is possible that the paterfamilias' express authority had to be communicated to the other party in some way, but the texts are ambiguous.

Gaius mentions that these actions were available to third parties dealing with servile agents as well as with agents who were sons-in-power. (For the position of daughters-in-power and other members of the familia, see Buckland, Textbook, S35.)

Apart from the four actions just mentioned, the category of actiones adiecticiae qualitatis traditionally also includes two further actions dealing with aspects of agency. Juristic commentary on these two actions demonstrate that they were used both where agents were slaves or sons-in-power and where they were individuals who were sui iuris.

(e) Actio institoria (D14.3., C.4.25.) This action lay against someone to enforce contracts made by another (whether slave, son-in-power or sui iuris employee) who had been appointed to manage his business. Some scholars suggest that the master or employer's liability was in this case founded on the terms of the appointment as business manager and therefore extended also to employees, who were not in power. The master or employer was fully liable for such transactions, provided that they were within the scope (express or implied) of the business agent's authority:

Ulpian, Edict, book 28 Not all transactions with a manager bind the person who appointed him, but only contracts relating to the matter which he was appointed to manage, that is, only those within the scope of the appointment. (D. 14.3.5.11.)

(f) Actio exercitoria (C.4.25.) A shipowner was fully liable under this action for commercial debts made by his or another's slave or worker employed as captain of a merchant ship, provided the transaction was within the scope of the captain's authority (cf. Inst.Gai.4.71.; Inst. 4.7.2.).

On these two actions, see Kirschenbaum, Sons, Slaves and Freedmen (1987), 90-121.

9.3.4 Partnership {societal)

(Inst.Gai.3.148.-154b., Inst.3.25., D.17.2., C.4.37.)

Societas was a bonae fidei contract whereby two or more persons agreed to associate in a common venture for their mutual benefit. Partnerships were often formed with a view to making a financial profit (see Foldi, A., 'Remarks on the Legal Structure of Enterprises in Roman Law' (1996) 43 RIDA 3, 179-211; Andreau, J., Banking and Business in the Roman World (1999) and in general, Metzger, Companion, 162-5, as well as Birks, Obligations, 110-18), but this was not an essential requirement of the contract—the mutual benefit did not have to be pecuniary.

9.3.4.1 The essentials of partnership

The common venture had to be physically possible, lawful, and not immoral or incompatible with good faith, see Watson, A., 'The Notion of Equivalence of Contractual Obligation and Classical Roman Partnership' (1981) 97 LQR, 27S-86. Each partner had to contribute to the common venture: it might be capital, labour or some skill, or expertise. But the contributions did not have to be of equal value, and frequently were not. Each partner had to be allowed a share in the benefits resulting from the partnership; the respective shares would normally be agreed between the partners. What if there was no agreement?

Ulpian, Sabinus, book 30: If shares in a partnership have been left unspecified, it is agreed that they are to be equal.... (D.17.2,29pr.)

This rule applied to losses as well—they were shared equally unless the partners agreed the contrary. However, the contribution of some individuals might be so prized that it would be worth securing their involvement by an arrangement under which they did not share in any losses:

Ulpian, Sabinus, book 30: It is Cassius's opinion that a partnership can be formed on the terms that one partner is to suffer no part of any loss whereas profits are to be shared. An agree­ment of this kind will indeed be valid, in the view of Sabinus, if services are rendered com­mensurate with the loss incurred. Very often a partner works so hard for the partnership that his contribution is worth more to it than money, for example, if he were to be the only partner to travel by sea or go abroad at all or expose himself to such dangers. (D. 17.2.29.1.)

It was essential that there should be an intention to form a partnership; and, given that it was essentially a cooperative venture based on trust, there had to be agree­ment about its membership—no partner could introduce a new partner without the consent of the others, as Ulpian emphasized in one of his more succinct moods:

Ulpian, Edict, book 31:... my partner's partner is not my partner. (D. 17.2.20.)

9.3.4.2 Position of the partners

Partners had to make the agreed contribution and had to share in the administration of the common venture, subject to any contrary agreement. In the case of a business it was common to appoint a manager, but he did not have to be one of the partners. Each partner had to account for his activities in pursuance of the common venture. If a partner made a contract in relation to partnership business, he alone could sue or be sued on it; but the duty to account for his actions meant that the other partners would be affected by the contract. Thus, if property was acquired for the partner­ship, each partner would have a right in personam to secure his respective share.

Which standard of care was expected of a partner? In pre-classical law the only requirement was that a partner should act in good faith, i.e. avoid dolus. Later, prob­ably in the classical period, he became liable for negligence, the standard applied being that expected of a man in his own affairs:

Gaius, Common Matters, book 2: A partner is responsible to his co-partner even on the score of negligence, that is, laziness and carelessness. But negligence should not be assessed on the basis of a comparison with the most stringent standards of diligence. It is enough that a partner show diligence in the affairs of the partnership commensurate with that which he is accustomed to exhibit in his own affairs. (D.17.2.72.)

Any loss to the partnership that resulted from a partner's negligence (or dolus) had to be borne entirely by that partner: the agreement between partners about the

Obligations: Common Principles and Obligations Arising from Contracts 291 sharing of losses applied only to those for which no partner was to blame. If a part­ner caused loss through his fault, he could not set it off against any profits that he might have formerly produced for the partnership:

Paul, Submits, book 6: Where the partnership has been ruined by the negligence of a partner, the risk that he bears is not reduced by the fact that tn many other operations the partnership has prospered as a result of his hard work. (D. 17.2.25.)

Partners were entitled to be reimbursed for expenses that were properly incurred. This area of Roman law certainly has modern parallels—we have strayed here into the world of business partners and expense accounts, even if some of the expenses would not normally be incurred by the businessman of today:

Uipian, Edict, book 31: Where a partner has set out on a journey on partnership business, for example, to purchase goods, he can charge to the partnership only those expenses incurred to that end. Therefore, he is entitled to charge it with traveling expenses in connection with his own accommodation and the stabling of his horse, and the hire of pack animals and carts to carry himself, his luggage, and his goods. (D.17.2.52.15.)

Which expenses were recoverable? The jurists were not unanimous. Some took the view that the expenses must have been incurred strictly in pursuance of the common venture, and not simply in consequence of it:

Pomponius, Sabinus, book 13: A partner was wounded in trying to prevent slaves kept by the partnership for sale from breaking out and escaping. Labeosayshe cannot get back through a partnership action the expenses he incurred in having himself treated, for the reason that the expenditure, though a consequence of partnership, was not made for partnership purposes... (D.17.2.60.1.)

Labeo's somewhat harsh view seems wrong and it was not accepted by some later jurists (Julian and Ulpian, for example), who would have allowed recovery of medi­cal expenses in these circumstances.

9.3.4.3 Remedies

The main remedy in the contract of partnership was the actio pm socio ('the action for a partner'). It could be brought as a friendly suit to make minor adjustments in the position of the partners, or as a hostile action for breach of a partner's duties (see Birks, Obligations, 118). In the latter case, the action had two important conse­quences: condemnation resulted in infamia, and the partnership was terminated. Other actions were possible; e.g. the actio communi dividundo ('the action for divid­ing things held in common') was necessary for the distribution of partnership prop­erty at the end of the partnership. Moreover, delictual actions might be available in appropriate circumstances, e.g. where a partner stole partnership property:

Ulpian, Sabinus, book 30: A partner may be sued for theft In respect of common property, if he took something away by fraud or deceit, or if he handles common property with intent to conceal it. But he is also liable to an action on partnership, and the one action does not exclude the other. (R.17.2.45.)

9.3.4.4 Types of partnership

Although the scope of the common venture that the parties might undertake was very wide, partnerships were broadly of four types:_:.

(a) Partnership for a single transaction A single transaction where the parties came together for a single transaction or operation, e.g. to buy a particular property.

The partnership in pro Roscio—one of Cicero's best-known cases—illustrates this category, an arrangement whereby Roscius, an actor, was to train a man’s slave for the stage, profits to be shared between owner and trainer.

(b) Partnership in a particular business A particular business where the parties agreed to operate a particular kind of business, e.g. moneylending, slave-dealing, or tax farming. The farming of taxes was a notable feature of Roman life for several centuries. The State sold the right to collect taxes to partnerships of tax farm­ers (piMictmi). The contract normally lasted for five years—it was linked to the census—but was renewable. For the State, this system was obviously convenient and efficient, but it inevitably led to abuses, corruption, and strained relations between taxpayers and publicani (they became hated figures). Their powers and influence were gradually curbed by imperial regulation. A text attributed to Gaius (D.3.4.1pr.) suggests that publicani had some corporate personality—able to own property, for example—but it is regarded as very dubious.

More typical were the partnerships engaged in small-scale manufacturing, such as the production of pots for imported foodstuffs for which ample evidence has been found from the Monte Testaccio—an artificial hill in Rome composed of the remains of pots discarded from the Tiber warehouses. It appears that it was quite common for such enterprises to be operated by family partnerships consisting of fathers, sons, and freedmen. See Crook, Law and Life of Rome, 229 ff.

(c) Partnership in general business Businesses where the parties associated for the purpose of all business transactions. If it was not clear which type of partnership the partners intended, the presumption was that they intended a general business partnership:

Ulpian, Sabinas, book 30: It is also permissible to form a partnership without specific terms; and if no terms have been specified, the partnership is held to be formed in ail that comes in the way of profit, that is, in whatever return comes from purchase and sale, letting and hiring. (D.17.2.7.)

(d) Partnership in all assets Partnerships where all the property of the parties formed a common fund of assets. On the creation of such a partnership, all prop­erty held by the partners was pooled, as was property acquired thereafter. This was the oldest form of partnership, originating in the practice whereby family co-heirs sometimes agreed not to distribute an inheritance but to preserve it intact for com­mon enjoyment.

9.3.4.5 Termination of partnership

Modestinus, Rules, book 3: It is dissolved through renunciation., death, change of civil status, and poverty, (D.17.2.4.1.)

(a) Renunciation If any partner renounced, i.e. wished to withdraw, the partner­ship ended (even if the partners had specifically agreed the contrary). But a partner who renounced would have to compensate the others if his withdrawal unreason­ably prejudiced their interests:

Paul, Edict, book 32: Suppose, for example, we form a partnership and buy slaves, and then you renounce at a time which is disadvantageous for selling slaves, you are liable to an action on partnership, because in this case you are altering my prospects for the worse. (D. 17.2.65.5.)

Moreover, if a partner acted fraudulently in renouncing, he would have to share with the others any profit that accrued to him through the renunciation. Paul

Obligations: Common Principles and Obligations Arising from Contracts 293 considers what would happen if a man renounced a partnership in all assets, hav­ing discovered that he was coming into an inheritance:

Paul, Edict, book 32: In such a case, if the inheritance brings him loss, this will be borne by the man who renounced, whereas he may be compelled by an action on partnership to share any profit. (D.l 7.2.65.3.)

A renunciation would normally be made expressly but could also be implied, e.g. where a partner sold property in breach of the partnership agreement. Although renunciation terminated a partnership, the remaining partners could continue in business by forming a new partnership.

(b) Death A partnership ended on the death of any partner, as a general rule, even if the original partnership agreement had provided that his heir could suc­ceed a deceased partner. This was because societas was a common venture based on trust—the heir might be unknown to the other partners. The heir might indeed become a partner, but only in a new partnership (if the surviving partners wished to carry on). The general rule did not apply to tax farming partnerships—they sur­vived the death of a partner.

What was the position of an heir of a deceased partner? Whether he became a partner or not, the principle of universal succession meant that he took over all the rights and liabilities of the deceased; and he had to complete unfinished partner­ship business:

Pomponius, Sabinus, book 17: Although the heir of a partner Is not a partner, he ought to complete such business as was begun by the dead man. (D.l 7.2.40.)

(c) Loss of civil status Originally, if a partner suffered capitis deminutio, whatever its form, the partnership was terminated, although the remaining partners could form a new one. In later law only the more serious forms of capitis deminutio had a terminating effect, not if it was minima (see 4.2).

(d) Poverty A partnership ended when a partner was made bankrupt or had his property confiscated by the State. It seems that a generally impoverished condi­tion was i nsufficient—there had to be proof of some 'event' (such as the examples mentioned earlier) that caused the poverty.

There were other grounds for the termination of a partnership. A hostile actio pro socio ended a partnership, as we have seen. Moreover, a partnership ended if its subject matter was exhausted, lost, or destroyed:

Ulpian, Edict, book 3.1: You had three horses and I one, and we formed a partnership on the terms that you would take my horse, sell the horses as a team of four, and give me a quarter of the proceeds. Then my horse dies before the sale. Celsus says that in his opinion the partner­ship no longer exists, and I am owed no part of the price received from the sale of your horses; for the partnership was made not to form but to sell a team of four. (D.17.2.58pr.)

Further, a partnership ended if its purpose was accomplished or (conversely) became impossible to achieve; where the partnership was for a fixed duration and the rel­evant period elapsed; where the continuation of a partnership was made subject to a condition that was not satisfied; and by mutual consent.

English law has been substantially influenced by the rules of societas, especially in the emphasis on the personal (as opposed to corporate) character of partnership. The same is true of South African and German law, although the latter regards partnership property as common property separate from the private assets of Indi­vidual partners (s. 718 BGB). See Zimmermann, Obligations, 471 ff.

9.4 Verbal contracts

The obligations that were created in verbal contracts resulted from the uttering of particular words in a specified manner. There were three verbal contracts mentioned in Gaius' Institutes (Inst.Gai.3.92.-109.), stipulatio being by far the most important. All three were unilateral and strict} juris. See Birks, Obligations, 52-64.

9.4.1 Dotis dictio

Dotis dictio ('the pronouncing of the dowry') was a solemn declaration of the com­position of a dowry, usually made before marriage. It could be made by the bride, if sui iuris, or by her paterfamilias, or by her debtor (if authorized by her). The prom­isee, normally the bridegroom, had to be present. Dotis dictio became obsolete in the late Empire when informal promises to create a dowry were given full validity (see Katzoff, R., 'Oral Establishment of Dowry in Jewish and Roman law: D'Varim Haniknim ba'Amira and Dotis Dictio', in Critical Studies, 157-71 for a comparative perspective).

9.4.2 Iusiurandum liberti

iusiurandum liberti ('the oath of the freedman') was made when a freedman took a solemn oath in his patron's presence, immediately after manumission, to render services for the patron (see generally Duff, A. M., Freedmen in the Early Roman Empire (1958) and Treggiari, S., Roman Freedmen during the Late Republic (1969)). This oath would normally have been preceded by another taken before manumission. The earlier oath could not be legally binding, but it provided evidence of ingratitude should the freedman refuse to take the second oath on being freed. Iusiurandum liberti became infrequent in the Empire, apparently because of the increased use of stipulatio to achieve the same end.

9.4.3 Stipulatio

(Tnst.Gai.3.92.-109., Inst.3.15., 18., 19., D.45.1., C.8.37.)

Stipulatio was a unilateral and stricti iuris contract consisting of a formal promise made in answer to a formal question:

I’omponius, Sabinus, book 26: A stipulation is a verbal expression in which the man who is asked replies that he will give or do what he has been asked. (D.45.1.5.1.) (cf. Inst.Gai.3.92.)

9.4.3.1 Introduction

Stipulatio was of enormous importance in the Roman law of contract. Its origins are unclear but appear to predate the Twelve Tables (Metzger, Companion, 134, and Birks, Obligations, 53 - 64). It seems that stipulatio developed out of sponsio, a formal guarantee to pay the debt of another. It is possible that sponsio originally required the making of an oath to the gods, and that stipulatio was the secular contract that emerged when the religious associations faded. (See Nicholas, B., 'The Form of the Stipulation in Roman Law' (1953) 69 LQR, 63-79; Thomas, J. A. C., 'Words are Tools, not Masters', in Studi Biscardi I, 23-32; and MacCormack, G., 'The Oral and Written Stipulation in the Institutes', in Studies f. A. C. Thomas, 96-108, on the continued existence of the oral stipulatio in Justinianic law.)

Stipulatio probably had a limited use at first, confined mainly to formal under­takings made by litigants in the course of litigation. Soon, the use of stipulations was greatly extended—virtually any legal agreement could be affected by them. For example, a sale could be affected through the making of the appropriate stipu­lations by the parties. The potential universality of stipulatio suggests that in early Rome there was a law of contract rather than contracts. However, the develop­ment of stipulatio remains a puzzling question. Why did other contracts emerge and flourish long after the establishment of stipulatio as a contract of wide scope? It appears to have been gradually side-lined by the emergence of less formal con­tracts. The drawbacks of stipulatio—especially the emphasis on formality, and the need for the actual presence of the parties—undoubtedly contributed to the devel­opment of the consensual contracts. But that ignores developments in the Empire when it is clear that stipulatio was being increasingly used in certain transactions.

In The Evolution of Law (1985), Alan Watson takes the view that in archaic and pre-classical law the Romans did have a general theory of contract because of the all-embracing nature of stipulatio. He describes later developments thus: ‘in most cases an individual type of Roman contract arose subsequently to stipulatio when, for whatever reason, a stipulatio was inappropriate or inefficient for that type of situation and when there was a societal need. Thus, almost every subsequent con­tractual type is a derogation from stipulatio' (7). For example, he considers that the contact of mandate developed because the formality of stipulatio was ill-suited to gratuitous promises usually made between friends.

David Pugsley has argued that stipulatio was probably confined originally to the future conveyance of res mancipi and that it did not become an all-purpose contract until the classical period, much later than generally thought. He doubts whether stip­ulatio could have had widespread application so early in Roman legal history when the rest of the law was rudimentary. He considers that the classical law of contract was 'a complicated and heterogeneous collection of legal rules which seems to have developed piecemeal to satisfy the needs of commerce. The whole of this elaborate structure would have been superfluous if any transaction could be summed up in a stipulatio and so given legal force' (Property and Obligations (1972), 65 ff.). This view is not without its critics, though. As Birks, Obligations, 57 observed: 'There can never be simple answers to questions which ask why things did not develop differently.'

9.4.3.2 Formal requirements

A formal question was required from the promisee, followed by a formal answer by the promisor. The question contained the subject matter of the stipulation, e.g. 'Do you promise to give me 1,000 sesterces?' The promisor answered, T do promise.' The parties had to use the words spondesne? ('Do you promise?') and spondeo (T do promise'). Tony Weir likens the form to the exchange of questions and answers in the marriage service, and he describes the following passage from The Owl and the Pussy Cat (Edward Lear) as 'the most perfect stipulatio in English literature': "'Dear Pig, are you willing to sell for one shilling Your ring?" Said the Piggy, "I will"’ (quoted in (1992) 66 Tulane LR, 1615 cited earlier, at 1620). The promisor had to make a verbal answer—it was insufficient simply to nod the head in assent. The question and answer had to form one continu­ous transaction—a substantial interval between them could invalidate the contract:

Venuleius, Stipulations, book 1: The acts of stipulator and promisor must be continuous, though a moment or two may naturally intervene. The reply must be made when the stipula­tor is at hand. If, after the question, something else is begun, the proceeding is invalid, even if the reply is given on the same day. (D.45.1.137pr.)

The terms of a stipulation had to be clear—any ambiguity was construed against the promisee. Moreover, there had to be congruence between the question and the answer: the answer could not introduce fresh terms or be made condition­ally in response to an unconditional question. However, there may have been some exceptions to the requirement of congruence. Consider the following, for example:

Ulpian, Sabinas, book 48: if, when I stipulate, 'ten,' you reply, 'twenty,' it is clear that an obliga­tion has been made only for ten. Conversely, also, if I ask for 'twenty' and you reply, 'ten,' an obligation will only have been made for ten. For granted that the sum ought to be consistent, yet it is absolutely obvious that ten is part of twenty. (13.45.1.1.4.)

The approach in this passage is to regard the promise as good for the lesser sum common to both the question and answer—a sensible and practical solution. However, the passage is inconsistent with Gaius (Inst.Gai.3.102.) and may be an interpolation.

The strict insistence on the use of spondesne? spondeo was relaxed during the Republic, other words being allowed, e.g. promittisne? promitto ('Do you prom­ise?' T do promise'); dabisne? dabo ('Will you give?' 'I will give'). A further relaxa­tion occurred in the classical period when languages other than Latin came to be regarded as sufficient (see Metzger, Companion, 135):

Ulpian, Sabinas, book 48: It makes no difference whether the reply is made in the same lan­guage or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled. Whether we extend this rule to the Greek language only or even to another, such as Punic or Assyrian or some other tongue, is a matter of doubt. The writings of Sabinus, however, allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other's language, either of their own accord or by means of a truthful interpreter. (D.45.1.1.6.)

The view that there was a gradual relaxation of the form of stipulatio during the Republic and early Empire has been questioned—possibly all the relaxations were of the late classical period, or later still. See Nicholas, B., 'The Form of the Stipulation in Roman Law' (1953) 69 LQR, 63 (part II), at 233-52 (cf. Inst.3.15.1. and C.8.37.10.). But, is it plausible that the strict requirements of stipulatio would have remained unchanged for so long, unaffected by factors such as Rome's com­mercial expansion and increasingly cosmopolitan population?

Although a stipulatio required (at least in theory) a verbal exchange between two parties, important stipulations are unlikely to have been made in practice without witnesses or some written record (cautio) of the transaction. The making of a cautio became usual from the late Republic, its function being to record that the question- and-answer form had been followed. However, following a rescript in the late clas­sical period, it was presumed that a question had preceded the answer if a cautio alleged that a promise had been made. Consequently, evidence of the question was no longer necessary. Further changes occurred in the late Empire. A rescript of AD 472 (Emperor Leo) provided that a stipulation should be valid, whatever the form of words used, as long as the intention of the parties was clear. The need for an actual question and answer appears to have been formally abandoned by this ruling, a recognition of the prevalent practice (but Nicholas, cited earlier, argues that the rescript only removed the need to use formal words). And Justinian was responsible for an important erosion of the requirement of simultaneous presence: it could be presumed that the parties were present if the stipulation was evidenced by a cautio

Obligations: Common Principles and Obligations Arising from Contracts 297 which alleged their presence (cf. C.8.37.1., Inst.3.19.12.). Such a presumption was rebuttable, however, by proof that one of the parties was absent when the cautio was made. Although the use of a cautio became widespread in the Empire, the purely oral stipulatio remained perfectly valid. It was never a requirement of stipulatio that it should be evidenced in writing.

9.4.3.3 Remedies

If a stipulatio was made for the payment of a specific sum of money or some specific thing, the appropriate remedy was a condictio (see 3.2.2.1); otherwise, the promisee had the actio ex stipulate! (cf. Inst.3.15pr.). The latter remedy was less convenient for the plaintiff than a condictio, which did no t have to state the basis of liability in the formula of the action (see generally Liebs, D., ‘The History of the Roman Condictio up to Justinian', in The Legal Mind, 163-83). Consequently, whether property was sufficiently specified (to enable the plaintiff to use a condictio) was a matter of pro­cedural importance. Some illustrations of stipulations for which a condictio would be appropriate:

Gaius, Provincial Edict, book 8: Some stipulations are certain, some uncertain. That is certain wherein it appears from the terms what, of what quality, and how much is due, as, for exam­ple, ten gold coins, the Tusculan estate, the slave Stichus, a hundred measures of best African corn, a hundred jars of best Campanian wine. (D.45.1.7 4.)

As the contract was unilateral, only one party (the promisee) could have a rem­edy. But in practice contracts would often consist of several stipulations by both parties—essentially a bilateral transaction, even if each stipulation was regarded in theory as a separate contract.

9.4.3.4 Classification of stipulatio

(Inst.3.18., D.46.5.)

The primary classification of stipulations was based on the source of the obligation: Pomponius, Sabinus, book 26: Some stipulations are judicial, some praetorian, some conven­tional.... Judicial stipulations are only those which originate from the true office of a judge.... Praetorian stipulations are those which originate from the true office of the praetor.... Conventional stipulations are those which come about as a result of an agreement between the parties... (D.45.1.5pr.)

Judicial and praetorian stipulations were not really contracts at all, but promises made under legal compulsion to do or abstain from doing something. The cautio de dolo ('the promise regarding fraud') was a prime example of a judicial stipulation— a promise by a party in the course of legal proceedings to restore property without any fraud on his part. The cautio damni infecti, whereby an occupier of dangerous property was compelled by the praetor to promise to indemnify his neighbours for any damage caused, was an important example of a praetorian stipulation. Also, there were some stipulations (termed 'common') that could be ordered either by a judge or a magistrate, e.g. a promise from a guardian to keep his ward's property safe.

Another important classification was into simple, ex die or conditional stipu­lations. A simple stipulation, the most usual type, was one where the obligation arose at once and unconditionally. An ex die stipulation was one where the obliga­tion arose at once, but which could not be enforced until a specified day or the occurrence of some specified event that was certain to happen, e.g. a promise to

do something 'when Titus dies'. Although the performance of an ex die stipulation could not be demanded until the relevant day or event had occurred, the promisor could choose to perform at an earlier date:

Celsus, Digest, book 26: What is promised for a certain day may indeed be given at once; for the whole intervening period is regarded as open to the debtor for paying. (D.46.3.70.)

If I made a stipulation to do something 'when 1 die', it was valid: the duty to per­form was regarded as vesting at the last moment of life and was thus inherited by my heir. However, a promise to perform 'after my death' was a nullity—an obliga­tion could not begin with an heir as that would have breached the general rule that a contract could not impose a duty on a third party. This distinction between 'when 1 die' and 'after my death' appears artificial and unconvincing. The rules on ex die obligations were not confined to stipulatio but were applicable to several contracts in which the operation of the rules was appropriate. For example, the contract of sale could be made ex die.

A conditional stipulation differed from ex die ones in that the obligation to per­form might never arise in the former but was inevitable in the latter. If Balbus made a stipulation whereby he promised to give Titus a gold ring 'if Titus left Rome', a conditional stipulation resulted—Balbus' duty to pay the money was dependent on the satisfaction of the condition. Hence, such conditions were sus­pensive and precedent: the satisfaction of the condition preceded the performance of the obligation, which was suspended until that time. It followed that an agree­ment dependent on the existence of some fact, past or present, was not a true conditional contract:

Papinian, Definitions, book 1: When a condition relates to the present time, a stipulation is not suspended, and if the condition is true, the stipulation binds, even though the contracting parties do not know its result. An example is: 'Do you promise to give one hundred if the king of the Parthians Is alive?' The same considerations apply when a condition relates to time past. (D. 12.1.37.)

What was the position of the promisor prior to the satisfaction of the condition? Although he was not obliged to perform until the condition was satisfied, he was bound in other respects. For example, he could not revoke his promise; nor could he do anything to prevent the fulfilment of the condition:

Paul, Edict, book 75: Whoever, while obliged conditionally, took steps to see that the condition would not be fulfilled is nonetheless bound. (D.45.1.85.7.)

A stipulation could be made subject to a resolutive condition, i.e. a term defin­ing the termination of the obligation, e.g. a promise to pay 1,000 sesterces a month 'until Titus becomes consul'. Such a stipulation was treated in theory as an. unqualified promise, although it seems that the promisor was allowed a defence against a promisee who claimed any further payment after the satisfaction of the. condition.

9.4.3,5 Stipulatio and finance

The potential scope of stipulatio can be illustrated by its important role in the world of Roman commerce and finance (see Johnston, Roman Law in Context, 84-95, as. well as Birks, Obligations, 62-4). For example, a loan of money (see 9.5.1) would, normally be accompanied by a stipulation as to the rate of interest that the debtor agreed to pay. Three particularly important uses of stipulatio were the novation of, debts, the creation of surety, and the imposition of penalties.

(a) Novation This was the process whereby an obligation was terminated and replaced by a new one created by stipulatio. The new obligation had to arise from the extinguished one, but it could not be identical—there had to be some change, at least in classical law:

Pompon jus, Sab'mus, book 10: If a man promises the same thing twice, he is not automatically more liable than if he promises it once. (D.45.1.18.)

Why bother novating a debt? Why not simply rely on the original promise? Because the promisee improved his position through novation—the new obligation was obviously more recent, more easily provable, and enforceable by the effective rem­edies available for breach of a stipulation.

(b) Surety There were two forms of surety that could be created by stipulation— adstipulatio and adpromissio.

(i) Adstipulatio In this form of surety a debt that was already owed to one credi­tor was promised to another creditor, e.g. A is promised money by B who then promises the same amount to C—the second promise is the adstipulatio. Why this rigmarole? Because C will be acting on the understanding that if A cannot ensure the performance of B's obligation, C will enforce it and will account for the pro­ceeds. Hence, C is acting as a form of surety for A (although it is arguably more a type of trusteeship than a true form of surety). As far as the debtor was concerned, he could choose whom he paid—he owed only one debt. But if he paid C, the latter had to make over whatever he obtained to the principal creditor. If the accessory creditor defrauded the principal, he was liable to compensate the latter under ch. 2 of the lex Aquilla 287 BC. Adstipulatio was eventually superseded by the contract of mandate and became obsolete by the late Empire (see Inst.Gai.3.215.-16.).

(ii) Adpromissio This form of surety consisted of a stipulation to pay the debt of the principal debtor if he failed to pay (Metzger, Companion, 145-6). There were three forms of adpromissio. The earliest, sponsto (see 9.4.3.1), was confined to citi­zens; but the second to emerge, fidepromissio, was open to foreigners as well. There was a variation in the formal words used but, apart from these differences, the two contracts were similar. They were subject to a number of restrictions that eventu­ally made them unattractive to creditors. For example, these contracts could only be used to guarantee obligations that had been created by stipulatio and they did not bind the heirs of the guarantor. Legislation passed to protect guarantors made these early contracts of surety even more unpopular with creditors. For example, the lex Furia c. 200 BC provided that guarantees lapsed after two years (from the time when the debt became due) and that if there was a plurality of guarantors, each was liable only for his proportionate part of the debt—the debt was divided between the number of guarantors living at the time when the debt became due. Thus, if a guarantor became insolvent after the debt became enforceable, the credi­tor was disadvantaged.

The latest of these three surety contracts, fideiussio, emerged in the late Republic, and eventually became the most frequently used, superseding the other two. Fideiussio was not subject to a limitation period; it did bind the heirs of the guaran­tor; and it could be used to guarantee any debt. Moreover, if there were two or more guarantors, the creditor could enforce payment against any of them (the others being released thereby). However, Hadrian allowed a guarantor to claim beneficium divisitmis ('the privilege of sharing') whereby he was liable only for his proportion­ate share of the debt. This was calculated by dividing the debt between the number of guarantors who were solvent when the debt became due. Under Justinian, if the creditor sued one of several persons liable for the same debt, the others were no longer automatically released. However, the creditor could be compelled by a surety to proceed against the principal debtor first.

The S. C. Velleianum c. AD 46 prohibited women from interceding 'on behalf of others': thus they could not thereafter act as sureties for anyone. The most likely reason for this enactment was that women were not regarded as suited to be sure­ties because of their alleged weakness of judgement.

The rules on adpromissio have been substantially incorporated into modern law, civilian, and common law. Zimmermann considers that the Roman contracts of surety are 'a model for all times' (114), and that they have had 'a profound influ­ence' (142) on modern systems. See Obligations, 114 ff.

The obligations that could arise in adpromissio and other forms of plurality of parties are sometimes described, somewhat unhelpfully, as solidary or correal. An obligation was solidary if it benefited or bound persons jointly, and those persons could sue or be sued individually for the whole of what was due under the obliga­tion. If the bringing of an action by or against one party did not exclude or dis­charge the others, the case was one of simple solidarity; if it did, the obligation was correal. Javolenus describes correal obligations thus:

Javolenus, From Plaudits, book 3: When two persons have either promised or stipulated for the same sum of money, they are by operation of law bound or entitled severally for the full amount; and so the whole obligation is extinguished by a legal claim by, or a formal release of, one of them. (D.45.2.2.)

The classification of obligations as solidary or correal applied not only in the case of stipulatio, but generally throughout the Roman law of contract and delict.

(c) Penalties The imposition of penalties by stipulatio was common in Roman law. A penalty clause (stipulatio poenae) could be used to secure, for example, obliga­tions arising under various contracts. It is probable that thei r predominant use was in commerce, but they were also frequently used in other areas of law, e.g. property and the law of actions. Equitable rules came to be applied as to the forfeiture of such clauses, but the fact that the penalty might be considered excessive was not generally recognized as a ground for its non-application.

Modern systems have generally eschewed the rather inflexible Roman position on excessive penalties. For example, s. 343 BGB allows a court to reduce a penalty which is disproportionately high. Article 1152 of the Code Civil (as amended in 1975) enables a judge to alter a penalty if it is manifestly excessive (or too low). In English law, however, penalty clauses are unenforceable; but a clause that attempts a genuine assessment of the likely loss consequential on a breach of contractual obligation may be upheld. See Zimmermann, Obligations, 95 ff.

9.5