INTRODUCTION

Ancient Romans, like their modern counterparts, considered several factors when buying property. Amenities, productivity and, of course, location affected the decision.^[612] Cato urged potential buyers to visit the land more than once, inspecting it carefully, to determine whether its cultivation would repay the investment (On Agriculture, 1).

Although Roman landowners had good reason to pay close attention to movable property or accessories connected with real estate, they may not always have done so; indeed there is some truth to the stereotype of the absentee landlord.^[616] The jurist Celsus worked on similar assumptions, writing about the sale of land from the eighth book of his Digest. Celsus reported an earlier opinion by the jurist Proculus in which he replied to a question from a certain Firmus about underground pipes on a property.^[617] Though Firmus cannot be identified with certainty, the specificity of the question suggests a real situation, rather than a hypothetical case.^[618] Celsus at any rate approached the problem with the realities of the real estate market in mind:

Firmus a Proculo quaesiit, si de plumbeo castello fistulae sub terram missae aquam ducerent in aenum lateribus circumstructum, an hae aedium essent, ut vincta fixaque, an ut ruta caesa, quae aedium non essent.

Firmus inquired of Proculus whether pipes, leading underground from a lead cistern and bringing water into a basin built in around the sides, belonged to the buildings (aedium), like things bound and fixed, or whether they were like things dug [or] cut (ruta caesa) that did not belong to the buildings. He wrote back that it depended on what was agreed. But really then, if neither the buyer nor the seller thought about his matter, as is often accustomed to happen in dealings of this sort, it is more appropriate that we consider things inserted and built into a building to be part of it (partem eius), isn't it?

Firmus asked whether the pipes should be treated as part of the property and thus belong to the buyer, or whether they should be classified as ruta caesa, an old term for property that belonged to the seller after the sale. According to Proculus, the problem should be resolved on the basis of contracts between the parties (quid acti est) which, he assumes, specified how the pipes were to be treated. This is all well and good if the parties have paid attention to underground plumbing and added appropriate agreements to their sale contract. But, Celsus remarks, underground pipes should belong to the buyer because they are built into the structure for, after all, buyers and sellers often disregarded such details, ut plerumque in eiusmodi rebus evenisse solet, nonne propius est.

Despite the apparent ease of Celsus' conclusion, there was no overall rule about accessories in the law of sale.^[620] In the early form of sale by mancipatio, real property was sold with everything that was connected with it, though there was no specific treatment of accessories.^[621] The buyer could expect vacant possession and continued enjoyment of the property, but otherwise only limited protection.

The buyer’s interest in accessories was addressed in Roman law in the same way as latent defects, that is, deficiencies that were not apparent before the sale. Typically, contracts were used as express warranties to extend the seller’s liability for latent defects and they were also used to assign acces­sories to one party or the other.^[626] In D.19.1.38.2, Proculus assumes that the parties have done so when he writes that they should settle the question on the basis of what they agreed. He may have in mind one of the standard contract clauses that sellers used to reserve ruta caesa after the sale, or an individual agreement reflecting the specific circumstances of this case.^[627] Even without a specific contract, the seller could in some cases be liable, and this is the underlying issue in D.19.1.38.2. If the pipes are classified as ruta caesa, they belong to the seller after the sale, and he is liable to deliver them to the buyer only if there is a contract to this effect. Alternatively, if the pipes are part of the property, the buyer acquires them through purchase and the seller is liable for their delivery without a contract.

This chapter traces the legal discussion of ruta caesa and part of the property in cases about sale, in order to contextualise Celsus’ opinion in D.19.1.38.2. Investigating these categories offers insight into the way the jurists changed law, both by responding to social need and by working within existing legal frameworks to systematise their approach to accessories.^[630] The analysis sheds light on the social adequacy of these legal responses: specifi­cally, to what extent did they facilitate the use of law that supported the eco­nomic interests of buyers and sellers? The jurists’ discussion of accessories is part of an overall response in the law of sale to the increasing complexity of economic transactions.^[631] In D.19.1.38.2, Celsus recognised that contracts gave insufficient protection because buyers and sellers often did not even think to use them. While his opinion may at first seem extreme, perhaps because of its rhetorical flourish, it represents, in fact, an emerging consen­sus about the treatment of pipes that is ultimately integrated into Ulpian’s rules about accessories.^[632] As the jurists addressed the realities of the real estate market, the legal categories became less analytically consistent, and yet, paradoxically, they provided more clarity and certainty to buyers and sellers as they contemplated the accessories to property.

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