Justinian's Institutiones and the relation between actions and obligations

All in all, despite the fact that the institutional system involved considerable conceptual progress (especially in distinguishing corporeal and incorporeal objects, classifying obligations as incorporeal objects and bringing together the various hitherto scattered contracts and delicts and linking them as sources of obligations),¹⁵⁰ it is no

¹¹¹ Gai.

¹⁵ Gai. II. 97.

* Gai. III. 82 sqq.

^w Gai. II. 97.

“ Gai. Ill. 88.

^¹ Principles, p. 56.

^ls Stein. Studies Thomas, p. 154.

exaggeration to say that the tripartite division into personae, res, actiones, "which has probably left its mark on every existing code and every general legal textbook,¹⁵¹ has never been quite easy to understand".¹⁵² That was already true of the compilers of the Corpus Juris Civilis. Whilst both Digest and Code, in their sections dealing with private law, generally follow the sequence of the praetorian Edict—which in turn had been built up from a procedural point of view and did not pretend to structure the substantive law according to rational principles—in Justinian's introductory textbook the scheme developed by Gaius was taken over. Like Gaius, the authors of the Institutes dealt with personae, res, actiones in four books—and thus arrived not only at a seemingly more balanced structure but also at a numerically desirable combination of three in four; unlike Gaius, however, they no longer saw the basic trichotomy as a simple framework within which the established legal institutions could be conveniently discussed, but rather understood it as providing a structure for the who (persons), the what (objects) and the how (actions) in the law.¹⁵³

Yet the third of these subdivisions had become somewhat messy.

¹ ' Not only, incidentally, on the Continent, but also in Scotland, namely on Lord Stair's influential Institutions of the Law of Scotland (1681) (sec D.M. Walker, "The Structure and Arrangement of the Institutions", in: Stair, Tercentenary Studies (1981), pp. 100 sqq.); and even in England. Sir Matthew Hale, who for the first time attempted to tidy up and systematize the whole of the English common law (until then a casuistic jumble, as is well reflected in Sir Edward Coke's writings) based his scheme on Justinian's Institutes. Hale's Analysis of the Laws of England (1713), was then in turn adopted by Blackstone (himself essentially a civilian and an academic) in his famous Commentaries on the Laws of England (1765-69). See Simpson, (1981) 48 University of Chicago LR 632 sqq.; Peter Stein, Roman Law ana English Jurisprudence Yesterday and Today (Inaugural Lecture, Cambridge, 1969), pp. 7 sqq.; F. H. Lawson, "Institutes", in: Festschrift fur Imre Zajtay (1982), pp. 339 sqq. More specifically on the role of Sir Matthew Hale in the development of English jurisprudence, and on the influence of civilian methodology on his thinking, see Daniel R.

⁵²Jolowicz, Roman Foundations, p. 62.

Cf. Stein, Studies Thomas, pp. 159 sqq.

For details, see especially Kaser, RZ, pp. 410 sqq. and the law of civil procedure, which has, over the centuries, become a well-established feature of the civilian systems. Under the heading of "actiones" in Book Four they did not give an account of how legal proceedings had to be instituted or continued but only discussed different types of actions (such as actiones in rem, in personam, noxales, perpetuae and temporales), transmissibility of actions, and similar matters. Significantly, however, they included the discussion of parts of the law of obligations in this same Book Four, and they did this not just in order to accommodate an overspill from Book Three, and to arrive at a more balanced arrangement of the material over the four books, but because of the inner relationship which the East-Roman school had come to see between the two topics.^[138] Thus, for them, it seemed to be at least as apposite to take obligations, in their traditional place, to constitute an introduction to actions, as it had been for Gaius to deal with the law of obligations at the end of his subsection on things. For, with the demise of the formulary system, the classical actiones had not completely disappeared. Justinian, always eager to hark back to the achievements of classical jurisprudence—or at least to pretend to do so — had retained the names of the old actions and even introduced some new ones. However, an action was now something entirely different to what it had been in classical law.^[139] Since it was no longer tied to the procedural formula, "actio" had by now become a term of substantive law, indicating the right to demand some performance from another party. But that was basically what obligations were all about. The various kinds of obligations could, therefore, be regarded as causae actionum or, as one of the compilers of the Institutes, the Constantinopolean professor Theophilus put it, as the "mothers" of actions.^[140] If there was a contract of sale, such a contract gave rise to certain duties. In the case of breach of one of these duties, the other party could sue; however, the action would not, strictly speaking, be an action for breach of contract,^[141] but the action on sale, i.e. the actio empti or venditi. The essential content of an obligation was thus that it entitled the creditor to bring an action.^[142]