Loans to professional sportsmen

In the case of fenus nauticum, repayment of the loan was dependent upon whether the ship arrived safely at its destination, with its cargo on board. Whether or not this condition was satisfied depended on the occurrence or non-occurrence of events entirely outside the control of the parties (shipwreck due to storm, piracy, etc.).

There were other cases, however, where whether or not the loan had to be paid back was determined, to a certain extent, by the borrower himself. As long as such transactions did not take on the character of gambling ("si modo in aleae speciem non cada[n]t"),²⁰¹ they were entirely valid. Quintus Cervidius Scaevola mentions two examples:

■ '... nee dubitabis. si piscaton erogaturo in apparatum plurimum pecuniae dederim, ut, si cepisset, redderet, et athletae, unde se exhiberet exerceretque, ut, si viasset, redderet."²¹'²

The more interesting of these is the case of the professional athlete who received a loan in order to be able to maintain himself and to cover all expenses incurred in connection with his exercise programme, equipment, etc.²"³ The money had to be repaid only once the borrower had gained a victory.²⁰⁴ Success in sport offered the opportunity of

~^l>l> Coing, pp. 552 sq.; as far as medieval law is concerned, cf. also Herman, Law and Revolution, pp. 349, 621. He points out that the sea loan was criticized as usurious and condemned by Pope Gregory IX in 1236. For a detailed analysis, see Pothier, Traite du pre! a la grosse overture. "Bottomry", incidentally, seems to be a Flemish term derived from the figurative use. pars pro toto, of the bottom or keel to designate the whole ship. The bottomry loan was received into the English law via the Law Merchant and through the court of Admiralty, one of the strongholds of the "Civilians" (on which see, most recently, the comprehensive account by Daniel R.

Coquilette. The Cii'iliaii Writers of Dot tors' Commons (London. 1988)). It first occurs in the records in 1593. Cf. Holdsworth. HBL, vol. VIII, p. 261.

^'^Scaev. D. 22. 2, 5 pr.

D. 22, 2, 5 pr. On this text (and the question ot its classicity). see Gluck, vol. 21, pp. 153 sqq.. 164 sqq.; Litewski, (1973) 24 lura 160 sqq.

"^,>s For all details cf especially Andreas Wacke, "Athleten als Darlehensnehmer nach romischem Recht", (1978) 44 SDMI 439 sqq.

^J4 Such conditions, where the existence of an obligation was made dependent upon a certain achievement on the part ot the (potential) debtor, were not entirely unusual. Cf., for instance, the logical paradox related in Aulus Gellius. Nodes Atticae, Lib. V, X. Protagoras ("sophistarum acerrimujs]") had been promised by his pupil Euathlos "mercedem grandem pecuniam", payable at the time the latter won his first lawsuit ("quo primum die causam apud indices orasset et vicisset"). For a long time Euathlos remained Protagoras' pupil without, however, undertaking any trial work, Protagoras therefore ultimately decided to sue him for his fee. arguing as follows: "... si contra te [se: Euathlel lis data erit, merces mihi et sententia debebitur, quia ego vicero; sin vero secundum te indicatum erit merces mihi ex pacto debebitur, quia tu viceres." Euathlos, however, replied: "... si indices pro causa mea senserint, nihil tibi ex sententia debebitur, quia ego vicero; sin contra me prommhavermt, nihil tibi ex pacto debebo, quia non vicero." The judges were unable to give a decision and postponed the matter indefinitely: "Turn indices, dubiosum hoc considerable prestige and social and economic advancement,²'¹⁵ but it entailed devotion and training for years and on a full-time basis.²"⁶ Thus it was essential for a young and talented sportsman to find a sponsor who would be prepared to bear the risk that all these efforts might in the end turn out to be in vain.

Obviously, this risk was a considerable one, for it must be borne in mind, inter alia, that Baron de Coubertin's comforting emphasis on participation rather than victory would have been entirely out of place in the ancient world.^{^[950]} One was either the winner or a loser; there were no prizes for those placed second or third.^{^[951]} Thus, as a praemium periculi, the moneylender was entitled to charge higher interest rates than usual;^{^[952]} as in the case of fenus nauticum, the interest did not have to be specifically stipulated for.^{^[953]} One may ask whether, under these circumstances, the athlete might not have been tempted to abandon striving for victory rather than having to repay loan plus interest. There was the danger, too, that he might accept a bribe from one of his competitors in order to let him win.^{^[954]} But on the one hand, the financial incentives and the material and immaterial advantages of victory normally seem to have outweighed such considerations. Successful athletes went from one competition to the other year after year and had a good chance of becoming wealthy men.^{^[955]} On the other hand, according to general principles, the condition on which repayment of the loan depended was deemed to be fulfilled if actual fulfilment was prevented, mala fide, by the party which had an interest in its non-fulfilment (i.e. the—potential — debtor).^{^[956]}

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Loans to professional sportsmen

More on the topic Loans to professional sportsmen: