Pretium iustum

(a) The Roman attitude

The price had to be meant seriously and it had to be certain. It was not a requirement for the validity of a contract of sale that the price be just or fair.¹³⁴ This is a reflection of the liberalistic (rather than paternalistic) spirit of Roman law,¹³⁵ as well as of the sovereign position and practically unfettered authority of the paterfamilias.

Roman private law was the law of the free Roman citizen, who could not only be relied upon to look after his own interest, but whose duty it also was to protect the (economically, socially, intellectually or emotionally) weaker members of the community—notably women, children and slaves—in so far as they belonged to his household.¹³⁶ Determination of the price could thus be left to the parties; whatever they agreed upon could be taken to represent a fair price in the circumstances of the individual sale. Judicial reconsideration and interference would have been an improper infringement of the freedom of the parties to strike their own bargain and to assess the balance of performance and counterperformance according to their own economic needs and interests. This attitude is encapsulated in Paul. D. 19, 2, 22, 3:

"Quemadmodum in emendo et vendendo naturaliter conccssum esc quod pluris sit minoris emere, quod minoris sit pluris vendere et ita invicem se circumscribere, ita in locationibus quoque et conductionibus iuris est."¹³⁷

The parties were free to charge (much) more or (much) less than what others might consider to be a fair price. This, according to Paulus, is a matter of course and it applies not only to contracts of sale but to all bilateral contracts in which the performance of one of the parties is in money. "Invicem se circumscribere" is very difficult to translate: to "overreach" or "outwit" each other would perhaps come closest to what is meant.

It would be inappropriate, though, to take this term as implying and thus condoning deceit.¹³⁸ That circumscribere cannot be equated with dolus is obvious if one takes into consideration that the contract of sale gives rise to iudicia bonae fidei.

(b) Invicem se circumscribere

Paul. D. 19, 2, 22, 3 does not contain a carte blanche for foul play, for neither actio empti nor actio venditi could be granted in case of fraudulent machinations. There was no licence for wangling and knavery. However, the Roman lawyers were realistic enough to see that the usages of trade and commerce do not always conform to particularly high standards of honesty: "Sed aliter leges, aliter

Sec generally Schulz, Principles, pp. 140 sqq.

⁰⁵ Under the Principate, the Roman State looked after the basic needs of the poor by way of the cura annonae (public distribution of free grain) and cura carnis. Cf. e.g. Theodor Mommsen, Staatsrecht, vol. II, pp. 502 sqq.; Stephan Brassloff, Soziatpolitische Motive in der romischen Rechtsentwicklung (1933), pp. 167 sqq. The number of people on the corn dole was usually about 150 000 under Caesar and Augustus, 175 000 under Sepiimius Severus. In addition, the lex lulia de annona was enacted in order to combat unfair practices in the sale and transportation of grain (on these, cf. Ulp. D. 47, 11,6 pr.).

⁰⁷ Cf. further Ulp. D. 4, 4, 16, 4 ("Pomponius ait in pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire"); Hermog. D. 19, 2, 23.

⁰⁸ Cf., however, Ulrich von Lubtow, "De iustiria et iure", (1948) 66 ZSS 499 sqq.; Antonio Carcaterra, Dolus bonus/dolus malus. Esegesi di D. 4, 3, 1, 2-3 (1970), pp. 143 sqq. philosophi tollunt astutias",^{^[1312]} or, more generally: "Non omne quod licet honestum est."^{^[1313]} Some grain merchants sail from Alexandria to famine-stricken Rhodos, where grain has become a very precious commodity. May the merchant whose vessel arrives first sell his grain to the starving Rhodians without indicating that various other vessels are about to arrive within a short while? The answer of the philosopher might well be "No".

He would tend to postulate a moral duty of disclosure.^{^[1314]} The lawyer, on the other hand, will be reluctant to base his decision upon too moralizing an attitude. He will remember that the messenger god and intermediary Hermes (with whom its Roman counterpart Mercurius was largely identified) has always been taken to be the patron and protector of both merchants and thieves. Thus he will realize that a merchant is out to make a profit and that to be cunning and shrewd is part of business life.^{^[1315]} It is, therefore, not according to abstract ethical ideals, but with a view to average business decency that his actions have to be evaluated. The behaviour of the fastest of the above-mentioned grain merchants, for instance, is clever exploitation of an advantageous situation, not deceitful machination.^{^[1316]} Only the latter would have fallen foul of the bona fides requirement inherent in sale.^{^[1317]} Anything short of dolus was invicem se circumscribere, and it was naturaliter concessum, not on account of the precepts of natural law (ius naturale) but in the sense of being in accordance with the nature of trade (natura contractus).^{^[1318]} In a certain way, therefore, the Roman lawyers seem to have resigned themselves to the realities of life and business morals. The licentia they were prepared to grant to any party to a (prospective) contract of sale found its limitations only in the rejection of dolus, in the remedies available in case of latent defects and — above all—in the smartness and alertness of the other party.^{^[1319]} ^{^[1320] ^[1321] ^[1322] ^[1323] ^[1324] ^[1325] ^[1326]}

lus vigilantibus scriptum: there was very little in the Roman law of contracts to limit this core feature of economic liberalism. The law merely provides the framework within which the individuals may operate, it does not have protective functions.

One notable exception was the legislation limiting interest rates on loans.^[1327] But no attempts were ever made in classical Roman law to interfere with the freedom of the parties to a contract of sale to fix their price. Yet, these situations are not at all dissimilar. In both instances, leaving technicalities aside,¹⁴⁹ it is an imbalance between performance and counterperformance with which the legal system is faced. It is on this basis that § 138 II BGB provides one and the same rule for all bilateral contracts: loans against interest, sale, hire, etc. According to this rule, not even an obvious disproportion between the performance and the pecuniary advantages granted in exchange for it is m itself sufficient reason to set aside the contract as invalid: in addition, there must have been exploitation of a distressed situation, inexperience, lack of judgemental ability, or grave weakness of will of the disadvantage^A party.^k

§ 138 II was formulated in the second half of the 19th century.^[1328] It was a child of the then—once again — dominant ideas of economic liberalism:^[1329]

"[E]vcry person who is not. from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses: and whether his bargains are wise and discreet, or profitable or unprofitable, or otherwise, are considerations, not for courts of justice, but for the party himself to deliberate upon."^[1330]"¹¹

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

Pretium iustum

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