Receptum nautarum cauponum stabulariorum

(a) Actio de recepto; custodia liability

Finally, the receptum nautarum cauponum stabulariorum. It

was

^s Ulp. D. 4. 8. 13. 2. For details, see Magdehin. Consensualisme, pp.

³¹ Cf. e.g. Paul. D. 4, 8, 19, 1.

² The edict provided: "Qui arbitrium pecunia compromissa recepcrit, eum sentcntiam diccre cogam"; cf. Ulp. D. 4, 8, 3, 2; Ulp. D. 4, 8, 3, 15; Lend, EP, pp. 130 sq.; Ziegler, Privates Schiedsgericht, pp. 84 sqq.

³⁵ Cf. e.g. Cluck, vol. 6, pp. 74 sqq., 87 sqq.; Windscheid/Kipp, § 417.

³⁷ Leo Rosenberg, Karl Heinz Schwab, Ziviiprozessrecht (13th ed., 1981), p. 1113.

^3K Rosenberg/Schwab, op. cit., note 37, p. 1114.

³⁹ But see Alfons Burge, "Fiktion und Wirklichkeit: Soziale und rechtliche Strukturen des romischen Bankwesens", (1987) 104 ZSS 527 sqq.: liability was undertaken by a formal act (i.e. the solemnity connected with the word "recipio").

® Lend, EP, pp. 132 sqq., Berger, ED, p. 668; Magdelain, Consensuaiisme, pp. 152 sqq.; Frezza, Garanzie, vol. I, pp. 274 sqq,

⁴ C 4, 18, 2 pr.; Inst. IV, 6, 8; Kaser, RPr II, p. 383; Burge, (1987) 104 ZSS 535 sq. dogmatically the most interesting and historically the most significant of the pacta praetoria. We are dealing with an undertaking by a sea carrier, an innkeeper or a stablekeeper that their customers' goods would be safe while on the ship or on their premises. On the basis of this guarantee the praetor was prepared to grant an action, untechni- cally referred to as actio de receptor "Nautae caupones stabularii quod cuiusque salvum fore receperint nisi restituent, in eos iudicium dabo."^[2645] Recipere res salvas fore is the extended version of the operative words: to undertake^[2646] that the goods will be safe.

"Nauta et caupo et stabularius mercedem accipiunt non pro custodia, sed nauta ut traiciat vectores, caupo ut viatores manere in caupona patiatur, stabularius ut permittat iumenta apud eum stabulari: ct tamen custodiae nomine tenentur."^[2650]

As a consequence, for instance, it is not the customer who can bring the actio furti in case of theft, but the nauta/caupo/stabularius, "quia recipiendo periculum custodiae subit".^[2651]

(b) The reasons for the actio de recepto

What were the reasons that induced the praetor to grant the actio de recepto? At two places in the title 4, 9 we find Ulpian trying to answer this question. First of all, he praises the edict ("[mjaxima utilitas est huius edicti"),

"quia necesse est plerumque eorum fidem sequi et res custodiae eorum commit- tere.... nisi hoc esset statutum, materia daretur cum furibus adversus eos quos recipiunt coeundi, cum ne nunc quidem abstineant huiusmodi fraudibus";^{[2652] [2653] * * * [2654]}

later on, he refers to Pomponius' somewhat tentative suggestion that the praetor might have liked to make it known to those engaged in these occupations that he was taking care to repress dishonesty.^[2655] Obviously, nautae, caupones and stabularii did not enjoy a very high reputation.

(c) Actio de recepto and special delktual actions

If, therefore, the recipient of the customer's property was ultimately liable for custodia, the question arises whether the introduction of the actio de recepto had really been necessary. After all, the receptum did not stand on its own; it was an additional agreement, a guarantee that could be added to the underlying contract of carriage, lodging or stabling.^{[2658] [2659] [2660] [2661] If we take by way of example the nauta,[2662] we will remember that carriage by sea was normally undertaken on the basis of locatio conductio opens[2663] and that the conductor under this type of contract was (probably) in any event liable for custodia.[2664] Furthermore, two special, praetorian remedies were available in the event of the customer's goods being stolen or damaged on board, irrespective of whether the delict had been committed by the nauta himself, by one of his employees or by a fellow-traveller: the actiones furti and damni in factum adversus nautas.[2665] The customer therefore appears to have been well protected even without receptum.}

(d) Actio de recepto and actio locati

To disentangle the relationship between the actio de recepto and the actio locati is a much more difficult, if not impossible, task. The

scarcity of sources and the prevailing uncertainty regarding the extent to which Justinian interfered with the classical texts inevitably brings a very strong element of speculation into the discussion. Even the very basic question as to which of the two remedies is the older is not beyond dispute. Van Oven, for instance, has argued that, historically, the strict receptum liability preceded the more modern and flexible regime of the consensual locatio conductio.^[2667] More often, however, a different development is held to have taken place. The contractual basis for carriage by sea was locatio conductio; it must have existed before the receptum guarantee as an accidentale negotii was recognized.^[2668] But what was its function? According to Fritz Schulz, for instance, the actio de recepto was created in order to subject the nauta to a liability that was stricter than that imposed under a contract of locatio conductio operis;^[2669] and indeed, we have seen that the receptum liability originally went beyond custodia and comprised all cases of vis maior.

De Robertis,^[2670] while sharing two of Schulz's basic assumptions (namely that the locatio conductio came first, and that all conductores operis were liable for custodia), ascribed exactly the opposite function to the actio de recepto; it was not introduced in order to stiffen, but rather as part of a policy to mitigate liability for sea carriage: the nauta was to be liable for custodia only if he had in fact entered into a receptum and thereby expressly assumed such a responsibility. According to Brecht,^[2671] the receptum was concerned only with the personal baggage brought on board by passengers. As long as we are dealing with locatio conductio rerum vehendarum, the nauta was liable for custodia, since the goods were the object of the transport. Locatio conductio vectorum vehendarum, on the other hand (i.e. the type of transaction that conspicuously dominates the Digest title 4, 9), focused exclusively on the person of the passenger. In this respect, custodia liability does not make sense. But if the carriage by sea of persons did not (and could not) entail custodia, the safety of the objects which the passenger brought with him and which were thus incidentally transported too, was not satisfactorily safeguarded. It was in order to attend to this specific problem—so Brecht argues—that the parties concluded the receptum and that the praetor granted an action.

Thomas,^{[2672] [2673] [2674] too, tries to differentiate. He draws attention to the fact that locatio conductio operis was by no means the only form of carriage by sea. The contract could also be locatio conductio rei, i.e. the hiring of space on the ship.[2675] In this latter instance, the nauta was the locator and could, as a matter of course, not be liable for custodia.[2676] But even in case of locatio conductio operis, the nauta (here in the role of conductor) did not automatically incur this type of liability.}

To show that the receptum was necessary in order to impose a type of liability that was not inherent in the contract of carriage by sea: this appears to be, indeed, the most convincing solution to our problem. We have seen above that fullers and tailors were liable for custodia, but that one cannot be certain whether these professions were merely referred to in our sources by way of example.^[2678] If, indeed, all other conductores under a contract of locatio conductio operis were liable only for culpa, then it must have been the function of the receptum to increase the nauta's responsibility to custodia.^[2679] But even if we assume that as a rule all conductores operis were contractually liable not only for culpa but also for custodia, this cannot have applied to the situation currently at issue. For it appears to have been generally established that the imposition of custodia liability was not appropriate where the risk of theft or damage was inherent in the contract and where, therefore, the debtor exposed what had been handed over to him to these perils with the consent of the other party.^[2680]

(e) From accidentale to naturale negotii

It is perhaps not surprising, under these circumstances, to see that even the Roman lawyers themselves were occasionally uncertain about the actual function of the actio de recepto. Pomponius was one of those who were rather puzzled: "[M]iratur igitur, cur honoraria actio sit inducta, cum sint civiles"^[2681] is what he asked. For him, of course, this was already a matter of legal history; at the time when he wrote his commentaries, the actio de recepto had already existed for about 300 years and it is very likely that in the course of these centuries the law had undergone considerable change. The conclusion of a receptum had become more and more a matter of course when goods were given to a nauta for transportation. The day must have come when it was simply read into a locatio conductio rerum vehendarum and when the onus was on the parties specifically to exclude the receptum liability if they so wished.^[2682]~ There was, in short, a tendency to associate the duty of carriage and the duty of restoring the cargo, to approximate (and ultimately: to merge) receptum and conductio liability, and to treat what had once been merely an accidentale negotii virtually as a naturale of the contract of carriage by sea.^[2683] When and exactly how this development occurred is unclear: and this uncertainty makes it even more difficult for us to disentangle locatio conductio and receptum today.

(/) The receptum in modem law

The praetor's edict on the liability of nautae, caupones and stabularri has become part of the European ius commune^[2684] and it is still in force in South Africa today.^[2685] Many of the modern civil codes, too, have adopted the strict receptum liability,^[2686] the BGB, however, only in the case of innkeepers.^[2687] It appears always to have been accepted that such a liability existed when a carrier by sea, an innkeeper or a stablekeeper had received the property of his customer under a contract of carriage, for lodging or for stabling, unless it had been specifically excluded by the parties.^[2688] But whether the liability was based on an implied contract to that effect or whether it arose, quasi ex contractu, ipso facto receptionis, was never beyond dispute. This lack of dogmatic clarity persists in modern law.⁸⁰ It has often been noted that the reason given in the Digest for the edictum de nautis, cauponibus et stabulariis does not, under modern conditions, provide a very satisfactory justification for the imposition of this stringent type of liability. Carriers by sea, innkeepers and stablekeepers may, of course, still be individually unreliable; but it can hardly be maintained that in their collectivity, as members of the respective professions ("hoc genus hominum"),⁸¹ they are particularly disreputable. After all, hotels without bawdyhouses are no longer that exceptional. Hence, the rule of cessante ratione legis cessat lex ipsa has been invoked by South African innkeepers,⁸² and their German counterparts vigorously opposed the adoption of the rule that was to become § 701 BGB.⁸³ But in neither of these jurisdictions did the lobbyists prevail. There have always been good reasons for the receptum, quite apart from those advanced by Ulpianus, most notably those deriving from the fact that the customer and his property are exposed to dangers emanating from a sphere which only the other party is able to organize and control.⁸⁴

(g) Range of application

Inevitably, under these circumstances, the question had to be asked why the receptum should be confined to nautae, caupones and stabularii; the policy considerations underlying this strict type of liability would seem to be applicable to a broader range of professional activities. Thus, over the centuries, we see indeed an extension of the provisions of the edict. This development had already started in classical Roman law: "De exercitoribus ratium, item lyntrariis nihil cavetur: sed idem constitui oportere Labeo scribit, et hoc iure utimur."⁸⁵ There appears to have been some discussion whether the edict should be applied only to exercitores navium engaged in transport over the open sea or also to river boatmen. Labeo advocated the

African law cf. Van der Horst, op. cit.. note 75. n. 177. The same applied in Germany (to innkeepers') until 1966; but cf. now § 702 a BGB.

^B Cf. e.g. Gluck, vol. 6. pp. 112 sq.; Donges. op. cit.. note 42. pp. 27 sq.

® Liability of the innkeeper according to the §§ 701 sqq. BGB was first seen within the framework of the contract of lodging (''Beherbergungsvertrag'') concluded between the innkeeper and his customer; it was then viewed by some authors as being based on a separate contract of deposit. Today, the view prevails that we are dealing with a liability ex lege (quasi ex contractu?"). For details cf. e.g. Peter Koch. "Zur Neuregelung der Gastwirt­shaftung". 1966 Versicherungsrecht 707 sqq.; Uwe Hiiffer. in: Miitichener Kommentar, vol. Ill. 2 (2nd ed. 19861. § 701. nn. 3 sq.

*; Pomp./Ulp. n. 4, 9, 3, 1.

^S2 Cf. Davis v. Lockstone 1921 AD 153 at 159.

¹³ "Motive". in: Mugdan. vol. II, p. 326.

^M4 For details cf. e.g. Gluck, vol. 6, pp. 110 sq.; Donges, op. cit., note 42, pp. 21 sq.; "Motive", in: Mugdan, vol. II, pp. 326 sq.

^H5 Ulp. D. 4, 9, 1, 4; cf. e.g. Gluck, vol. 6, pp. 126 sq.; Donges, op. cit., note 42, pp. 78 sq.; Meyer-Termeer, op. cit., note 43, pp. 188 sq. extension to those in charge of rafts or barges, and his opinion has been followed. The next in line were carriers by land. At the time of the usus modernus pandectarum, we find some authors still maintaining the distinction between carriers by sea and by land. It would be unreasonable, so they argued, to subject the latter to the receptum liability also; they could do much less than a nauta to protect their customer's property, when they had to take their coaches over inconvenient roads and through dark and dangerous forests without any kind of convoy or protection.^[2689] In practice, however, carriers by land ("Postmeister und Landkutscher") had generally come to be placed on a par with the nautae of the praetorian edict; predominantly this was approved in contemporary literature,^[2690] and has also been accepted in modern South African law.^[2691] The question has even been asked (though not yet decided) whether the edict should not also be extended to carriers by air.^[2692]

The South African courts have, however, balked at the idea of considering the owner of a parking garage as (the equivalent of) a stablekeeper. Schreiner JA had this to say on the matter:

"The question whether the keeper of a parking garage comes under the term stabularius can, in my opinion, only be answered in the negative. The differences between a dead thing like a motor car, which, though in a sense self-propelled, requires human agency to set and keep it in motion, and a living creature like a horse, possessed of its own capacity to initiate movement and subject to the impulses and the needs that go with life, appear to me to be so obvious and so important as to make it highly artificial to treat them as legal equivalents.... It is not necessary to speculate on the question how far the analogy would have to be carried, and whether those who store bicycles, perambulators or roller-skates would also be subject to a stricter standard of obligation than those who store chairs and tables. For I am clear that... considerations of fairness... not only do not favour the proposed extension but militate strongly against it. The parking of motor vehicles in a modern city is a serious problem and it cannot be socially advantageous to increase the risks of those who in the course of their business contribute to the solution of the problem."^[2693]

One is left to wonder what the somewhat quixotic pronouncement on the similarities and dissimilarities between horses and motorcars was intended to prove.

(h) The liability of common carriers

In his judgment, incidentally, Schreiner JA refers to the liability of the "common carrier"^[2694] (as opposed to a private carrier). This terminology has repeatedly been used by South African courts. It has been borrowed from English law, where carriers both by land and by sea have also traditionally been subjected to a particularly strict type of liability, as long as they are common carriers.^[2695] A common carrier has been defined as one who undertakes, for hire or reward, to transport the goods of those who choose to employ him from place to place?^[2696] Private carriers, who do not exercise the business of common carriers, are responsible only to the same degree as other bailees for hire. The reception of the term "common carrier" into Roman-Dutch law, however, is apt to create confusion;^{[2697] [2698] [2699] not because under the ius commune both a professional and a private carrier would have been subject to the receptum-type liability, but because the extent of the common (professional) carrier's liability is different under the ius commune (and consequently under modern South African law) than under the English common law.45 Joseph Story describes the historical development as follows:}

"By the common law, as understood in the reign of Henry the Eighth, a responsibility of the like extent and nature [s.c: as under the civil law] seems to have existed in England; for it is said that at that time a common carrier was held chargeable in cases of a loss by robbery, only when he had travelled by roads dangerous for robbery, or had driven by night, or at any inconvenient hour. However this may be, it is certain that in the commercial reign of Elizabeth a different rule prevailed; and the doctrine has for a good length of time been firmly established, that a common carrier is responsible for all losses, except those occasioned by the act of God, or of the King's enemies."¹'"

The common carrier is thus treated as an insurer against all but certain excepted perils, which are very narrowly circumscribed. What is the rationale?

"And this is a politick establishment", said Lord Holt in Coggs v. Bernard, a decision already repeatedly referred to,^[2700] "contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc. and yet doing it in such a clandestine manner, as would not be possible to be discovered. And this is the reason the law is founded upon in that point."^[2701]

It is obvious that these policy considerations are borrowed from Roman law;^{[2702] [2703] [2704] interestingly, however, they are used to justify an even stricter liability than that comprised by the Roman custodia.}

(i) Range of liability under the ins commune

Among the authors of the ius commune, the scope of the public carrier's responsibility was in dispute.¹¹¹¹ This controversy arose from the fact that the glossators had attempted to translate the strict receptum liability into culpa terminology. They regarded liability for damages as a kind of punishment for a wrongful act and applied the principle of "nulla poena sine culpa".^[2705] Hence, they based the carrier's liability on "culpa levissima".^Jn3 As a consequence, the carrier was not responsible, for instance, in cases of theft, provided no negligence was attributable to him. Even the slightest degree of negligence led to liability; on the other hand, however, if he could show that he had acted diligently, that was enough to relieve the carrier of his liability. "Casus fortuitus" was the term most often used to draw the line and it included vis maior as well as what we have referred to as "lesser accidents".¹⁰⁴ Many writers of the usus modernus pandectarum (including, more specifically, some Roman-Dutch authorities) still shared this view. A very clear statement to this effect is that of Vinnius, who refers to Ulp. D. 4, 9, 3, 1:

"quo locojurisconsultus conferens actiones locati et depositi cum honoraria, quae ex edicto isto competit, utilitatem ejus, quae ex edicto est, hoc nomine maxime commendat: quod in locato conducto culpa, in deposito dolus duntaxat praestetur: edicto vero omnimodo, qui recepit, teneatur, etiamsi sine culpa ejus res penit aut damnum datum est, ita tamen, ut nee ille praestet casus fortuitos, seu quod damno fatali aut vi majore contigit. Igitur ex sententia Jurisconsulti is, qui recepit, praestat medium aliquid inter culpam et casum fortuitum, quod non praestat conductor: atqui hoc medium nihil aliud esse, fateri omnes debent, quam culpam levissimam."¹"⁵

It is not surprising, in view of these authorities, that the South African courts have occasionally based the carrier's liability on culpa.¹"⁶ Today, however, a different view prevails:

"The construction placed on this edict was that the bailees named were liable in every case ofloss or damage occasioned by theft, injury or otherwise, although happening without any default on their part, unless it happened by superior force or by what was called 'fatal damage', as for instance by shipwreck, or by the act of pirates."¹"^{[2706] [2707] [2708] [2709] [2710]}

As so often in a judgment by Lord De Villiers, this statement is squarely based on Voet.¹⁰⁸ It does, however, find support in the writings of a variety of other authors¹⁰⁹ and gives a fair reflection of the receptum (custodia) liability of classical Roman law.¹¹⁰

The passage quoted above from Vinnius' Commentary on the Institutiones, incidentally, also makes it clear, why the magna quaestio of modern historical research, namely that of the function of the actio de recepto in relation to the actio locati, did not unduly trouble the writers of the ius commune. Justinian had tried to redefine all instances of the classical contractual custodia liability in terms of culpa. Since the days of the glossators, it was therefore accepted that a conductor operis was liable, as a rule, for culpa (levis); and liability of carriers under the praetorian edict was considerably stiffer in comparison, no matter whether it was conceived to be strict or construed as culpa levissima.

III.