ROMAN CONTRACTS

I could go on for ever. Barter, permutatio, was basic to social contractual agreements, but it scarcely reached the status of a contract even in the time of Justinian. Barter was a fundamental social contract, but not really a legal contract.⁷¹ More than that, the treatment of barter in the surviving legal sources shows juristic contempt.

70 The remaining texts that contain the word deus are: D 1.1.2 (Ulpian, Institutes 1); D 4.8.32.4 (Paul, Edict 13); D 34.2.38.2 (Scaevola, Replies 3); D 49.14.3pr (Callistratus, Rights of the Imperial Treasury 3).

71 See already, A Watson, “Artificiality, reality and roman contract law” (1989) 57 TvR 147.

The price must be in money. There is a considerable dispute whether the price of something can consist in other things, a slave, a toga or a piece of land. Our teachers think that it can. That is their inference from the common belief that an exchange of things is a sale, actually the oldest type. They appeal for support to Homer, who at one place says: “Then the long haired Achaeans bought wine, some with bronze and others with shining steel, some with hides and some with live oxen, other with slaves” and so on. The authorities of the other school take a different position and hold that exchange and sale are different contracts. In particular, they think it impossible in an exchange of goods to settle which thing has been sold and which given as price; they hold it absurd, again, that each thing be regarded as both sold and paid as the price. But Caelius Sabinus says that if you have something on offer for sale, a farm, for instance, and I give, say a slave as its price, it is the farm which is to be regarded as sold and the slave as given by way of price, for the purpose of acquiring the farm.

One text only! And that not in the immediate context of barter but of sale.

But the absurdities became even more obvious when we turn to Justinian's Corpus luris. Thus, J Inst 3.23.2:

The price must be in money. There used to be a considerable dispute whether price could consist in other things, a slave, a piece of land, or a toga. Sabinus and Cassius thought it could. That was their inference from the common belief that an exchange of things is a sale, actually the oldest type. They appealed for support to Homer, who at one place says that the Achaean army bought wine by giving goods in exchange. “Then the long-haired Achaeans bought wine, some with bronze and others with shining steel, some with hides and some with live oxen, others with slaves.” The authorities of the other school took the opposite position and held that exchange and sale were different contracts. In particular they thought it was impossible in an exchange of goods to settle which thing had been sold and which given as price; they held that logic did not allow each side to be regarded as both selling and paying the price. This opinion of Proculus that exchange was a contract quite distinct from sale rightly prevailed. He could also rely on some other lines of Homer, and his view was more logical. His position was accepted by earlier emperors and is more fully explained in our Digest.

The context in Justinian's Institutes is again sale. This time the treatment is even odder. We are told there was once a dispute between the Sabinians and the Proculians. Now it is ended: in favour of the Proculians. But only one text is quoted - again from Homer, and it is that of the losing Sabinians. We are told that the Proculians also used Homer. But we are not given the text. Why we are not told. But the treatment does reveal the dependence on the Institutes of Gaius. History casts long shadows.

But the treatment of barter in the appropriate title of the Digest, 19.4, De rerum permutatio, takes us even further into the realm of absurdity. The title is one of the shortest in the Digest with only two texts, both from the jurist Paul. The first text is really devoted to distinguishing barter from sale. The second tells us that since barter is akin to sale, there should be a warranty that a bartered slave be healthy, etc.

In contrast to the treatment of barter, that of sale has one of the longest titles in the Digest, 18.1 with eighty-one texts; and the title is followed by seven others on aspects of sale. The last, D 19.1 on the relevant actions, has fifty-five texts.

But now we come to the final indignity. D 18.1.1.1, also from Paul, gives us for the first and only time, the text of Homer used by the Proculians for their argument that sale and barter were different arrangements:

And now, Jupiter, son of Saturn, so deranged the mind of Glaueus that he exchanged his armour with Diomedes, son of Tydeus.

But what on earth has this got to do with the issue of whether barter was the same thing as sale? The answer had to wait until 1949 - I repeat, 1949 - when David Daube produced the conclusive argument.⁷² The Proculian text had lost its last phrase, “giving gold for '/(/./.'/.m bronze”. The Sabinians had translated the Greek as “for money”, hence barter and sale were the same; the Proculians were claiming that the offensive word meant bronze, the substance of which Diomedes' armour was made, hence we have barter, and only barter, not sale.

We cannot tell whether the omission of the phrase was due to Justinian's compilers or was earlier. What matters for us is the absence of interest in barter as a legal institution. The important question - to which I have no answer - is: Why?⁷³

But one oddity only takes us on to another. At a very early date, at least as early as the mid-fifth-century BC, Rome recognised two contracts, mutuum,

72 “The three quotations from Homer in Digest 18.1.1.1” (1949) 10 CLJ 213.

73 Of course, there were remedies for wrongs in a barter transaction that were not based on contract but they were not entirely satisfactory. See, e.g., F de Zulueta, The Institutes of Gaius, vol 2 (1953) 169. loan for consumption, and depositum, deposit. They had in common the characteristic that they were unilateral. Only the borrower and the recipient of the deposit were under an obligation - to return the object of the agree­ment or its exact equivalent. The contract had to be gratuitous: no interest on the loan, no payment for the deposit. But why? I have no explanation, but one must be provided. There is no textual evidence, but some explanation must exist. I have never seen any or, indeed, any discussion.

But I cannot stop without mentioning the absence of a contract that was valid because it was put into writing. The old contract litteris discussed by Gaius in Inst 3.128 does not really count as is made clearer by J Inst 3.21.^[66] For Gaius, modern-style contracts in writing were restricted to peregrines and, in any event, had effect only when they were not accompanied by a stipulatio: Gai Inst 3.134. This text shows that the Romans knew of the possibility of a contract valid by being in writing.^[67] It might be objected that the absence of a contract valid by writing was of no great significance because agreement by itself would create a consensual contract. But any such argument would fail to take into account that for sale there would be no warranties against eviction or latent defects unless these were provided for by an oral stipu­latio. Just imagine the difficulties of contracting at a distance! The important question is again why is a contract in writing absent from law in books.

H.