RUTA CAESA (SELLER'S PROPERTY)

The category of ruta caesa was used in sale by mancipatio to designate accesso­ries that belonged to the seller after the sale.^[633] The jurists explained ruta caesa in terms of physical attachment, and this criterion appears in two definitions of the term ascribed to the early jurist Q.

in, rutis caesis, ea sunt, quae terra non tenentur quaeque opere structili tectoriove non continentur. (D.50.16.241 (Quint. Muc. 1 opmv))

Among things dug and cut are those which are not held in position by the earth and those which are not secured by concrete or plaster work.

Mucius gives a similar definition in what was probably a response to a question from a litigant or magistrate:

Quintus Mucius scribit, qui scribsit ‘ruta caesa quaeque aedium fundive non sunt,' bis idem scriptum: nam ruta caesa ea sunt quae neque aedium neque fundi sunt D.18.1.66.2 (Pompon. 31 ad Quint. Muc.).

Quintus Mucius writes, the one who wrote ‘ruta caesa quaeque aedium fundive non sunt,' wrote the same thing twice: for things dug or cut are those which belong neither to the buildings nor to an estate.

In this passage, there are two layers of reporting, Pomponius quotes Mucius’ interpretation of a sentence from another source (qui scribsit...)^[634] Mucius’ opinion that the same thing was written twice (bis scriptum) endorses the defi­nition of ruta caesa as quae aedium fundive non sunt that may have appeared in a sale contract or legal opinion. In both passages, Mucius defines ruta caesa by what they are not, namely, not attached to or not part of land or buildings. The first definition specifies the type of attachment that limited the category of ruta caesa: accessories that were attached to the land itself (quae terra continentur) or joined to the building by cement or plaster were excluded from ruta caesa, (opere structili tectoriove).

The term ruta caesa is connected with sale by the late Republican jurist Aquilius Gallus in a case that, like D.19.1.38.2, also involves agreements added to the sale contract. Though Aquilius’ opinion survives only in frag­ments (reported at third hand, first by Mela and then Ulpian), the outlines of the situation can be reconstructed. The case begins with Ulpian’s definition of ruta caesa which is illustrated by Aquilius’ opinion about a sale of land.^[635] Before the sale, the seller used an additional agreement (in lege venditionis) to reserve for himself some accessories to the property, possibly earth materials or lumber, the examples in the definition of ruta caesa:

Si ruta et caesa excipiantur in venditione, ea placuit esse ruta, quae eruta sunt, ut harena creta et similia: caesa ea esse, ut arbores caesas et carbones et his similia. Gallus autem Aquilius, cuius Mela refert opinionem, recte ait frustra in lege venditionis de rutis et caesis contineri, quia, si non specialiter venierunt, ad exhibendum de his agi potest neque enim magis de materia caesa aut de caemen­tis aut de harena cavendum est venditori quam de ceteris quae sunt pretiosiora. (D.19.1.17.6 (Ulpian. 32 ad Ed.))

If ruta and caesa are reserved in a sale, it is understood that ruta are those things which are dug out, such as sand, clay, and the like; caesa are those things, such as cut trees and charcoal and things similar to these. But Aquilius Gallus, whose opinion Mela reports, rightly said that it was useless for a clause about ruta and caesa to be included in a sale [contract] because, if these things are not sold indi­vidually, it is possible to bring a claim for them with the an actio ad exhibendum, for the seller need not give a promise about cut materials, either gravel or sand, any more than about other things that are more valuable.

After the sale, the seller apparently wanted to compel the buyer to deliver the accessories, making a claim on the agreement reserving property. Aquilius determined that this was not possible because the contract was invalid, frustra in lege venditione de rutis et caesis contineri. There could be no contract for the buyer to deliver ruta caesa because by definition they already belonged to the seller. This point is made indirectly by Aquilius when he explains that the seller can use the actio ad exhibendum to claim them, ad exhibendum de his agi potest.^[636]

Aquilius’ opinion contextualises the problem in D.19.1.38.2. In Aquilius’ case, the seller added a contract to the sale agreement, just as Proculus expects in D.19.1.38.2. The seller’s contract is, however, of no use because it specified accessories that fell into the category of ruta caesa. In D.19.1.38.2, if the seller had made a contract about underground pipes and was trying to use it to claim them, he would need to know whether or not the pipes counted as ruta caesa, and this is just what Firmus asked. Proculus, as reported, disre­gards this category; his emphasis on contracts may seek to change the prac­tices described by Aquilius, who explains that sellers rarely make contracts about stone and sand or even about more valuable things, potest neque enim magis de materia caesa aut de caementis aut de harena cavendum est venditori quam de ceteris quae sunt pretiosiora. The examples - both Ulpian’s (timber, charcoal) and Aquilius’ (gravel, sand) - are all natural materials that are clas­sified as ruta caesa or not, based on their connection to the land, one of the criteria in Mucius’ definition (quae terra continentur). Because of the nature of these examples, it appears that connection to the land was interpreted to mean natural materials and not manmade structures that were attached to the land.^[637] For this reason, the classification of underground pipes could seem ambiguous to buyers and sellers who were unfamiliar with the legal dis­tinctions. Their location under the ground might seem to exclude them from ruta caesa. Yet, because they were not natural materials, they would have to be ruta caesa unless they were connected by masonry or plaster. Such uncer­tainty may have motivated Firmus’ question in D.19.1.38.2, though it is hard to know exactly what type of installation was involved or how the jurists understood it. Archaeological sources for pipes and plumbing installation, especially in the houses from Pompeii, offer some guidance about how legal categories might have been applied in this case.

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