The Roman lawyers and the law of lease
The reason for this should not be sought in any social bias on the part of the lawyers. It is true that they may not have been fully aware of the acuteness of the problems. As respectable members of the class of clarissimi et amplissimi viri[1765] [1766] they were unlikely to reside (or even to know anybody who resided) in the upper storeys of the insula of Felicula. But that does not mean that they tailored the law to suit the needs of their fellow capitalists and to make the exploitation of slums a particularly profitable enterprise.[1767] Nor, indeed, was the Roman law of lease totally detached from the social framework within which it was supposed to operate. By and large, the rules that were developed reflect a balancing of competing interests, based on the realities of the Roman rental market and, from a public policy perspective, apt to serve as a satisfactory instrument of social control.[1768] The whole problem, however, lies in the fact that the jurists created the Roman lease law with only one segment of the market in mind: it was meant, primarily, to resolve the problems arising from upper-class housing. It was not designed to oppress or to relieve the lot of the poor: they simply did not feature.[1769] Roman law was actional law and where there was no litigation, no law could be developed. Thus, the procedural and social factors determining the incidence of litigiousness in Roman society in turn determined both the content and the structure of the private law. Lower-class tenants did not have the means to approach a jurisconsultus for his opinion and a whole variety of considerations effectively deterred them from making use of thejudicial apparatus.[1770] [1771] Usually the reward they might have been able to obtain by bringing a lawsuit did not warrant the amount of time, expense and trouble required. Moreover, members of the lower classes "were probably ignorant of the law, and they were also the victims of a social structure that was not only exaggeratedly pyramidal in its distribution of wealth and influence, but also bound by stark social conventions.... Simultaneously, however, their poverty effectively protected these same lower classes against private law suits by others. Much of Roman private law may therefore have remained confined for all practical purposes to the upper social tiers."ss Thus, our legal sources, like the literary, usually refer to the world of the Roman upper class. This is true even in the case of lease, for, as Bruce W. Frier has demonstrated, the inquilini of the jurists were not typically lower-class tenants.[1772] Comfortable cenacula or whole apartment-house complexes were available for those who could afford them,[1773] and we even know of members of the senatorial rank who were attracted by the advantages of renting.[1774] The Roman lawyers contented themselves with finding solutions to the problems brought before them, and that, in this instance, led to the creation of what has been termed a "law of upper-class-leasehold".[1775] Arguably, it is in any event only this sector of the rental market that can be adequately regulated by means of private law. Even today, as we have seen, the task of policing the market of urban housing in its entirety leads us into the area of administrative and legislative intervention and, more generally, into the field of public law.[1776] The Roman lawyers worked within the framework of the existing social and procedural structures. Problems resulting from unequal bargaining power fell outside their sphere of competence and experience—as did social reform or social engineering in general. Hence the specific structure of the Roman law of lease: the characteristic lack of control over the formation and content of the contract and its focus on the allocation of (objectively existing) risks and on occurrences producing liabilities under the contract. 5.
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