Three in one
If the modern trichotomy of contracts is alien to the Roman sources {neither Gaius nor D. 19, 2 separates the three basic forms of locatio conductio), this does not mean that the Romans applied the same rules to all varieties of this contract.[1725] It would be quite wrong to attribute any dogmatic significance to this essentially Unitarian view.7
The Roman lawyers realized that not everything which came under the heading of locatio conductio could be treated alike, and, as usual, their approach to the individual cases brought before them was guided by pragmatic differentiation and careful analysis of typical conflicts of interest rather than by conceptual rigidity.
While they themselves were quite uninterested in abstract categorization, their casuistry nevertheless provided the basis for the traditional civilian threefold classification.[1726] [1727] This illustrates a fundamental dilemma with which the student of Roman law is often faced. It would be quite ahistorical to superimpose systematic distinctions over the Roman sources or to approach them with modern dogmatic categories in mind. On the other hand, the Roman sources usually provide the historical foundation, the casuistic basis for these classifying and structuring efforts of the later civilians; and in order to prevent the modern lawyer from drowning in the flood of Roman case law, some sort of systematic life jacket appears to be indispensable. This must be kept in mind, while we shall, in the following pages, deal with the three main types of locatio conductio separately.4 In a way, of course, this procedure is un-Roman, because, as we have said, the Romans knew only the contract of locatio conductio. And yet, this Unitarian concept was a matter of terminology and procedure rather than of practical impact and dogmatic consequences. This will become clearer if we remind ourselves of three things: that Roman law was actional law (and was thus developed under procedural auspices), that in this specific instance we are dealing with bonae fidei iudicia, and that the Roman lawyers were traditionalists rather than vigorous reformers.3.
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