WHY HERE, BETWEEN D 14.1 AND 14.3?

It has long been recognised that Justinian's Digest is organised along the lines of the Perpetual Edict. The arrangement of books 14 and 15 that deal with the so-called actiones adiecticiae qualitatis largely confirms this impresВsion.

At the time of the completion of the Perpetual Edict by Julian (c 130), the lex Rhodia de iactu was certainly not part of the edict, and had never been; moreover, it was not included, and would never be, among the actiones adiecticiae qualitatis. Gaius shows that in his time (middle of the second century AD) the actio quod iussu, the actio exercitoria and the actio instiВtoria were thought of as a group, since they engaged the liability in solidum of the principal (as opposed to the actiones de peculio et in rem verso and tributoria).^[306] In the Digest, this notion of group seems to be weakened by the inclusion of Title 14.2 between 14.1 and 14.3 and the removal of the actio quod iussu to the end of book 15. The nice arrangement in Gaius was obviously lost on the compilers, and probably before, considering the sequence attested in the Sententiae Pauli (2.6-2.10). It does not take much to find a common denominator between D 14.1 and D 14.2 or D 14.3. It is somewhat more difficult to connect logically D 14.2 and D 14.3, so we can be sure that the intruder is D 14.2. The link between D 14.1 and D 14.2 is the magister navis, the centrepiece of D 14.1, and a rather marginal character in D 14.2, since everything which is being said about him in D 14.2 could be valid if the nauta had been an independent shipper, exercitor or navicularius. Evidence for this goes back to a fourth-century BC comic poet, Diphilos of

Sinope, who later inspired the Latin playwright Plautus:

ναύκληρος άποθύει τις εύχήν, άποβαλών

τον ιστόν η πηδάλια συντρίψας νεώς, η φορτίвЂ™ εξέριψвЂ™ ύπέραντλος γενόμενοςВ· άφηκα τον τοιοΰτον.

ουθέν ήδέως ποιεί γάρ οΰτος, αλλвЂ™ όσον νόμου χάριν όμοΰ δε ταΐς σπονδαΐσι διαλογίζεται τοΐς συμπλέουσιν όπόσον επιβάλλει μέρος τιθείς, τά θвЂ™ αυτού σπλάγχνвЂ™ έκαστος εσθίει.

A shipper makes a sacrifice for his prayer, as he had thrown away the mast, broken his rudder, cast the cargo overboard, being overwhelmed by the waves. I avoid such a man, for he does nothing for fun, but everything for the sake of nomos [an ambiguous Greek word purposedly not translated here]. At the very moment of the libations, he reckons how much he will charge his fellow travellers, deciding on the value of each share; everyone will eat one's own guts.^[307]

In the Sententiae Pauli 2.6-2.8, the section on the lex Rhodia (2.7) is more detailed than the introductory section on both exercitores and institores (2.6, although only the former are concerned), and no less than the subsequent section on institores alone (2.8). All three sections, short or long, contain material not to be found in the Digest. In Sententiae 2.6, the filius familias operates a ship in compliance with his father's will and makes him liable for вЂњea quae salva receperitвЂќ whatever that means, be it a reference to receptum nautarum (D 4.9) or else (if receperit has pater as subject). In Sententiae 2.7, we find the definition of contributio/intributio discussed earlier (2.7.1), then a provision concerning the liability of passengers for the equipment of the ship (2.7.2), quite in agreement with what is found in the Digest.^[308] This is not the case of the third provision (2.7.3), which sort of does away with the concept of navis salva, a concept which is then reaffirmed in the fourth and fifth ones (2.7.4-2.7.5). In Sententiae 2.8, all three paragraphs deal with the scope of the appointment of the agent, and the latter's profile.

In fact, most, if not the whole, of D 14.1 and 14.3 is concerned with the tricky and conseВquential question of the scope of the agent's appointment. Most telling are two passages which can be viewed as complementary in this regard:

1. In D 14.1.1.12, Ulpian, in a commentary on the edict, describes the certa lex praepositionis, вЂњdraftedвЂќ for the sake of would-be contractors, the purpose of which is to define the activities/operations of the agent for which the principal would be held liable in solidum as an effect of the praepositio.^[309]

2. In D 14.3.11.2-6, the same Ulpian, in the same twenty-eighth book of his commentary, describes how the praepositio can be restricted through proscriptio, in the material form of a charter to be posted

claris litteris, unde de plano recte legi possit, ante tabernam scilicet vel ante eum locum in quo negotiatio exercetur, non in loco remoto, sed in evidenti. Litteris utrum Graecis an Latinis? puto secundum loci condicionem, ne quis causari possit ignorantiam litterarum. Certe si quis dicat ignorasse se litteras vel non observasse quod propositum erat, cum multi legerent cumque palam esset propositum, non audietur.

in clear letters, where it can be read at eye-level, in front of the shop, of course, or of the place where business is conducted, not in a remote spot, but quite in full view. Should it be written in Greek or in Latin? In my opinion, according to the place, lest someone could make excuse of his illiteracy. Indeed, if someone pretends that he is illiterate or that he has not seen what had been posted, although many had read it and the poster had been obvious, he will not be given a hearing.

In the best of all worlds, managers - or rather their principals - would be able to design perfect charters, leges praepositionis, occasionally qualified by partial or total proscriptiones (forbidding specific deals or business of any sort), or extended by explicit and precise orders (iussus/iussa) in order to anticipate all possible cases and situations potentially leading to litigation.

This is what we call a job description, or lex contractus. In any pre-indusВtrial society, such explicit, diverse, colourful and comprehensive documents were simply hard to find on a regular basis, although counter-examples easily come to mind, such as the lex Puteolana parieti faciendo or the lex libitinaria Puteolana, both from late second or first century BC Puteoli.^[310] In most cases, people must have relied on common sense and/or customary law. I would like to suggest here that the lex Rhodia de iactu belongs to this category of leges. It is admittedly different from popular statutes, but it reflects the accumulation of experience in the context of sea-travelling, and deals with all the accidents that such an activity entails. Squeezed between D 14.1 and 14.3, D 14.2 on the lex Rhodia de iactu is the certa lex of the magister navis by default, within the context of his legal relationship with his customers and to some extent his principal, on the basis of which he is entitled to sue and be sued, to hold property, his and others', and to manage it for the benefit of his customers and himself.

The early history of the lex Rhodia de iactu, illustrated by D 14.2 and Sententiae Pauli 2.7 in classical Antiquity, its reception in the Byzantine period, and its adoption in later maritime regulations show that the scope of the law of jettison tends to vary over time.^[311] The perceptible trend, already suggested in my reading of D 14.2, is a movement from the specific, narrow and rather strict application towards a wider, more flexible, and gradually encompassing use. This is compatible with what I consider the most likely historical development of the actiones adiecticiae qualitatis, from the limited scope of the earlier actio quod iussu, open to persons in power for a specific, controlled activity entailing the total liability of the principal, to the nearly unlimited scope of the somewhat later actiones institoria, exercitoria, de peculio et de in rem verso, and tributoria.^[312] And if one looks at Gaius' InstiВtutes 4.69 and following, this is precisely the story that he tells us.

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Source: Cairns J.W., Plessis P.J. du. (eds.). Beyond Dogmatics: Law and Society in the Roman World. Edinburgh University Press,2007. - 236 p.. 2007

WHY HERE, BETWEEN D 14.1 AND 14.3?

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