Take the following example from the delict of theft (a tort in Roman law). The jurist Ulpian (160–228 AD) asks who will have the action for theft if a letter he sends to another is intercepted before it arrives.26In order to answer this remedy question one must first ask, says the jurist,
23 This is particularly true about property: although there are titles specifically devoted to acquiring and losing ownership and possession (D.41.1 and 2), one also has to look at the title dealing with the actio in rem (D.6.1) to get a full understanding of the mechanics of property law.
24 Jolowicz, Roman Foundations, pp 75–81.
25 Weir, T, ‘Contracts in Rome and England’ (1992) 66 Tulane Law Review 1615. 26 D.47.2.14.17.
who did the letter belong to: was it the sender or the addressee? If the sender had given it to the slave of the addressee, then the latter would be the owner because he would acquire through the slave. And the same would be true if the letter was given to the addressee’s agent, especially if the addressee had an interest (interfuit) in becoming the owner. On the other hand, if the sender had sent the letter on the understanding that it would be returned to him, then he would retain ownership. Having discussed these concrete situations, Ulpian returns to the question of who had the action. It is the person who had an interest in the letter not being stolen, that is to say the person who benefited from its contents. Does this mean that the messenger could bring the action? The jurist replies that he might well have an action since, if he were responsible for carrying it safely, he would have a personal interest in the letter being delivered. For example, if the messenger had expressly undertaken to look after the letter, or if he was to be paid for delivering it, he would be strictly responsible for the letter in the same way as an innkeeper or shipmaster. As they had the action for theft, so should the messenger.
This example is revealing for a number of reasons. First, it shows how the law of delict (tort) is dependent upon other areas of the law such as the law of property and the law of contract. In order to decide who will have the action it is necessary to decide between which two persons there is a vinculum iuris, the legal obligation which will act as the ‘mother’ of the action. But in order to decide this, one must decide first who has the legal bond with the res (letter). The law of obligations is dependent upon the law of property. Ownership might, in its turn, be dependent, inter alia, on the law of persons (status). If the messenger is a slave the addressee will automatically acquire ownership; if he is not a slave, then possession might be acquired by the addressee since one can acquire possession through another person (persona libera). However, it transpires that it is not ownership as such which is the key; it is the person who has the interest. This latter notion is of particular importance in the law of actions because, on the whole, only persons with an interest are entitled to bring a legal claim.27Having used, then, the law of property as a means by which one can determine the interest, this notion of an interest can be employed in turn as a means of bringing into play the law of contract (paid messenger) and the law of quasi- delict (strict liability of innkeeper and shipmaster). Liability under one obligation (contract, quasi-delict) becomes, via the notion of an interest, the reason for claiming under another (theft). A second reason, therefore, why the example is revealing is that it shows that how reasoning, even when operating within the facts themselves, makes use
Chapter 1: General Introduction
of concepts such as property (ownership, possession) and interest that transcend the law of obligations itself.
A third reason why the example is revealing is that it indicates how obligations themselves interrelate, particularly when the facts disclose more than two legal parties. The question to be answered is whether sender or addressee has the actio furti, but the role and status of the messenger soon takes over as an important focal point. Not only might the status or obligation position of the messenger be important in deciding the remedy question as between sender and addressee, but the messenger himself becomes a party who might be entitled to sue. The action is one in delict (tort), yet the law of contract assumes an important role in the analysis of the facts. Did the messenger expressly undertake to keep the letter safe? One might note, in addition, how legal reasoning is a matter, not of applying pre-established legal rules as such, but of pushing outwards from the facts.28 It is a question of starting with sender and addressee and working from them towards the third party. Of course, in doing this, the jurist was functioning within a highly structured model of legal relations between people (contract and delict) and between people and things (ownership and possession) and this model could be seen to be one that contained a mass of rules. However, it was not rules as such that were employed as the main tools of analysis; far more important was the role of notions such as interest, possession and payment. And these notions are not really rules anymore perhaps than is the model upon which each vinculum iuris is founded. Legal chains, interests, damage, possession, fault and the like are focal points through which one moves from the world of fact to the world of law and vice versa. In other words the law of obligations, in the context of actual problem-solving, is not a model of rules; it was, in Roman law at least, more a means of analysis. Law, then, might well be as much about the ‘construction’ of facts as it is about the interpretation of written rules.29