The Law of Obligations

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The Law of Obligations

Roman Foundations of the Civilian Tradition

REINHARD ZIMMERMANN

Dr. iur (Hamburg)

Professor fur Privatrecht, Romisches Recht und Historische Rechtsvergleichung, Vniversitat Regensburg; formerly W.P. Schreiner Professor of Roman

and Comparative Law, University of Cape Town

Juta & Co, Ltd

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First Edition 1990 Reprinted 1992

©Juta & Co, Ltd PO Box 14373, Kenwyn 7790

This book is copyright under the Berne Convention. In terms of the Copyright Act, No 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher.

ISBN 0 7021 2347 1

SET, PRINTED AND HOUND IN THE REPUBLIC OF SOUTH AFRICA BY THE RUSTICA PRESS (PTY) LTD, NDABENI, CAPE

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[N]ihil es[t] homine nobili dignius quam cognitio[ . . .] juris. Primum

quidem ejus quod omnes homines hominibus, et gentes gentibus sociat;

deinde vero patri[i], cujus partem non exiguam facit jus Romanum a

plerisque populis adoptatum, per se quoque supra omnia Civitatum

jura dignissimum nosci, ut quod perfectum excultumque sit

experi-mentis tam magni tamque diuturni Imperii. . . . Tarn evidens . . . est

ejus Juris in plerisque partibus, iis maxime, quae ad contractus aut

damnum injuria datum pertinent, aequitas, ut, ad quos populos

Romana arma pertingere nunquam potuerunt, . . . eo leges Romanae

sine vi ulla, justitiae suae vi triumphantes, pervenerint.

Hugo Grotius, Epistolae ad Gallos, CLVI

(Hamburgi, XVI. Novemb. 1633)

(There is nothing more worthy of a gentleman than the study of Law: in the first place the study of that law which links man to man and nation to nation; then the study of the law of our fatherland. No small part of this consists in the Roman law, adopted by most peoples, but in itself also the most worthy of study, above all national laws, for having been developed and perfected by the experiences of so great and longlived an empire. So apparent is the equity of that law in its several parts, but especially in those which pertain to contract and unlawful damage, that it prevails even among those peoples whom the Romans could never conquer by arms, and it does so without any force, triumphing merely by virtue of its innate justice.)

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Preface

i.

The story is told of a professor who was asked, at short notice, to deliver a lecture. How much time would he need for preparation? That depended entirely on how long he was supposed to talk, the professor answered. A two-hour lecture he could give off the cuff, but for a presentation of 10 or 20 minutes he would need much longer.

In the light of this anecdote, I should like to assure the reader that, despite appearances, this book is rather short. Considering the time-span and the subject-matter which it sets out to cover within a mere 1241 pages, the treatment may even be considered to be alarmingly short. On much more specific topics such as, for example, contractual liability in Roman law, there are a whole variety of modern monographs running into several hundred pages each; for many specific contracts there is a specialized literature that is abundantly rich; and even to individual facets of a contract, such as liability for latent defects in the Roman law of sale, not only comprehensive articles but entire books have been devoted. Apart from that, there is the literature written by countless generations of lawyers since the days of the glo.ssators, who have, again and again, worked their way through the Roman texts; and, finally, there are all those who have written not so much on the rules of Roman law as such as on the history of their reception, further refinement and generalization, on how they have been reinterpreted, misunderstood or used to promote entirely new policies. Innumerable individual topics (the concepts of interesse—or damages, of error in substantia, or of dolus, the error requirement in the condictio indebiti, the notion of iniuria in terms of the actio iniuriarum or of the lex Aquilia, the doctrine of causa—or of its English equivalent: consideration—or the medieval theories surround-ing the notion of usury, to mention just a few) constitute what the medieval lawyers were wont to describe as a shoreless ocean onto which no one was able to venture without running a grave risk of drowning. The present book is therefore based, chapter for chapter, on a process of selection, on an attempt to sift, to compress and to put into shape an abundant body of material. Which criteria have governed this process of selection?

Here I must say a few words about the aims that I have pursued in writing this book. Essentially, it is, of course, a book on Roman law and the question thus arises why it should be important to deal with a subject that appears to be so far removed from our time. Many different answers may be given to this question, and one can approach a discussion of the "relevance" of Roman law, quite legitimately, from a variety of entirely different perspectives. To me, two points have

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always been of particular importance—two points with regard to which Roman law differs significantly from any other historical legal system. On the one hand, it constitutes, in its ensemble, such a high level of cultural achievement that it will always retain its character as a model for the rational solution of legal conflicts. The problems raised, the arguments advanced and the solutions found by the Roman lawyers have in many instances, over the centuries, maintained both their topicality and their educational value. In other words: by analysing a crisp opinion given by Cclsus or Ulpian, one can frequently learn more about legal ingenuity than by wading through the elaborate treatises of many modern law professors.

On the other hand, however, and more importantly, our way of thinking about law (in the present context, more specifically about the law of obligations) has been decisively moulded by the Roman lawyers. The contract-delict dichotomy; unjustified enrichment as an indepen-dent source of liability; the concept of a consensual contract; or even the basic notion of an obligation: these are only some of the fundamental ingredients which have shaped the civilian tradition. Many individual legal institutions have been preserved, cither entirely unchanged or in a modernized form; and many rules of Roman law, in some or other codified version, still determine, for better or worse, the outcome of legal disputes at the end of the 20th century. Even where a new regime prevails, it has usually been introduced consciously or unconsciously in opposition to a rule of Roman law; and even in those cases, it is often only on the basis of a proper understanding of the Roman rule in question that one is able to appreciate, evaluate and understand the development. Even in defeat, Roman law therefore retains a key function for any more than superficial comprehension of the modern law. And apart from that, such defeats have occasionally not been of a lasting character. The idea that a codification should be able to sever all ties with the past, and thus entirely cut off the continuity of historical development, has proved to be a rather simplistic illusion. Even in a codified legal system the reappearance of ideas and solutions from the treasure house of the ius commune is by no means a rare—though usually an unacknowledged—phenomenon. The contents of that treasure house, however, are largely of Roman provenance.

Underlying both the form and content of the present book is therefore the belief that for a proper understanding of modern law one needs to know about the origin of its rules and institutions: why and how they have been developed, in which form they have been received, why and how they have been retained, changed, adapted or rejected. I have therefore always regretted the prevailing division of legal literature into books devoted to Roman law "proper" and to the modern history of private law. The study ot legal history tends to become a rather sapless, purely "academic" affair, and is in danger of losing much of its legitimacy as an essential part of an educated lawyer's

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Preface IX

intellectual equipment if one omits to ask what a particular idea has contributed to the development of modern institutions. Roman law has made a particularly significant contribution, and the modern lawyer may thus legitimately expect a professor of Roman law to describe and analyse the details of this impact. Or, to put the matter slightly more pointedly: suretyship transactions in Babylonian law are a matter for the specialist; "alterum non laedere", "ex nudo consensu oritur actio" or "neminem ex alterius detrimento locupletiorem tacerc", on the other hand, do not concern only the professional legal historian, but every modern lawyer.

II.

One further point must immediately be added. Roman law does not only form the historical basis of only one particular, national legal system; it provides the most essential foundations of the "civilian" tradition. The term "civilian", in the terminology of English comparatists, refers to the legal systems on the European continent. It is used in contrast to the (English) common law. This distinction is very valuable in one respect; however, one has to beware of two different kinds of misconception.

On the one hand, it emphasizes correctly the basic unity of the European legal tradition; for the modern division of the science of law into national legal disciplines is of comparatively recent origin. From the late Middle Ages until the time of the French Revolution, the countries of Western and Central Europe had a common law and a common legal science. The creation of this IUS commune was part of a most dramatic and far-reaching civilizatory phenomenon: the so-called Renaissance of the 12th century. Both the Roman Church and the Roman Empire (of the German nation) claimed to be supreme and universal authorities, and they needed rational legal systems as a source of legitimacy and as a means of control and organization. Thus, the new scholastic method of analysing and synthesizing was applied to the authoritative texts: the canones, on the one hand, and the recently rediscovered Justinianic law as compiled in what came to be known as the Corpus Juris Civilis, on the other. Roman law thus became one of the two principal ingredients of the medieval ius utrumquc; but its counterpart, the canon law, was heavily influenced by it as well {"Ecclesia vivit lege Romana"). It was this ius utrumque which was taught at the universities and which the graduates, first of Bologna, then of all the other law schools that spread over Europe, tended to apply when they moved into key positions in the administration ot their various kingdoms, principalities and cities. Large parts of Roman law therefore came to be "usu rcceptum" and constituted the basis of a European Roman-canon "common" law. This development tied in well, if not with a political concept of a Roman continuity (the doctrine

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of a transiatio imperii from the Roman principes to Charlemagne and his successors), then with the general cultural Rome-ideal of the Middle Ages. Eventually Roman law came to be regarded as the embodiment of both ratio and aequitas. Local laws and older territorial customs were to some extent inserted into, absorbed by and amalgamated with the ius commune.

It is particularly important to emphasize the European character of these developments. True, Roman law was not received at the same time in all places. The movement started in Italy in the 12th century, it reached the northern part of France and Holland in the 13th and 14th centuries and in Germany it was only in the 16th century that Roman law succeeded in establishing itself as the ius commune. Also, in the course of time different countries took the lead as far as further refinement of academic study or practical application of Roman law was concerned. But the general pattern of the development was essentially the same everywhere. In the Middle Ages, the whole of educated Europe formed a single and undifferentiated cultural unit; and the Roman-canon "common" law was part and parcel of this European culture. Law professors moved freely from a chair in one country to one in another; the same textbooks were used at Pavia or Bologna as much as at Halle, Alcala or Oxford; and it was on a European level, too, that all the major transformations of that common law took place. Moving with the same cultural tides and moored to a common language, European legal science remained an essentially homogeneous intellectual world. It was the international communis opinio doctorum that became authoritative for the application and development of the law. Thus, what we usually refer to as usus modernus pandectarum existed not only in Germany, but in the whole of Central and Western Europe.

It is this tradition to which the word "civilian" is usually applied and to which Roman law has made a major contribution; and it is one of the concerns of the present book to revive the interest of the modern lawyer in that contribution, to bring to his mind the extent of our indebtedness to Roman legal science, and thus to enhance his appreciation of its achievements. This is not only an exercise in antiquarianism. For the civilian tradition lives on, albeit often unrecognized, in the modern national legal systems. All the major European codes find their roots at one stage or another in the development of the ius commune which they were designed to supplant; and the ius commune therefore usually presents the most appropriate starting point for comparative research in the traditional core areas of continental private law. Apart from that, however, it provides the intellectual and doctrinal framework within which a new European legal unity may one day emerge. Anyone attempting to bolster the move towards greater political and economic unity by a harmonization of the legal rules applying in the various European

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Preface xi countries would neglect their common historical basis at his peril. The ms commune even today constitutes a unifying force ot great potential. On the other hand (and here we come to the two more problematic features of the terminological distinction referred to above), the "European" ius commune and the "English" common law were (and are) not really so radically distinct as is often suggested. This applies to the methodological approach and framework within which the law developed as much as to the substantive legal rules. Thus, firstly, the continental ius commune of the 16th, 17th and 18th centuries displayed many features that we like to regard today as typically English. For it was not a professorial law characterized by impractical abstractions, deductive reasoning and conceptual jurisprudence; to a large extent, it was judicial law, juhsprudentia forensis, developing through lawyers' interpretations and judicial opinions, creating a continuous literary legal tradition and leading towards an authoritative communis opmio. It was thus, incidentally, not very different in spirit from classical Roman law. And secondly: England in reality was never completely cut off from continental legal culture. Indeed, in its very inception, the common law, which became a hallmark of English life, was not English at all. It was "a species ot continental feudal law developed into an English legal system by kings and justices of continental extraction" (Maitland). Throughout the centuries, Roman (civil) law never ceased, through various channels, to exercise a considerable influence on English law and jurisprudence. This does not mean that the common law can be described merely as an otfshoot of either Roman law or canon law. Of course, a whole variety of indigenous threads were woven into its tapestry; and even where there was some civilian influence, English courts and writers have often proceeded to develop the law along different lines than their continental counterparts. But it would appear to be a fruitful exercise to try to explore a common basis for comparative legal studies, to trace explicit as well as cryptic reception processes, to concentrate one's attention, for once, not so much on the distance and the differences between common law and civil law as on their proximity and similarities; and to attempt a comparison of legal solutions against the background of a common "Western" civilization. It is tor this reason that I have included, wherever appropriate, references to the English common law.

III.

The present book is based on seven years' experience of teaching Roman law at the University ot Cape Town. I have tried to write the type of book that I would have liked my students to have; or, which is essentially the same, the type of book that 1 would have enjoyed to read when I studied for my law degree at the University of Hamburg. I do not think that Roman law can adequately be presented in terms of

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xii Preface

abstract propositions. It has been developed, largely, in a casuistic fashion, and as soon as one neglects this vital feature, the study of Roman law tends to become a rather flat and uninteresting affair. In contradistinction to many other books on Roman law, I have therefore always attempted to start with the concrete and specific and to proceed from there to topics and propositions of a more general nature. (Chapters 1 and 27, however, constitute certain unavoidable exceptions to this manner of presentation.) Also, the emphasis throughout my book falls squarely on the individual cases discussed by the Roman jurists. Of course, I have tried to select those which have played a key role in the development of a specific legal rule or institution within the history of Roman law or of the later ius commune, or which are characteristic of the way in which the Roman jurists thought or argued. I have also tried to add colour to the discussion by providing the kind of background information which I believe one needs in order to evaluate the sources in their historical setting.

It is obvious that one cannot, under these circumstances, aim at encyclopedic completeness. The present book is therefore not in the nature of a comprehensive reference work which would meticulously list and soberly, if somewhat tediously, describe all conceivable particulars of the Roman law of obligations. I have rather chosen what I consider to be its most characteristic and important facets and tried to deal with them more thoroughly than would otherwise have been possible. The selection, again, has largely been detcrminded by the contribution which a specific legal institution has made to the modern law of obligations. Thus, to mention one example, discussion of the contract littens has been reduced to a mere footnote. But not only topics which are of purely historical interest have been largely neglected; the ancient history of the Roman law of obligations, too, features only as far as this is absolutely necessary in order to appreciate the position in classical Roman law. And the problems connected with determining whether or not a particular text is interpolated have been highlighted only once by way of example. Essentially, then, I have attempted to tell the story of the characteristic concepts and institutions of the Roman law of obligations, commencing with what we usually refer to as classical Roman law but carrying it, beyond Justinian, into the modern law.

As far as this extension of the story into the ius commune is concerned, I had to confine myself even more drastically. Generally speaking, I have only been able to emphazise certain episodes within the history of the ius commune which have been of particular importance for the process of adaptation, transformation and modernization of the Roman law. The contributions of the canon lawyers, of the Roman-Dutch jurists and of the usus modcrnus pandectarum feature particularly prominently in this respect. Among the modern legal systems into which the story could have been carried, I have selected

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Preface xiii G erm an, Sou th A frican and En glish law . T he referen ces to m od ern Fren ch la w are to o h ap h a zard to d e serv e to b e m en tio n ed in th i s context. W hy just the legal system s of these three countries? The cynic m ay be inclined to say that they happen to be the ones with which th e author is most familiar. And in a way, of course, the cynic is right. Nevertheless, I do not think that the choice is unjustifiable from a m ore o b je c tiv e p o in t o f v ie w . T h e G e rm an B G B is o n e o f th e m a jo r European codification s, and it is based, for better or for worse, m or e p u rely o n R o m an leg al le arn in g th an an y o f th e o th ers. U n lik e , especially, the French and Austrian codifications, it has absorbed the results of pandectist legal science, that last, scintillating blossom on the tree of the ius com m une. The choice of English law has already been explained. South African private law, in turn, constitutes one of the last preserves in the m odern world where the trad ition o f the ius com m un e still liv e s o n , u n tr am m elled , la rg e ly , b y th e in ter v en tio n o f th e legislator. C ourts and legal writers still derive their inspiration directly from the sources of (classical) R om an-Dutch law, and through them , from Ju stin ian's C orp us Juris C ivilis. M oreover, So uth African law is also of particular interest to the m odern com parativ e lawyer since it is one ot on ly a handful of "m ixed ju risd iction s"— o f leg al sy stem s, tha t is, which are not only based on traditional civilian learning, but which have also absorbed m uch English law. This reception of English legal id e a s o c cu rr ed in th e co u r se o f th e 1 9 th c en tu ry a n d b y a p ro ce ss th a t r ev e a ls ce rtain in tr ig u in g sim ilar itie s to th e sp r ead o t R o m an law o v er E u ro p e. T h u s, th e tw o m ain e m an a tio n s o f th e "W e stern " , o r E u r o p e a n ( i n t h e b r o a d e r se n s e ) , tr a d i t io n h a v e h e r e b e e n blended together, and the processes of a m utual assim ilation that have occurred over the years offer stim ulating insights as well as valuable experiences for anyone interested in the prospect ot a future European co m m o n law.

I should perhaps stress that the present book deals specifically w ith the Roman roots of the civilian tradition. Thus, it confines itself to the traditional core areas of the law of obligations; it does not discuss th e em ergen ce of tho se of its m ore m o dern branch es, which derive their orig in from o th er sou rces. Th e bo ok is therefore no t a textbook o f th e ius com m une. Also, its subject m atter is purely the substantive private law . M ore sp ecifically , therefo re, th e law o f proced ure h as n ot been d ealt w ith , at least no t as far as th e iu s co m m une o r m o d ern leg al system s are concerned. C lassical R om an law, on the other hand, cannot b e u n d e r sto o d e x c e p t fr o m a p ro c e d u r a l p er sp e c tiv e , an d th is procedural perspective thus often influences the discussion. B ut here, again, the Roman law of civil procedure is not explained as such; a basic k no w ledg e of its characteristic features is taken for g ran ted.

Thirty out of the 32 chap ters w ere written during the sev en years I spent at the University of C ape Town. I have thus been able to draw on certain sources (South African m onographs, dissertations and, m

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xiv Preface

particular, court decisions) which are not readily available in European libraries. On the other hand, however, it was often exceedingly difficult to obtain more specialized European works, particularly modern Italian monographs and law reviews. I have, intermittently, been able to spend some time in Hamburg working in the library of the seminar for Roman law and comparative legal history; in a few urgent cases German colleagues have also helped by sending me photocopies. Although this considerably facilitated my task, there remain certain works which I have, unfortunately, not been able to consult, since even the inter-library loan services failed to locate them. I have sifted through and, where appropriate, included in the footnotes all the literature that was available to me by the end of 1988; in some instances it was also still possible to incorporate relevant contributions which appeared in 1989. This does not, regrettably, apply to vol. II of Helmut Coing's magisterial treatise Europa'isches Privatredit, nor to the third edition of Farlam and Hathaway, Contract, Cases, Materials, Commentary (by G. Lubbe and Chr. Murray). Generally, references in the footnotes to older literature on Roman law have been confined to works which I regard as specifically significant. From them, the reader will always be able to trace further secondary sources. Apart from that he can, of course, as far as the literature up to 1975 is concerned, always consult the two volumes of Max Kaser's Rotnisches Prii'atrecht. I have not deemed it necessary to try to emulate the bibliographic comprehen-siveness of these standard works which must, surely, be available to whoever wishes to embark on specialized research in Roman law. Only the more recent literature, which would otherwise be difficult to trace, has been referred to more comprehensively. Furthermore, since one common denominator of all future readers of this book will be their command of English, I have also endeavoured to draw their attention to all the secondary literature in that language that was available to me and that was not too outdated.

IV.

A foreword not only confronts an author with the slightly awkward task of explaining why he has set out to write his book, ofjustifying the approach he has adopted, and of preparing the reader, as gently as possible, for the arduous task that lies ahead. It also provides the welcome opportunit y of t hanking all those persons who and institutions which have made a special contribution towards its existence.

First of all, it must be obvious to every reader how much the present book owes, where it deals with classical Roman law, to the work of Max Kaser. His three great handbooks, in particular, have shaped my way of thinking on Roman law, and they have invariably provided the starting point for my own research. I am very grateful to have had the

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Preface xv chance to become, so to speak, a Kaser pupil of the second generation and to have been a student, later a junior colleague, of Professor Dr. Hans Hermann Seiler (Hamburg) and Professor Dr. Jens-Peter Meincke (Cologne) in their respective departments. Apart from that, I must confess that as a student Fritz Schulz' two books on Classical

Roman Law and on the Principles of Roman Law made a particularly deep

impression on me; they were written in a style which continues to attract me more than the balanced, detached and impersonal tone in which German scholarship usually presents itself. But then, I must also immediately say that my interest in Roman law has never been a purely antiquarian one; and the call to Cape Town provided me with an ideal opportunity of studying the history of the ius commune and the impact ot Roman law on modern legal systems. In that regard, I have drawn much inspiration from the work of Professors Feenstra and Coing.

In the second place, I should like to mention my colleagues and friends in Cape Town. Their hospitality and kindness have been a major source of strength and have largely contributed to these seven years spent on the slopes ot the Magic Mountain being so immensely rich and rewarding. 1 do not want to suggest for a minute that those years have always been easy. On the contrary: life as a law professor in a deeply polarized society, in which basic human rights and fundamental precepts of justice are infringed daily and almost as a matter of routine, is riddled with moral dilemmas. The teaching of law is demeaned if the idea of justice is flouted in practice; and not even a subject such as Roman law remains unaffected at a time when the traditional values upon which a university training is founded become caught up in a maelstrom ot partisanship and intolerance, of repression and opportunism, of violence and counterviolence. And yet, Cape Town still remains for me a very special place: "ille terrarum mihi praeter omn.es Angulus ridet." It is a smile that is both bewitchingly charming and distressingly sad.

Among the people I met in the Cape 1 have to mention one by name: Professor C.G. van der Merwe, my oldest South African friend and colleague at the University of Stellenbosch. From the time we first met, he and his family displayed a kind and generous hospitality towards me that one rarely, if ever, meets in Europe. It was he who encouraged me to accept the call to Cape Town in 1980 and who, some years later, also persuaded me to write the present book.

I should like to thank, furthermore, the University of Cape Town for providing me with a research grant and my colleagues at the University of Regensburg (as well as the Bavarian minister for science and culture) for granting me six months' sabbatical leave—only one semester after I had taken up my new duties at Regensburg—in order to complete this book. I gratefully acknowledge the help of Mrs Lisa Dummy who read the whole manuscript and suggested stylistic improvements and who also very kindly helped with the reading of the first set of proofs. The

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xvi Preface

task of typing the manuscript—not always an easy one—was largely

carried out by my former secretary at UCT, Mrs Margaret Schubert.

Five of my former Roman law students at UCT came to Regensburg

for some months as research assistants and contributed in various ways

to the completion of the book. Diane Davis, inter alia, double-checked

all quotations from the various parts of the Corpus Juris Civilis and

from the Institutes of Gaius, as well as all references to extra-legal

sources and to the medieval jurists. Bruce Cleaver and Anton Fagan

checked the references to Anglo-American and South African cases and

helped with the list of abbreviations. Above all, however, they

rendered me an invaluable assistance by feeding all corrections and

amendments to the original text into a computer which, at times,

displayed a rather inordinate appetite for all kinds of textual delicacies:

it irretrievably devoured them. John Butler and Deon de Klerk spotted

further mistakes when they checked the various indexes; they also

helped with the reading of the proofs, particularly those of the

preliminary and end matter. Back in Cape Town, John Linnegar most

meticulously edited the final version of my manuscript before it went

into print, liaised with the printers and cleared up all loose ends on the

proofs. For his assistance, too, I am very grateful.

Last, but not least, I should like to thank Richard Cooke, Simon

Sephton and Madeline Lass of Juta & Co. most sincerely for their

wholehearted co-operation and unfailing support throughout the

various stages of the production of this book.

R

EINHARD

Z

IMMERMANN

Newlands, 10 October 1989

The favourable reception of this book has necessitated a second

impression. I have taken the opportunity to eliminate a handful of

printing mistakes. But the substance remains unchanged.

The book will now be published jointly by Juta & Co., С. Н. Beck

and Kluwer. I am most grateful to Richard Cooke in Cape Town and

Dr. Wilhelm Warth in Munich for their ready co-operation.

R

EINHARD

Z

IMMERMANN

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Summary of Contents

Page

Preface... vii Table of Contents ... xix List of Abbreviations ... li Principal Works Cited ... lix

PART I

INT R ODUCT ION —T HE C ONC EPT OF AN OBLIG AT ION AND ITS IMPLIC ATIONS

Chapter

1 Obligatio—Conceptual and Systematic foundations ... 1

2 Stipulatio alteri, Representation, Cession ... 34 PART II

VERBAL OBLIGATIONS

3 Stipulatio... 68 4 Stipulatio poenac—Conventional penalties ... 95 5 Suretyship ... 114

PART III REAL OBLIGATIONS

6 Mutuum—Loan for Consumption ... 153 7 Commodaturn, Depositum, Pignus — Loan for Use,

Deposit, Pledge... 188 PART IV

CONSENS UAL OBLIGATIONS

8 Emptio venditio I — Sale (Basic Requirements)... 230

9 Emptio venditio II — Sale (Main Effects) ... 271 10 Emptio venditio III— Sale (Warranty of Title and of

Proper Quality) ... 293 11 Locatio conductio I — Mainly Lease ... 338

12 Locatio conductio II—Contract of Employment, Contract for Work ... 384 13 Mandatum — Mandate ... 413

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xviii Summary of Contents

Chapter . Page

14 Excursus; Negotiorum gestio ... 433

15 Socictas—Partnership ... 451

PART V AR R ANGEMENTS OUTS IDE THE C ONTR ACT UAL SCHEME OF CLASS IC AL ROMAN LAW 16 Donatio ... 477

17 Pacta and Innominate Real Contracts ... 508

PART VI GENERAL PRINCIPLES OF CONTRACTUAL LIABILITY 18 Formation of Contract ... 546

19 Error—Mistake ... 583

20 Interpretation of Contracts ... 621

21 Metus and Dolus — Duress and Fraud... 651

22 Invalidity and Reasons for Invalidity... 678

23 Condicio and Dies — Conditions and Time Clauses ... 716

24 Termination ot Obligations ... 748

25 Breach of Contract ... 783

PART VII OBLIGATIONS ARIS ING NEITHER FROM CONTR ACT NOR F R OM DELICT 26 Unjustified Enrichment ... 834

PART VIII THE LAW OF DELICTS 27 Delict in General ... 902

28 Furtum—Theft ... 922

29 Lex Aquilia I... 953

30 Lex Aquilia II ... 998

31 Actio iniuriarum—Infringements of Personality Rights 1050 32 Strict Liability... 1095

Index of Main Sources (including Table of Cases) ... 1143

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Table of Contents xxv Page 4. T he sale of res ex tra co m m erciurn or of a free m an. . 241 (a) R es pu b licae, res d iv ini iu ris an d the lib er h om o 241 (b) T he av ailability of th e actio em p ti ... 241 (c) C ulpa in con trahend o ... 244 5. E rnp tio rei speratae and ernp tio sp ei ... 245 (a) E m ptio rei speratae ... 245 (b) E m ptio spei and its v iability ... 246 (c) ". . . q u a si a lca em itu r " ... 248

III. T he P ur c h a se P r ic e... 250 1. D id the purchase price hav e to con sist in m on ey ? . . . 250 (a) T he Sabinian v iew ... 250 (b) T h e Pro cu lian v iew ... 251 (c) Sale and exchange ... 251 2. Pretiu m verum ... 252 3. Pretiu m certu m ... 253 (a) B orderline cases ... 253 (b) D eterm in ation o f the p rice at a later stage ... 254 4. Pretiu m iu stum ... 255 (a) T h e R o m an attitud e ... 255 (b) Invicem se circum scribere ... 256 (c) Private au ton om y ... 258 5. Laesio enorm is and equality in exchange ... 259 (a) C . 4, 44 , 2 ... 259 (b) E x ten sio n o f С 4 , 4 4 , 2 ... 262 (c) C on sequential prob lem s ... 263 (d) T h e prob lem o f estab lish ing the iu stu m p retiu m 264 (e) The abolition of laesio enorm is ... 267 (f) E quality in exch ange today ... 268

CH A P T E R 9 — E M PT IO V E N D IT IO II

I. T h e P a ssin g o f O w n e r sh ip ... 271 1. T he relation sh ip b etw een con tract of sale and tran sfer

of o wnership ... 271 2. T h e paym en t of th e pu rch ase p rice ... 272 (a) hist. I I , 1, 41 ... 272 (b) Pre-classical, classical and post-classical law... 274 (c) Pactum reservati do m in ii ... 276

II. T h e D ut ie s of the P art ie s ... 277

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xxvi Table of Contents Page 2 . Th e du ties o f th e v end or ... 278 (a) Uti frui hab ere po ssidereque licerc ... 278 (b) Tran sfer o f o wnership ?... 278 (c) Practical im plications... 279 (d) T h e liab ility o f th e vendo r ... 280

III. T h e P a ssin g o f t h e R isk ... 281 1. Periculu m est em p toris ... 281 2. The position in classical law ... 282 3. T h e am b it o f th e ru le ... 283 4. Excursu s: the sale o f win e... 284 5. T h e con cep t of p ericu lu m ... 287 6. A fr. D . 1 9 , 2 , 3 3 et al.: ev id en ce ag ain st p ericu lu m

em ptoris? ... 288 7. E v alu atio n o f th e R om an risk ru le ... 290 8. R eception and rejection of p ericu lum est em p toris .. . 291

CH A P TE R 10 — E M PTIO VE N DITIO III

I. L ia bilit y fo r E victio n ... 293 1. W arranty of peaceable possession ... 293 2. Liability under the actio au ctontatis ... 294 3. Liability under a stipulatio duplae... 295 4. Liability under the actio em pti ... 296

(a) "Em ptorem duplam prom itti a venditore

o p ortet" ... 296 (b) L iab ility fo r th e "po sitiv e in terest" ... 298 5. The p ositio n und er Ju stin ian ... 300 6. T h e determ in ation o f q uo d in terest ... 301 7. R o m an -D u tch an d m o d ern G erm an law ... 302

II. L ia bilit y f o r L at e nt D efe ct s ... 305 1. In tro du ction ... 305 (a) T h e rem ed ies: R o m an traditio n an d n atu ral law. 305 (b) The im p lied cond ition s of the Sale o f Good s Act 306 (c) C av eat em p to r ... 307 2. Early rem edies... 308 3. Liability for d olu s and dicta in v enditione ... 308 4. Liability arising from specific prom issa ... 310 5. The aedilitian rem edies ... 311 (a) The sale of slaves... 311 (h) M orbu s an d v itiurn ... 311 (c) Defects of character ... 314 (d) Dicta prom issave ... 315 (c) "R edh ib endi ludiciu m " ... 316

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Table of Contents xxvii Page (f) The actio rcdhibitoria ... 317 (g) The actio qua n ti m ino ris; the sa le " su b c or ona " 318 (h) The sale of iumenta ... 318 6. Extended liability under the actio em pti... 319 (a) P om p . D . 1 9, 1 , 6 , 4 a nd o ther te x ts ... 320 (b) R eception of the aedilitian principles into the ius

civile... 321 (c) The position under Justinian ... 322 7. Actio em pti and aedilitian remedies in the ius

c om m u ne ... 322 (a) " M ire tur ver o a liqu is, cu r Ae d ile s in tr o d u xer u n t

actiones." ... 322 (b) M erging the remedies... 323 (c) The scope of application of the actio redhibitoria 325 (d) Excursus: Special rules relating to the sale of

cattle ... 326 (c) M odern Germ an law ... 327 (f) The system of rem edies in R om an-Dutch law . . 328 (g) Pham c v. Paizes ... 329 8. M ortuu s red hibe tur ... 330 (a) The pr ob lem of the im po ssibility of restoration 330 (b) T h e f ic ti o n o f " m o r tu u s r e d h ib e t u r " a n d p r o b

lem s arising therefrom ... 331 9. O n ce a ga in : "S i v a s" (P om p . D . 1 9 , 1 , 6 , 4 ) ... 334 (a) The de ve lo pm en t of the "Po thicr " r u le ... 334 (b) The English Sale of Goods Act ... 336

CH A P T E R 1 1 — L O C A T I O C O N D U C T I O I

I. L oc at io C on duc tio in G en er a l ... 338 1. Locare and conducere ... 338 2. Three in one ... 339 3. Historical developm ent... 340

II. T he S oc ia l a nd E c on o m ic Fr a m e w o rk o f L e a se ... 342 1. The que st f or secur ity of tenure ... 342 2. Living conditions in R om e ... 344 3. Som e typical problem s... 347 4. The R oman lawyers and the law of lease ... 348 5. Legal rules and extra-legal restrictions ... 350

III. L o c a t io C o n d u c t i o R e i ... 351 1. The nature of lease ... 351 2. The objects of lease ... 351

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xxviii Table of Contents Page

3. Merces locationis... 353

(a) Merces vera et certa... 353

(b) Pecunia numerata? ... 354

4. Leases for a fixed term... 355

(a) Lustrum; ius repellendi and ius migrandi ... 355

(b) Relocatio tacita... 356

5. Leases for an indefinite period... 357 6. Leases in perpetuity ... 358 7. The duties of the locator ... 360 8. The range of the lessor's liability ... 360

(a) Prevention of frui licere... 360

(b) Choosing unsuitable slaves ... 361

(c) Defect of title... 362

(d) Publicatio ... 363

(e) Leaky vats and toxic plants... 365

(f) From Ulp. D. 19, 2, 19, 1 to § 583 BGB ... 367

9. The problem of risk... 369

(a) Periculum locatoris... 369

(b) Remissio mercedis ... 371

10. The duties of the conductor ... 374

(a) Payment of rent, cultivation; the standard of care 374

(b) Vicarious liability? ... 376

11. The position of the lessee ... 377

(a) His protection against the lessor ... 377

(b) Alienation of the leased property by the lessor.. 378

(c) Emptio tollit locatum ... 379

(d) D. 43, 16, 12 in fine ... 380

(e) Huur gaat voor koop ... 381

12. Towards security of tenure ... 382

CHAPTER 12 — LOCATIO CONDUCTIO 11

I. Locatio Conductio Operarum ... 384 1. Essential elements of Roman "labour law"... 384

(a) Locare conducere... 384

(b) Esscntialia negotii; periculum conductors ... 384

(c) Imperitia culpae adnumeratur ... 386

2. The range of application of locatio conductio oper

arum ... 387

(a) Status relationships... 387

(b) Trie artes liberales... 388

(c) The value of "labour" in Roman society ... 389

(d) Common law (ius civile) and employment rela

tionships ... 391

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Table of Contents xxix Page

II. L ocat io C onductio O per is ... 393 1. Essential characteristics and range of application ... 393 2. Problems of classification ... 394 3. Range of liability of the conductor ... 397 (a) Im pcntia and custodia ... 397 (h) Gai. D. 19, 2, 25, 7 and the problem of vicarious

liability ... 399 4. The problem of risk allocation ... 401 (a) Periculum conductoris... 401 (b) Equitable distribution of the risks... 402 5. Adprobatio operis ... 404 6. Lex R hodia de iactu ... 406 (a) The reception of the lex R hodia into R om an law 406 (b) Subsequent history of the lex R hodia ... 409

CH A P TE R 1 3 — M AN D AT UM

1. The essential characteristics of m andatum ... 413 2. The gratuito usness of m andatum ... 415 (a) Officium et am icitia... 415 (b) Pay merit of an honorarium ... 415 (c) С 4 , 3 5 , 1 ... 416 (d) Receipt of a salarium ... 416 (e) M a n d atu m nisi g ra tuitu m n u llu m : th e iu s c om

mune ... 418 3. The range of application of mandatum ... 420

(a) Factual a nd c o ntractual activities of the m a nda-

tarius... 420 (b) Illegal and im m oral mandates; the m andatum tua

tantum gratia ... 421 (c) Types of mandate according to the interest

involved ... 422 4. M an datum m orte solvitur ... 424 5. The liability of the mandatarius ... 426 (a) Dolus or dolus and culpa? ... 426 (b) Term inological problem s ... 427 (c) Altruistic and not so altruistic m andatarii ... 427 (d) Mandatum : between suretyship and procuratio . 428 (e) S p o n de t d ilig e ntia m e t m d u str ia m n e g otio g er-

endo parem ... 429 6. The liability of the m andator ... 430 (a) Utility considerations ... 430 (b) Casus a nullo praestantur ... 430 (c) The iu s co m m une ... 431

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xxx Table of Contents Page CH A P T E R 1 4 — N E G O T IO R U M G E ST IO

1. N eg o tio ru m g estio an d m and atu m ... 433 (a) Similarities... 433 (b) Difference ... 433 2. Th e value basis of n eg otior um gestio ... 435 3. Th e histor y of n egotior um gestio in Roman law . . . . 436 4. Th e ran ge of application of n egotior um gestio ... 438 5. Requir ements of th e actio n egotiorum gestor um . . . . 440 (a) 'T ak in g care" o f a "n eg o tiu m " "fo r an o th er" . . 440 (b) Anim us negotia aliena gerendi? ... 441 (c) Utilitas gestionis ... 442 6. T h e actio n eg o tioru m g esto ru m co n traria... 443 (a) Its im portance tod ay ... 443 (h) R em uneration of services rendered? ... 444 7. T he standard o f liab ility o f the gestor... 445 (a) T h e po sitio n o t th e g esto r ... 445 (b) P o m p . D . 3 , 5 , 1 0 an d U lp . D . 3 , 5 , 3 , 9 ... 446 8. N ego tio ru m gestio in m od ern law ... 447 (a) E valuation o f n ego tiorum gestio in Germ an law 447 (b) The indiv idualistic approach of the com m on law 448 (c) Rescue cases ... 449

CHA PTER 15 — SOC IETAS

I. R om an L aw ... 451 1. T he nature of societas ... 451 2. E volu tion of th e contract of societas ... 451 (a) E rctu m n o n citu m ... 451 (b) Pre-classical consortium and classical societas ... 452 3. B asic features of classical societas ... 454 4. T erm in ation of th e so cietas ... 455 (a) R enun tiatio , m o rs so cii, insolv en cy... 455 (b) T h e brin g ing o f an actio p ro so cio ... 457 5. Freed om of con tract and its lim itation ... 457 (a) The allocation of shares in profits and losses. . . . 457 (b) The societas leonina ... 459 6. T h e actio pro socio ... 460 7. L iability b etween th e p artners ... 461 (a) T h e prob lem o f co n trib u tion ... 461 (b) Dolus liability ... 462 (c) E xten sion: culpa lata, diligen tia qu am in suis,

culpa ... 462 (d) C u stod ia and im peritia ... 464 8. C reatio n an d partition of jo in t o wn ersh ip ... 465

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Table of Contents xxxi Page

II. J u st in ia n, Iu s C o m m u n e a n d M o d er n

D e v e l o p m e n t s ... 466 1. Liability b etw een socii ... 466 2. The so cietas and third p arties ... 467

(a) Socii venaliciani, actiones adiecticiac qualitatis

and so cietates pub licanorum ... 467 (b) Societas and agency ... 468 3. T h e actio p ro so cio... 470 4. T h e "co m m u n ity o f co llectiv e h an d " ... 471 5. So u th A frican law o f partnersh ip ... 472 (a) Sources ... 472 (b) General features ... 474

CH A P T E R 1 6 — D O N A TIO

1. Introduction ... 477 (a) Prom ises of g ifts and execu ted g ifts... 477 (b) R e a so n s fo r p o lic in g th e tr an sf er o f g r a tu ito u s

benefits ... 477 (c) C oncep tu al prob lem s ... 478 2. The concep t of donation in classical R o m an law ... 479 (a) D o natio and the con tractu al sch em e ... 479 (b) T h e ex ecu ted g ift ... 480 (c) T h e prevailin g attitud e to w ard s d on ation s ... 481 3. T h e lex C in cia d e m u neribu s ... 482 (a) Purpo se and b ackg round of the en actm ent ... 482 (b) T h e app licatio n of the lex C incia ... 483 4. T h e proh ib itio n o f d on ation es in ter v irum et u xo rem 484 (a) O rig in an d pu rpo se of th e proh ib itio n ... 484 (b) Pu rity of m arriag e ... 487 (c) T h e app licatio n of the p roh ib itio n ... 488 5. T h e law o f don ation un der C on stan tm c... 490 (a) Pro m o tio n o f acts of g en ero sity ... 490 (b) Form alities... 492 (c) Donation s and d ispo sition s m ortis cau sa ... 493 6. Ju stin ian an d th e law o f do n atio n s... 494 (a) D o natio n as a b ind in g co ntract ... 494 (b) E n ter the cheerfu l g iv er ... 496 (c) R evocation of do nation s ... 497 7. Donation un der th e iu s com m un e and in m odern law 498 (a) T h e con cep t of do natio n ; in sin uatio actis ... 498 (b) R estrictive policies in Fran ce ... 500 (c) G erm an law : fo rm and d efin itio n o f d on ation . .. 501 (d) Ab sen ce of agrced-u pon reco m pen se ... 503 (e) E ng lish law : the do ctrine o { co n sideration ... 504

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xxxii Table of Contents Page CH A P T E R 1 7 — P A C T A A N D IN N O M IN A T E R E A L

C O N T R A C T S

I. P act a in G ener al ... 508 1. N u d a p actio ob lig atio n em no n p arit ... 508 2. Pacta ex continent! adiecta ... 509

II. P acta Praetoria ... 511 1. C on stitu tu m d eb iti... 511 (a) Th e actio de p ecun ia con stituta ... 511 (b) C o n stitu tum d eb iti alien i ... 512 (c) C on stitu tu m d eb iti p rop rii ... 512 2. R eceptum arb itri... 513 3. R eceptum argen tarii ... 514 4. R eceptum n au tarum cauponum stabu lariorum ... 514 (a) Actio dc rcccpto; cu stodia liability ... 514 (b) T h e reason s fo r the actio d e recep to ... 515 (c) Actio de recepto and special delictual actions --- 517 (d) A ctio d e recepto and actio locati... 517 (e) From accid en tale to natu rale n ego tii ... 519 (f) T h e recep tu m in m o d ern law ... 520 (g) R ange of app lication ... 521 (h ) The liab ility of com m on carriers ... 523 (i) R ang e o f liability u nder th e iu s com m une ... 524

III. P ac t a L e g itim a: C om pr o m issum a s E x a m p le ... 526 1. C lassical and post-classical com prom issum ... 526 2. T h e co m p rom issum o f th e iu s com m un e... 528 3. A rb iter, arbitrator an d am icab ilis com po sito r ... 528

IV . C o m b ine d T r a nsa ct ion s: H ir e- pur ch a se in R om a n

L aw ... 530

V. Inn om in ate R ea l C ontr act s ... 532 1. Perm utatio and th e rise of actiones praescriptis verb is 532 2. R ange of tran sactions ... 534 3. A estim atum ... 535 4. In nom inate con tracts and the co ntractual sch em e --- 536

V I. T o w a r d s a G e n er a l L aw o f C o nt r ac t B a se d o n

C onsent ... 537

1. C on tract an d p acta in th e C orpu s Juris C iv ilis... 537 2. Pacta vestita an d p acta nu da ... 538 3. The contribu tion of (com m ercial) practice... 540 4. T h e co n tribu tio n of th e canon lawy ers ... 542 5. T h e po sition o f the n atu ral lawy ers; sum m ary ... 544

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Table of Contents xxxiii

CHAPTER 18 — FORMATION OF CONTRACT

I. The Roman Contract of Stipulation under the Ius

Commune ... S46 1. From contract vcrbis to contract littcris ... 546

2. Ex nudo pacto oritur actio and the form of stipulation 547

II. The Doctrine of Causa ... 549 1. Ex nudo pacto oritur actio and the notion of causa . . 549 2. Causa in Roman law ... 549 3. The scholastic doctrine of causation... 551 4. Causa as an extra piece of "garment" ... 551 5. The decline of causa ... 553 6. Causa and consideration in English law ... 554 7. Causa and consideration in South African law ... 556

(a) The reception of the consideration doctrine ... 556

(b) Iusta causa and Grotius' notion of "redcheke

oorzaecke" ... 557 III. Consensus ... 559

1. Consent as the basis of contract in modern law ... 559 2. The Roman contribution ... 561

(a) Conceptual analysis in general ... 561

(b) Contractus ... 562

(c) Pacta ... 562

(d) Conventio... 563

(e) Consensus... 563

3. Conventio, pactum and contractus under the ius

commune ... 565 4. Domat and Pothier ... 566 5. Grotius, Pufendorf and Wolff ... 567 6. Formation of contract in English law... 569

(a) England and continental legal science ... 569

(b) The analysis of contract ... 571

7. Contract and polhcitatio... 572

(a) From promise to contract ... 572

(b) The smoke ball case... 573

(c) "Aushbung" and pollicitatio ... 573

(d) Pollicitatio and contractual liability ... 575

IV. Pacta Sunt Servanda ... 576 1. Pacta sunt servanda and classical contract doctrine... 576 2. The right of unilateral withdrawal from a contract .. 578 3. Clausula rebus sic stantibus... 579

(a) Origin and development of the clausula ... 579