Ulrike Babusiaux (ed.): “Messages from Antiquity”© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

Ulrike Babusiaux . Mariko Igimi (eds.)“Messages from Antiquity”
Roman Law and Current Legal Debates

Böhlau Verlag wien köln weimar© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

Jointly supported by the Office of the Judiciary, Thailand, under the framework of the project“The Diploma in Contemporary Legal Studies” at Kyushu University.

Deutsche Nationalbibliothek Cataloguing-in-publication data  :
http://dnb.d-nb.de© 2019 by Böhlau Verlag GmbH & Cie, Lindenstraße 14, D-50674 Köln
All Rights Reserved. No part of this publication may be reproduced or transmitted in any form or by
any means, electronic or mechanical, including photocopy, recording, or any other information storage or retrieval system, without prior permission in writing from the publisher.
Cover  : Hadrian’s Temple, Rome. © Mariko Igimi
Proofreading  : Dore Wilken, Freiburg
Cover design  : Michael Haderer, Vienna
Typesetting  : Michael Rauscher, Vienna
Vandenhoeck & Ruprecht Verlage | www.vandenhoeck-ruprecht-verlage.com
ISBN 978-3-412-51452-5© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

Table of Contents

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Ulrike Babusiaux, Zurich, and Mariko Igimi, Fukuoka

Messages from Antiquity. Roman Law and Current Legal Debates.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9PART ONE :ROMAN LAW AS THE HISTORICAL FOUNDATION OF
MODERN PRIVATE LAW
Johannes Platschek, Munich

Strict Liability for Defects as to Quality of an Object Sold.
Application and Exclusion in Roman and Contemporary German Law . . .

15

Pompeo Polito, Rome

Some Considerations on the Relationship between res incorporales and
Immaterialgüterrechte.. . . . . . . . . . . . . . . . . . . . . . . . . . . .

33

Cornelius G. van der Merwe, Stellenbosch

The Practical Application of Roman Law Principles Relating to theAcquisition of Movable Property by accessio and specificatio in Modern
South African and Scots Law. . . . . . . . . . . . . . . . . . . . . . . . .

43

PART TWO :ROMAN LAW IN MODERN LEGAL REASONING
Frits Brandsma, Groningen

Law in Daily Life. Parking Fines and Roman Law . . . . . . . . . . . . . .

63

Wataru Miyasaka, Tsukuba

Corpus ex distantibus in Roman Law. A Basis for Floating Lien in Japanese
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

75

Ulrike Babusiaux (ed.): “Messages from Antiquity”

6|

Table of Contents

Takeshi Sasaki, Kyoto

Roman-Japanese Legacy with the Appointment of second Degree Successor.
An Analysis of the second Petty Bench’s Judgment(Japanese Supreme Court) on 18th March 1983. . . . . . . . . . . . . . . . 107
PART THREE :MODERN DEBATES IN THE LIGHT OF ANCIENT LAW
Carlos Amunátegui Perelló, Santiago de Chile

Again on the Middle Class in the Roman Republic. . . . . . . . . . . . . .

115

Ulrike Babusiaux, Zurich

Coordination of Different Layers of Law in the Roman Empire and in theEuropean Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

131

Mariko Igimi, Fukuoka

An Observation on Consumer Protection in Electronic Sale of Goods
from the Perspective of Roman Law . . . . . . . . . . . . . . . . . . . . .

169

Yasunori Kasai, Tokyo“Information” in the Ancient and Modern.
Hybris and Defamation in Ancient Greek and Roman Law . . . . . . . . .

185

List of Contributors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

215

Index of Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

219

Index of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

225© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

PrefaceThis book is a compilation of papers presented at the conference held in February 2016 at Kyushu University (Fukuoka, Japan) under the title “Messages fromthe Antiquity  : How can Roman law contribute to current debates in law  ?” For
the occasion, Prof. Mariko Igimi invited Roman law researchers from aroundthe world to discuss the importance of Roman law with the students of the LL.M.
in International Economic and Business Law. The aim was to identify and build
links between Roman and modern law through such interaction. We came tounderstand that Roman law is significant on the one hand because it provides
the historical basis of civil law in continental Europe and other civil law jurisdictions, including Japan. On the other hand, the texts of Roman law also provide
us with a space to reflect on “new” issues of legal politics. Therefore, they help
to analyse legal problems and might provide support for the development ofsolutions.
The unique experience of having such a diverse group of students from allover the world, including common law jurisdictions such as UK and New Zealand participating in the discussion, served as the main inspiration to open agateway for a larger group of readers to different ideas and questions on thepersisting relevance of Roman law, in the hope that they will discover “new”
elements in “ancient” law. Hence, this book is for students, legal practitioners
and academics who wish to widen their horizons with a different perspective on
Roman law. To the European reader, it might be interesting to find the ongoing
importance of the Roman legacy in Japanese law, whereas the almost unbroken
continuity of the European legal tradition might be of special interest to Asian
readers. By any account, the diversity and scope of the different articles in thisbook will show once again that the study of Roman law from very different perspectives can be rewarding, valuable and informative.
The approach we have chosen (also to be seen in the introduction) was an“experiment” that required courage and openness on the part of all who wereinvolved. We would, therefore, like to thank all of the contributors, who wereready to partake in this unusual dialogue between modern legal problems andlegal culture from the antiquity.
Special thanks are given to the students and the staff of the International
Programs in Law at Kyushu University, 2015–2016, who made the conference
a great success as well as to all those who were instrumental in the editorial
work for the articles gathered here, namely the assistants of the chair of Roman
law, private and comparative law at the University of Zurich : Franca Eckstein,© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

8|

Preface

Adrian Häusler, Yvonne Kastner, Una Paunovic, Elisa Stauffer, Martina Steiner
and Thamar Xandry.
Finally, we would like to thank you – the reader – for your intellectual curiosity and we wish you both inspiring and thought-provoking reading.
Ulrike Babusiaux (Zurich)

Mariko Igimi (Fukuoka)© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

Ulrike Babusiaux, Zurich, and Mariko Igimi, Fukuoka

Messages from Antiquity
Roman Law and Current Legal Debates. Introduction

When we speak about Roman law, we refer mainly to the collection of Roman
legal writings (Digesta) and imperial constitutions (Codex) assembled by the
Byzantine emperor Justinian in the 6th century AD. Together with Justinian’s introduction to the study of Roman law (Institutiones Justiniani) and his new legislation (Novellae) these two collections form the so-called Corpus iuris civilis1.
Despite the extensive editing and deleting as well as some interpolations, theJustinian sources still pass down the law of the late Roman republic, and of theimperial period, which lasted roughly from the 1st century BC to the 3rd century
AD2. Roman law, however, is not just a historical topic but must be considered
to be the origin of many modern legal systems, which is why it is continuously
taught at the law faculties in many countries around the world.
This book is not a manual of Roman legal sources nor a traditional textbook
on Roman private law but aims to approach Roman law from an unprecedented
perspective. As the title of the book indicates, this is an attempt to use ancientlaw, i. e. Roman law, in order to engage with current legal debates by analysing itfrom a modern perspective. The underlying assumption is that Roman law is not
only a tradition simply maintained from the past but also a window to anotherlegal experience from a different time setting that might prove beneficial to solve
contemporary issues.
Although it is a general question of whether lessons can be learnt from history, it is commonly accepted that our perception of history changes according
to our current needs and contexts.3 Hence, every generation has been obliged toreconsider the historical sources, in order to identify new aspects of the issues
from the past. Even the renowned texts are not free from innovative interpretations and unanticipated questions. Contrariwise, dealing with the past simulta1 The name Corpus iuris civilis has only been given in the Middle Ages.
2 On Justinian and his collection see the survey (in English language) written by Wolfgang Kaiser,
Justinian and the Corpus iuris Civilis, in  : David Johnston (ed.), The Cambridge Companion to
Roman Law, Cambridge 2015, 119–148.
3 Karl Popper, The Open Society and Its Enemies, Vol 2, The High Tide of Prophecy  : Hegel, Marx and
the Aftermath, London 1945, Ch. 25  : Has History a Meaning  ?, 246–267, especially the “searchlighttheory of science” (247).

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

10|

Ulrike Babusiaux, Mariko Igimi

neously mirrors current issues and challenges of our time and possibly opens a
dialogue between the past and today.
Dialogues can be carried out from various points of view. Firstly, we shouldstress the role of Roman law as the evolutionary basis of modern private law innumerous jurisdictions. Indeed, the civil law systems not only in continental
Europe but also in other parts of the world, such as Japan, derive from Roman
law. In some respect, even the common law systems are influenced by it. Goingback to the sources of our own laws and considering solutions and arguments
developed there, can lead us to better applications of the law today.
Roman law, however, is not limited to the retrospective approach to traceback to the origin of our legal rules and concepts. Roman law sources are thetestimony that the jurists in ancient Rome, just like the lawyers of today, had totackle with new and unsolved questions of their times. The Justinian legislation,
therefore, offers excellent materials for legal reasoning that has been in use for
centuries and still is, to deal with the contemporary issues of the time. Verycommon methodological instruments of the legal studies today, such as analogies and fictions, can be found in the Roman legal sources. More importantly,
the casuistic approach of Roman law also provides modern jurists with experiential knowledge.
This significance of Roman law further offers a space for reflection to themodern jurists by presenting legal interpretations from the past, that can beused for comparison. Roman law scholars are constantly reflecting on their own
modern legal systems through their research on Roman law. They often realise
the similarities of legal conflicts and interests in human life between antiquity
and today. Material for the comparative law can be found, therefore, not only inother contemporary jurisdictions but also in history. The geographical as well as
the historical search for solutions and applicable rules might even disclose whatis essential in law.
All three approaches are to be seen in this book. The first part of the book reassembles the contributions dealing with the Roman law as the historical foundation of modern law and thus attempts to find applicable reasoning in the ancient sources for modern debates and current legal problems. In the second part,modern debates and open questions are examined from the point of view of a
Roman jurist with contemplation to provoke dialogue on legal reasoning in specific contexts. The third part, finally, is a collection of reflections on challenges
for modern jurists. It draws a contrast between problems of Roman legal history
and current debates in order to raise awareness and to promote the analysis oflegal developments today and in the past.
The dialogues presented here are embedded in an international polyphonicchoir. In fact, the very diverse backgrounds of the contributors lead to the mul-

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Messages from Antiquity|

ti-layered discussion reaching from the modern to ancient world as well as fromthe Orient to the Occident. The variety of topics, the range of methodology, andthe richness of arguments presented here prove the importance of such dialogues in the globalised world, which would foster a mutual understanding by
providing better knowledge of similarities and differences. This, finally, is thereason for choosing the English language  ; it allows us to share our views to more
people than could ever be reached if we applied the predominant languages usedin the study of Roman law today.4 The present work is an experiment that shares
the spirit of any historical discovery  : nothing ventured, nothing gained.

4 For a brief historical background and the state of Roman law today, see Ulrike Babusiaux, The
Future of Legal History  : Roman Law, in  : American Journal of Legal History (AJLH) Nr. 56, Oxford
2016, 6–11.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

11

Ulrike Babusiaux (ed.): “Messages from Antiquity”© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

PART ONE :ROMAN LAW AS THE HISTORICAL
FOUNDATION OF
MODERN PRIVATE LAW© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

Johannes Platschek, Munich

Strict Liability for Defects as to Qualityof an Object Sold
Application and Exclusion in Roman and Contemporary
German Law

I. Vendor’s Liability for Defects as to Quality of an Object
Sold in German Law : Statutory Warranty, its Exclusion andConsumer Protection
An object has been sold. It turns out it is deficient as to quality and that it alreadyhad been deficient at the time of its delivery to the purchaser. According to theGerman Civil Code (Bürgerliches Gesetzbuch, BGB), the vendor is liable to thepurchaser regardless of his fault for the defects as to quality of the purchased
good, which already existed at the time of the transfer of risk, i. e. generally at
the time of delivery (§§ 437, 434 BGB). First, the purchaser is entitled to demand supplementary performance (“Nacherfüllung”, § 437 n. 1 BGB). Thereafter,
if the supplementary performance fails, he can withdraw from the contract orreduce the purchase price (“Rücktritt” or “Minderung”, § 437 n. 2 BGB). This
strict liability, a statutory warranty, can be excluded by the parties by mutual
agreement in advance (so-called “Gewährleistungsausschluss”)  :§ 444 Exclusion of liability. … [A]n agreement that excludes or restricts the rights ofthe buyer with regard to a defect … (transl. Langenscheidt Übersetzungsservice)

That means that the vendor’s strict liability is non-mandatory (“dispositives­Recht”), with the sole exception of the case where an entrepreneur sells to a
consumer (“B2C”, “Verbrauchsgüterkauf ”). In that case the vendor’s statutory
warranty cannot be excluded in advance (§ 476[1] BGB)  :§ 476 Deviating agreements. (1) 1 If an agreement is entered into before a defect is
notified to the entrepreneur and deviates, to the disadvantage of the consumer, fromsections 433 to 435, 437, 439 to 443 (= sections on seller’s liability for defects) …, theentrepreneur may not invoke it. … (transl. Langenscheidt Übersetzungsservice)© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”

16|

Johannes Platschek

In the field of the so-called “Verbrauchsgüterkauf ”, the vendor’s strict liability istherefore compulsory. This is applicable since the major reform of the German
law of obligations in 2002, implementing European law on consumer protection.5
It has been harshly criticised  : the law not only restricted the entrepreneurin the name of consumer protection  ; it also restricted and infantilised the consumer. There could be a valid interest of the consumer (and purchaser) to agreewith the entrepreneur (and vendor) on an exclusion of the statutory warranty,
since in case of exclusion, the consumer could achieve a more favourable priceby negotiating with the entrepreneur. It had been emphasised that it was a kindof state paternalism to take away the consumer’s possibility to reach a better
price by renouncing his own statutory rights and to save money. According tothis view, § 476(1) BGB is unconstitutional (“verfassungswidrig”), violating theprinciple of private autonomy.6
This, in turn, was countered by a sobering but realistic insight  : There was noeffective consumer protection without compulsory law. An exclusion of statutory
warranty brought an aleatory character to the sale. The consumer would buy a
pig in a poke (German  : “die Katze im Sack” – “the cat in the bag”). Therefore, any
non-business-minded, inexperienced consumer needed protection, even against
his own adventurousness (that can be heavily supported by the vendor). The factthat any business-minded, skilled consumer is incapacitated along with the others(“mitentmündigt”) was due to “the essence of typified consumer protection”.7
Furthermore, in many areas of trade it is not realistic to describe exclusion of
warranty by agreement as a result of individual price negotiations. Frequently,
the exclusion of warranty by agreement is customary in a particular trade  ; before the enacting of § 476(1) BGB it was simply impossible, for example, to buy
a used car without the exclusion of warranty. No used car dealer would ever
have been disposed to sell a car at a higher price, against not excluding statutory
warranty. The car dealer did not want to bear the risk of a defect, even if his risk
would have been rewarded by a higher purchase price. He had to avoid intricate,5

Article 7(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May
1999 on certain aspects of the sale of consumer goods and associated guarantees.
6 Claus-Wilhelm Canaris, Wandlungen des Schuldvertragsrechts – Tendenzen zu seiner “Materiali­
sierung”, AcP 200 (2000) 273–364, 362  ; Klaus Adomeit, Das Günstigkeitsprinzip – jetzt auch im
Kaufvertrag oder  : der Kfz-Mechaniker von Canaris, JZ (2003) 1053–1054  ; Stephan Lorenz, in  :
Münchener Kommentar zum Bürgerlichen Gesetzbuch, Munich 20167, BGB § 475 n. 1 fn. 1.
7 Boris Schinkels, Zur Abgrenzung von zulässiger Beschaffenheitsvereinbarung und Umgehung derGewährleistung beim Verbrauchsgüterkauf, ZGS (2003) 310–316, 314  : “liegt im Wesen des typi­sierten Verbraucherschutzes”  ; similiar Johannes Wertenbruch, in  : Hans-Theodor Soergel (Begr.),
Bürgerliches Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Stuttgart 200913, BGB § 475
n. 49.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Strict Liability for Defects as to Quality of an Object Sold|time-consuming calculations about risk and price. There simply was no suchdealing. To talk about § 476(1) BGB as “infantilising” and “incapacitating” thepurchaser in these cases is nearly absurd, given that in former times the purchaser had no room for negotiations.
Others see congruence of the goals of private autonomy and consumer protection under § 476(1) BGB. If the entrepreneur (and vendor) wants to avoid
liability despite § 476(1) BGB, he has to test the object for defects and has toinform the purchaser about any found defects. Since if the purchaser is awareof a defect at the time of conclusion of the sales contract, he loses the right ofwarranty in respect of this defect (§ 442(1) BGB). Therefore, they claim, § 476(1)BGB supports the purchaser’s information and optimises the basis of his decision to buy, i. e. the basis of private autonomy.8

II. Vendor’s Liability for Defects of an Object Sold in Roman
Law : The Aedilitian Edict on Sale of Slaves on the Market
1. “Message from Modern Times” ?

In the most important textbook of Roman law in German language one reads
that “[i]n modern terms, the edict serves consumer protection”.9 “The edict”
means the edict of the aediles curules, concerning the sale of slaves (and cattle)
on the market.
The aediles curules are Roman magistrates, controlling the slave market in
the city of Rome. Trials between vendors and purchasers can be brought before
them. They are promulgating the principles of their jurisdiction in their edictthat has been – partially – transmitted to us in its wording  :
D. 21,1,1,1 Ulp. 1 ed. aed. cur.
Aiunt aediles  : ‘QVI MANCIPIA VENDVNT CERTIORES FACIANT EMPTORES, QVIDMORBI VITIIVE CVIQVE SIT, QVIS FVGITIVVS ERROVE SIT NOXAVE SOLVTVSNON SIT  : EADEMQVE OMNIA, CVM EA MANCIPIA VENIBVNT, PALAM RECTEPRO­N VNTIANTO. QVODSI MANCIPIVM ADVERSVS EA VENISSET, SIVE ADVERSVSQVOD DICTVM PROMISSVMVE FVERIT CVM VENIRET, FVISSET, QVOD EIVS PRAESTARI OPORTERE DICETVR  : EMPTORI OMNIBVSQVE AD QVOS EA RES PERTINETIVDICIVM DABIMVS, VT ID MANCIPIVM REDHIBEATVR.’ …
8 Tilman Repgen, Kein Abschied von der Privatautonomie. Die Funktion zwingenden Rechts in der
Verbrauchsgüterkaufrichtlinie, Paderborn et al. 2001, 98.
9 Max Kaser/Rolf Knütel/Sebastian Lohsse, Römisches Privatrecht, Munich 201721, 266  : “Modern
gesprochen dient das Edikt dem Verbraucherschutz [emphasis in the original]”.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

17

Ulrike Babusiaux (ed.): “Messages from Antiquity”

18|

Johannes Platschek(transl. J. A. C. Thomas  :) “The aediles say  : ‘Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway,
a loiterer on errands, or still subject to noxal liability  ; all these matters they must proclaim in due manner when the slaves are sold. If a slave be sold without compliancewith this regulation or contrary to what has been said or promised in respect of him at
the time of his sale, it is for us to declare what is due in respect of him [better  : and if itwill be said that there has to be responsibility for that (not  : quid eius praestari oporteat
dicetur), J. P.]  ; we will grant to the purchaser and to all other interested parties an action for rescission in respect of the slave. ‘”
2. Edictal Duty to Inform

The vendor is compelled by the edict to inform the purchaser about certain features of the slave  : his possible illness, physical handicaps, a predisposition to escape from his master or rove about, or his being charged with tort actions. If anyof these defects is later found without previous information by the vendor, he isliable regardless of his knowledge, i. e. regardless of his fault. The purchaser canbring an action for rescission, i. e. to return the slave within six months after theconclusion of the sale, receiving back the paid price (so-called actio redhibitoria),
or he can claim back a part of the paid price (so-called actio quanti minoris).
3. Edictal Duty to Give Contractual Warranty (stipulatio duplae)

Furthermore, the aediles oblige the vendor to give the purchaser a contractual
warranty on the absence of edictal defects in form of an oral promise (stipulatio).
A model of this contractual warranty is included in the aedilitian edict, being formulated as stipulatio duplae (“stipulation for double the price”), as we learn from  :D. 21,2,37,1 Ulp. 32 ed.
Per edictum autem curulium etiam de servo cavere venditor iubetur.
(transl. Thomas  :) “The vendor of a slave is also required to give the undertaking [cautio= stipulatio, J. P.] in respect of a slave under the edict of the curule aediles.”D. 45,1,5 pr. Pomp. 26 Sab.
Item duplae stipulatio venit ab iudice aut ab aedilis edicto.
(transl. S. Hart  :) “Also a stipulation for double the price comes from a judge or fromthe aedile’s edict.”
D. 21,2,31 Ulp. 42 Sab.
… stipulatio quae ab aedilibus proponitur …

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Strict Liability for Defects as to Quality of an Object Sold|(transl. Thomas  :) “… the stipulation required [better  : promulgated, J. P.] by the aediles …”

The contractual warranty by stipulatio duplae stands beside the sales contract. If
the warranty is given, it creates an obligation of the vendor to pay compensationin case any deficiencies that were already there at the time of conclusion of thesale appear. The action deriving from stipulatio duplae is the civilian actio ex
stipulatu. It can be brought before every Roman jurisdiction magistrate (particularly the praetor) for an indefinite period of time. The aediles are treating thevendor’s stipulatio duplae as a kind of accessory to the slave sold. If the vendor
does not grant this contractual warranty, the purchaser is therefore entitled to return the slave within two months using the actio redhibitoria in the aediles’ court
receiving the paid price. Otherwise, he can claim compensation for the missing
stipulatio duplae within six months  :1010 Nunzia Donadio, La tutela del compratore tra actiones aediliciae e actio empti, Milan 2004, 85. Diffe­
rently, Berthold Kupisch, Römische Sachmängelhaftung  : Ein Beispiel für die ‘Ökonomische Analyse
des Rechts’  ?, TRG 70 (2002) 21–54, 40 invokes scholion “ἐὰν” to B. 18,6,2 (Scheltema 1148)  : If thesale was accompanied by a stipulatio, the mentioned time limit of six, respectively twelve, months
is applied to the actio redhibitoria, respectively quanti minoris, because of a defect of the slave sold.
However, if there was no stipulatio, there were reduced time limits applying to the same actions – because of a defect of the slave sold. According to Kupisch, it is the extended time limit for actions caused
by defects in cases of sale with stipulatio that “justified the surcharge on the purchase price becauseof giving a warranty stipulation in the first” (“die den Aufschlag auf den Kaufpreis wegen Erteilung
einer Garantiestipulation überhaupt erst rechtfertigte”, supra 41). By giving his warranty promise andthereby extending his liability in time, the vendor signaled a higher quality (“mit dem Garantieversprechen und der damit einhergehenden längeren Gewährleistungsfrist signalisiert der Verkäufer eine
höhere Qualität”, supra 41 fn. 74). Does that mean that everything else – court’s competence, cause ofaction, type of action, amount of liability for defects as to quality – would be the very same in slave
sales with and without stipulatio, the only difference being the time limit of the actions  ? Concerning
the “economic analysis of law”  : Is the difference of four, respectively six, months between the time
limits really of such an importance that “the purchase price as regulating element” (“der Kaufpreis als
regulatives Element”) becomes relevant  ? Can we expect a Roman purchaser to pay a higher price only
to reach a time limit of six months instead of two for actio redhibitoria  ? Kupisch does not consider
actio ex stipulatu. As mentioned above, the stipulatio makes the vendor liable to compensation byactio ex stipulatu (Kaser/Knütel/Lohsse [fn. 5] 268, who – nota bene – agree with Kupisch) – certainlywith no time limit. Furthermore, D. 21,1,58,1 Paul. 6 resp. shows that the liability from the stipulatio
can be realised by the rescission of the sale. That means that the actio ex stipulatu can have the verysame content as the actio redhibitoria. Why then should the time limits of the aedilitian actions
depend on the fact whether the vendor is liable (without time limit) by actio ex stipulatu or not  ? The
mentioned Byzantine scholion is – as it proves by citing D. 21,1,28 – not an independent witness.
It rather tries to combine the information from the Digest. In doing so, the scholion has no moreauthority than any modern attempt to explain D. 21,1,28, see Éva Jakab, Cavere und Haftung fürSachmängel. Zehn Argumente gegen Berthold Kupisch, in  : Kaufen nach Römischem Recht. Antikes© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

19

Ulrike Babusiaux (ed.): “Messages from Antiquity”

20|

Johannes Platschek

D. 21,1,28 Gai. 1 ed. aed. cur.
Si venditor de his quae edicto aedilium continentur non caveat, pollicentur adversus eum
redhibendi iudicium intra duos menses vel quanti emptoris intersit intra sex menses.
(transl. Thomas  :) “Should the vendor not give an undertaking on the matters containedin their edict, the curule aediles promise against him an action for rescission within
two months and an action for diminution [better  : for the purchaser’s interest (not  :quanti minoris sit), J. P.] within six.”
4. Stipulatio duplae and stipulatio simplae

In our sources, we find both stipulatio duplae and stipulatio simplae (even stipulatio triplae or quadruplae are possible)11. According to the dominant view,the different designation only concerns the amount of the vendor’s liability incase of the so-called eviction  : duplam pecuniam dare or simplam pecuniam daremeans that the vendor has to pay either the double or the simple price to thepurchaser, if a third party successfully sues the purchaser, invoking propertyof the purchased slave (case of eviction). Therefore, dupla and simpla pecunia
exclusively concerned the vendor’s liability for the purchaser’s undisturbed possession of the slave (habere licere), i. e. in modern legal terminology, the liability
for defects in title. Concerning defects as to quality (illness etc.), the wording of
the stipulatio duplae and stipulatio simplae were basically identical  : The vendor
is promising his liability for the slave to be healthy etc. (sanum esse … praestari).
Hence, he is liable to pay compensation.
We can find illustrating examples within the documentary practice from thefirst two centuries AD  :

Erbe in den europäischen Kaufrechtsordnungen, eds. Éva Jakab/Wolfgang Ernst, Berlin et al. 2008,
123–137. Jakab’s own theses on the impact of stipulatio, as pronounced in Éva Jakab, Praedicere undcavere beim Marktkauf, Munich 1997, can be considered as being disproved as well (particularly by
Kupisch supra  ; Dario Mantovani, Le formule del processo privato romano, Padova 19992, 113 fn. 630,
und Donadio supra)  ; see also Kazunori Uemura, Zur Normstruktur des Edictum aedilium curulium.
Exegese von D. 21,1,14,9 und D. 21,1,28, in  : Aus der Werkstatt römischer Juristen, eds. Ulrich Manthe et al., Berlin 2016, 462–476, 469–474 (himself agreeing with Kupisch).
11 D. 21,2,56 pr. Paul. 2 ed. aed. cur.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Strict Liability for Defects as to Quality of an Object Sold

TH 61
(Pompeii, 63 AD)

FIRA III 132(Seleucia, 166 AD)

FIRA III 88(Dacia, 142 AD)[hunc hominemsan]umfurtis noxisque solutumesse

Eum puerumsanum

Eum puerum
sanum
traditumesse,
furtis noxaque solutum,
erronem, fugitivum, caducum non esse prestari,esse
ex edi[cto],[praestari|

et si qui]s eum hominem

et si quis eum puerum

partemve quam eius
evicerit,quo [minus L. Comi-]
nium Primum heredemve
eius habere [uti frui]possidere recte liceat,partemve eius
evicerit,

simplam pecuniam

simplam pecuniamsine denuntiatione
recte dare

et si quis eum puerum
q(uo) d(e) a(gitur)partenve quam quis ex eo
evicerit,q(uo) m(inus) emptorem s(upra) s(criptum)
eunve, ad q(uem) ea res
pertinebit, uti frui habere
possidereque recte liceat,tunc quantum id erit,
quod ita ex eo evictum
fuerit, t(antam)p(ecuniam) duplamp(robam)r(ecte) d(ari)stipulatus est C. Fabul/lius Macer
spopondit Q. Iulius
Priscus  :f(ide) r(ogavit) Dasius
Breu­cus,d(ari) f(ide) p(romisit)
Bellicus Alexandri,r[ect]e [darihaec] ita uti adsolet recte
praestaristipu[latus est] L.
Comin-]ius Primus
spopondit P. Cornelius
Popp[a]eu[s] [Erastus].

… et tradedisse ei mancipium s(upra) s(criptum)
Eutychen bonis condicionibus.

In the first part of the stipulatio, the vendor is promising liability for defects as toquality  : sanum esse etc. praestari – “to be liable for this slave (homo)/this young© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

21

Ulrike Babusiaux (ed.): “Messages from Antiquity”

22|

Johannes Platschek

slave (puer) to be healthy etc.”  ; in the second part (et si quis …), he is promising
to pay single the purchase price in TH 61 and FIRA III 132  : simplam pecuniam recte dari/dare – “to pay duly single the money”, while in FIRA III 88 he ispromising to pay double the price  : pecuniam duplam probam recte dari – “to pay
duly double the money in good coin” in the case of eviction. We can translate
the documents’ common structure as follows  : “To be liable for this slave to behealthy … and to pay single / double the purchase price in case that someone
will successfully claim the slave …, the purchaser has taken the promise, thevendor has given the promise.”
It should be emphasised that dupla pecunia/the duplum in FIRA III 88 is referring – grammatically unambiguously – to the eviction, not to defects as to quality.
Back in 1927, Otto Lenel went even further  : “There is no example of a formulation[of liability for defects as to quality] in duplum transmitted to us”.12 Meanwhile,
this does not correspond to the evidence any more. We now know of two Greek
documents dated to the middle of the second century AD, written at Side in the
Roman province of Pamphylia (Southern Turkey). They refer the stipulated dupla
pecunia both to the case of eviction and to the appearance of defects as to quality.13 Both of them could have been written by a public scribe in the city archive ofSide,14 with nine years between them. We also have Theophilus’ Greek paraphrasisof the Justinianic Institutes from the sixth century AD, talking – as an example(λόγου χάριν) – about the vendor’s promise in the frame of the “aedilitian stipulation” to pay “the double” (διπλάσιον) in case of the appearance of a hidden defect(πάθος κρυπτόν) of the slave sold (Theophil., paraphr. 3,18,2).
Yet, several aspects make us believe that the Side documents are atypical deviations of the standard formula  : On the one hand, even the smallest defect of theslave sold would cause the vendor’s liability to pay double the price. On the other
hand, nothing is said about where the slave himself would remain in such a case. If
the Side documents were specimens of an established formula, one would expectthat they would show an explicit ruling about the slave’s restitution to the vendor – but they do not. However, slave vendors in Side seem to have lived with thisruling for years. Similar problems arise from the description given by Theophilus.
Furthermore, if the designation as stipulatio duplae would concern the liability
for defects as to quality, in a stipulatio simplae one would expect the promise of
simpla pecunia in case of defects as to quality. But there is no surviving document
12 Otto Lenel, Das Edictum perpetuum. Ein Versuch zu seiner Wiederherstellung, Leipzig 19273, 562  :“Ein Beispiel der Fassung in duplum ist uns nicht erhalten.”
13 P. Turner 22 (142 AD)  ; BGU III 887 = FIRA III 133 (151 AD)  ; both in  : Johannes Nollé, Side im
Altertum. Geschichte und Zeugnisse II, Bonn 2001, 613–622.
14 Nollé (fn. 9) 616–617.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Strict Liability for Defects as to Quality of an Object Sold|

like that. Regarding defects as to quality, most of the surviving documents (withthe only exception of the Side documents) show the promise of praestari, i. e. thepromise to pay compensation for the purchaser’s interest. So if the designationof a stipulatio accompanying sale would depend on the content of the promise
regarding defects as to quality, all these documents would neither be called stipulatio duplae nor simplae, but “stipulatio praestandi” or “stipulatio eius quod interest”.
However, such a designation is nowhere to be found. Moreover, Paul is dealing
with the question if based on stipulatio duplae one can claim both the repaymentof the purchase price (the single one, of course) and a compensation, D. 21,1,58,1
Paul. 6 resp. If Paul and his readers called stipulatio duplae the promise to pay
the double price in case of defects as to quality, Paul’s said question would lose
relevance. Therefore, the passage can be used as an argument that the standard
content of the promise regarding defects as to quality is praestari, i. e. to pay thepurchaser’s interest. Finally, we learn from D. 21,2,31 Ulp. 42 Sab. that the aediles’ model stipulation reads sanum esse etc. praestari. As seen above, their model
stipulation is a stipulatio duplae. Therefore, the designation as stipulatio duplae orsimplae does not concern the amount of liability for defects as to quality.
However, we have to insist that for the sale of slaves on the market the aedilitian edict is just providing conclusion of the stipulatio duplae. It is the stipulatio duplae that the purchaser can expect. If the vendor is only willing to givea stipulatio simplae, the purchaser has to be aware that the “risk management”
regarding defects in title is deviating from the standard to his own disadvantage.
5. Non-mandatory Character of the Edictal Rulings

All the edictal duties can be excluded by a mutual agreement of both parties. The
duty to give stipulatio duplae, as well as edictal liability because of missing information about defects, can be modified or completely abrogated by the parties  :D. 2,14,31 Ulp. 1 ed. aed. cur.
Pacisci contra edictum aedilium omnimodo licet, sive in ipso negotio venditionis gerendo convenisset sive postea.
(transl. G.M. MacCormack  :) “It is quite [better  : at any rate, J. P.] lawful to make a pact
contrary to the edict of the aediles, whether the agreement is made in the course ofarranging the sale or afterward.”

If the edictal rulings are completely excluded and no stipulatio is given, thenthere is no non-fault liability of the vendor, regarding defects as to quality  ; thepurchaser cannot bring actio redhibitoria or quanti minoris, he cannot bring actio
ex stipulatu nor claim rescission or compensation because of a missing stipulatio.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

23

Ulrike Babusiaux (ed.): “Messages from Antiquity”

24|

Johannes Platschek

It seems likely that any renouncement of possible claims by the purchaser
will have influence on the purchase price  : “Under the edict”, the slave will be
more expensive than if the edict’s rulings are abrogated.15 However, to avoid
his liability the vendor has to reach an explicit renouncement of the purchaser.
Therefore, the purchaser must understand that he will be less protected than hewould be according to the edictal standard. Hence, the edict could not prevent
agreements about exclusion of liability from becoming customary on the slavemarket. Nevertheless, it seems that there were always slaves available on themarket to be sold with full warranty.
6. Simplariae venditiones and Exclusion of redhibitio

According to modern scholarship the following statement by Pomponius is also
to be located within the context of abrogating the edictal duties  :
D. 21,1,48,8 Pomp. 23 Sab.
Simplariarum venditionum causa ne sit redhibitio, in usu est.
(transl. Thomas  :) “It is not our practice to allow rescission [better  : it is our practice not
to allow rescission, J. P.] in the case of sales where undertakings have been specifically
excluded [better  : in the case of ‘simplarian’ sales (since simplarius is a hapax legomenon), J. P.].”

Since late antiquity, the mentioned simplariae venditiones are identified as sales
contracts with an exclusion of edictal liability, at least with an exclusion of actio
redhibitoria by mutual agreement.16 However, it is notable that such sales contracts were not called “simple” sales (that would be “simplices venditiones”), but“simplarian” or “singlarian” sales (simplariae venditiones). It is also notable that,
according to the statement’s linguistic structure, it is not the exclusion of rescission (redhibitio) that makes the sales venditiones simplariae. In fact, the practiceof excluding redhibitio seems to align with contracts that already have the qualityof being simplariae. Exclusion of redhibitio and qualification as simplaria venditio are two different aspects.
All over Latin literature, the word simplarius,-a,-um occurs only here. It is aso called hapax legomenon. Obviously a made-up word, it seems to be used ina very technical sense. It is deriving from simplus,-a,-um. Looking for parallels,
the most similar kind of saying is duplā emere which occurs for example in  :1715 Kupisch (fn. 6) 41  ; Uemura (fn. 6) 464.
16 Liber Syro-Romanus 35,101  ; Fritz Pringsheim, The Greek Law of Sale, Weimar 1950, 483–484.
17 See also FIRA III 134 = SB III 6304 = CPL 193 (Ravenna, ca 151 AD), ll. 3–8 (Latin in Greek© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

Ulrike Babusiaux (ed.): “Messages from Antiquity”
Strict Liability for Defects as to Quality of an Object Sold|

D. 21,1,58,2 Paul. 5 resp.
Servum duplā emi …
(transl. Thomas  :) “I bought for double his value [better  : with stipulatio duplae, J. P.] …”

Duplā emere cannot be understood in any other way than “to buy with the conclusion of stipulatio duplae”. The translation given by Thomas “to buy for double
the value”, creates an oddity18. Duplā emere means – vice versa – the very sameas duplā vendere, which as a substantive would be duplaria venditio. Therefore,
simplaria venditio is nothing else than simplā vendere/emere, the sale with theconclusion of stipulatio simplae. If we now project this interpretation onto thetext of D. 21,1,48,8, the statement has to be read as follows  :“It is our practice not to allow rescission in the case of sales with stipulatio simplae.”a) Usus as established law

One could understand “our practice” as the practice of courts, the “settled jurisdiction”.19 That is how we have to understand in usu esse – for example – in  :
D. 48,15,7 Her. 5 iur. epit.
Poena pecuniaria statuta lege Fabia in usu esse desiit.
(transl. Robinson  :) “The money penalty laid down by the lex Fabia has fallen out of use.”
Gai. 1,184
Olim cum legis actiones in usu erant, etiam ex illa causa tutor dabatur, … qui dicebatur
praetorius tuto, quia a praetore urbano dabatur. Sed post sublatas legis actiones quidam
putant hanc speciem dandi tutoris in usu esse desisse  ; aliis autem placet adhuc in usu
esse, si legitimo iudicio agatur.
(transl. The Institutes of Gaius, eds. W. M. Gordon/O. F. Robinson, London 1988  :) “In
former times, when procedure by actions in the law was in use, a guardian was also
appointed on the grounds, … He was called the ‘praetorian’ guardian, because he wasappointed by the Urban Praetor. But after the abolition of the actions in the law, somejurists think that this kind of appointment of guardian has fallen into disuse  ; it is accharacters)  : κουαμ ει δουπλα οπτιμις κον- / δικιωνιβους βενδιδι<<τ>> ετ τραδιδι (= quam ei duplā
optimis condicionibus vendidi et tradidi – “which I have sold to him with stipulatio duplae in beststate/under best terms of contract”).
18 Neither convincing is the explanation of sales “with double money” (i. e. with stipulatio duplae) in
documents from Roman Egypt given by Friedrich Preisigke, Zum Papyrus Eitrem Nr. 5, Heidelberg
1916, 12, who believes that there are “two payers” making “double payment”. See also infra at fn. 20.
19 Jakab, Praedicere und cavere (fn. 6) 187.

© 2019 by Böhlau Verlag GmbH & Cie, Köln
ISBN Print: 9783412508036 — ISBN E-Book: 9783412514525

25