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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

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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 experimentis 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 surrounding 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 independent 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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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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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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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

German, South African and English law. The references to modern French law are too haphazard to deserve to be mentioned in this context. Why just the legal systems of these three countries? The cynic may be inclined to say that they happen to be the ones with which the 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 more objective point of view . The Germ an B GB is one of the major European codifications, and it is based, for better or for worse, more purely on Roman legal learning than any of the others. Unlike, 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 commune. The choice of English law has already been explained. South African private law, in turn, constitutes one of the last preserves in the modern world where the tradition of the ius commune still lives on, untramm elled, largely, by the intervention of the legislator. Courts and legal writers still derive their inspiration directly from the sources of (classical) Roman-Dutch law, and through them, from Justinian's Corpus Juris Civilis. Moreover, South African law is also of particular interest to the modern comparative lawyer since it is one ot only a handful of "mixed jurisdictions"—of legal systems, that is, which are not only based on traditional civilian learning, but which have also absorbed much English law. This reception of English legal ideas occurred in the course of the 19th century and by a process that reveals certain intriguing sim ilarities to the spread ot Roman law over Europe. Thus, the two main emanations of the "W estern", o r E urop ean (in the b ro ader sen se), trad itio n h av e h ere b een blended together, and the processes of a mutual assimilation that have occurred over the years offer stimulating insights as well as valuable experiences for anyone interested in the prospect ot a future European common law.

I should perhaps stress that the present book deals specifically with 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 the emergence of those of its more modern branches, which derive their origin from other sources. The book is therefore not a textbook of the ius commune. Also, its subject matter is purely the substantive private law. More specifically, therefore, the law of procedure has not been dealt with, at least not as far as the ius commune or modern legal systems are concerned. Classical Roman law, on the other hand, cannot be understood except from a procedural perspective, and this procedural perspective thus often influences the discussion. But here, again, the Roman law of civil procedure is not explained as such; a basic knowledge of its characteristic features is taken for granted.

Thirty out of the 32 chapters were written during the seven years I spent at the University of Cape Town. I have thus been able to draw on certain sources (South African monographs, dissertations and, m

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