Bryn Mawr Classical Review 2013.02.49
Paul J. Du Plessis, Letting and Hiring in Roman Legal Thought: 27 BCE-284 CE. Mnemosyne Supplements. History and Archaeology of Classical Antiquity, 340. Leiden; Boston: Brill, 2012. Pp. xvi, 213. ISBN 9789004219595. $140.00.
Reviewed by Jean-Jacques Aubert, Université de Neuchâtel (Jean-Jacques.Aubert@unine.ch)
Paul Du Plessis’s latest book consists in a thorough review of classical Roman jurists’ opinions on the contract of locatio conductio (especially Digest 19.2 and Codex Iustinianus 4.65), triggered by recent studies by Susan Martin (1989),1 Dennis Kehoe (1997),2 and Roberto Fiori (1999).3 Du Plessis’s contribution aims at studying various types of letting and hiring in their social and, to some extent, economic settings rather than focusing narrowly on legal rules. Thus Du Plessis contends (p. 5) that approaching Roman law in a pragmatic rather than dogmatic way yields results that can explain some of the idiosyncrasies of Roman jurisprudence collected in the Digest. Consequently the book focuses on legal thought while paying special attention to the legal practice evidenced by documents written and preserved on papyri and tablets. As a matter of fact, little attention is paid to papyrological evidence (e.g. pp. 70, 84, n. 104, 91, n. 133), and only slightly more to epigraphic material.
The chosen chronological framework (27 BCE – 284 CE) might be questioned as both termini post quem and ante quem are meaningless. The bulk of the evidence, both legal and documentary, is dated to the late Republic and early Empire, and reflects classical Roman law and legal practice. However, the consensual, synallagmatic contract of letting and hiring was created in the context of the formulary procedure sometimes during the third or second century BCE (p. 9, n. 3), even though no extant evidence goes back to that time. In the same way, the Tetrarchy changed nothing either to the system or to the practice it reflects or generates, and both the juristic and epigraphic evidence thins out one or two generations earlier.
The introduction (pp. 1-8) surveys the most significant contributions on the subject during the 20th century, in several modern languages. The author shows a good command of the bibliography, but is somewhat elliptic on the specifics of earlier scholarship about locatio conductio. Unlike his predecessors, the author eschews discussing the manifold object of letting and hiring, but plans to examine the ideas underlying the legal concepts governing it. In general, his analysis of the mechanics of the contract is accurate, sophisticated and convincing.
The first chapter (pp. 9-51) examines the terminology, history, and structure of the contract of locatio conductio, before turning to the contractual process, i.e. the role of the parties with regard to the psychological element giving rise to the obligation (consensus vs. voluntas), the rights of using (uti) and enjoying (frui) the object of the contract, and the rent/salary (merces) to be paid as counterpart, as well as the nature and kind of litigation the contract could lead to, and the circumstances surrounding or causing it. The author renounces the threefold division of modern legal thought (locatio conductio rei/operarum/operis faciendi) for the twofold division between res and operae retained by R. Fiori (1999). In the same way, the basic concepts of “risk” and “liability” are abandoned in favor of a “macro-narrative” defining the history of these concepts to be integrated in the “micro-narrative” detailing them (pp. 25-26). The point is to test the macro-narrative against the textual evidence provided by the jurisprudence, to trace the development of liability through dolus (pp. 27-32) or culpa (pp. 32-38), the flexibility of which defines the development of risk (periculum, vis maior, casus, vitium) (pp. 38-51).
Chapter 2 (pp. 53-120) discusses a variety of contracts bearing on both opus and operae, following R. Fiori’s contention that the distinction between the two is “foreign to Roman legal thought”. While Du Plessis does not explain how the distinction can be ignored, since merces is being paid respectively and alternatively either by the locator or conductor (p. 54), he identifies specific features of the contract of letting and hiring defined by the category of contract: the kind that involves the transformation of the property of one of the parties, such as the job of fullers and tailors (pp. 55-67), the hiring of apprentices (pp. 67-70), the work of goldsmiths and engravers (pp. 70-74), construction work (pp. 74-81); the kind that involves moving the property of one of the parties, such as carriage by land (pp. 82-84) or by water (pp. 84-92); the kinds traditionally labeled artes liberales (“not a Roman category”, p. 192), such as the trade of medical doctors (pp. 96-98), land- surveyors and architects (pp. 99-100), attorneys (pp. 100-101), and teachers and philosophers (pp. 102-103), ending with less respectable hired positions, such as scribes (pp. 104-105), actors (pp. 105-106), gladiators (106- 110), and miners (pp.110-113), and the letting of the operae of slaves and freedmen outside of the familia as a commercial strategy (pp. 116-120). The list is not intended to be comprehensive, but adequately reflects the state of the evidence. I would question some arguments from silence (p. 56, on the likeliness of verbal contracts for lack of preserved written evidence), a few unwarranted assumptions (pp. 58-59, 83-84, 89, 102), some imprudent conclusion (p. 82, about the compared economic significance of water- and land-transport, and its alleged impact on classical jurisprudence), but the demonstration is acceptable and the overall picture quite cogent.
The third and last chapter (pp. 121-189) deals with the letting and hiring of a thing (res), first movable property, such as storage jars (pp. 125-127), scales (pp. 127-128), vehicles and vessels (pp. 128-131), and slaves and animals (pp. 131-135); then immovable property, either in a rural setting, such as ager (pp. 137-142), fundus (pp. 142-146), praedium (pp. 146-147), and villa (pp. 147-148); or in an urban setting, such as cenaculum (pp. 153-154), insula (pp. 155-170), domus (pp. 170-171), taberna (pp. 171-172), balneum (pp. 172-173), and horreum (pp. 173-189). The selection of the types of facilities and the different emphasis given to each of them are dictated by the examples used by classical jurists or in the inscriptional evidence (Pompeian tablets of the Sulpicii and other, mostly isolated texts). There is no doubt in my mind that Du Plessis is right in identifying some of these facilities (agri, fundi; insulae, and horrea) as the most likely settings to have been leased out in the early imperial period. The coincidence between the jurists’ doctrine and the extant documentary evidence is not accidental. I am not totally convinced of the relevance of dismissing the traditional (modern) concepts of “object” and “content” of the obligation (p. 121), even though Du Plessis may be right in contending that Roman legal practitioners would rather have thought in terms of rights and duties of the respective parties to the contract. Again, the arrangement chosen by the author implies a desire to renounce a systematic or dogmatic approach to the law of contract; instead, it allows for the isolation and identification of specific problems and solutions attached to various types of contracts of letting and hiring. Little pearls emerge now and then, such as the analysis of the legal problems caused by the practice of subletting (pp. 156-170). Summoning evidence from the papyri would have probably shed more light on the practicality of the jurists’ opinions.
A short conclusion (pp. 191-193) offers a summary of the content.
Du Plessis conveniently cites the original Latin texts in footnotes and usually provides translations borrowed (p. xv) from Watson’s edition (1985)4 for the Digest, Blume (1920-1971/2009)5 on-line for the Justinianic Code, Jones (2006)6 for the Pompeian archive of the Sulpicii, or from Monro (1891)7 for title 19.2 of the Digest. As some of these translations are occasionally problematic or somewhat obsolete, I wish the author had provided his own translations, which he does at times (pp. 22-23, 177, skipping the diacritical signs in the first paragraph! and 187, idem for the last paragraph!). The volume ends with a rich, up-to-date, multilingual bibliography (pp. 195-206), a list of texts cited (pp. 207-210, mostly legal, with a few literary sources and three inscriptions, with no reference to the Sulpicii archive or the Dacian or Lusitanian tablets), and an index of mostly Latin legal vocabulary (pp. 211-213).
Last: the whole book is marred by numerous spelling mistakes and typos that make the Latin citations sometimes difficult to read and to use. For the price of the volumes published in this series, the publisher should have provided adequate copy-editing. This serious and quite readable book certainly deserved it.
1. Susan D. Martins, The Roman Jurists and the Organisation of Private Building in the Late Republic and Early Empire (Brussels: Latomus, 1989).
2. Dennis P. Kehoe, Investment, Profit and Tenancy: The Roman Jurists and the Roman Agrarian Economy (Ann Arbor, MI: University of Michigan Press, 1997), as well as his previous books based on Latin inscriptions from Roman Africa and Greek papyri from Graeco-Roman Egypt as evidence for rural tenancy.
3. Roberto Fiori, La definizione della ‘locatio conductio’: giurisprudenza romana e tradizione romanistica (Naples: Jovene, 1999).
4. Alan Watson (ed.), The Digest of Justinian (Philadelphia, PA: University of Pennsylvania Press, 1985), revised ed. in 1998, reprinted in 2009.
5. F. H. Blume, Annotated Justinian Code (http://uwacadweb.uwyo.edu/blume&justinian/) (Unpublished: 1920-1971/2009), 2nd ed. by T. Kearley (University of Wyoming).
6. David Jones, The Bankers of Puteoli. Finance, Trade and Industry in the Roman World (Stroud: Tempus, 2006).
7. C. H. Monro, Digest XIX.2. Locati conducti, translated with notes (Cambridge: Cambridge University Press, 1891).