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on June 25, 2013
Evidence of the widespread use of legal instrument even at humble levels of Roman society is evinced by the popular playwright Plautus who mentions many of them, such as syngrapha and hypotheca. He alludes to legal instruments such as pignus; actio emti; locatio conductio; mutuum; to foenus and pecunia credita, and to the risks associated with bottomry that were shared by societas. All these devices stabilised commercial relations in increasingly diverse marketplaces.

Plautus, human folly and contract law

While the Latin playwright Plautus was primarily a comic dramatist who used stock characters to deride standardised instances of human folly, he also provides incidental insights into many legal aspects of commerce and contract law in the Mediterranean following the Second Punic War. Plautus' irreverent parodies of Roman values, and the ridiculous caricatures he presents of paterfamilias stereotypes normally assumed to be irreproachable has been interpreted as an attack on the legal status of patria potestas. Opposed to these are the often more sympathetic "Plautine rebels, the amorous sons and the rogue slaves and prostitutes," who often hoodwink a gullible, and otherwise flawed, paterfamilias by defrauding him of a large sum of money. A monetised economy has provided a device that allows for some degree of empowerment of the oppressed social groups, who are often able to minimise the consequences of their rebellion through legal casuistry.

Some of these legal concerns Plautus uses are derived from the ius civile that governed Roman citizens only, but some reflect the growing importance of lawful interaction between Romans and foreigners, developed through the emerging ius gentium. Plautus' plays, set as they are in predominantly Greek communities, but with reference to Roman legal devices, suggest an increasingly open Mediterranean economy, despite powerful local conditions, subject to a Roman economic as well as military hegemony.

As Nicholas Rauh has argued, Plautus was writing during a transitional period when financial agreements were vouchsafed both by a legal formula and an exchange of religious oaths , a provision Cato stipulated as a prerequisite in the formation of a company, iurent omnes socii . Such a formula seems to have become increasingly secular by the end of the Republic, but may have begun taking precedence over oaths following the Second Punic War as Roman merchants used the ius gentium in their dealings with non-Romans, as shown by Nicholas Rauh, is evinced by the interaction in places like Delos and also Rhodes. In culturally diverse emporia, dissimilar religious practices and guarantees from diverse communities precluded common prohibitions based on belief systems. Plautus plentiful references to secular legal devices that do not include divine imprecations.

While praetors had a broad prerogative in respect of moral standards their role in protecting property rights in devising edicts that were revised or amended by their successors gradually became their primary concern, as secular overseers of contractual obligations that had apparently been left in the hands of the parties concerned, before the plethora of legal devices sketched in the previous chapter were evolved. In a supporting capacity aediles, whom Plautus seems to equate with the Greek agoranomos in Miles Gloriosus , were more directly concerned with fair trading and contracts, suggesting that Plautus' audiences were aware of real or assumed connections between local officials , and the increasingly ubiquitous Roman types of functionary safeguarding ordinary contracts and market transactions. Thus references to an aedile in Plautus' Captivi , include a composite allusion to the Greek Aetolian dress of an agoranomus.

Role of the praetor in the commercial dealings of the ordinary Roman

The praetor's office predated the aedilian machinery for Roman administration outside of Rome. The earliest praetorian edict in Rome has been dated to 215 or 213 BC , largely in response to conditions connected to the Hannibalic War. However, the role of the praetor formalised by 157 BC through a senatus consultum, was designed to address inconsistencies in praetorian administration of contracts , proliferating with wealth flowing through the Roman world in the form of tribute, but often opportunistically or fraudulently implemented.

It is reasonable to assume that the praetorian devices apparently embedded in Plautine witticisms had been de facto practice for some time before they were defined a generation later. It is also reasonable to assume from Plautus that the peregrine praetor, though irregularly appointed between 215 and 198 , and always outside Rome, except in 210, applied Roman praetorian edicts to peregrines. So in Plautus' Asinaria, a young aristocratic idler amuses himself by distributing damages of an as to the passers-by his attendant slave strikes, with the formula pugno malam si tibi percussero , derived from a praetorian edict that implemented an instrument Ao, Ao pugno mala percussa est . Though the play is set in Athens, the young wastrel pays pre-emptive damages in accordance with a Roman edict.

Plautus mentions syngrapha and hypotheca. He alludes to pignus; actio emti; latio conductio; mutuum; commodatum; depositum; and he seems to be aware of banking and credit with more or less direct allusions to foenus and pecunia credita, and to the risks associated with bottomry that were shared by societas, who used an ancient, yet still applicable, 9th century Rhodian law translated into the lex Rhodia de iactu for mutual protection. All these devices were useful in protecting investors and merchants and even friends and relatives from fraud or inequitable risk, and so stabilised commercial relations in increasingly diverse marketplaces. The Latin meaning of commercium is telling in this context, meaning not only trade or commerce, but the right to trade, or to have relations, including marriage, with Romans. A thing that could be appropriated privately was .

Legalisms supplanted religious piety

As the Romans dealt more frequently with peregrines or foreigners, there was occasion to use the device of syngrapha, a device borrowed from Greek custom and used to formalise debts, and signed by both the creditor and debtor, being written out in duplicate , though it seems they were merely pactum nudum, that is not treatable as actionable by Roman magistrates at the time of Plautus, though they were by the time of Cicero . Plautus alludes to such a device in his play Asinaria, l. 199, between a youthful, spendthrift philanderer and a pimp with the disparaging ambiguity, uti Graeca mercamur fide by way of casting aspersions on the trustworthiness of the Greeks with whom his Roman hero has dealings. Despite the legal framework based on unactionable agreements, a religious invocation has more gravity in this scene, Asinaria possibly being Plautus' earliest play, written in 207 BC . In contrast, his last, Casina, c.184., may be his most cynical in terms of legalisms and the simultaneous tendency towards indifference to religious values or even their abnegation.

There is another allusion to syngrapha, opera a praetore sumam syngraphum , which further illustrates the praetor's role in authorising types of hire. Plautus was writing in an atmosphere in which pecunia credita, or regular money loans could be recovered under the lex Silia de legis actione c.204 , while credit itself was restricted under the lex Sempronia of 192-3 BC . These laws and the contractual remedies that came into being in the first half of the second century BC put the works of literature by Plautus and others in the context of a rapidly changing economic community focused on abstract expectations that had meaning even for audiences largely composed of artisans and labourers.

Changing meaning of a pledge

But another device that occurs in Plautus, at Pseudolus, l. 85, the hypotheca, may have been actionable at the time, and was solemnised in the work by the pledge pignori opponere, together with the similar Greek term έπιθήκηi. This device was similar to a mortgage, involving a pledge by agreement, depending on the delivery of some good or payment in respect of a future condition. Even if such a contract were not actionable in this period, it represented an advance on more concrete forms of obligation that had dominated Roman commerce up to this time. Like the syngrapha this formula was available to peregrines and so represented an expansion on the more primitive and unilateral emtio venditio, and which required some particular formality beyond the consent of the parties. The consensus that emerged in this period was now sufficient to create legal obligations, without the requirement of any predetermined form. The velocity of money resulted in a velocity of economic agency that could not be retarded by the sanctions of traditional religiose forms. The more readily enacted contract was deemed complete once a price was agreed, and even before payment was made , but unlike the older agreements to sale, obligations or warranty concerning quality of goods and services were now actionable as torts . This device is evident in Plautus' Mostellaria , where a lovestruck son, acting as the agent of his father is petitioned to have the sale of a supposedly haunted house rescinded, before possession has taken place or money has changed hands. The son is understood to have been empowered legally, by the instrument of actio emti, the right to enforce a sale in court, the actio being based in Roman civil law, but perhaps from this time applied to aspects of ius gentium. The reluctant seller is not constrained merely by fides, or his oath.

In another play, Persa, a slave-girl must be delivered under warranty, and the buyer is apparently protected by the same actio emti. The seller, one Sagaristo, implies that failure is actionable because he makes it a condition of sale that the buyer accepts the entire risk or periculum of the transaction : mihi furtivam meo periclo vendidit, a humorous reversal of economic agency in that the sly vendor has unloaded both the risk connected to stolen property in the form of a slave, and acquired his dupe's payment. A similar concern obviously motivates a pander or leno in Rudens, who had received money for a slave-girl who had subsequently absconded. When the girl is abducted from the pander, the result is presented as legally righteous, as a type of judgement resulting from the improper sale, a iudicium ex emto, rather than a form of divine justice for having broken an oath.

It may be too that in the wake of the Second Punic War, arrha or arrhabo, earnest money that supported a pledge to a contractual obligation became more common by way of substantiating oaths which may have been increasingly empty in a religiously diverse market place. Thus the phrase arrhabonem... acceperat, used in Rudens , enables the sale under consideration to be vouchsafed. Arrhabo is also used in Mostellaria , as a question, providing an opportunity for an answer impressing a contractor's bad faith: Quas arraboni tibi dedi? In Poenulus , the expression is apparently with a view to such a sum being liable as a forfeit if a contract was not fulfilled, and occurring in transactions between persons of different nationalities, but subject to an emerging contract law administered by Roman aediles and praetors. Here, however the term is loaded with violent sarcasm: Leno, arrhabonem hoc pro mina mecum fero, the sum taken without any suggestion of willingness or goodwill.

An even more evolved legal device used by Plautus is that of locatio conductio, though one which was rooted in emtio venditio; but despite being a more detailed device it may not have been so termed until early in the 1st century by the jurist Quintus Mucius Scaevola , writing on the ius civile. If such is the first reference there, it may be that the device was taken from the ius gentium. This device recognised obligations between lessors and lessees. Normally hiring or renting goods and services was restricted to transactions with the state through the agency of apparitores. Hiring from the state was known as locatio operarum while contracting to the state was referred to as the conductio operis. Because workers or plant so hired were usually moved, the contract was known as locatio conductio, with acknowledgement of the contractor. Where things rather than labour was involved the device used was a rem locare . From Plautus it seems that the roles of the state and its clients and contractors were commonplace for his audiences, and perhaps in the various settings where such contracts are delineated. Plautus' audiences were then assumed to have some knowledge, perhaps even to a sophisticated level, of business or economic matters.

Plautus has his characters allude, if somewhat obliquely, to locatio rei, in Pseudolus (l. 790), jocularly concerning an item as trivial as a military cloak and Mercator (l. 560), where a neighbour is called on to hire or rent a house: ut mihi aedis aliquas conducat volo. There are references to locatio operis in Bacchides (ll. 390-2), where a philanderer's instructions are deliberately misconstrued by his pandering agent. In Persa (l. 160) costumes hired on the authority of the aedile for a public entertainment, praebenda aediles locaverunt, are misappropriated for the purpose of an amusing fraudulent deception. In Bacchides (l. 750) legal assumptions are parodied in respect of a bond that obliges a locator operarum to release the slave he has hired once the work is completed, which is in keeping with the ongoing profitability of slaves as investments that provided profits often greater than land . The joke here though is that the slave has offered himself out for a figurative form of hire: mea fiducia opus conduxi et meo periclo rem gero, the allusion to risk or periculum providing a doubly legalistic witticism.

Praetorian strictures woven into commercial contracts

Legal restrictions are placed on the locatio conductio operarum in Asinaria (ll. 225-226): the joke here revolves around a brothel keeper's obligation to impart lovemaking skills to young patrons, or whether he is entitled to end the tuition after a certain time elapses unless he receives further payment. Similar obligations were contracted by means of a lex commissoria, which was a praetorian edict stipulating conditions for the sale of services . Plautus makes use of locatio operarum in Aulularia (l.80), erus...conduxit coquos, where there is some argument as to how a contracted cook is to work in two different locations, without being cut in two. In Mercator (ll. 683-4), a guardian determines to hire public criers to find the mistress of his infatuated charge: praeconum iubere iam quantum est conducier. In Epidicus (l. 312-313), a wily slave hires a music girl suitable to help him defraud his master: quam ostendam fidicinam aliquam conducticiam, so that the hiring he intends was not at all what he was contracted to do. In Miles Gloriosus (ll. 1173-4), the legal term improbare opus is technically embedded in a charlatan's speech where he promises to flatter convincingly, asking satinest, si tibi meum opus ita dabo expolitum, ut improbare non queas. Such a term alludes to a contractor's right to reject work badly done, although such an action only applied to the work, and the right to sue for acceptable completion. It may not have been until some time later that locatio conductio rei provided for rejection of the conditions of hire .

The changing nature of law within the works of Plautus

Plautus illustrates the evolutionary nature of Roman law. For example, though he distinguishes the contracts for sale and for hire, the distinction he makes between the two in respect of remuneration may suggest these terms were not as defined when he began writing in the final stages of the Second Punic War as they were to become by the time of his last play c. 184. The evolution of such a distinction is corroborated by the use of contractual terminology. For example, Plautus includes the term pretium, where he should have used merx, in that locatio conductio required payment in money, following allocations from the state aerarium, when hiring involved either public service or the public purse. That Plautus employs the more variable pretium implies a state legal device in the process of being moulded to meet the needs of a more complex, monetised market. Plautus' use of pretium may have been intentionally humorous, and so would have been used to deride less sophisticated economic agents misusing a technical business language with which more canny merchants were already familiar.

A similar imprecision is evident in respect of commodatum which was strictly an interest free or gratuitous loan of a res non fungibilis but which Plautus uses in respect of money or other chattels useful in trade. So in Asinaria an amorous youth wishes for viginti argenti commodas minas, to accommodate the mother of the girl who attracts him. Such a sum would in itself have been outrageous, being as it were the equivalent of a dowry a bride from a reputable family would bring her husband. At the other extreme, Plautus makes light of contractual language where one of his characters complains about the everyday items, such as a knife, axe, pestle or mortar, that his neighbours borrow: quae utenda vasa semper vicini rogant (l. 96), punning on the legal formula utendum dare .

Similarly to utendum dare, Plautus used servandum dare, but meaning to depositum rather than commodatum, where a chattel was to be preserved and returned as received when required; in the former agreement, use of the lent item is intended by the borrower , subject to a remedy in coin. In Bacchides (l. 306). Depositum is used to cast doubts on a priest of Diana with whom gold is left, thinking he is safer than pirates: nos apud Theotinum omne aurum deposivimus; the depositor's interlocutor vociferates strong doubts concerning whether or not the priest will make use of the gold, despite any inherent assumptions in depositum. This cynicism concerning the priesthood may reflect a darkening social trend, written as it was towards the end of Plautus' career, c. 189, in a play where the votaries of Bacchus are sacrilegiously, at least from a Greek point of view presented as meretricious.

In his play Trinummus another type of obligation is used by Plautus, the mandatum, wherein an agent, usually a friend, undertook an obligation to perform some task for a principal, so that the phrase mandatus est fide et fiduciae is used but without any reference to a coercive praetorian actio mandata . In Trinummus a father had entrusted his son to a guardian in good faith that he would reform him, but instead the son has been made more corrupt and irresponsible. Plautus may have known a legal remedy was available, and so may the audience, but the theme of the play precludes such an action concerned as it is with moral regeneration. But at the same time, the legal allusion may point to emerging financial costs implied by bad faith in an increasingly monetised community.

Plautus' blending and interpretation of legalisms: the vulgarisation of the law

In his plays Curculio and Pseudolus Plautus seems to blend two conventions, mutuum and foenus, the former being a gratuitous loan, and the latter being a loan with interest. In Pseudolus, particularly, there is reference to the well-intentioned obligation owed by a guardian to an orphan charge, defined by the lex Plaetoria, c. 193-2, which is colloquially described as the lex quinavicenaria, by a speculator who can no longer risk his charge's capital in risky ventures, as it made those who defrauded minors under 25 years of age criminally liable . From the implications in Pseudolus, it seems such liability extended to those who contracted with the embezzling curator, even if only to the extent that they could not litigate to recoup their losses. That such profiteers were so placed may have been a source of merriment for Plautus' audience.

For Plautus mutuum can be a loan with interest, but perhaps to the extent that a loan was recoverable with interest if paid late. It has been suggested that mutuum was regarded as a device from ius gentium , but that it was subsumed into Roman law under the scope of the lex Aebutia implemented between 149-25 BC , which introduced simpler formulae that made litigation more intelligible and more accessible to larger segments of the population than had the more traditional and more complex actiones that they superseded. But instruments such as mutuum illustrate the emerging and ineluctable flexibility of legal applications by the time of Plautus and the ways in which legal conditions and procedures could be adapted: no doubt it was universally desirable to have remedies that forced delinquent borrowers to repay loans on time, so that dereliction now entailed risk.

Plautus demonstrates a generalised awareness of obligations implicit in instruments like mandatum, and its connection with a presumption of shared liability among the partners of a societas. For Plautus, such a presumption need not have entailed an actionable contractual obligation; his attitude may have been more like Cato's, where obligations to share losses were solemnised by oath. A remedy for common losses may not have come about until 107 BC, in the edict on actio pro socio , promulgated by the praetor P. Rutilius Rufus. Even so Rufus drew on the notion of shared liability or the law of general averaging of losses commonly incurred grew out of the 9th century lex Rhodia de iactu , and refined through Greek contract law . This notion is evinced by Plautus; though he does not attest to any action for failure to share the cost of losses, he does mention the shares of socii and there is an inference that a type of general averaging is honourable. The allusion is very whimsical in Rudens , where two slave girls who have been left destitute by a shipwreck, so that one says Socia sum, nec minor pars meast quam tua. Though the use of the word socia is amusingly out of place, its legal import in the context of a shipwreck in a popular knowledge points to a colloquial knowledge of the contractual obligations within societas. This idea of shared liability becomes an extended joke as a pimp and his friend with one saying Vel consociare mihi quidem tecum licet; aequas habemus partes. That two such disreputable persons believed themselves capable of a solemn partnership illustrates the widespread commercialisation through many social levels. But that contractual obligations were treated so disparagingly may reflect their ineffectiveness at this stage in their evolution in the early second century BC.

The likelihood there was no remedy for fraud or malfeasance until a generation or more later supports a view that Plautus was writing at a seminal juncture in Roman legal history. Plautus' writing included a plethora of legal metaphor often used to spice salacious humour. But these allusions were not designed to fall on deaf ears: they had meaning they would not have had to a Roman audience a generation or two before, during the crisis the Hannibalic War. That this war had propelled the playwright's potential audience into an unfamiliar but more lucrative world where contractual stipulation was crucial to survival in an increasingly monetised and abstracted economy, and at a time when religious strictures and admonitions to behave with respect for traditional, if mythical, values did not ensure the fulfilment of contractual obligations.
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