The Dual Origin of the Duty to Disclose in Roman Law

The Roman law remedies for failure to disclose in sales contracts were developed by two different institutions: that of the aediles, with jurisdiction on market transactions effected through auctions, and that of the praetor, with general jurisdiction including private transactions. The aedilician remedies—the actiones redhibitoria and quanti minoris—allowed for rapid transactions and inexpensive litigation but generated some allocative losses ex post, as they did not incentivize the parties to exchange information about idiosyncratic characteristics of the goods for sale. In contrast, the remedy developed by the praetor—the actio ex empto—implied lengthier transactions and more expensive litigation but eliminated the ex post allocative loss, as it fully protected the buyers’ idiosyncratic interests. The analysis reveals that these Roman law remedies maximized the value of the underlying contracts and sheds new light on how differences in the lawmaking institutions affect the law produced by them.

Collective Responsibility

The concept of collective responsibility, or group punishment, for crimes or other harmful acts, was a pervasive feature of ancient societies, as exemplified by the Roman Senatus Consultum Silanianum, a resolution by the Roman senate in 10 CE, and the Greek notion of “pollution.” This chapter briefly surveys historical examples of collective responsibility, which have largely given way to the modern concept of individual responsibility, though vestiges of collective responsibility remain in modern culture and law (notably in the form of vicarious liability). The chapter then lays out a theoretical analysis of the choice between collective and individual responsibility that highlights those circumstances in which each is preferred as a law enforcement strategy.

Banking, Money-Lending, and Elite Financial Life in Rome

Through legislation and judicial decisions, the public administration (the city, first, and then the Empire) organized and regulated the activities of the various social groups. What was their impact on the complex world of banking and credit? After having briefly described how banking and financial life functioned in the Roman world, this chapter examines the way in which praetors and jurisconsults considered these activities, which legal rules they established, what were the effects of such rules, especially from the economic point of view, and how they developed from the first centuries of the Republic to the fourth century AD.

Ancient Rome

In 200 BC, the population of the city of Rome was 200,000. By AD 50, this figure had increased fivefold, an unprecedented burst of urban expansion. Moses Finley’s much-contested thesis that Rome was parasitic implies that the city’s growth could only have brought discomfort to the peoples of the Mediterranean. Drawing on the theory of cities developed by urban economists, I contest Finley’s thesis. Rome’s growth fostered specialization of labor and the sharing of information, enabling the city to export the Pax Romana, government, law, literature, and other beneficial services. The institutional foundations that undergirded the growth of Rome included norms and laws favoring brisk commerce in land. A provision of the Twelve Tables of c.450 BC, for example, authorized complete freedom of testation, an extraordinary principle in a near-archaic society. Also conducive was Rome’s adroit mix of a private sector that provided goods such as the apartment blocks that housed most of the population, and a public sector that provided essential public goods such as aqueducts. These institutional choices, along with Rome’s aversion to growth-limiting populist policies, were necessary, but not sufficient, conditions for its emergence as the largest city the world had seen.

Law, Slaves, and Markets in the Roman Imperial System

There is a very close relationship between the development of the Roman legal system, grounded on the activity of the jurists, and the creation of an imperial network of commercial relationships in the Mediterranean Sea. We can see this in the late Republic, between the end of the third Punic War and the Augustan age—when Roman legal thinking transforms itself in a scientific knowledge, connected with the development of a world power. An essential feature of this society was slavery, as slaves played a crucial role in many aspects of the economy. During this period, Roman law created contracts and remedies essential to commerce, and so in many ways anticipated the commercial development of the modern world. But rather than defining commercial relations in such a way as to exclude slavery, Roman law reinforced the central role of slavery in Roman society.

The Institutions of Roman Markets

The chapter analyzes the basis of the market economy in classical Rome, from the perspective of personal vs impersonal exchange and focusing on the role of the state in providing market-enabling institutions. It starts by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, the chapter identifies the demand and supply factors driving the institutional choices made by the Romans, and examines the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange, and the enforcement of personal obligations allows the chapter to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.

The Practice of Manumission through Negotiated Conditions in Imperial Rome

Roman slaves often had to meet expressly negotiated conditions to obtain their freedom. The use of such conditions helps to explain why the Romans freed so many slaves. They are an expression of the economic considerations that underlie the extraction and manumission model of Roman slavery. Agreements between masters and slaves occurred in practice and were recognized at law. Conditions could be set among the living or by testament and could consist of settling accounts, money payments, or services in kind; some followed the slave and were actionable. The money to pay for freedom often came from the slave’s patrimony or peculium. Though evidence is scarce, conditions and the corresponding manumission prices seem to have been of a type that could be met within years rather than decades. Extracting a price from slaves for their freedom lessened the future claims of patrons. For a certain type of slave, negotiated manumission conditions may have been the norm.

Private Prosecution and Enforcement in Roman Law

Many legal systems show evidence of having evolved out of a decentralized system of privately enforced law. Our very imperfect information on early Roman law, in particular the surviving texts from the law of the Twelve Tables, suggests that that was the case for it as well. Punishments for what we would consider crimes largely consisted of damage payments, while enforcement of court verdicts seems to have been largely the responsibility of the plaintiff, as was compelling the defendant to come to court. The earliest procedure for trial (legis actio sacramento) took the form of a bet on which side’s claim was true, with the money deposited by the losing party forfeiting to the state. Arguably its function, like that of a trial in a feud system such as that of saga-period Iceland, was to establish for third parties which of the two litigants was in the right and so entitled to use force if the losing litigant refused to obey the judgment. There was, however, an exception to that pattern for offenses against religion or directly against the state. Privately enforced systems, most notably early Irish law, make use of sureties to enforce contracts and judgments. The same was true of Roman law throughout its history, although with many detailed differences from the Irish. Over time, responsibility for prosecution and enforcement shifted from the plaintiff to state actors. But even in its final form as codified by Justinian, prosecution of both civil and criminal offenses was primarily the responsibility of private citizens.

One Step at a Time in Roman Law

This chapter argues that the Roman law system of a staged system of pleadings, which emerged in the mature formulary system and then was eventually carried over into the common law, offers a superior way to understand and classify legal doctrine in ways that lead to overall economic efficiency. The arguments here stress the conceptual formation of classical Roman law on matters that retain their full salience today. It does not deal with the details of the historical evolution of Roman procedure. Indeed, its main purpose is to contrast the genius of the staged system of Roman law pleading with a flaw in the modern conception of civil procedure, which funnels all disputes through a reasonableness inquiry. In dealing with practical legal disputes it is virtually impossible to generate some major rule that leads to optimal results in a wide range of cases. The pleading system takes the reverse tack and seeks to achieve optimality through a system of successive approximations, starting with the prima facie case, working through defenses, and most critically, replies and further pleadings, finishing with joinder of issue to incorporate all the elements that are traditionally thought relevant to systems of tortious (as the civil side of delict) and contractual responsibility. These elements include identifying those obligations that should be strict, those that are governed by negligence principles, and those as intentional harms on both the tort and contract side of the line. The approach should be understood as an explicit rejection of the dominant modern approach that removes all the hard-edge distinctions and uses a generalized conception of reasonableness as an umbrella conception that encourages decline of doctrine and the ad hoc resolution of particular disputes.

Land Demarcation in Ancient Rome

Ancient Rome was an expansive and wealthy empire that created a trading network that relied on common language(s), law, money, and a system of measurement. An important component of this network was the rectangular system (RS) of land demarcation known as centuriation, which was the forerunner of similar systems adopted in the United States and Canada and in other parts of the British Empire in the eighteenth and nineteenth centuries. This purposefully implemented demarcation system persists to the present and can be found in the landscape throughout the territories of the former Empire, especially in Italy and North Africa. It was typical as Rome expanded its territories to implement the RS system before new lands were settled by Romans. There was considerable variation in land demarcation patterns across the Empire. This chapter examines the determinants of centuriation by describing a model in which the state chooses between adopting RS to demarcate new lands or to utilize existing demarcation. The chapter examines data on centuriated areas and accounts from archeologists and classics scholars to examine the economic structure of Roman centuriation. The chapter generally finds that centuriation was adopted in flatter, more fertile lands, and later in time as survey techniques improved and administrative structures were expanded. The chapter also finds that alignment tended to be perpendicular to rivers and streams in order to minimize demarcation costs and to facilitate a network of canals for drainage. Finally, the chapter provides conjectures about the impact on centuriation on development and growth within the Empire.