Commerce in Early Legislation

The issue of legal recognition of commercial transactions concluded with foreigners was taken up in the first Roman ‘codification’ of law known as the XII Tables, traditionally dated to about 451-450 BC.

The XII Tables contained some dispositions offering potential for innovation. Take, for example, the law of contracts (6.1): ‘When someone shall perform a nexum or a mancipatio, rights (ius) will be defined by what the tongue has pronounced.’ Nexum is an early form of loan performed like mancipatio, ‘by means of bronze and scales’ (per aes et libram) and guaranteed by the pledge of the very person of the debtor.³⁷ Regarded as unduly risky and anti-social in its consequences, it was abolished in the late fourth century by a lex Poetelia Papiria (326 or 313 BC).

Mancipatio proved a more durable institution. The provision in the XII Tables introduces a verbal dimension to the formal act, allowing the parties to specify the terms of the contract to be concluded. Originally the solemn utterance before witnesses or nuncupatio may have been more or less fixed, prescribed words being imposed on the parties. The fact that the same ritual per aes et libram was performed in widely different contexts - such as the making of a will or a donation, the conveyance of property, the constitution of a dowry or servitude, the emancipation of a dependant, or the contracting of a loan - would point to a wider range of prescribed statements.

It is remarkable that the XII Tables, for all the provisions (between 88 and 109) that are preserved or reconstructed, have little to say about commerce.³⁸ Table 3.5 and 3.6 allude incidentally to periodic market- days (nundinae). Some other clauses are pregnant with important features of later legal developments in the law of commerce, such as the civil liability of masters for the (wrong)doings of their dependants (table 8.2 and 12.2, noxa), deceit (table 8.10, fraus), and malice aforethought (table 8.9, dolus malus). Much of the law, however, is concerned with criminal law, police regulation, and civil procedure. This latter field, with its reliance on the role of magistrates, would despite its formalism prove instrumental in the development of much of the Roman law of commerce over the next three centuries or so (mid-fifth to late-second century BC).

5.