IV CONTRACTS OF SERVICE

From a vast range of possibilities, there is space only to glance at two types of contract, contracts for carriage of goods or persons, and build­ing contracts.

1.

Carriage of goods would generally be governed by the contract of hire (locatio conductio'). But there was more than one way in which the parties could construct their contractual relationship, and which way they chose will no doubt have depended not just on the particular result they aimed at but also on their relative bargaining positions. For example, they

Contracts of service

97 might enter into a contract purely for hire of the ship itself. A contract in this form would not go into the question of delivery of goods at any particular destination; so the rent would be due regardless whether the goods were delivered (Scaevola, D. 19.2.61.1).

On the other hand, a proper construction of the contract might indi­cate that its object was the transporting of particular goods or persons from one place to another. An example of this sort is found in a papyrus of ad 236, in which the master of a ship agrees to transport 250 artabae of pulses to Oxyrhynchus for a rental of 100 silver drachmae, 40 payable at once and 60 on delivery. The contract allows time for loading and four days for unloading at Oxyrhynchus, but if the ship is still occupied after that there is an additional charge of 16 drachmae per day (FIRA 3.155). In this sort of case, if the delivery did not arrive at the contracted desti­nation, it is likely that no payment would be due (Ulpian, D.

The carriage of goods by sea was risky; from time to time it was nec­essary to jettison cargo in order to save a foundering ship. This might work harshly if the ship was saved but the loss of the cargo simply lay where it fell, on the owner of the particular jettisoned cargo. The Romans therefore, like other Mediterranean nations, adopted the rule of the lex Rhodia to distribute losses equally among all the cargo owners. This result was reached by making use of the ordinary contractual actions: so those whose goods had been lost would sue the master of the ship for breach of contract (actio locati), while those whose goods had been preserved would be liable to be sued by him for a contribution or (more simply) their goods would not be released until they had contrib­uted (Paul, D. 14.2.2 pr.). The application of the rule of the lex Rhodia gave rise to a number of intriguing problems: was damage to the ship to be treated on an equal footing with damage to cargo? No — this loss falls

on the master of the ship. Were those whose cargo — for example, pearls - in effect added no weight also liable to contribute? Yes.

2. Building contracts

Building contracts are interesting because they present some of the problems of other contracts writ large: they may involve substantial sums of money; they are relatively long-term; they are complex; and the buildings are meant to last (as indeed some of the Roman ones actually did). These features raise peculiarities about design, terms for payment, risk, and warranties for defects. All of these problems are familiar enough in modern practice.

The Roman sources indicate that building contracts were entered into both by means of stipulatio and also by means of the contract of hire (locatio conductio): in this case the employer (locator) let out the job of con­struction to the contractor (conductor). Although no detailed examples of the stipulatio form of a building contract appear to survive, it would be possible (as we have seen in other contexts) for a detailed document to be confirmed by stipulatio (Proculus, D. 45.1.113 pr.; Papinian, D. 45.1.124). The contract would normally at least provide for a completion date, failing which a reasonable time would be understood (Labeo, D. 19.2.58.1), and for the specifications to which the building was to be built. A clear surviving documentary example of a building specification is the public works contract to build a wall at Puteoli: there great detail is given about what materials and measurements are to be used (FIRA 3.153 of 105 bc; cf. Cato, de agricultura 14—15; Labeo, D. 19.2.60.3; Martin 1989).

Roman building contracts fell into two categories still commonly in use today: lump sum and measured work.

The critical moment in the contract was when the building was com­pleted and had to be approved by the employer. At least in later law, the standard of approval seems not to have been purely subjective but to have been that of a ‘reasonable man’ (bonus vir. Paul, D. 19.2.24 pr.). Approval of the building meant that final payment was due, as well as that the risk now lay wholly on the employer. In particular, it meant that if defects later emerged in the building they were the responsibility of the employer: in modern terms, there was no defects liability period after final approval had been given, unless approval had only been given because the contractor had fraudulently concealed defects in the work (Paul, D. 19.2.24 pr.). It would, of course, be possible to contract for a more extensive defects liability.