name=bookmark2227>How Roman is the Roman Law in the Modern Civil Codes?
Misunderstandings, Different Layers of Tradition, Ambiguities
In all of these and in many other cases, our modern law and legal thinking have been moulded by Roman law.
Yet hardly ever are the modern rules identical to Roman law (or with one another!).35 Occasionally, the Roman model has even been turned on its head. Quasi-delict, as we see it today, was a systematic niche for a number of instances of extracontractual no-fault liability; these were kept apart from delictual liability, which depended upon fault.36 For a long time, however, lawyers proceeded on the assumption that delictual liability was tantamount to intentional damage done to another, while quasi-delictual liability covered cases of negligence.37 That misconception, which was caused by Justinian’s attempt to reconceptualize the sources of classical law from the point of view of a generalized requirement of culpa, was shared by the draftsmen of the Code civil. But since liability for damage done negligently and damage done intentionally were placed on the same footing, the distinction between delictual and quasi-delictual liability had lost its significance. In addition, an appropriate place to accommodate the phenomenon of no-fault liability within the system of private law was now lacking.38 Interpretation of the phrase ‘ipso iure’ in the sense of ‘sine facto hominis’ (that is, occurring automatically) was also based on a misunderstanding of the Roman sources. Originally, it had been intended to signify that set-off was not to be effected by the judge but that the plaintiff was forced ‘by the law itself' to subtract the amount of the counterclaim from his own claim.39 Moreover, the relevant sources merely concerned one specific type of set-off: the agere cum compensartene of the banker. Unlike modern law, Roman law did not recognize a uniform legal institution of set-off with standardized requirements: reflecting the ‘actional’ character of Roman law, four different types of set-off were distinguished.40 With regard to bonae fidei iudicia, for example, set-off had to be pleaded. Justinian, too, in one of his constitutions stated that set-off must be declared;41 and that statement was destined ultimately to shape the model of set-off that we find today in German law.42Thus we are faced with a situation in which two completely different solutions to one and the same problem both find their origin in Roman law. It is not the only one. Mora creditoris (delay in accepting performance) provides another example, for both the concept that has found its way into the BGB (the creditor does not infringe a duty vis-à-vis his debtor and is not liable for damages but merely jeopardizes his own legal position in a number of respects) and the idea of mora creditoris constituting the mirror image of mora debitoris (and thus focusing on duty, fault, and damages) derive from Roman law.43 Transfer of ownership as an ‘abstract’ legal act or as being based on a just cause (iusta causa traditionis) may also be mentioned.44 It has even happened that two different solutions are based on one and the same fragment in the Digest. Gaius D. 19.2.25.7 is a case in point. Here someone who had contracted to transport columns was held to be responsible for damage done to the columns ‘if they are damaged due to his own fault and/or the fault of those whom he used for the transport’ (si qua ipsius eorumque, quorum opera uteretur, culpa acciderit). If que in eorumque is interpreted disjunctively,45 the text provides a basis for a strict type of liability to be imposed on an entrepreneur for damage negligently caused by his employees. We find that solution today, so far as delictual liability is concerned, in art.
1384 Code civil.46 Nineteenth-century German pan- dectists, on the other hand, understood the text to impose liability on the entrepreneur if he himself and those who had been employed by him had been at fault.47 On that interpretation the text fitted in neatly with a precept very widely taken as axiomatic in contemporary scholarship, namely that extracontractual liability must be based on fault;48 and it could be adduced in favour of the fault-based liability for the acts of others that we still find today in § 831 BGB.49 style='text-indent:0cm;line-height:112%'>... magis differat, quam avis a quadrupedeContracts can be formed nudo consensu, by mere informal agreement. This basic principle goes back to Roman law. And yet in Roman law it was valid only in certain situations; the general rule was that an informal agreement does not give rise to an action (nuda pactio obligationem non parit).50 Agreements are to be observed (pacta sunt servanda) was a sentence that was formulated for the first time in the Corpus iuris canonici, the medieval collection of Canon law.51 The development of contracts in favour of a third party, the law of agency, and the assignment of claims were for a long time impeded by the Roman idea of an obligation as a strictly personal legal bond between those who had concluded the con- tract.52 At the same time, however, the Corpus iuris civilis contained a number of crucial points of departure for the eventual abandonment of this restrictive view.53 One single, apparently innocuous text contained in the Codex Iustiniani54 was to become the catalyst for the general actio de in rem verso (action for whatever has been used to enrich another person’s property) of French law,55 which, as such, is undoubtedly un-Roman. The condictio indebiti of modern German law, on the other hand, does have a model in Roman law, although one from which it differs considerably.
Thus, for example, the Roman condictio indebiti lay for enrichment received rather than enrichment surviving;56 also, it required a mistaken payment of something that was not owed. Two conflicting sources contained in the Corpus iuris civilis - one by Papinian,57 the other attributed to the Emperors Diocletian and Maximian58 — provided the main arguments in a centuries-old debate about the relevance, in this context, of an error of law.59 In view of the recognition of pacta sunt servanda, the condictio causa data causa non secuta has largely lost its function; the condictio ob turpem vel iniustam causam has lost its completely. 0 As a result, the application of the in pari turpitudine rule has also become problematical.61 Since the Roman condictiones in a way supplemented the fragmented Roman contract law,62 recognition of the general concept of contract in the early modern period also paved the way towards a general enrichment action. This was pursued above all by Hugo Grotius,63 the French Cour de cassation,lang=EN-US style='font-size:9.5pt;line-height:115%; font-family:"Arial",sans-serif;font-style:italic'>64 and Friedrich Carl von Savigny.65 Each used different points of departure. Generalization of the liability for unjustified enrichment was in turn bound to affect the significance of the Roman rules on compensation for expenditure: if a person who had made improvements on an object belonging to someone else could avail himself of an enrichment claim, he no longer had to be protected by a special set of rules. The draftsmen of the BGB nonetheless decided to retain these special rules (§§ 994ff BGB); but, by doing so, they had to turn their ratio on its head.66 The decision to preserve the Roman rules under different auspices and within a changed doctrinal environment turned out to be distinctly unfortunate.67 Delictual liability, too, was both modernized and generalized in medieval and early modern jurisprudence.68 Again, it was possible to latch on to the successful attempts of Roman jurisprudence to convert a narrowly confined and strangely formulated enactment from the third century BC, the lex Aquilia, into a central pillar of the Roman law of delict.69 Medieval and early modern lawyers continued to refer to ‘Aquilian’ liability, even though it had come to differ from its Roman origin ‘more than a bird from a quadruped’.70 That prompted Christian Thomasius in the early eighteenth century to ‘tear off the Aquilian mask’ from the action for damage done.71 And yet modern delict is still based on concepts (particularly unlawfulness and fault) that originate in Roman law but cause considerable difficulties in view of the fact that the function of the modern law of delict differs from its Roman forebear.72 The Roman law of sale was tailored exclusively for the sale of specific objects; the extension of its rules to the sale of objects described as being of a particular kind, or belonging to a particular class (unascertained goods), is due to one of many ‘productive misunderstandings’73 of the Roman sources by medieval jurisprudence.74 That extension was a very progressive step, for the sale of unascertained goods was to become practically much more signifilang=EN-US>cant than the sale of individual objects. Yet at the same time a number of the rules of Roman sales law were hardly suitable for that type of transaction, above all the old rule that with the conclusion of the contract of sale, the risk passes to the buyer (emptione perfecta periculum est emptoris),75 and the aedilician liability for latent defects.76 The first of these problems was eventually resolved by the draftsmen of the BGB, who established a risk rule differing from Roman law (§ 446 BGB),77 while the other, in spite of the compromise laid down in § 480 BGB (old version), essentially remained unsettled.784.