The Praetor's Edict

Both the urban and peregrine praetors issued edicts, which were valid and possibly binding during their one-year term in office, at the end of which individual edicts could either be dropped or renewed by transfer into the successor’s edict.⁶⁵ Dio Cassius reports that in 67 BC a plebeian tribune named C.

not all remedies (dikaiomata) which were required in order to enforce contracts. This piece of legislation was part of a larger package aimed at curbing corruption on the part of the senatorial class and ensuring legal consistency. It may have re-enacted an earlier custom or law that had been neglected or breached during the 80s and 70s BC.⁶

The making of praetorian edicts during the republic and early empire is something of a mystery.⁶⁷ Of all the edicts preserved or recon­structed, none can be dated precisely and a few only roughly. Vague termini ante quos are provided by quotation, mention, or allusion in the commentaries on the edict by republican and Augustan jurists such as Servius Sulpicius Rufus, Ofilius, or Labeo. The sum of those edicts that had been retained over the years was codified in about AD 130 to form the Edictum Perpetuum. What remains of the edict of the urban praetor was reconstructed by Otto Lenel in the nineteenth century on the basis of the structure of Justinian’s Code and Digest and the numerous quotations preserved in the Digest, especially from the commentaries on the edict by Paul (80 books) and Ulpian (81 books).⁶⁸ What survives amounts to 292 entries (rubricae) distributed into 45 titles in 5 parts.

The urban praetor’s edict contributes a great deal to our knowledge of Roman business law, since 9 titles out of 45, and more than 40 rubrics out of 292, deal with legal issues concerning commerce.⁷⁰ Unsurprisingly, this means maritime law; banking; agency; contracts between private individuals, and between private individuals or companies and the Roman government; securities; and procedure. The question is whether any of the edicts concern traders to the exclusion of other actors parti­cipating in legal transactions. The answer is unambiguously positive, although such cases are rather limited.

Title XIX of the edict (§§ 106-112) introduced the good-faith remedies (De bonae fidei iudiciis) that are central to economic activities. The real contract of deposit (D. 16.3), fiducia as a form of real security,⁷¹ and the consensual contracts of mandate (D. 17.1), partnership (D. 17.2), sale (D. 19.1), and hire (D. 19.2) were all devised during the mid­republican period. They usefully supplemented the older, flexible but formal oral contract of stipulatio in that they considered questions of will, permission, and awareness (or the lack of it) in relation to the parties to a contract. By enabling transactions to be carried out without the presence of one or both parties, they opened the door to a major innovation: the law of indirect agency (see below, 228).