Towards a History of Roman Business Law: FromBarter to Sale
‘Buying and selling originate with exchange or barter.’ These are the opening words of the title on sale in Justinian’s Digest, excerpted from Paul’s commentary on the praetorian edict (D.
18.1.1 pr.). Trade certainly existed before the extant sources reveal how Roman law dealt with it. In a pre-monetized society, the exchange of goods and services was presumably based on barter or exchange (amoibe or permutatio).11 In spite of the symmetrical feature of barter that both parties were equally uncertain about the quality of goods to be obtained,12 classical jurists viewed barter as an impediment to trade because of the difficulty of matching demand to supply. To be sure, some commodities (such as cattle, metals, slaves, staples) were deemed universally desirable and used as monetary instruments at a very early date. The consensus on a constant medium of exchange eventually took the form of coinage. While relying on bronze bullion (aes rude/grave), the Romans started using Greek coinage by the fifth or fourth century BC and coined their own by the early third. Barter undoubtedly gave rise to disputes in early Rome, but there is no trace of any litigation connected with it. It is possible that it was not legally recognized before a much later period and that social control was sufficient to settle such disputes. Besides, non-monetary commercial exchanges must have existed throughout Roman history, especially wherever and whenever currency was a scarce commodity and monetization an unfamiliar abstraction. Even though the geographer Strabo, active in the Augustan period, associates barter with backwardness and the uncivilized way of life typical of marginal, unassimilated tribes,13 it must have been a Roman reality all along.Classical Roman jurists knew of the practice of barter and dealt with it rather marginally. In the first century AD Sabinus and Cassius thought of it as equivalent to sale, while Nerva and Proculus disagreed with them.14 The mid-second-century jurist Gaius,15 following Sabinus, underlines its antiquity by citing Homer16 and reports earlier disputes concerning its contractual status.
Around the time of Trajan, Sextus Pedius and Aristo, both cited and followed by Paul a century later,17 address issues by analogy with the consensual contract of sale (emptio venditio). Paul - the only classical jurist whose works are excerpted in the title of the Digest dealing with barter (D. 19.4, De rerum permutatione) - wonders about the nature of the obligation arising from such a transaction, buyer (emptor) and seller (venditor), price (pretium) and goods (merx) being indistinguishable from one another, causing difficulty in the event of non-delivery or eviction.18 It is only in the late classical period that barter was promoted from the status of ‘unenforceable pactum to that of so-called ‘innominate real contract’. Justinian’s Code preserves several imperial constitutions from the mid- and late third century AD on the subject. 19 This suggests that payments in kind may have increased when the Roman monetary system was in disarray, and the need to regulate this type of commercial exchange may have become more urgent.The history of barter in Roman law serves as a reminder that not all economic transactions were necessarily sanctioned by law.20 For commerce in general the first (that is, both the earliest and most prominent) problem to be dealt with is legal recognition and therefore jurisdiction.