VII CONCLUSIONS
The orthodoxy is that the Roman economy was undeveloped; and evidence for the extent and importance of trade and commerce is inadequate (Garnsey and Saller 1987: 43, 47).
It is true that in Roman times trade and business were relatively insignificant compared with land. But they were not neglected by the law. Although it is conceivable that the jurists might have created a mass of commercial law in the absence of any significant commercial practice in which to employ it, it does seem doubtful whether they would have developed structures and rules of much sophistication if their economy went little beyond exchange for purposes of subsistence.Yet the sorts of structures and rules considered in this chapter are of considerable sophistication. Although some relics of the past remained, such as the impossibility of sales of generic goods and some inconveniences in the law of real security, mostly these can be understood and could be overcome: for example, because stipulatio would be used for a generic sale and personal security would regularly be used in preference to real security.
The documents of practice also indicate that complex commercial transactions did not take place purely in the imagination of the jurists. Many of the documents demonstrate remarkable fidelity to the law described in the legal sources. It is, however, also true that the documents throw up puzzles which the legal sources do not. To conclude with just one: it is common to think of ‘good faith' contracts as having the advantage of simplicity. But what practice seems to confirm beyond question is the continuing vitality and importance of the formal contract of stipulatio. Time and again what we find in practice is a detailed contract (such as the sales, building contracts and partnerships mentioned above) confirmed by a stipulatio. This means that the parties gave up the apparent benefits of the good faith contract — ease of formation, implied terms, a less rigid procedural regime (see the next chapter) — in favour of a contract which required to be entered into formally, the parties (or their representatives) face to face, and which would be interpreted strictly. The message is not unambiguous. It is not possible to decipher it with any conviction here. But it does at least seem possible that to the Romans the archetype of contract remained the formal promise, and the strictness with which it was interpreted offered the welcome benefit of certainty.