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«Introduction The early Principate saw the emergence of two law schools in Rome, the Sabinian or Cassian school and the Proculian school. Their ...»

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The controversy about the nature of the price

in a contract of sale


(Université de Tilburg)


The early Principate saw the emergence of two law schools in

Rome, the Sabinian or Cassian school and the Proculian school. Their

representatives defended opposite positions over some points of law,

the so-called controversies. Both the Institutes of Gaius and the Digest

of Justinian mention these controversies. Hitherto, Romanists

generally believed that there was a fundamental difference between the two schools and that each school represented one side of a doctrinal coin1. They also believed that the study of the controversies would reveal the nature of their opposing doctrines. All sorts of suggestions have been made, for instance, that their doctrinal difference derived from their adherence to different philosophical, political, or methodological traditions, but, so far, without any success. Romanists have never been able to single out one particular tradition or theory that could have been at the root of each controversy.

The aim of my study is to find an explanation for the controversies by throwing a new light on the subject. In my view, the controversies cannot be placed under one common denominator: there is no internal consistency among the positions of the Sabinians, nor among the See, for example, P.STEIN, The Two Schools of Jurists in the Early Roman Principate, CLJ 31 (1972), pp.8-31; G.L.FALCHI, Le controversie tra Sabiniani e Proculiani, Milano 1981; O.BEHRENDS, Giurisprudenze e giuristi. Le due giurisprudenze romane e le forme delle loro argomentazioni, Index 12 (1983), pp.189-225; M.G.SCACCHETTI, Note sulle differenze di metodo fra Sabiniani e Proculiani, in Studi in onore di Arnaldo Biscardi, V, Milano 1984, pp.369-404.


positions of the Proculians. On the contrary, for each conflict the representatives of the schools have constructed a new and individual argumentation in support of their view. In order to demonstrate this, the arguments, as mentioned in the sources, are to be analysed. If it can be shown that the jurists used rhetoric and, in particular, topoi to find their arguments and that, each time, they did so in a different way, it may be concluded that there is no coherent element binding the controversies with each other, and that the representatives of the schools have constructed for each individual legal problem an adequate argumentation.

The legal problems at the root of the controversies were not primarily of a theoretical, but also of a practical nature. When citizens were confronted with a legal problem, originating in daily life, they could consult jurists and ask them for advice. The jurists formulated a solution to the advantage of the party who consulted them2. The controversies between the Sabinians and the Proculians were of extraordinary importance, because the leaders of the schools held the ius publice respondendi ex auctoritate principis. This means that they could give advice on behalf of the res publica, i.e., with the authority of the emperor3. If, therefore, both the head of the Sabinian and of the Proculian school gave conflicting advices about a specific dispute, the judges were bound by both advices and a so-called controversy arose.

The object of this paper is to demonstrate a connection between the arguments and the topoi by means of the controversy in Gai.3.141.

For this purpose, I will first discuss the text of Gaius and two relevant texts of Paul in the Digest. These texts mention the opposite opinions of the Sabinians and the Proculians as well as the arguments in A text of Cicero (De or., 1.239-240) demonstrates that it was not uncommon for a jurist to give an advice that served the cause of the citizen who consulted him. A citizen from the countryside consulted Publius Crassus on a legal problem and the jurist gave an advice that was not to the citizen’s advantage. Servius Galba, who supported Crassus’ candidature for the office of aedile, noticed that the citizen was disappointed and asked him what he had consulted Crassus about. The man presented his legal problem to Galba, who gave him a different advice that did serve his purpose. In support of his view, Galba cited several parallel cases and argued against a strict interpretation of the law, but for an equitable one. Crassus, at his turn, referred to some authorities in order to support his view, but eventually had to admit that Galba’s argumentation seemed plausible and even correct.

This view has already been held by J.W.TELLEGEN, Gaius Cassius and the Schola Cassiana in Pliny’s letter VII 24.8, SZ 150 (1988), pp.263-311.


support of their views. In the second part, the modern explanation of this controversy that is usually given will be discussed and countered.

Finally, in the third part, I will demonstrate that both the argumentation of the Sabinian and of the Proculian school can be linked to a particular topos deriving from the Topica.

1. Gai.3.141: Text and controversy The controversy about the nature of the price in a contract of sale is

found in the Institutes of Gaius (Gai.3.141):

Item pretium in numerata pecunia con||sistere debet. Nam in ceteris rebus an pretium esse possit, veluti homo aut toga aut fundus alterius rei pretium esse possit, valde quaeritur. Nostri praeceptores putant etiam in alia re posse consistere pretium; unde illud est, quod vulgo putant per permutationem rerum emptionem et venditionem contrahi, eamque speciem emptionis venditionisque vetustissimam esse; argumentoque

utuntur Graeco poeta Homero, qui aliqua parte sic ait:

‘nuen •r o˝nºzonto kårh komøvnteq |Axaioº, “lloi m‚n xalkˆ, “lloi d| a¬uvni sid¸rÛ, “lloi d‚ rino¡q, “lloi d| aªtÎsi bøessin, “lloi d|Ωndrapødessi..

et reliqua. Diversae scholae auctores dissentiunt aliudque esse existimant permutationem rerum, aliud emptionem et venditionem;

alioquin non posse rem expediri permutatis rebus, quae videatur res venisse et quae pretii nomine data esse, sed rursus utramque rem videri et venisse et utramque pretii nomine datam esse absurdum videri. Sed ait Caelius Sabinus, si rem tibi venalem habenti, veluti fundum, [acceperim et] pretii nomine hominem forte dederim, fundum quidem videri venisse, hominem autem pretii nomine datum esse, ut fundus acciperetur4.

Likewise, the price must be in money. There is, however, much question whether the price can consist of other things, for example, whether a slave, or a toga, or a piece of land can serve as a price for another thing. Our teachers think that the price can also consist of another thing. Hence they commonly think that by bartering things a contract of sale is concluded and that this is the most ancient form of For the text edition, see, H.L.W.NELSON/U.MANTHE, Gai Institutiones III 88-181.

Die Kontraktsobligationen, Berlin 1999, pp.43-44.

–  –  –

sale5. And by way of argument they bring forward the Greek poet Homer, who has said somewhere: ‘Thence the long-haired Achaeans procured wine, some in exchange for bronze, others in exchange for gleaming steel, some for hides and others for the live cattle, and some for slaves’ and so on.

The authorities of the other school disagree and hold that bartering things is one thing and that sale is another.

Otherwise, when things are exchanged one cannot determine which thing is considered as having been sold and which as having been given by way of price. But, on the other hand, it seems absurd that both things are considered as sold and as given by way of price at the same time. Caelius Sabinus, however, has said that, if I have given to you, who offers a thing for sale – e.g., a piece of land – a slave by way of price, then the piece of land is considered as having been sold and the slave as having been given by way of price in order to acquire the piece of land.

This text is situated in the third book of Gaius’ Institutes, in the part on emptio venditio (Gai.3.139-141). In this part, Gaius has discussed some requirements for a contract of sale.

The legal question in Gai.3.141 is the following: ‘Did the price in a contract of sale necessarily have to consist of money or could it also consist of other things, such as a slave, a toga, or a piece of land?’ This question was the subject of one of the most famous school controversies in classical Roman law6. According to the Sabinians W.M.GORDON/O.F.ROBINSON, The Institutes of Gaius, London 1988, p.345, have given an alternative translation: ‘That is their inference from the common belief that an exchange of things is sale, actually the oldest type.’ Their translation is prompted by an interpretation of the text. According to Gordon and Robinson, the Sabinians were in agreement with the common opinion (vulgo) that barter was a form of sale. In the same vein, J.E.SPRUIT/K.BONGENAAR, De Instituten van Gaius, Zutphen 1982, p.133. However, I think that the Sabinians are the subject of the verb putant and that, therefore, Gaius means that the majority of the Sabinians commonly held that by exchange of things a contract of sale was concluded. J.REINACH, Gaius Institutes,

Paris 1950, p.118, furthermore, does not make it clear who is the subject of putant:

‘De là, l’opinion commune que l’achat-vente peut être fait sous forme de troc…’ Oltmans and De Zulueta, on the other hand, gave the correct translation.

A.C.OLTMANS, De Instituten van Gaius, (3rd ed.), Groningen 1967, p.138: ‘Vandaar komt het, dat zij over het algemeen denken, dat koop en verkoop door ruil van zaken worden gesloten.’; F.DE ZULUETA, The Institutes of Gaius. Part I: Text with Critical Notes and Translation, (3rd ed.), Oxford 1958, p.197: ‘Hence their opinion commonly is that by exchange of things a sale is contracted.’ Regarding the nature of the price in a contract of sale, see, O.KARLOWA, Römische Rechtsgeschichte, I, Leipzig 1885, pp.663-664; G.BAVIERA, Le due scuole dei


(nostri praeceptores), the price did not necessarily have to consist of money; it could also consist of other things. The Proculians (diversae scholae auctores), on the other hand, required that the price consisted of cash money.

Gaius listed the arguments used by the Sabinians and the Proculians in support of their view. The Sabinians argued that barter was a species of sale and, more specifically, its oldest species. They invoked the authority of the Greek poet Homer and referred to certain lines in the lliad, namely Hom., Il., 7.472-475. At this point in the Iliad, the Achaeans and the Trojans agreed to a truce in order to collect and burn the bodies of the men killed on the battlefield. Both the Achaeans and the Trojans grieved about the loss of their fellow combatants. At sunset, the hard task of the Greeks was accomplished.

They slaughtered oxen and had dinner in their tents. From Lemnos, ships with wine on board had arrived. These ships had been sent by Euneas and contained a thousand jars of wine for Agamemnon and giureconsulti romani, Firenze 1898 (repr. Roma 1970), pp.86-90; B.KÜBLER, Rechtsschulen, RE 2.1 (1914), c.387; E.BETTI, Sul valore dogmatico della categoria ‘contrahere’, BIDR 28 (1915), pp.27-29; F.STELLA-MARANCA, Omero nelle Pandette, BIDR 35 (1927), pp.1-53; F.DE ZULUETA, The Roman Law of Sale, Oxford 1945, pp.16-18; D.DAUBE, The Three Quotations from Homer in Digest, CLJ 10 (1948-1950), pp.213-215; C.A.MASCHI, Impostazione storica della compravendita e della permuta nel libro 33 ad edictum di Paolo, Studi in onore di Pietro de Francisci, II, Milano 1956, pp.357-389; P.MEYLAN, Permutatio rerum, Ius et Lex: Festgabe zum

70. Geburtstag von Max Gutzwiller, Basel 1959, pp.45-63; F.DE ZULUETA, The Institutes of Gaius. Part II: Commentary, (2nd ed.), Oxford 1963, pp.167-170;

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