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Societas as Consensual Contract

Published online by Cambridge University Press:  16 January 2009

David Daube
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Everybody knows how Rabelais dumbfounded, ere they had yet found time to speak out, those unruly spirits who would not trust his account of the miraculous nativity of the horrific Gargantua. Pourquoy ne le croiriez vous? he exclaimed. Pour ce, dictes vous, qu'il n'y a nulle apparence. Je vous dicz que pour ceste seule cause vous le debvez croire en foy parfaicte. Car les Sorbonistes disent que foy est argument des choses de nulle apparence. Fortunately enough, modern interpolationists have not yet made use of this argument. And it is still possible, there-fore, to put in a word for some good classical texts and concepts which we are asked to regard as the miraculous offspring of the horrific Tribonian.

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Research Article
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The Cambridge Law Journal , Volume 6 , Issue 3 , November 1938 , pp. 381 - 403
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Copyright © Cambridge Law Journal and Contributors 1938

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References

1 As Professor De Zulueta puts it, in Supplements to the Institutes of Gaius, , 1935, p. 8, ‘the OF variants from V are required for critical work, but their chief significance is precisely their insignificance’Google Scholar.

2 See E. Levy, Neue Bruchstücke aus den Institutionen des Gaius, Zeitschrift der Savigny-Stiftung, 1934, pp. 291 et seq.

3 On the other hand, however, it may well be that societas unius negotiations and the like came to be recognized simultaneously with societas omnium bonorum. See below, n. 29.

4 Societas: Hausgemeinschaft und Erwerbsgesellschaft, 1936. The book, written under the guidance of F. Pringsheim, will be followed by a second volume (see p. 23 of the first volume) in which the author will discuss not the history, but the classical system of societas as such.

5 Op. cit. p. 12.

6 Pp. 25, 51 et seq.

7 Pp. 24, 41, 71, 106 et seq., 176. Some vague modification on p. 175.

8 Pp. 8 et seq., 24, 78 et seq. On p. 74, however, Dr. Wieacker remarks that societas was first classed as consensual contract ‘ in the late classical system of Institutes ’, and on p. 75 that the innovation is ‘ in no case prior to that work on which Gaius based himself ’.

9 Pp. 63, 79 et seq., 175 et seq.

10 Pp. 9, 12 et seq., 52. He proposes to elaborate this point in the second volume of his work.

11 Pp. 176, 274.

12 Pp. 9, 12, 53, 176, 278, 343.

13 Dr. Wieacker, p. 41, says that Lenel in his Sabinussystem definitely assumes two separate chapters in the Ius Civile, one De societate and another De communione. I find no statement to this effect in Lenel. In fact he speaks of one rubric only, entitled De societate et de communione. On the other hand, however, he very reasonably does not jump to the conclusion that Sabinus saw no substantial difference between societas and communio.

14 Wieacker, loc. cit. pp. 41 et seq. Frezza, however, rightly admits that consensual societas was fully recognized and worked out already by Sabinus.

15 Dr. Wieacker, p. 175, claims that ius gentium in G. 3. 154 has nothing to do with ius naturale, in other words, that Gaius does not represent consensual societas as iuris naturalis. He holds that it actually is consortium heredum and consortium made by legis actio which Gaius refers to ius naturale, by speaking of a societas legitima simul et naturalis: and consequently, he argues, the jurist cannot also think of ius naturale in discussing consensual societas. It is difficult to follow this reasoning. As a matter of fact there can be no doubt that consensual societas, for Gaius, does fall under ius naturale. We have to consider not only that he generally associates ius gentium and ius naturale (cp. the definition at the very beginning of his Institutes) but, above all, the explicit statement in 3. 154 that consensual societas, as a branch of ius gentium, inter omnes homines naturali ratione consistit. What about the legitima simul et naturalis societas? These words have regard only to the consortium of sui heredes (olim enim, reads Gaius, mortuo patre familias inter suos heredes quaedam erat legitima simul et naturalis societas). They clearly do not refer to the artificial consortium—which is very' understandable: this type of partnership is created by a peculiarly Roman ceremony. The result, then, is that the ancient consortium of sui heredes and consensual societas are at once contrasted and paralleled with each other by Gaius: see Zulueta, F. De, The New Fragments of Gaius, Part 2, Journal of Roman Studies, 1935, p. 20Google Scholar. The former is ‘ legitimate ’ (because a resultant of the Roman system of succession and mentioned in the XII Tables) whilst the latter is not. But both of them arc ‘ natural ’: the settling down of brothers to a lasting union is consonant with an innate impulse of man just as much as consensual societas, and in neither of the two cases are special formalities required. We may add that the classification as ‘ natural ’ both of societas fratrum and consensual societas is one more proof that Gains does not intend to exclude the latter from ius civile in the Sabinian sense. Dr. Wieacker himself admits that consortium fratrum was civil enough even for Sabinus.

16 Its decay must have set in at a much earlier date. According to Dr. Wieacker a remark in Pro Quinetio 24 (76) suggests that for Cicero the consortium made by legis actio may still have been a common form of partnership: cum eo tu voluntariam societatem coibas qui te in hereditaria societate fraudabat? Dr. Wieacker believes (pp. 111, 176) that the hereditaria societas of which Cicero is here speaking consists in an involuntary community of sui heredes. With this old civil community, he says, a voluntaria societas is paired off. Hence he infers that the voluntaria societas also is in all probability an institution of the old civil law: it is, in other words, the artificial consortium. This deduction, however, is not sound in itself. If I mention two men of whom one is old, it does not follow that the other must be old as well. But apart from this, the whole argument rests on a complete misinterpretation of the passage under notice. There appear no coheirs, let alone sui heredes, anywhere in the Quinctian case: in fact, not even a societas omnium bonorum is to be found. What Cicero means by hereditaria societas is, above all, this. Gaiua Quinctius, the brother of his client Publius, had been socius (unius negotiationis, joint exploitation of a farm) to a man called Naevius. Gaius died and Publius succeeded him by will. The actual full societas is now dissolved, but Publius qua heir must finish jobs only half done by Gaius and qua heir may sue, or be sued by, Naevius for unpaid debts dating from the societas. The actual societas, that is, has become hereditaria (the audience can have had no difficulty in understanding Cicero: actio hereditaria, e.g., is a similar expression frequently denoting that action which may be brought by, or against, the heir as such). Possibly the advocate, in using this phrase, has yet another object in view. He gives it to be understood that Naevius, by tacit consent, agreed to renew the dissolved partnership (dissolved on Gaius' death) with Publius, Gaius' heir, and continued in this fresh ‘ hereditaria societas ’ for several years though he now pretends to have been robbed by Publius from the very first. Be this as it may, since Cicero's hereditaria soctetas does not refer to a community of sui, there is not the slightest basis for Dr. Wieacker's conclusion (premature in any case) that the voluntaria societas must be a consortium made by legis actio. The conclusion actually is directly incompatible with the text. A glance at the speech will show that voluntaria societas signifies anything but a fellowship solemnly constituted before the praetor. If Cicero is accurate, Naevius gave out that Publius was his partner in the purchase of a particular estate (socium tibi in üs bonis edidisti Quinctium). Does this mean a complete community of goods and interests? Is there any hint here of a legis actio?

17 A careful interpretation of the Digest leads to the same result. In D. 17. 2. 19 Ulpian (XXX ad Sabinum) lays down that a socius cannot, by taking a partner, add him to the firm: cum enim societas consensu contrahatur, socius mihi esse non potest quem ego socium esse nolui. But Dr. Wieacker, p. 53, disposes of this and similar passages by saying that either the compilers are responsible or, if it is the classics, they only ‘ occasionally ’ make pro socio dependent on consensual societas.

18 P. 108

18 In this sense Kunkel, W., Römisches Privatrecht (P. Jörs), 2nd ed. 1935, p. 241, n. 3Google Scholar.

20 He did find them, of course, where a writer remarked on bygone custom, as is the case e.g. in G. 3. 154. It is true that this passage is wanting in I. 3. 25. But the omission does not involve, as Dr. Wieacker on p, 53 contends, a material alteration of the law. Gaius himself states explicitly that the ancient consortia he mentions are out of date: they existed, he says, olim (see W. Kunkel, op. cit. p. 242, n. 7). It is easily intelligible, therefore, why the compilers set them aside, After all they had to write a code, not a history.

21 Cp. the above-mentioned passage Pro Quinctio 24 (76)—coire—with 11 (38) of the same speech—contrahere.

22 P. 15.

23 See G. 3. 149 and D. 17. 2. 29. 1 cited below in this article, n. 28.

24 D. 17. 2. 74 (LXII ad edictum). Si quis societatem contraxerit, quod emit, ipsius fit, non commune: sed societatis iudicio cogitur rem communicare.

25 According to Gellius, Noctcs Atticae 1. 9. 12, the consortium called ercto non oito was created in the following way: quod quisque…habebat in medium dabat et ooiatur societas inseparabilis. De Officiia 1. 7 (22) is also interesting. Cicero says that as members of the humana societas we should communes utilitates u medium aflerre.

26 Certainly in pro socio a praescriptio pro adore is not available: litis contestatio inevitably dissolves the entire contract. Partners are expected to help, not to attack, each other, and going to law therefore is interpreted as renunciation (D. 17. 2. 65. pr.; Paulus XXXII ad edictum, referring to Proculus). But it is difficult to see why obligations of contribution should be less possible than where an action, restricted by a praescriptio, only destroys the individual claim raised. See also below, n. 30.

27 In the case of D. 39. 4. 9. 4 (Paulus V scntentiarum) it might easily come to litigation. Surely there is much to be said against automatic dissolution, because of one socius minus idoneus, of a big concern of tax-farmers.

28 G. 3. 149: nam et ita posse coiri societatem constat, ut unus pecuniam conferat, alter non conferat, et tamen lucrum inter eos commune sit; saepe enim opera alicuius pro pecunia valet. Cp. D. 17. 2. 29. 1 (Ulpianus XXX ad Sabinum): plerumque enim tanta est industria socii, ut plus societati conferat quam pecunia. No doubt the interpretation of opera and industria as pecunia may go back to a time when consortium of sui heredes was still the model on which other types of partnership were formed (see Wieacker, p. 18). In that consortium all members naturally were of equal property. When, in new types of partnership, real equality was no longer required, the jurists assumed an artificial equality by saying that a socius can make up with his brains for what he lacks in capital. But whatever the historical background, the fact remains that the classical lawyers, who are no longer concerned with the ancient consortium, construe as contributions both capital and work of a partner in consensual societas.

29 See W. Kunkel, op. cit. p. 241, n. 6. The view, advocated by Dr. Wieacker, that the earliest type of consensual societas was omnium bonorum, that omnium quae ex quaestu veniunt came next, then unius negotiationis, and unius rei last, rests on the postulate that law and all other systems governing social life develop in a beautifully logical manner. Unfortunately history, in reality, goes its own way. Why should not two friends, as soon as consensual societas was at all possible, have combined for a single transaction? Maybe the desirability of partnerships less radical than consortium was itself one of the causes that led to the recognition of consensual forms. Societas omnium, bonorum, one might perhaps object, shows archaic features such as do not occur in unius rei. But it is only natural that the rules applying in consortium had a greater influence on the formation of omnium bonorum than on any of the other societates. Moreover, where people become partners in all property and undertakings, some Bpecial provisions are simply necessary. In any case, as we have seen above, n. 16, societas unius negotiationis, e.g., was quite common in Cicero's time.

30 Justinian's innovation in D. 17. 2. 65. 15 appears far less revolutionary if only we bear in mind that pro socio, in practice, had regard to societas unius rei as frequently as to omnium bonorum. The process, in unius rei, concerns a particular affair only. What Justinian did was to admit a similar process in societas vectigalis, though the contract itself is here for a longer series of trans-actions. It even looks as if tendencies towards a reform of this kind existed rather early. In D. 17. 2. 65. pr. (Paul, with reference to Proculus) emphasis is laid on the fact that pro socio dissolves partnership sive totorum bonorum site unius rei societas coita sit. The jurist seems to protest against the view that in societates other than unius rei an action does not affect the relationship as a whole.

31 This point is not so negligible as Dr. Wieacker, p. 74, maintains. It should be observed, first.of all, that the formulas both of familiae erciscundae and communi dividundo included an intentio and a condcmnatio, in order, that inequality in division might be adjusted by payments. Whether or not there were the words ex fide bona we do not know. We do know, however, that the classics practically dealt with the matter in much the same way as with bonae fidei iudicia (Lenel, , Edictum Perpetuum, 3rd ed. 1927, pp. 208et seq., 211Google Scholar, n. 9). It follows that had societas been chiefly a relationship concerning status and belonging to the law of persons even in classical time, Julian would better have spared himself the trouble of shifting it to the general section on bonae fidei iudicia, and simply left it in one chapter with the old divisory actions. Secondly, Julian no doubt had some reason for putting pro socio precisely after mandati and before empti venditi. The reason is obvious. Societas, for the classics, was similar to mandate on the one hand, because of a fiduciary nature and making the partners managers for each other's affairs; to sale on the other, since the partners ‘ buy ’ each other's contributions. But even if one docs not agree with this explanation, the fact in any case remains that Julian placed societas between two contracts.

32 We dare not even mention that Cicero unfeelingly speaks of animus societatis and similar delicate things. Dr. Wieacker, p. 341, says that it is not permissible to refer to Cicero in this connection, because he frequently adopts metaphors from Greek philosophy.

33 All fragments are from Ulpian: fr. 31 from XXX ad Sabinum, 32 from II ad edictum, 33 from XXXI ad edictum.

34 Pp. 56 et seq.

35 Gaius X ad edictum provinciale. One might be inclined, at first sight, to think that the quotation of this fragment in Dr. Wieacker's book must be due to a misprint. But this is hot possible. Not only is the reference repeated six times on pp. 56 et seq., but on p. 57 Dr. Wieacker even gives full particulars: ‘D. 17. 2. 34, Gains X ad edictum, Sabinian mass’.

36 Inter eos quoque, quibus hereditario iure communis res est, posse et communi dividundo agi—Lenel: Sabinus ait. Dr. Wieacker, in his ex professo enumeration of those statements in D. 17. 2 which may go back to Sabinus (pp. 45 et seq.), takes no notice of Lenel's suggestion.

37 3rd ed. 1927, pp. XIX and 297.

38 Palingenesia Iuris Civilis, vol. 2, 1889, p. 425Google Scholar: in footnote 8 Lenel comments on the very fragment under notice, D. 17. 2. 32, and shows why the inscription must be regarded as intact.

39 Zeitschrift der Savigny-Stiftung, 1881, p. 37Google Scholar. Lenel refers to this article also in his discussion of vadimonium Romam faciendum in the Edictum Perpetuum, p. 55, n. 3.

40 Lenel, Beiträge zur Kunde des Edicts, loc. cit. p. 37, quotes Isidorus, Origines 15. 2. 10: liberates et, famosissitmae causae…ibi (i.e. in municipüs)non aguntur.

41 Cp. D. 50. 17. 104 and 47. 12. 1, also from Ulpian II ad edictum. On Paul's chapter de vadimonio see Lenel, Palingenesia and Beiträge.

42 A sound middle course is taken by Jolowicz, H. P., Historical Introduction to Roman Law, 1932, pp. 528et seq.Google Scholar

43 E.g. G. 3. 135 et seq.

44 Istituzioni di Diritto Romano, 2nd ed. 1928, vol. 2, pp. 30et seq.Google Scholar

45 Dr. Wieacker, p. 90, asserts that sentire means not only ‘to feel’ but also ‘to declare’ and that consentire, therefore, may well mean ‘to declare together’. In support of his statement concerning sentire he refers, n. 2, to Thesaurus Linguae Latinae s.v. consensus, consentire, without, however, specifying which of all the texts quoted in that lexicon he has in mind. In…tual fact the Thesaurus says not of a single passage that consensus or consentire has there a different meaning than Cicerc's ‘psychologically coloured’ consensus.

46 I gladly acknowledge my indebtedness, in this matter, to Buckland, W. W., A Text-Book of Roman Law, 2nd ed. 1932, pp. 413Google Scholaret seq., and to W. Kunkel, op. cit. p. 83, n. 7.

47 P. 82.

48 On nudus consensus see below, n. 52. In D. 2. 14. 1. 3 (Ulpianus IV ad edictum) the passage adeo autem—sive verbis fiat may be too short or too long, or both, as compared with the original Ulpian. This much, however, is certain: Ulpian cited Pedius for his view that the element of agreement is common to all contracts. We cannot, of course, discuss here each single text that has been declared corrupt because it contains a hint at the agreement underlying contract or pact. One example may suffice to show how careful we have to be in assuming alteration. Dr. Wieacker, p. 274, contends (as others before him) that 2. 14. 1. 2 is interpolated. His reason is that consensus in this passage signifies, not so much the declarations of the parties, as their actually coming to ‘subjective’ agreement. As paragraph 2 is closely connected with 1, we quote both of them: Pactum autem a pactione dicitur (inde etiam pacis nomen appellatum est); et est pactio duorum pluriumve in idem placitum (et!) consensus. Now first of all consensus, as we shall see, does refer to ‘subjective’ agreement already in classical works. Quite apart from that, however, it should be noted that Ulpian is not giving here a legal rule but one of those general explanations with which some jurists obviously liked to open a new chapter: he is giving the etymology of the word pactum. Is it correct to apply to a statement of this kind the same standard as, say, to a responsum in which everything depends on preciseness of expression?

49 Modern authorities, whilst eliminating every ‘subjective” notion from classical works, tend to interpret away every ‘objective’ notion from post-clasaical ones. Dr. Wieacker, p. 341, maintains that the Byzantine theory of διá0eσιç came to the Western Empire with the Turin Gloss of Justinian's Institutes. He is content with adducing, in proof of his view, the paraphrase of I. 3. 27. 3: ii qui societatem habent consensu vel obligationibus ad invicem obligantur, ii vero qui communionem habent eventu et ignorantia sibi coniuncti sunt. The antithesis, Dr. Wieacker argues, set up between consensus and ignorantia reflects the Byzantine doctrine as influenced by Aristotelean philosophy. He claims that the Turin Gloss no longer uses consensus as referring to the correspondent declarations of the parties, nor even as signifying the concurrence of their wills: the term, he holds, now denotes a ‘unilateral’ element of will in any one of the persons concerned, else ignorantia could not be opposed to it. As a matter of fact, however, the text does not contrast consensus and ignorantia as such (though even this would prove nothing): we are told that whilst societas is created ‘consensu vel obligationibus’, communio comes to existence ‘eventu et ignorantia’. The meaning no doubt is that whereas societas is based on an actual voluntary arrangement between the parties, they cannot in the same way bring about joint inheritance and legacy—the most frequent cases of communio. They become joint heirs, that is, without having made a contract, without even having foreseen what would happen at all. Whatever school of philosophy the author of the Turin Gloss may belong to, I fail to see the fundamental difference between this and the classical conception.

50 G. 3. 136.

51 Cp. G. 3. 136: Ideo autem istis modis consensu dicimus obligationes contrahi, quod neque verborum neque scripturae ulla proprietas desideratur, sed sufficit eos, qui negotium gerunt, consensisse.

52 The nudus consensus of G. 3. 154 should neither be declared a late gloss nor misinterpreted as external form (the latter course adopted by Dr. Wieacker, p. 101). Apart from the fact that it occurs in the new fragments (though V has consensu contrahitur nudo, PSI 1182 nudo consensu contrahitur), there is no reason to assume that the idea cannot be classical. Gaius contrasts consensual societas, based on ‘mere’ agreement, with the artificial consortium which obviously requires, in addition to consensus (sic; ‘subjective’ consensus), an elaborate ceremony: this scheme is not very different from that in 3. 136 where verborum and scripturae proprietas is opposed to sufficit consentire. Similarly, nudus concensus seems perfectly authentic at least in D. 46. 3. 80 (Pomponius IV ad Quintum Mucium) and 50. 17. 35 (Ulpianus XLVTII ad Sabinum).

53 Once we realize that consensus as used in the classification of contracts does mean ‘subjective’ (though expressed) agreement, the strange theory worked out by Dr. Wieacker on pp. 73 et seq., 101 et seq. proves a fallacy. As we have seen, he believes that classical law knew non-consensual as well as consensual partnership. Now he holds that to all these societates there was common a sort of permanent understanding between the members which, in his view, was entirely different from consensus as a mode of contract: it meant indeed, he says, ‘subjective’ harmony and is, ‘subjectivism’ being foreign to classical law, only to be explained as a remnant of joint-family and consortium fratrum where harmony was necessary for the continuance of the community. He states, pp. 73 and 80, that only Gaius ‘very erroneously’ took this permanent understanding to be the same with consensus as mode of contract. On p. 103, however, he says that it was Gaius, Pomponius and Diocletian who ‘incorrectly at least’ identified the two notions; and, on pp. 321 et seq., that the confusion is due to post-classical jurists and Tribonian. In actual fact, seeing that consensus refers to ‘subjective’ understanding also in the division of contracts, the lawyers are perfectly right in describing as consensus the permanent harmony between partners. Clearly, whilst consensus in sale and hire is required only once, namely to constitute the contract, one may well say that in partnership (and mandate, though this case is less important) it is required at any time, renunciation always being possible. But even if one assumes that consensus as a mode of contract is purely ‘objective’, it does not follow that the sources speak of a permanent consensus only by mistake. Dr. Wieacker, p. 102, adduces four texts. He claims that in none of them is consensus contrasted with renuntiatio: renuntiatio consisting in an ‘objective’ declaration, and consensus in these passages denoting (improperly, in his opinion) permanent ‘subjective’ understanding. But in two texts the contrast is made. Of G. 3. 151 Dr. Wieacker cites only the clause: manet autem societas…donec in eodem consensu perseverant (incidentally, he does not notice that V has in eodem sensu whilst consensu is from I. 3. 25. 4; not that it makes any difference; Gaius, whatever he wrote, did think of something like consensus). He overlooks, however, the following words, at cum aliquis renuntiaverit societati societas solvitur, from which the antithesis idem consensus—renuntiatio becomes clear. Of C. 4. 37. 5 (Diocletianus et Maximianus Aurelio Theodoro) he cites only the clause: tamdiu societas durat quamdiu consensus…integer perseverat. He overlooks, however, the following words, proinde si iam tibi pro socio nata est actio cam inferre…non prohiberis, from which the antithesis consensus integer—actio iam nata becomes clear (actio in this connexion is equivalent to renuntiatio). Thus, in G. 3. 151 and C. 4. 37. 5 at least, permanent consensus (whether ‘objective’ or ‘subjective’) differs in no essential respect from consensus as a mode of contract: opposed to it is the withdrawal from partnership, shown somehow or other, of one of the members. This result is only confirmed by the remaining two texts, G. 3. 153 and D. 17. 2. 37 (Pomponius XIII ad Sabinum). They are intelligible enough: in the case of capitis diminutio or death of one or more of the socii the old contract, it is true, ends, but is soon replaced by a similar one if the persons concerned are agreed on this point. Where the fundamental difference lies between this novus consensus and consensus as occurring in the division of contracts, and why the novus consensus must be explained as a relic of pre-classical institutions, it is difficult to see (in fact, wnereas Dr. Wieacker, pp. 103 and 290, asserts that novus consensus is ‘subjective’, only incorrectly called consensus by Gaius and Pomponius, and an anachronistic remains of ancient communities, on p. 292 he himself expressly states, contrary to this whole elaborate theory, that the same novus consensus in classical time had to be declared and was not made into an internal disposition of mind till the Byzantine period). Evidently the classics, far from adopting archaic ideas, are trying to modify the harsh rule, dating from consortium, that capitis diminutio and death dissolve partnership (Dr. Wieacker, p. 290, maintains that Pomponius also spoke only of publicatio bonorum or capitis diminutio, not of death as it would appear from D. 17. 2. 37 in its present form. In the case of death, he says, it is ‘senseless’ to make the continuance of a societas easier: it must be the Byzantines who introduced this idea. I cannot see, however, that it is senseless. Why should not the heir of an argentarius socius and the surviving partner desire that the firm be carried on without much ado? It may be noted that even Gaius, in the very passage on novus consensus, 3. 153, compares capitis diminutio with death). Gaius and Pomponius, that is, emphasize the fact that a firm dissolved through capitis diminutio or death can easily come to life again by an agreement to this effect. They commit no error whatever in calling this agreement consensus. It simply is that consensus on which, according to G. 3. 135 et seq., societas is based: though of course the jurists imply that re-establishment of a dissolved firm usually requires still less formalities than the creation of an entirely new one (in the former case tacitly continued co-operation may suffice to ‘express’ consensus). We may observe that since Dr. Wieacker's assumption of a relevant difference between permanent consensus and consensus as a mode of contract does not hold' good, most of his radical conclusions in the chapter on animus socictatis contrahendae (pp. 273 et seq.) appear highly improbable.

54 D. 9. 2. 2. pr. (Gaius VII ad edictum provinciale); G. 3. 210; I. 4. 3. pr.

55 A conclusion, however, not flimsier than the one that the classical jurists did not notice the fundamental importance of consensus in non-consensual contracts.

56 D. 9. 2. 27. 5 (Ulpìanus XVIII ad edictum); G. 3. 217 et seq.; I. 4. 3. 13.

57 In classical law the scope of the third chapter is even wider: it is regarded now as covering, not only damage to res se moventes, but any damage to another man's property in respects not coining under chapter 1.

58 An inference, however, not flimsier than the one that consensus, for the classics, signifies only the ‘objective’ declarations made in consensual contracts.

59 I am indebted to Professor Herm. Fränkel (now Stanford University) for valuable suggestions made to me some years ago on the question of this provision. The same authority, in Die Zeitauffassung in der archaischen griechischen Literatur, Zeitschrift für Aesthetik, 1931, Beilageheft, pp. 98 et seq., has pointed out that χρóνoσ in early sources is used as signifying, not the time during which anything special happens (because the thing that happens stands in the foreground), but the ‘empty’ time between two notable events. We may perhaps add that even in present-day language the noun ‘time’ frequently refers to ‘empty’ time. The phrase ‘I have much time’, e.g., does not mean that I have more time in the astronomical sense than anyone else, but that my time is unoccupied. A future interpolationist will conclude (provided our age should ever come to be regarded as classical) that we had no general notion of ‘time’; that, on the one hand, we did not notice at all that time flies even while something interesting is going on, and that, on the other, even in phrases like ‘I have time’ the term denoted not time as such but an ‘objective’ though comparatively leisurely action. Einstein, of course, is post-classical.

60 8. 2 et seq.

61 Similarly, non-consensual contracts are adequately described as created re, verbis or litteris.

62 Similarly, the general term consensus is used for classifying sale, hire, partnership and mandate.

63 The same is true, a fortiori, in a case of mere insult (falling, in classical time, under actio iniuriarum). An insult produces no corporal damage or pain whatever. It is called iniuria because the delinquent does nothing but ‘wrong’ his victim.

64 I should like to express my thanks to Professor W. W. Buckland for most helpful criticism and advice.