THE PERSISTENCE OF ORAL PROOF IN THE POPULAR COURTS 157

dikˆe emporikˆe; such a statement would not help the speaker’s cause if any written contract were sufficient to bring the case within the maritime procedure.42 The most straightforward argument is perhaps the most persuasive: it is difficult to understand why the Athenians would provide access to these special procedures to litigants in cases that had no connection with Athens merely because a written contract was involved. Indeed, it seems to be now generally agreed among scholars that a written contract was required to bring a dikˆe emporikˆe.43

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IN THE POPULAR COURTS

A written contract requirement such as that used in the dikˆe emporikˆe procedure was unprecedented in Athens. The first reference to a written contract in our surviving popular court speeches occurs in Isocrates Trapeziticus, tentatively dated to 393 B.C.E.44 Although references to written agreements become more frequent in the later court speeches, it has been pointed out that purely oral agreements continue to be used and enforced in non-maritime cases throughout the classical period.45 The speech from the Demosthenic corpus Against Spudias, for example, concerns a complex dowry arrangement that appears to have been entirely oral. There is no definitive statement as to what constitutes an enforceable contract in Athens,46 but those remarks in the orators’ speeches that approach such a statement are strikingly devoid of references to writing.47 The term for enforceable agreement we meet most frequently, homologeˆo, means literally “speaking the same way.” In Against Athenogenes, a case that involves a written contract for the sale of a perfume shop, Hyperides notes that “the law says that whatever agreements one man makes with another are binding.”48 That the Athenians generally considered oral and written agreements interchangeable is clear from a passage in Isaeus describing a

42Dem. 32.22–3; E. Cohen 1973:101–102.

43E.g., Isager & Hansen 1975: 87; Carey & Reid 1985: 233; MacDowell 1978:233; Todd 1993: 336.

44Isoc. 17.20.

45Thomas 1989:40ff.

46The nature of Athenian notions of contract has been the subject of some debate. Compare Beauchet (1969:10) with Pringsheim (1950:86ff). More recently, Todd (1993:264–8) has suggested that the Athenians had no real doctrine of contract at all. For our purposes, it matters only that in non-maritime cases the Athenians do not seem to have distinguished between written and oral agreements.

47E.g., Dem. 56.2; 48.11,54; 42.12; 44.7; Hyp. 3.13; Dem. 18.24–25; Cri. 52e; Leg. 11.920d.

48Hyp. 3.13.

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complicated contract in which some of the terms were written down and others verbally agreed to before witnesses.49

Thomas has pointed out that where written contracts are used in our surviving non-maritime speeches, they seem primarily to have supplemented the speaker’s evidence rather than to have served as decisive proof.50 We have only two examples of contracts offered as evidence without accompanying witness testimony.51 When discussing a written contract, speakers generally furnish witnesses who testify to the nature of the agreement between the parties as well as to the authenticity of the document.52 Even bankers’ records (grammata), which were routinely recorded in writing and used in litigation, were not necessarily considered the best evidence of a banking transaction.53 In Against Timotheus,54 for example, Apollodorus, the son of the banker Pasion, is suing to recover debts owed to his father after his death. Although Apollodorus mentions the bank records as one source of information as to the amount of the various debts,55 he never enters the records into evidence but instead calls as witnesses the clerks in the bank who had paid out the money.56 Noting that when his father became ill he told Apollodorus and his brother the details of each particular debt owed to him, Apollodorus also calls his brother as a witness to the debts and has his own oath regarding them read out.57

49Is. 5.25.

50Thomas 1989:40–45.

51Hyp. 3.8; Lyc. 1.23. The speaker in Hyperides 3 feels compelled to explain the absence of witnesses by claiming that the transaction required unusual secrecy.

52E.g., Is. 3.19; 9.12; Dem. 27.21; 29.7; 30.32; 38.5. In the Laws (953e), Plato prescribes that written contracts be witnessed. For discussion, see Thomas 1989: 42; Pringsheim 1950:12ff, 1955.

53Cf. E. Cohen 1992: 125.

54Dem. 49.

55Dem. 49.5, 42.

56Dem. 49.33, 42. He states that at the arbitration he presented as evidence both the books and the testimony of the bank clerks (Dem. 49.44). It is notable that the speaker has both the records and witness testimony at his disposal, but chose to use only the latter, presumably because he believed the jury would find this approach more compelling. Because the water-clock was stopped for the reading of evidence, time was not a factor in this decision.

57Dem. 49.42–43. A word should perhaps be said regarding a famous passage in Isocrates Trapeziticus (17.2):

For contracts with bankers are made without witnesses, and it is necessary for those who are wronged to take on risk in pursuing a claim against men of this kind, who have many friends and manage a lot of money, and are thought to be trustworthy because of their job.

Nevertheless, under these circumstances I think that I will make it clear to everyone that Pasion [the banker] has defrauded me of money.

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Thomas draws on recent work on the relationship between literacy and orality to explain the mixture of oral and written proof in the Athenian popular courts. Until recently it was widely thought that the introduction of literacy to a society brought immediate and comprehensive change marked by rapid growth in rational modes of discourse.58 Scholars working in a number of periods and geographical areas have challenged this view, pointing out that the transition from orality to widespread literacy is often gradual, with considerable overlap of the spoken and the written.59 Adopting this approach, Thomas interprets the persistent use of oral proof in non-maritime popular court cases despite the presence of written contracts as evidence of the gradual emergence of a “document-minded” attitude in classical Athens.60

The dikˆe emporikˆe procedure, however, constitutes an important exception to the persistence of oral proof in the Athenian lawcourts. By the mid-fourth century written contracts were a privileged form of proof, and indeed were required, in maritime suits. In this small class of cases, the Athenians appear to have become “document-minded” quite quickly. Scholars generally explain the dikˆe emporikˆe procedure’s unique written contract requirement by arguing that maritime loans were too complex or involved sums that were too significant for oral agreements,61 and that professional traders were able to become accustomed to using contracts more quickly than ordinary citizens.62 Although these factors certainly contributed to the development of the written contract requirement, they cannot entirely

At first glance, this passage appears to suggest that banking transactions were generally concluded without witnesses and therefore that banking records were considered definitive evidence in court. In fact, the speaker is explaining his own lack of witnesses to the transaction at issue. This passage suggests that men dealing with bankers generally did not bring their own witnesses, which reveals little about the value accorded grammata because it is the banker, rather than his clients, who have access to the records and can bring them into court. (The absence of written receipts is one of the peculiarities of Athenian business practice (Dem. 33.12; 34.30; 48.46; Pringsheim 1950:287–297; E. Cohen 1992: 119.). We have seen that Against Timotheus suggests that when bankers press a claim based on the records, they rely on witnesses as much as on the written records.

58E.g. Havelock 1982; Goody 1986.

59Clanchy (1993) for example, traces the gradual adoption of a written record in medieval English law and records examples of the combination of oral and written proof. He argues that despite a familiarity with religious writing, the transition to a written administrative system took over a century.

60Thomas 1989:34–60.

61E.g., Jones 1977: 219.

62E.g., Finley 1985: 22. Indeed, writing appears to have been associated with trade from a very early period. It is not surprising that interaction with those outside one’s trusted community would lead to more precise and formal business relationships, with commitments spelled out in written form.

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explain the distinctiveness of the maritime procedures.63 We meet complex oral agreements in our surviving non-maritime speeches,64 and many mortgages on land did not merit a written contract despite the high value of the transaction.65 It is particularly curious that there was no similar preference for writing in two types of suit that also involved complex commercial transactions between experienced businessmen: suits for capital loaned for the establishment of a business in the agora,66 and mining suits (dikai metallikai). Both these procedures were among the “monthly suits” (dikai emmˆenoi) and thus experienced procedural changes at around the same time the written contract requirement was introduced in dikai emporikai.67 One example of each type of procedure survives, and there is no hint of a preference for or requirement of written proof in either speech.68

63 The suggestion that writing was part of a professional’s repertory raises the difficult question of the extent of literacy among Athenians in this period. There is some indication that functional literacy extended well beyond a small class of professional merchants. For example, written wills were common, and in the early fourth century litigants were required to present written pleadings and witness depositions in written form (Calhoun 1919a). For an argument that “most of those who might be engaged in legal affairs could probably read well enough to serve their needs,” see Gagarin (forthcoming); cf. W. Harris 1989:65–115. For a general discussion of literacy in classical Athens, see Thomas 1992. Although it is hardly surprising that there was no general requirement for written contracts, we might have expected a preference for written over oral contracts and other forms of proof.

64E.g., Dem. 45.

65Our primary source for secured transactions are the fourth-century horoi, large “mortgage-stones” placed on property indicating that the land was legally encumbered. The horoi served to warn potential buyers or creditors, but were not themselves contracts, because they generally do not even name the debtor. Of the 157 surviving stones, only fifteen refer to written contracts recording the transaction (Finley 1985; Millett 1982; Todd 1993:252–255).

66Arist. Ath. Pol. 52.2.

67Banking cases (dikai trapezitikai), were also included among the dikai emmˆenoi (Arist. Ath. Pol. 52.2) Our surviving dikai trapezitikai (e.g., Isoc. 17) predate the reform of the banking suits into a monthly procedure, making it impossible to know whether these suits included a written contract requirement. I am inclined to think that they did not, based on the differences in argumentation between cases involving banks and other commercial suits, on the one hand, and dikai emporikai on the other.

68In both cases – Demosthenes 36 and 37 – the speaker argues that his opponent’s suit against him is illegal in part because he has been released from all claims. If these suits required a written agreement, we would expect that the speakers would take the argument one step further by maintaining that the suit was improperly brought because no agreement exists between the parties. Indeed, this is precisely the argument made by the speaker in Demosthenes 33, a dikˆe emporikˆe in which the speaker similarly brings a paragraphˆe on the ground that he has been released from all claims (Dem. 33.2–3). Demosthenes 36 offers little insight into the nature of the procedure used, but the speaker in Demosthenes 37.35–36 does briefly discuss the law defining the scope of dikai metallikai. The speaker argues that dikai metallikai were limited to physical encroachment or interference with another’s workings in the mine and did not apply to loans concerning mining contracts. If this is an accurate depiction of the jurisdiction of