THE WRITTEN CONTRACT REQUIREMENT AND ARGUMENTATION IN MARITIME CASES 161

The following sections present the argument that the difference in the approach to written proof in maritime and non-maritime cases is due in part to the value placed on jury discretion and flexible justice in non-maritime popular court cases. The written contract requirement in dikai emporikai tended to focus the dispute on the terms of the written agreement and to discourage extra-legal argumentation. This effect was valuable in the context of maritime suits designed to attract foreigners and facilitate trade. A similar preference for written proof in the ordinary popular courts would, however, hinder the jury’s ability to take into account the particular circumstances of each case in reaching their decision.

THE WRITTEN CONTRACT REQUIREMENT

AND ARGUMENTATION IN MARITIME CASES

One would expect that the requirement of (or even a strong preference for) written proof would tend to focus the dispute on the terms of the written agreement. This narrow focus on the written contract would facilitate business deals by increasing the predictability of verdicts, but would also hamper the jury’s ability to take into account a wide range of factors in reaching its decision.69 Our five surviving dikai emporikai bear out this prediction: one of the most distinctive features of these speeches is the importance of the terms of the agreement to the speakers’ arguments.70 In the three maritime cases in which the speaker is not challenging the existence of a contract, the written contract is recited in full within the first ten sections of the speech.71 It has been pointed out that of the 113 references to written contracts in the entire Demosthenic corpus, 100 occur in these three

mining suits, it is not at all surprising that there is no suggestion of a written contract requirement in this speech. However, the speaker acknowledges that the law also applies “if someone does wrong in other ways related to the mines” (Dem. 37.36). Carey and Reid (1985:144) point out that this statement suggests that the law had a clause including all wrongs concerning the mines within the purview of the dikai metallikai.

69 For a different, but related, argument that the limited use of writing in litigation was intricately connected with the amateurism of Greek legal systems, see Gagarin (forthcoming). Gagarin argues that the extensive use of writing in the Roman legal process was critical to the development of the legal profession and a more “technical” body of law. Whereas Gagarin contends that the unusual approach to writing in the legal process extends beyond Athens to other Greek poleis, this chapter presents an explanation for the predominantly oral nature of litigation that is rooted in the specific concerns of the Athenian democracy.

70Carey & Reid 1985: 200n.50; Christ 1998b:220–221; D. Cohen 2003:94–96.

71Dem. 34.7; 35.10; 56.6.

162 MARITIME CASES

speeches alone.72 Demosthenes Against Lacritus is most striking in this regard. The speaker discusses the contract in painstaking detail, “addressing in turn each of the provisions written in the contract,”73 and then has the entire agreement read out a second time.74

The contract in Demothenes Against Dionysodorus did not address the precise issue in dispute. The contract provided that the lender bear the loss if the ship was lost at sea, and that the borrowers pay a penalty if they did not return with their cargo to Athens. The contract made no provision for another contingency – rather than total loss of the ship, damage severe enough to preclude the return of the ship and require that her cargo therefore be sold outside Athens. This is what the defendant claimed to have happened, if we can trust the prosecution’s account.75 Although the contract is silent on the crucial question of the rights of the parties in this contingency, the speaker quotes from the written contract four times and repeatedly refers the jurors to the terms of the agreement as the proper guide to their decision.76

It is not only speakers who are pressing their contractual claims who emphasize that the terms of the written contract are decisive in maritime suits. The speaker in Demosthenes Against Apaturius, the defendant in the original contract action, refers to a written contract as “the exact agreement,” (akribˆes)77 and notes that contract disputes are to be resolved by reference to the written document:

All men, whenever they make written contracts with one another, after sealing the agreement they deposit it with those whom they trust, for this reason, that if they disagree about something, it would be possible for them to go to the written contract and from this obtain the means of resolving their disagreement.78

In contrast to the importance of the contractual terms in dikˆe emporikˆe suits, speakers in other popular court suits involving written contracts rarely dwell on the specifics of the legal instrument or suggest that jurors should look, as modern lawyers put it, only within the “four corners of the contract.”

72Carey & Reid 1985: 200 n.50. Christ (1998b:220–221) and D. Cohen (2003:94–96) also note the speakers’ emphasis on the written contract in these cases.

73Dem. 35.17.

74Dem. 35.37.

75Dem. 56.35.

76Dem. 56.6, 36, 38.

77Dem. 33.36.

78Dem. 33.36.

THE WRITTEN CONTRACT REQUIREMENT AND ARGUMENTATION IN MARITIME CASES 163

The most famous contract case from classical Athens is Hyperides Against Athenogenes. The speaker fell in love with a slave boy who belonged to Athenogenes and offered to buy the boy’s freedom. Athenogenes agreed to sell the boy, his brother, and his father to the speaker, and included in the deal the perfume business that the boy’s father Midas had managed for Athenogenes. By purchasing the slaves and their shop rather than simply buying their freedom, the speaker agreed to take responsibility for their debts. Athenogenes assured the speaker that the assets of the perfume shop would easily cover any liabilities. He read aloud a contract he had prepared in advance, but the speaker, intent on securing access to the boy, did not pay close attention and did not inspect the document before concluding the transaction. It did not take long for creditors to appear and demand a total of about five talents. The speaker then examined the agreement for the first time and noticed that in addition to a short list of insignificant debts the contract included a catch-all clause: “and anything Midas owes to some other man.”79 It appears that the Athenians had no written law explicitly voiding a contract that was unconscionable, fraudulent, or even illegal; indeed, it appears that a contract provision that nothing, including laws, will have greater effect than the agreement was, at least formally, enforceable.80 Nevertheless, the speaker in this non-maritime suit focuses solely on the circumstances surrounding the deal and argues that the jurors should ignore the contract because it is unjust (mˆe dikaia).81 Although some scholars view this case as strong evidence of the

79Hyp. 3.10.

80The contract in Dem. 35.10–13 (a dikˆe emporikˆe) includes the provision, “concerning these issues nothing can override the contract.” The speaker elaborates on this clause later in the speech, but does not suggest that such a clause was controversial or unusual:

The contract does not allow anything to override its written terms, nor does it allow anyone to propose a law or decree or any other thing that is contrary to the contract’s terms . . . Dem. 35.39.

Indeed, the speaker in Demosthenes 48 (discussed later in the chapter) attempts to enforce an agreement to commit a crime. Of course, popular court juries concerned with reaching a fair result in light of the particular circumstances of the case were unlikely to find such legalistic arguments persuasive, and it is not surprising that the speaker in Demosthenes 48 does not anchor his case on the contract terms alone.

81 Hyp. 3.13. Adducing four laws relating to misrepresentation, mistake, and legal capacity in other contexts, the speaker constructs an ingenious argument that unjust contracts should not be binding (Hyp. 3.13–17). Modern scholars dispute whether this speech should be seen as an example of arguments based on equity or creative legal reasoning. Compare Scafuro (1997:61) and Christ (1998b:221–223) with Johnstone (1999:28ff) and E. Harris (2000:48–54). For our purposes, it is important only that the speaker does not focus on the terms of agreement and makes no effort to make a contractual argument.

164 MARITIME CASES

willingness of Athenian popular jurors to overlook the terms of a written contract in the interests of fairness,82 we must be careful not to make too much of this case: with the terms of the contract arrayed clearly against him, the speaker may have had little choice but to attack the contract itself.

Our other surviving non-maritime contract case,83 Demosthenes 48 Against Olympiodorus, is biased in the other direction: the speaker is suing his partner in crime for breach of contract84 for tricking him out of his share, and one would expect that the plaintiff would focus on the terms of the agreement in the absence of equitable sources of support for his claim. The speaker, Callistratus, and his brother-in-law, Olympiodorus, made a written contract to divide the estate belonging to Comon, a mutual relative, evenly between them and to exclude all other claimants. After the two managed to have the estate awarded to Olympiodorus by colluding in various misrepresentations to the court, Olympiodorus refused to give Callistratus half of the estate in accordance with their agreement. Predictably, Callistratus emphasizes that his opponent has breached their agreement, and he states that he would have had the contract itself read out in court, but that Olympiodorus prevented him from getting his hands on the document.85 Callistratus does not rest his claim solely on the terms of the contract, however, but also includes a number of arguments rooted in fairness and cooperative values. He stresses that he offered Olympiodorus a fair settlement to avoid litigation but was rebuffed,86 and he requests in the first instance not the enforcement of the contract as written but a compromise ruling:

I beg you, gentlemen of the jury, once you have listened to both of us and examined for yourselves what happened, that you send us away, best of all reconciled to one another, and thus that you serve as benefactors to both of

82E.g., Christ 1998b:221–223. Christ compares this speech to the strongly contractual arguments in dikai emporikai.

83Many cases in the corpus include a contractual claim along with other legal charges. Only Hyperides 3 and Demosthenes 48 involve simply a contract action, making it possible to compare the extent to which the speakers in these cases focus on the contract with speeches delivered in dikai emporikai.

84The suit was technically a dikˆe blabˆes, “an action for damage.” There appears to have been no distinctive procedure for a breach of contract action (Todd 1993: 266).

85Dem. 48.9, 48. Callistratus challenged Olympiodorus to go with him to retrieve the contract from the man with whom they had deposited it and make copies to put into the sealed jar containing evidence for the trial, but he refused. Callistratus challenges his opponent to have the contract read out in court and urges the jurors to permit this (Dem. 48.51).

86Dem. 48.4.

THE WRITTEN CONTRACT REQUIREMENT AND ARGUMENTATION IN MARITIME CASES 165

us. But if you do not accomplish this, from the remaining options I beg that you place your vote for the man who makes just arguments.87

In addition to emphasizing his moderation and willingness to compromise to end the conflict, Callistratus points out that he has respected the obligations of philia. He notes that he arranged for Comon’s burial, a fact often cited by contestants in inheritance cases to show their personal connection to the deceased and right to a share of the estate.88 Finally, Callistratus reports that Olympiodorus is unmarried and has been wasting all his money on his mistress, a former slave, whereas Callistratus has a wife and daughter to support:

Are not they [my wife and daughter] being wronged and suffering terribly when they see the courtesan of this man beyond decent limits, wearing many pieces of gold jewelry, and beautiful clothing, making showy excursions, and using what belongs to us to lord it over everyone, while they themselves [my wife and daughter] are in all these things in an impoverished state? Surely these women are being wronged even more than I am?89

Thus, although the plaintiff in Demosthenes 48 does mention the contract with his opponent several times, he does not confine his arguments to the terms of the agreement or suggest, as speakers in dikai emporikai do, that the contract should be the sole guide to the jurors’ decision.

This comparison of two non-maritime speeches with the dikai emporikai suggests, but does not prove, that litigants in maritime suits were more likely to focus on arguments based on the written agreement than speakers in ordinary nonmaritime cases. Wills are legal instruments similar to contracts in many ways, and an examination of Athenian litigants’ approach to written wills may offer additional comparative material. Because wills were thought to be highly susceptible to forgery and fraud,90 one might expect arguments in inheritance cases to center on the veracity and contents of the will. Unlike the speaker in the

87Dem. 48.3.

88Dem. 48.6.

89Dem. 48.55. Callistratus also argues that Olympiodorus has gone mad and is not responsible for his actions because he is under the influence of this mistress (Dem. 48.56). He cites a law of Solon providing that all acts done under the influence of a woman were void, though it is unclear how this law helped his case (Dem. 48.56–57).

90E.g., Is. 7.2; Arist. [Pr.] 29.3.

166 MARITIME CASES

contract case Against Athenogenes, a litigant faced with a will containing unfavorable terms could always attempt to overturn it by alleging forgery rather than being forced to resort to more general arguments of fairness and justice unrelated to the legal instrument in question. It has been demonstrated, however, that litigants in inheritance cases also regularly appeal to a variety of arguments that are not focused on the will being disputed: they argue that they have a better claim to the estate than their opponent because they were closer in affection to the deceased, performed his burial rites, and are more likely to use any wealth awarded by the court to perform public services.91 Even speakers defending a will or adoption from challenge utilize such extra-legal positions, arguing, for example, that by challenging the will their opponent will deprive the dead man of an heir and cause his house to become extinct.92 Indeed, scholars have often noted that our surviving inheritance speeches seem to indicate that jurors were as concerned with distributing the property fairly as with interpreting the will in question.93

The foregoing survey of argumentation in maritime and ordinary popular court suits indicates that litigants in dikai emporikai appear to have focused their arguments on the terms of the contract, whereas speakers in non-maritime cases involving written contracts or wills include a more contextualized account, basing their claims on what they perceive to be the fair result as well as the proper contractual interpretation. It is impossible to say whether the written contract requirement in dikai emporikai is the cause or effect of this difference in approach in these two types of case, but it seems clear that a similar preference for written proof and narrow focus on the terms of an agreement in non-maritime cases would have detracted from the popular court jurors’ ability to consider broader issues of fairness as well as arguments based on the contract or will at issue in reaching their verdicts. The value placed on a flexible and contextualized approach to justice may have made Athenian jurors reluctant to embrace written forms of proof in ordinary non-maritime cases.

91E.g., Is. 1.4,17,19,20,30,33,37,42; 4.19; 5.36–38; 41–43; 6.60–61; 9.4, 27–32. All of these cases involve a written will. For discussion, see Hardcastle 1980.

92Is. 2.1,10–14,22–27; Dem. 43.68; 44.2,11,43; Hardcastle 1980:14–15.

93E.g., Hardcastle 1980; D. Cohen 1995:171–173; Christ 1998b:222–223. For an argument that equity argumentation in Isaeus is a response to obscurities and gaps in the inheritance laws rather than an attempt to appeal to fairness, see Lawless 1991:110–135.