Учебный год 22-23 / The Law of Obligations

in continenti facta stipulationi inesse creduntur", we even read in Paul. D. 12, 1, 40,18 a sweeping generalization which does, however, contain at least an element of truth. For, through the process of interpretation, informal pacta could indeed have some bearing on the content of the stipulation and, as a result, influence the range of the condictio.19

The special position of pacta in continenti adiecta, particularly as far as iudicia bonae fidei were concerned, was still compatible with the general rule of "ex nudo pacto non oritur actio". Yet there were also instances, where the emperors — or even the praetor—had been prepared to grant an action on the basis of an informal agreement that could not be classified as a consensual contract and that was also not ancillary to one. One traditionally refers to pacta vestita (as opposed to pacta nuda) and distinguishes between pacta praetoria (recognized by the praetor) and pacta legitima (upheld by the emperors).

II. PACTA PRAETORIA

There were two types of pacta praetoria: the constitutum debiti and the receptum.

1. Constitutum debiti

(a) The actio de pecunia constituta

A constitutum (derived from constituere = to fix, to appoint or to determine) is the informal20 promise to pay an already existing debt, either one's own (constitutum debiti proprii) or that of another (constitutum debiti alieni), on a specific date.21 "Qui pecuniam debitam constituit se soluturum esse, in eum iudicium dabo" is what the praetor promised,22 and an actio de pecunia constituta was therefore made available to the creditor. In comparison with the condictio it had one great advantage for the creditor: the judge was instructed to assess "quanti ea res est"; he therefore had considerable latitude in determining the amount owed by the debtor. More particularly, not only could he condemn the latter into the sum of money or the monetary equivalent of what he had promised; he was able to take into consideration the creditor's interest in being paid timeously, i.e. to award damages for the delay in payment. If, for example, A had

18This text has usually been regarded as corrupt; cf. e.g. Riccobono/Kerr Wylie/Beinart, pp. 184 sqq.; but see e.g. Knutel, Stipulatio poenae, pp. 286 sq.

19For a detailed discussion and examples, see Rolf Knutel, "Stipulatio und pacta", in:

Festschrift fur Max Kaser (1976), pp. 201 sqq.

20Ulp. D. 13, 5, 14, 3.

21For what follows cf. Buckland/Stein, pp. 529 sq.; Schulz, CRL, pp. 560 sqq.; Magdelain, Consensuaiisme, pp. 126 sqq.; Jules Roussier, "Le constitut", in: (1958) 3 Varia, Etudes de droit romain 1 sqq.; Salvatore Tondo, "In tema di 'constitutem debiti'", (1958) 4 Labeo 208 sqq.; Frezza, Garanzie, vol. I, pp. 229 sqq.

22Cf. Lenel, EP, pp. 247 sqq.

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promised by way of stipulation to pay ten aurei to В on 10 October, this was not a constitutum. The fixing of the date was part of the (original) contract, and constitutum presupposed an already existing obligation. If Б defaulted, A could bring the condictio but was not able to recover his loss arising from the fact that performance had not been rendered in time.23 If, however, it had become apparent, before 10 October, that В would not be able to pay in time, A and В could informally fix 1 November as the new due date. This was a constitutum debiti, and it was advantageous to В in that it granted him indulgence. A, in turn, could now claim his damages if В was still not able to meet the new deadline.

(b) Constitutum debiti alieni

Constitutum debiti was similar to novatio in that the parties were effecting a change to a rather significant detail of their original obligation; it did not, however, have the effect of a novation, since the action arising from the original obligation continued to exist24 (but could be met with an exceptio as long as the new due date had not arrived). The fact that the original obligation was not extinguished was of particular significance for the constitutum debiti alieni. If A agreed that С was to pay B's debt by a certain date, В continued to be liable, but A had acquired a second debtor. We are dealing with a cumulative assumption of debt, and the transaction constituted, in effect, a form of suretyship, for which a stipulation was not required. Justinian assimilated it with fideiussio by making available to the third party the beneficia divisionis, excussionis and probably also cedendarum actionum.25 Thus it is not surprising to see that in the practice of the ius commune there was no place for an institution that did not in effect differ from suretyship; the Roman-Dutch authors, for instance, regarded the constitutum debiti alieni as obsolete:

"Sed postquam stipulationum solemnitas extra usum abierit, adeoque et ex nudis pactis obligationes oriri c[o]eperint, . . . hodie a fidejussione constitutum vix discerni potest. . . . Ideoque ct huius actionis nomcn foro cessit, praesertim cum moribus nostris in universum actionum nomina libellis exprimi non soleant."2'1

(c) Constitutum debiti proprii

The constitutum debiti proprii,27 also, was too closely connected with the intricacies of the formulary procedure of classical law to be of great significance in later centuries. There were not many cases where the

23For details cf. infra, pp. 783 sqq., 790 sqq.

24Cf. Ulp. D . 13, 5, 18, 3 .

25Cf. С 4, 18, 3; Nov. 4, 1; Roussier, (1958) 3 Varia 142 sqq.; Frezza, Garanzie, vol. I, pp. 281 sqq.; Kaser, RPr II, p. 461.

26Groencwcgcn, Tractatus de iegibus abrogatis, Cod. Lib. IV, Tit, XVIII, 2-3. Cf. further e.g. Voet, Commentarius ad Pandectas, Lib. XIII, Tit. V, XIV; Windscheid/Kipp, § 476; but see Gliick, vol. 13, pp. 398 sqq.

27See the detailed exposition by Gliick, vol. 13, pp. 373 sqq.

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acquisition of a second claim could be of practical value to the creditor. After all, discharge of the one also let the other obligatio fall away.28 Also, the constitutum could not be used to overcome defects in the first obligation, for its validity continued to depend upon the validity of the pre-existing obligation, which it was designed to confirm; there was no such thing as an abstract constitutum.29

One brief, but interesting, episode within the development towards a general law of contract, however, deserves mention in this context. In the Middle Ages, an obligatio naturalis was regarded as a sufficient basis for a constitutum. Since, as we shall presently see,30 pacta nuda, according to the law of the Corpus Juris Civilis, engendered a naturalis obligatio, the constitutum could be used as a convenient means of rendering unenforceable consensual agreements (which did not fit into the category of either the contracts or the pacta praetoria or legitima) enforceable. In effect, therefore, one merely had to conclude a pactum nudum twice in order to elevate it to the status of a binding contract, or pactum vestitum. This curious institution was known as "pactum geminatum", and it was generally accepted by the legists ("Legisten") of the later 15th century.31 But with the increasing recognition being given to the principle of ex nudo pacto oritur actio, the practical importance of pacta geminata, and with it the historical significance of the medieval constitutum, was bound to fade away.32

2. Receptum arbitri

Receptum, the second of the so-called pacta praetoria, was the informal undertaking of a certain guarantee by either an arbitrator, a banker, or a carrier by sea, an innkeeper or a stablekeeper.

First of all, the receptum arbitri. We are dealing here with the undertaking by a person to act as arbitrator in a dispute between two or more parties. The Corpus Juris Civilis contains the following definition:

"Recepissc autem arbitrium videtur, ut Pedius libro nono dicit, qui iudicis partes suscepit finemque se sua sententia controversiis impositurum pollicetur. quod si.

2* Cf. e.g. Ulp. D. 13, 5, 18, 3.

Cf. C. 4, 18, 2, 1 sq. On the constitutum in the law of Justinian cf. Gian Gualberto Archi, "Contributi alia critica del Corpus Juris", (1962) 65 BIDR 134 sqq.; Kascr, RPrll, pp. 383 sq.

30Cf. infra, note 147.

31Cf. Lothar Seuffert, Zur Geschichte der obligaforischen Vertrage (1881), pp. 75 sqq.; Guido

Astud, "Pactum geminatum", in: Studi in onore di Enrico Besta, vol. I (1939), pp. 219 sqq.; Alfred Sollner, "Die causa im Kondiktionenund Vcrtragsrecht des Mittelalters bei den

Glossatoren, Kommentatoren und Kanonisten", (1960) 77 ZSS 262 sq.; Nanz, Vertrags- b%nff> pp-42 sciq-

Once nuda pacta had become generally enforceable, there was little point in retaining constitutum as a special type of agreement. The BGB therefore no longer deals with it. For South African law cf. Percival Gane, The Selective Vaet, vol. Ill (1956), p. 29 (translator's note); for the situation preceding codification in Germany, cf. Windscheid/Kipp, § 284.

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inquit, hactenus intervenit, ut experiretur, an consilio suo vel auctoritate discuti litem paterentur, non videtur arbitrium recepisse. "33

The arbitrator assumed the duty of settling a dispute submitted to him.34 The receptum was based on and referred to an arbitration agreement (compromissum) between the parties. In modern parlance one could say that this compromissum constituted the offer to the third person to act as arbitrator. The latter had to accept the role of a judge, not that of a mere conciliator or adviser. The receptum did not, however, provide the parties involved in the dispute with an action against the arbitrator to honour his undertaking. They were able only to approach the praetor to apply the appropriate measures of coercion.35 The receptum arbitri has survived the centuries.36 Though it has not been incorporated into the BGB as one of the specific contracts, it is still generally recognized that the arbitrator can act only on the basis of a contractual relationship (sui generis) existing between himself and the parties to the dispute.37 No action can be brought against him to carry out the arbitration and make his award.38

3. Receptum argentarii

The receptum argentarii was an informal39 promise by means of which a banker guaranteed payment of his client's debt.40 It was very similar to the constitutum debiti alieni, except that under the action arising from this receptum (the actio recepticia) the banker was liable even when the client's obligation was invalid. Like constitutum, the receptum argentarii originated, under Hellenistic influence, in Greek and Roman banking practice. Both transactions avoided the form of stipulatio. By the time of Justinian, the receptum argentarii had become obsolete; it was therefore fused with the constitutum debiti alieni.41

4.Receptum nautarum cauponum stabulariorum

(a)Actio de recepto; custodia liability

Finally, the receptum nautarum cauponum stabulariorum. It

was

33 Ulp. D. 4, 8, 13, 2. For details, see Magdehin, Consensualisme, pp. 156 sqq.; Ziegler, Privates Schiedsgericht, pp. 77 sqq.; Peter Stein, "Labeo's Reasoning on Arbitration", (1974)

35The edict provided: "Qui arbitrium pecunia compromissa recepcrit, eum sentcntiam diccre cogam"; cf. Ulp. D. 4, 8, 3, 2; Ulp. D. 4, 8, 3, 15; Lend, EP, pp. 130 sq.; Ziegler,

Privates Schiedsgericht, pp. 84 sqq.

36Cf. e.g. Cluck, vol. 6, pp. 74 sqq., 87 sqq.; Windscheid/Kipp, § 417.

37Leo Rosenberg, Karl Heinz Schwab, Ziviiprozessrecht (13th ed., 1981), p. 1113.

3K Rosenberg/Schwab, op. cit., note 37, p. 1114.

39But see Alfons Burge, "Fiktion und Wirklichkeit: Soziale und rechtliche Strukturen des romischen Bankwescns", (1987) 104 ZSS 527 sqq.: liability was undertaken by a formal act (i.e. the solemnity connected with the word "recipio").

40Lend, EP, pp. 132 sqq., Berger, ED, p. 668; Magdelain, Consensuaiisme, pp. 152 sqq.; Frezza, Garanzie, vol. I, pp. 274 sqq,

41С 4, 18, 2 pr.; Inst. IV, 6, 8; Kaser, RPr II, p. 383; Burge, (1987) 104 ZSS 535 sq.

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dogmatically the most interesting and historically the most significant of the pacta praetoria. We are dealing with an undertaking by a sea carrier, an innkeeper or a stablekeeper that their customers' goods would be safe while on the ship or on their premises. On the basis of this guarantee the praetor was prepared to grant an action, untechnically referred to as actio de receptor "Nautae caupones stabularii quod cuiusque salvum fore receperint nisi restituent, in eos iudicium dabo."42 Recipere res salvas fore is the extended version of the operative words: to undertake43 that the goods will be safe. In case of damage, loss or destruction, the nauta, caupo or stabularius was liable, no matter whether he had been at fault or not. He was, in fact, acting like an insurer;44 originally his guarantee was an absolute one and comprised all kinds of vis maior. Labeo, however, introduced an equitable inroad in favour of the nauta: he was to be relieved of liability if he had lost the goods "naufragio aut per vim piratarum".45 Since the actio de recepto was stricti iuris, this adjustment had to be brought about by way of an exceptio. This was soon extended to other instances of vis maior and came to be applied to caupones and stabularii too.46 According to classical Roman law, this type of receptum therefore gave rise to a form of liability which we have already repeatedly encountered: custodia. Gaius makes this quite clear when he states:

"Nauta et caupo et stabularius mercedem accipiunt non pro custodia, sed nauta ut traiciat vectores, caupo ut viatores manere in caupona patiatur, stabularius ut permittat iumenta apud eum stabulari: ct tamen custodiae nomine tenentur."47

As a consequence, for instance, it is not the customer who can bring the actio furti in case of theft, but the nauta/caupo/stabularius, "quia recipiendo periculum custodiae subit".48

(b) The reasons for the actio de recepto

What were the reasons that induced the praetor to grant the actio de recepto? At two places in the title 4, 9 we find Ulpian trying to answer

42 Ulp. D. 4, 9, 1 pr.; cf. also Ulp. D. 4, 9, 3, 5 and Lend, EP, p. 131. Were there originally separate edicts for nautae on the one hand and caupones and stabularii on the other? Cf. Francesco M. de Robertis, "Receptum nautarum. Studio sulla responsabilita dell' armatore in diritto romano, con riferimento alia disciplina particolare concernente il caupo e lo stabularius", (1953) t2 Annati Ban 125 sqq.; J.A.C. Thomas, "Carriage by Sea", (1960) 7 RID A 489. On the origin of the edict, as far as nautae were concerned, in the Rhodian sea laws, see Т.Е. Donges, The Liability for Safe Carriage of Goods in Roman Dutch Law (1928), pp 8 sqq.

On the meaning of "recipere" cf. e.g. A.J.M. Meyer-Termeer, Die Haftung der Schiffer im vriechischen und romischen Recht (1978), pp. 201, 209; also e.g. Gliick, vol. 6, p. 106.

п Otto Lend, "Kntisches und Antikntisches", (1929) 49 ZSS 5.

45Lab./Ulp. D . 4, 9, 3, 1.

46Cf. Ulp. D. 4, 9, 3, 1 i.f.

47D. 4, 9, 5 pr. On this text cf, particularly, Robert Feenstra, "Deux textes dc Gaius sur la responsabilite" contractuelle: D. 19, 2, 40 et D. 4, 9, 5", in: Droits de Vantiquiti et socioiogie juridique, Melanges Henri Levy-Bruhl (1959), pp. 105 sqq. Cf. further Ulp. D. 4, 9, 1, 8

(". . . et puto omnium eum recipere custodiam, quae in navem illatae, sunt . . ."). 48 Ulp. D. 47, 5, 1, 4.

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this question. First of all, he praises the edict ("[mjaxima utilitas est huius edicti"),

"quia necesse est plerumque eorum fidem sequi et res custodiae eorum committere. . . . nisi hoc esset statutum, materia daretur cum furibus adversus eos quos recipiunt coeundi, cum ne nunc quidem abstineant huiusmodi fraudibus";49

later on, he refers to Pomponius' somewhat tentative suggestion that the praetor might have liked to make it known to those engaged in these occupations that he was taking care to repress dishonesty.50 Obviously, nautae, caupones and stabularii did not enjoy a very high reputation. One suspected them of conspiring with potential thieves against their customers, and even though there must have been differences in the moral and social standing of innkeepers and shipowners,51 Pomponius lumped them all together, somewhat scornfully, as "hoc genus hominum". Common to these professions was the fact that they were in a position which lent itself to abuse. A customer who wanted his goods to be transported overseas, or who had to stay in an inn overnight, had to deliver his property (the goods or his baggage) into the custody of the persons in charge of either ship, inn or stable. He had to depend on their good faith and honesty, for better or for worse, since he had brought his property into a sphere which was under their control. In case of loss, destruction or damage it was often impossible for him to establish whether the incident was attributable to their fault, to the fault of their employees or to a mere accident. The least the praetor could do, under these circumstances, was to render binding informal guarantees which a nauta, caupo or stabularius might have given in order to attract potential customers to his business and to make them rely on his expertise and honesty.52 The exceptio Labeoniana was what one would call, in modern parlance, a teleological restriction of the liability arising under the actio de recepto; for if the praetor wanted to protect customers against the possibility of collusion of the person in charge of the place with thieves, or against any other kind of dishonest behaviour, he merely had to make the latter carry periculum custodiae. Instances of vis maior cannot, by definition, be contrived or influenced by either of the parties concerned.

44 D. 4, 9, 1, 1. 50 D. 4,9, 3, 1.

51

A caupona was essentially a combination of hotel and pub; however, it often comprised a brothel too. Its reputation was so bad that it was regarded as degrading for a senator to lunch or dine in a caupona. The owner was called "caupo" (from which is derived the German word for merchant: "Kauf"matin), For details, see Tonnes Kleberg, Hotels, restaurants et cabarets dans I'antiquite Romainc (1957), pp. 3, 37 sqq., 112 sqq.; c(. also Alfred

Pernice, "Parerga", (1899) 20 ZSS 133 sqq. and the inscription mentioned by Honsell/Mayer-Maly/Selb, pp. 329 sqq. On nautae cf. Dc Robertis, (1953) 12 Annali Bari 17 sqq. (disputing that they were badly reputed).

52 Was it not going too far to make nautae/caupones/ stabularii liable for custodia, i.e. also in cases where a fellow traveller (and not cither they themselves or one of their employees) had committed the theft? Answer: no, "nam est in ipsorum arbitrio, ne quern recipiant" (Ulp. D. 4, 9, 1, 1).

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(c) Actio de recepto and special delktual actions

If, therefore, the recipient of the customer's property was ultimately liable for custodia, the question arises whether the introduction of the actio de recepto had really been necessary. After all, the receptum did not stand on its own; it was an additional agreement, a guarantee that could be added to the underlying contract of carriage, lodging or stabling.53 If we take by way of example the nauta,54 we will remember that carriage by sea was normally undertaken on the basis of locatio conductio opens55 and that the conductor under this type of contract was (probably) in any event liable for custodia.56 Furthermore, two special, praetorian remedies were available in the event of the customer's goods being stolen or damaged on board, irrespective of whether the delict had been committed by the nauta himself, by one of his employees or by a fellow-traveller: the actiones furti and damni in factum adversus nautas.57 The customer therefore appears to have been well protected even without receptum. Why, then, was the actio de recepto added to this armoury of legal processes? As far as the two delictual actions for theft and damage were concerned, the answer is still relatively easy. They were (probably) the older remedies and covered only two special types of situation. The actio de recepto, on the other hand, was based on the general provision of "res salvas fore"; it appears to be a more sophisticated creation, introduced, no doubt, "in the light of experience of particular provisions".58 Furthermore, there was a difference in sanctions; the actiones furti and damni in factum adversus nautas lay for duplum, whereas redress under the actio de recepto was geared to compensation (simplum).

(d) Actio de recepto and actio locati

To disentangle the relationship between the actio de recepto and the actio locati is a much more difficult, if not impossible, task. The

53Cf. e.g. De Robertis, (1953) 12 Annali Bari 51 sqq. and passim; Meyer-Termeer, op. cit., note 43, pp. 185, 191. Contra: Manlio Sargenti, "Problemi dclla responsabilita contrattuale", (1954) 20 SDHI 150 sq.

54The term "nauta" in the context of the receptum refers to the exercitor navis; cf. Ulp.

D.4, 9, 1, 2: "Qui sunt igitur, qui teneantur, videndum estait praetor 'nautae'. nautam accipere debemus eum qui navem exercet: quamvis nautae appellantur omnes, qui navis navigandae causa in nave sint: sed dc exercitore solummodo praetor sentit." Even where the magister navis concluded the receptum, it was the exercitor who was bound; his obligation arose "vel per se vel per navis magistrum" (Ulp. D. 4, 9, 1, 2 i . f ) . On the position of exercitor navis, magister navis and others involved in the management of a ship, cf. Meyer-Termeer, op. cit., note 43, pp. 150 sqq.

"Cf. supra, p. 408.

56Cf. supra, pp. 398 sq.

57Paul. D. 4, 9, 6, 1 sqq.; Ulp. D. 47, 5, 1 sqq.; Sargenti, "Osservazionj sulla responsabilita dell' exercitor navis in diritto romano", in: Studi in onore di Emilio Albertario, vol. I (1953), pp. 555 sqq.; J.A.C. Thomas, "Juridical Aspects of Carriage by Sea and Warehousing in Roman Law", in: (1974) 32 Recueils de la Societe Jean Boditi pour I'Histoire

Comparative des Institutions 133 sqq.

5e Thomas, (1974) 32 Recueils Boditi 136; cf. also Meyer-Termeer, op. cit., note 43, p. 194.

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scarcity of sources and the prevailing uncertainty regarding the extent to which Justinian interfered with the classical texts inevitably brings a very strong element of speculation into the discussion. Even the very basic question as to which of the two remedies is the older is not beyond dispute. Van Oven, for instance, has argued that, historically, the strict receptum liability preceded the more modern and flexible regime of the consensual locatio conductio.59 More often, however, a different development is held to have taken place. The contractual basis for carriage by sea was locatio conductio; it must have existed before the receptum guarantee as an accidentale negotii was recognized.60 But what was its function? According to Fritz Schulz, for instance, the actio de recepto was created in order to subject the nauta to a liability that was stricter than that imposed under a contract of locatio conductio operis;61 and indeed, we have seen that the receptum liability originally went beyond custodia and comprised all cases of vis maior. But whilst this consideration provides a plausible reason why the actio de recepto was introduced, it fails to explain why it continued to be used after the time of Labeo. Can this be attributed solely to the conservatism of the Roman lawyers?

De Robertis,62 while sharing two of Schulz's basic assumptions (namely that the locatio conductio came first, and that all conductores operis were liable for custodia), ascribed exactly the opposite function to the actio de recepto; it was not introduced in order to stiffen, but rather as part of a policy to mitigate liability for sea carriage: the nauta was to be liable for custodia only if he had in fact entered into a receptum and thereby expressly assumed such a responsibility. According to Brecht,63 the receptum was concerned only with the personal baggage brought on board by passengers. As long as we are dealing with locatio conductio rerum vehendarum, the nauta was liable for custodia, since the goods were the object of the transport. Locatio conductio vectorum vehendarum, on the other hand (i.e. the type of transaction that conspicuously dominates the Digest title 4, 9), focused exclusively on the person of the passenger. In this respect, custodia liability does not make sense. But if the carriage by sea of persons did not (and could not) entail custodia, the safety of the objects which the passenger brought with him and which were thus incidentally transported too, was not satisfactorily safeguarded. It was in order to attend to this specific problem—so Brecht argues—that the parties concluded the receptum and that the praetor granted an action.

Christoph Heinrich Brecht, Zur Haftung der Schiffer im antiken Recht (1962), pp. 99 sqq.

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Thomas,64 too, tries to differentiate. He draws attention to the fact that locatio conductio operis was by no means the only form of carriage by sea. The contract could also be locatio conductio rei, i.e. the hiring of space on the ship.65 In this latter instance, the nauta was the locator and could, as a matter of course, not be liable for custodia.66 But even in case of locatio conductio operis, the nauta (here in the role of conductor) did not automatically incur this type of liability. For, according to Thomas, thejob of the nauta "is the carrying of the cargo, the carrying as such: he should not do anything to the things given to him except transport them".67 Thus, it was originally the receptum which gave the nauta responsibility—under a contract of locatio conductio operis—not merely to carry but to produce the carried cargo at the destination.

To show that the receptum was necessary in order to impose a type of liability that was not inherent in the contract of carriage by sea: this appears to be, indeed, the most convincing solution to our problem. We have seen above that fullers and tailors were liable for custodia, but that one cannot be certain whether these professions were merely referred to in our sources by way of example.68 If, indeed, all other conductores under a contract of locatio conductio operis were liable only for culpa, then it must have been the function of the receptum to increase the nauta's responsibility to custodia.69 But even if we assume that as a rule all conductores operis were contractually liable not only for culpa but also for custodia, this cannot have applied to the situation currently at issue. For it appears to have been generally established that the imposition of custodia liability was not appropriate where the risk of theft or damage was inherent in the contract and where, therefore, the debtor exposed what had been handed over to him to these perils with the consent of the other party.70

(e) From accidentale to naturale negotii

It is perhaps not surprising, under these circumstances, to see that even the Roman lawyers themselves were occasionally uncertain about the actual function of the actio de recepto. Pomponius was one of those who were rather puzzled: "[M]iratur igitur, cur honoraria actio sit

M J.A.C. Thomas, "Carnage by Sea", (1960) 7 RIDA 489 sqq.

63 This was even the older type of transaction: Thomas, (1960) 7 RIDA 497; idem, (1974) 32

Remeils Bodin 138.

Thus it was necessary for the praetor to introduce, by reason of the special circumstances of sea carriage, the actiones furti and damni in factum adversus nautas in order to subject the nauta-locator to a special liability which was not inherent in the contract of locatio conductio rei: Thomas, (1960) 7 RIDA 497; idem, (1974) 32 Recueih Bodin 137 sq.

f'7 (1960) 7 RIDA 500, 501. "H Cf. supra, p. 399.

flV This line of argument is taken, for instance, by Meyer-Termeer, op. cit., note 43, pp. 177 sqq., 185 sqq.

70 Kaser, RPr I, pp. 508, 586.

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inducta, cum sint civiles"71 is what he asked. For him, of course, this was already a matter of legal history; at the time when he wrote his commentaries, the actio de recepto had already existed for about 300 years and it is very likely that in the course of these centuries the law had undergone considerable change. The conclusion of a receptum had become more and more a matter of course when goods were given to a nauta for transportation. The day must have come when it was simply read into a locatio conductio rerum vehendarum and when the onus was on the parties specifically to exclude the receptum liability if they so wished.72 There was, in short, a tendency to associate the duty of carriage and the duty of restoring the cargo, to approximate (and ultimately: to merge) receptum and conductio liability, and to treat what had once been merely an accidentale negotii virtually as a naturale of the contract of carriage by sea.73 When and exactly how this development occurred is unclear: and this uncertainty makes it even more difficult for us to disentangle locatio conductio and receptum today.

(f) The receptum in modem law

The praetor's edict on the liability of nautae, caupones and stabularri has become part of the European ius commune74 and it is still in force in South Africa today.75 Many of the modern civil codes, too, have adopted the strict receptum liability,76 the BGB, however, only in the case of innkeepers.77 It appears always to have been accepted that such a liability existed when a carrier by sea, an innkeeper or a stablekeeper had received the property of his customer under a contract of carriage, for lodging or for stabling, unless it had been specifically excluded by the parties.78 But whether the liability was based on an implied contract

71Ulp. D. 4, 9, 3, 1.

72That was possible; cf. Ulp. D. 4, 9, 7 pr.

73Giuseppe Ignazio Luzzatto, Caso fortuito e forza maggiore come limite alia responsabilita contrattuale (1938), p. 170; Arangio-Ruiz, Responsahilita, pp. 103 sqq.; Van Oven, (1956) 24 TR 148 sqq.; Magdelain, Consensualisme, pp. 148 sqq.; Thomas, (1960) 7 RIDA 498 sq.; cf. also Kaser, RPr I, p. 585, but cf. also RPr II, p. 408 (n. 57). According to Dc Robertis, (1953) 12 Annali Bari 61 sqq. and Brecht, op. at., note 63, pp. 112 sqq., these changes took place only in post-classical times. Against any such development, be it in classical or post-classical law, see however, E. Ude, "Das receptum nautarum, ein pactum praetorium", (1891) 12 ZSS 66 sqq. and Meyer-Termeer, op. cit., note 43, pp. 201 sqq.

74Cf. e.g. Story, Bailments, §§ 458 sq., 464 sqq., 488; for Roman-Dutch law c(. Donges, op. cit., note 42, pp. 33 sqq.

75Cf. e.g. Davis v. Lockslone 1921 AD 153 sqq.; Chr. van der Horst. in: Joubert (ed.), The Law of South Africa, vol. 2 (1977), n. 166.

7 Cf. e.g. artt. 1782 sqq., 1952 sqq. code civil (s.v. depositum necessarium), 77 §§ 701 sqq. On the liability of carriers in Germany, cf. Windscheid/Kipp, § 384 i . f; Johann Georg Helm, "Haftung fur Schadcn an Fraehtgutern" (1966), passim; for a comparative analysis, seejurgen Basedow, Der Transportvertrag (1987), pp. 392 sqq.

7H Such exclusionary clauses have, on the basis of Ulp. D. 4, 9, 7 pr., always been regarded as permissible; cf., for example, Gluck, vol. 6, p. 115; Voct, Commentarhis ad Pandectas, Lib. IV, Tit. IX, XVII; Donges, op. cit., note 42, pp. 100 sqq.; for modern South

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