Учебный год 22-23 / The Law of Obligations

CHAPTER 20

Interpretation of Contracts

I. FRENCH FRANCS AND BELGIAN FRANCS (INTRODUCTION)

If a Frenchman and a Belgian meet in Hamburg, and the one sells his car to the other for 2 000 francs, the question arises as to what currency the parties have intended: 2 000 French or Belgian francs. Both parties have probably had their own currency in mind, and the reasonable and objective bystander may well be taken to have understood the mutual declarations accordingly. Thus, we would be dealing with a case of hidden lack of agreement (dissent): the one party intended and declared French francs, whilst the other party both meant and referred to Belgian francs. If the same transaction had taken place in Brussels, rather than in Hamburg, one would probably have to come to a different conclusion: in this case the declaration, not only of the Belgian, but also of the Frenchman, would have to be construed, from an objective point of view, as referring to Belgian francs. Thus, according at least to modern German law, a contract would have come into existence, since the declarations of both parties to the contract corresponded. However, due to the obvious deviation between intention and declaration, the Frenchman would be able to rescind the contract; but if he chooses to do so, he is under an obligation to compensate the other party for his reliance interest.

This very simple example shows how closely the questions of error and interpretation are intertwined. Whether the problem of error arises, and if so, in which way, often depends on how a contract or the declarations leading up to it are to be understood. Andjust as in the case of error the law can emphasize either the intention of the parties (their "consensus ad idem") or the external manifestation of their intention,1 so it can adopt either a subjective or an objective approach in matters of interpretation.2 Archaic legal systems are usually dominated by a very literal, word-oriented (i.e. objective) approach, and it is only with the increasing refinement of legal culture that subjective elements begin to be taken into consideration.3 When a certain stage in this process is reached, however, progress ceases and decline begins.4 Sole emphasis

1 Cf. supra, pp. 584 sqq.

~ Cf. e.g. Zweigert/Kotz, pp. 96 sqq.; Alexander Liidcritz, Ausle%utt% von Rechtsgeschaften (1966), pp." 78 sqq~

' Cf. generally Heinz Hubner, "Subjektivismus in dcr Entwicklung des Privatrechts", in:

Festschrift/Ur Max Kaser (1976), pp. 715 sqq.

4 Fritz Pringsheim. "Animus in Roman Law", (1933) 49 LQR 48.

621

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on subjective criteria will seriously affect or even undermine the certainty of law and the security of commerce. Modern legal systems, therefore, usually attempt to establish a balance. The BGB, for instance, calls attention to both subjective and objective criteria. While § 133 BGB declares that, in interpreting a declaration of intention, the true intention shall be sought without regard to the literal meaning of the declaration, § 157 BGB instructs the judge to interpret contracts according to the requirements of good faith and in line with common usage.5 Both of these rules find historical antecedents in the Digest: "In conventionibus contrahentium voluntatem potius quam verba spectari placuit",6 says Papinian, whereas Paul asserts: "Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio."7

II.ROMAN LAW

1.From verba to voluntas

(a) Pre-dassical Roman law

The two maxims just mentioned reflect the struggle between verba and voluntas that for a long time dominated any discussion about the interpretation of contracts in Roman law. Very generally speaking, it is indeed true to say that there has been a development from verba to voluntas, from a strictly objective to an excessively subjective approach. The most characteristic feature of archaic Roman jurisprudence is its tendency to endow every (sacral and) legal act with a definite form.8 Specific rituals had to be meticulously performed, precisely set forms of words to be uttered with great punctiliousness.9 The smallest mistake, a cough or a stutter, the use of a wrong term invalidated the whole act.10 This actional formalism corresponded to a similarly strict formalism in the interpretation of those ancient legal acts. No regard was had to the intention of the parties; what mattered

3 Both rules supplement each other: cf. e.g. Flume, AT, § 16, 3 a. For criticism of the apparent contradiction, see Zweigert/Kotz, pp. 101 sqq.; but see Staudinger/H. Dilcher, 1979, §§ 133, 157, nn. 7 sqq.

6Pap. D. 50, 16, 219. This maxim was almost literally taken over (via Pothier, Traite des obligations, n. 91) into art. 1156 code civil: "On doit dans les conventions rechercher quelie a ete la commune intention des parties contractantes, plutot que se d'arriter аиsans litteral des termes."

7Paul. D. 32, 25, 1. § 157 BGB takes up this view in so far as it postulates a strictly objective criterion. The reference to "good faith" has a double root in the Roman bona fides and in the (Germanic) concept of "Treu itnd Glauben" in the late Middle Ages (on the latter cf. Wolfgang Stratz, Treu und Glauben, vol. I (1974), pp. 47 sqq.). In England, this maxim (in a slightly different form: "Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est", cf. Blackstone, Commentaries, vol. II, p. 379) became the origin of the "plain meaning" rule and is thus to a large extent responsible for the expression-oriented approach of the English courts :o contract interpretation.

8Schulz, RLS, pp. 24, referring to Jhering, Geist, vol. II, pp. 45 sqq., 470 sqq.

9For examples cf. Schulz, RLS, pp. 24 sqq.; Heinrich Honsell, "Das Gesetzesverstandnis in der romischen Antike", in: Buropaisdies Rechtsdenken in Geschichte und Gegenwart, festschrift

fur Helmut Coing, vol. I (1982), pp. 138 sqq.; cf. also Wieacker, RR, pp. 320 sq., 330 sqq. 1 This is the "nimia subtilitas" to which Gains (IV, 30) refers; cf. also Gai. IV, 11.

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were the verba used by them. The more rigid the interpretation, the more care was, in turn, bestowed on the formulation of the formulae. The drafters had to try to eliminate every risk of ambiguity. This led to scrupulous attention to detail, to cumbrous enumerations and to the inclusion of standard clauses such as "quod ego sentio".11 Anyone who failed to employ such devices ran the risk of having to face unwelcome and unexpected consequences: as was experienced, for instance, by those who had taken the vow to sacrifice "quaecumque proximo vere nata essent apud se animahV. Not only animals but their own children also were taken to be covered by these words.12 The same interaction, incidentally, between techniques of interpretation and legal drafting is obvious in modern legal systems: flexibility in interpretation corresponds, on the whole, with a more mature approach to the drafting of legally relevant documents; and the clumsy, unabstract and casuistic manner in which it is usually deemed necessary to phrase legislation, wills and contracts in England (or South Africa) is a consequence and reflection of the strict and relatively formal canons of construction.13

1 Examples in Schulz, RLS, p. 333. The anxious formalism and the excessive subtlety of the jurists were often caricatured; cf. e.g. Cicero, Pro L. Licinio Murena oratio, XII—26 sqq.;

Pro A. Caecina oratio, XXIII — 26; Norr, Rechtskritile, pp. 84 sqq.; Frier, Roman Jurists, pp. 134 sq., 240 (". . . their |sc. the jurists'] supposed pretentiousness, pedantry, and conservatism are all often attacked, but in terms that imply more a lighthearted disdain for the 'lawyer class' than any decpseated animosity"); for a detailed analysis of rhetorical criticism of legal science in Cicero's Pro Murena, see Alfons Burge. Die Juristenkomik in

Cicero's Rede Pro Murena—Ubersetzung and Kommenlar (1974); Claude Cantcgrit-Moatti,

"Droit et politique dans le 'Pro Murena' de Ciceron", (1983) 61 RH 515 sqq.

12Festus, De verborum significatione. s.v. Ver sacrum, who continues: "[S]ed cum crudele vidcretur pucros ac puellas innocentes intcrficerc, perductos in adultam aetatem velabam atque ita extra fines suos exigebant." On this incident, see Honsell, Festschrift Coin%, vol. I, p. 139.

13For recent criticism of the style of English legislative drafting, see, for instance, the

remarks by two distinguished Hamlyn lecturers: Tony Honore, The Quest For Security:

Employees, Tenants, Wives (1982), pp. 118 sqq. and P.S. Atiyah, Pragmatism and Theory in

English Law (1987), p. 31 ("fM]ost legislation is not drafted in the form of a statement of true principle. . . . Much of it is drafted in the form of a set of specific rules, ad hoc solutions to particular problems. Nobody would read a modern English statute for its literary elegance as it was said that Flaubert used to read the French Code Civile. . . . Even when we do use legislation, an instrument well suited to the enactment of broad principles and generalisations, we find ourself so shackled by the traditional common law methodology, that we fail to use legislation in an effective and principled manner. . . . In particular, the detailed and crabbed style of legislative drafting means that it becomes almost impossible for the courts to draw principles from legislation, to treat legislation as a living graft on the common law, and to develop the law as an integral whole").

A considerable body of South African legislation is derived, either directly or indirectly, from English statutes, and so, too, is the South African style of legislative drafting. Statutes tend to be clumsily drafted, since the legislator anxiously tries to provide for every conceivable eventuality himself rather than to leave anything to the good sense of those interpreting the statute. Particularly odd, from a Continental perspective, are the long lists of (usually rather unhelpful) definitions with which many statutes commence (cf., for instance, Act 19/1893 where the term "banker" was defined as including "a body of persons

. . . who carry on the business of banking"; on which, see National Housing Commission v. Cape of Good Hope Savings Bank Society 1963 (1) SA 230 (C) at 233). There is even an Interpretation Act (33/1957) which provides illuminating insights such as that "Christian name" means any name prefixed to the surname, whether received at Christian baptism or

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(b) Post-classical jurisprudence

At the other end of the development of Roman legal science stood an exaggerated emphasis on subjective criteria.14 It was closely related to the final disappearance of the old word formalism and to a general trend to judge all human behaviour according to moral, more particularly Christian standards.'5 The content and character of every contract were determined by the intention of the contracting parties, and this intention to attain a specific legal consequence was usually referred to as "animus". According to Fritz Pringsheim, whose research has fundamentally shaped our views on the post-classical animus doctrine,16 the Byzantines were the first to attribute to the parties an intention directed towards procuring specific legal ends and to make the intention supreme, even where it was unexpressed and undemonstrable.17 The Byzantine predilection to animus is obvious and unchallenged. Indisputably, it is the source of a considerable amount of interpolation of classical texts. But whether this theory was in fact "dangerous and alien to reality"18 is somewhat more doubtful. Onesided and extreme as it may appear from a purely dogmatic point of view, it must be assessed against significant changes in the contemporary procedural background.19

Classical Roman law did not normally concern itself with problems of evidence; the taking of evidence and its evaluation could be left to the

not, that "month" means a calendar month, or that "law" means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law. This approach to legislation neither presupposes nor engenders a particularly liberal approach to the interpretation of statutes. And, indeed, statutory interpretation in South Africa, as in England, is traditionally governed by the so-called "golden rule": "The rule by which we are to be guided in construing acts of Parliament is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice" (Perry i>. Skinner (1837) 2 M & W 471 at 476); for all details, as far as South African law is concerned, cf. L.C. Stcyn, Die Uitleg van Wette (5th ed., 1981); Lourens M. du Plessis, The Interpretation of Statutes (1986). The equivalent of the "golden rule" for contract interpretation is the "plain meaning rule" (cf. supra, note 7; for details, see Liideritz, op. cit., note 2, pp. 65 sqq.) which applies to all those transactions that have been laid down in a document (no matter whether the formality is required by law or not). The plain meaning rule and the closely allied (procedural) "parol evidence rule" serve to protect reliance on the contractual declaration and are an expression of the objective (declaration-oriented) approach of the English courts to contract interpretation. According to the parol-evidence rule a written instrument may not be contradicted, added to or varied by oral evidence (cf. e.g. Brown v. Selivin (1734) Cases T. Talbot 240 at 242; Liideritz, op. cit., note 2, pp. I l l sqq., 172 sqq.; Zwcigert/Kotz, pp. 105 sqq.). South African law, again following English law, has traditionally adopted a rather rigid and formalistic approach to the interpretation of written contracts too; for details cf. E.L. Jansen, "Uitleg van Kontraktc en die bedoeling van die partye", 1981 TSAR 97 sqq.: joubcrt, Contract, pp. 59 sqq.

14Kaser, RPr II, pp. 82 sqq.

15Cf. generally Kaser, RPr II, pp. 60 sqq.; Biondi, DRC, vol. II, pp. 1 sqq.

16Cf. particularly his article on "Animus in Roman Law", (1933) 49 LQR 43 sqq.,

379sqq.

17(1933) 49 LQR 48.

18Pringsheim, (1933) 49 LQR 48.

19Giuseppe Gandolfi, Studi sull'ittterpretazione de%li atti negoziali in diritto romtmo (1966), pp. 243 sqq.; Franz Wieacker, (1966) 83 ZSS 437 sq., 444 sq.

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discretion of the judge (normally not a professional lawyer), who decided the issue not on the basis of fixed rules of proof but on that of his personal authority.20 This was different in the so-called bureaucratic, post-classical period of Roman jurisprudence.

"The innate tendency of every bureaucracy to convert the development of the law into the monopoly of a central office, to codify the law and to assure and supervise its strict application and enforcement, produced a complete change in the structure of Roman legal science."21

Hence the tendency to tie the judge to specific rules of evidence and to emphasize the problem of proof.22 "Nisi alia mens testatoris probetur",23 "si voluntas testatoris . . . evidenter non ostenderetur":24 these are the kinds of clauses which Justinian inserted into the classical texts. On the one hand, therefore, he instructed the judge to take account of the (real) intention of the parties; but at the same time he stressed the necessity that such an intention must be proved beyond reasonable doubt. In practice, such proof was normally bound to be based on the declaration of the party concerned.

(c) "Voluntas in primis spectanda est"

Nevertheless, Justinian's animus theory did, of course, greatly influence the authors of the ius commune and is responsible for the preponderance of subjective criteria in their writings. "[V]oluntas in primis spectanda est", as was stated crisply by the French humanist Alciatus.25 The practically minded lawyers of the usus modernus were somewhat more cautious, though: "[I]ta verba minus curanda, si de mente constat

. . . ne propter nimiam subtilitatem verborum, latitudo voluntatis contrahentium impediatur."26 Here, again, we find the limitation inherent in the intention-oriented approach spelt out quite clearly: one must not prevent an equitable result by rigidly adhering to the external manifestation of the parties' intention, but the (unexpressed) will of the parties can prevail only if it is (objectively) determinable ("si de mente constat").

2.The position in classical Roman law

(a)Verba or voluntas?

But what about the centuries between the archaic period and Justinian? How much, in particular, does the Digest still reflect of the spirit of classical Roman jurisprudence when it comes to the interpretation of

20Kaser, RZ, pp. 276 sqq.

21Schulz, RLS, p. 263.

2 4 _ Paul . D. 31, 85. Cf. furthe r Wicacke r, ( 1966) 83 ZSS 437. 3 De v erborum significatione, Lib. I, n. 2, in: Opera, Francofurti, vol. IV (1617), p. 755.

Laute rbach, Collegium theoretico-practicum. Lib. XVIII, Tit. I , CXI X; cf. also Going, pp. 410 sq.

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contracts? During the 19th century, one was obviously inclined to see the whole question within the framework of the then prevailing notions of private autonomy and will theory. If every contract has its raison d'etre in the will of the parties concerned,27 then it is obvious that determination of the content of a contract requires ascertainment of the parties' true intention. Towards the end of the century, when the Corpus Juris Civilis ceased to be the basis of the living law in Germany and when one therefore started to look at it, once again, from a criticalhistorical point of view, rather than under purely dogmatic auspices, the pendulum swung radically to the other side. Long lists of interpolated words and phrases were drawn up, and the sources were purged of all subjective criteria determining both the content and the formation of a contract.28 A (supposedly) classical Roman objectivity was opposed to Byzantine subjectivity. That contrast was encapsulated, as far as problems such as interpretation and error were concerned, in the antithesis of verba and voluntas.

(b) Flexibility

It is clear today that both these views on the matter are essentially ahistorical and that, indeed, the very framework within which the arguments were developed (namely the alternative of verba or voluntas) has for a long time obfuscated any unprejudiced appreciation of the sources.29 Thus, what one has to guard against primarily is the temptation to put the past into the straitjacket of contemporary conceptions.30 Classical Roman lawyers tended to look at legal transactions as a whole,31 without isolating their individual components or dogmatizing the objective or subjective elements contained in them. The analysis of contract as being composed of two corresponding declarations of intention, both of which in turn are made up of an internal component (the intention—voluntas) and of an external one (the declaration—verba) is, as we have seen, of a much later date.32 The Roman jurists did not think in terms of stereotyped categories; that obviously makes it difficult to generalize their solutions and to extract crisp and clear-cut formulae from our sources. Most remarkable and

27Cf. e.g. Savigny, System, vol. Ill, p. 258: "Intention per sc is really the only important and effective thing, and only because it is an internal and invisible phenomenon do we need

asign by which we can recognize it" (cf the translation by Weir in Zweigert/Kotz/Weir, p. 72).

28Cf. in particular Otto Gradenwitz, Interpolationen in den Pandekten (1887), pp. 170 sqq.; also e.g. Fritz Pringsheim, "Animus donandi", (1921) 42 ZSS 273 sqq.; Emilio Albertano, "La crisi del metodo interpolazionistico", in: Studi in onore di Pietro Bon/ante, vol. I,

pp.611 sqq.

29Cf. Horak, Rationes decidendi, p. 194 ("quellenfremde Getehrtenkonstruktion"); Kniitel, Stipulatio und pacta, Festschrift fur Max Kaser (1976), pp. 202 sq.

Cf. also the warning sounded, in a related context, by Robert Feenstra, "The Dutch Kantharos Case and the History of Error in Substantial (1974) 48 Tulane LR 849 sq.

31Kaser, RPr I, p. 235.

32Supra, pp. 567 sqq.

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characteristic, probably, is the flexibility with which questions of interpretation were approached and decided.

Already by the time of the later Republic, the narrowness and rigidity of the old literal approach to interpretation had been left behind.33 To a considerable degree, this was a consequence of the relaxation of the "external" formalism of Roman law. Trade links with non-Romans facilitated (sub voce "ius gentium")34 the introduction and increasing popularity of new, informal types of transactions: transactions which no longer found their effective cause in compliance with a specific formality, but in the consensus, or the conventio,35 of the parties. Thus it was with the consensual contracts that the wider and more liberal manner of interpretation gained ground. Here one did not necessarily have to stick to the meaning that was typically associated with the words contained in formal declarations, but one could freely take into consideration—and was, on account of the "ex bona fide" clause even encouraged to do so—the individual circumstances of each case. As in the case of error, testaments were the first formal type of transactions where the more modern, flexible approach established itself,36 and by the time of high classical law, it prevailed with regard to formal contracts too.37 "Nullum esse contractum, nullam obligationem, quae non habeat in se conventioncm": no matter whether a contract of sale, a mutuum38 or a stipulation39 had been concluded, the

33 Cf. Alan Watson, "Narrow, Rigid and Literal Interpretation in the Later Roman Republic", (1969) 37 TR 351 sqq. This is a good example of the crucial importance of Republican jurisprudence for the development of Roman law. The decisive achievements of Roman law, according to the prevailing modern view, were already established by the end of the Republic. Wieacker, (1969) 2 The Irish Jurist 151 sq., writes: "First of all, I believe the development of an independent juristic technique made possible (perhaps for the first time in history) the solution of social conflicts according to a rational intellectual rule. In the second place there arose the great juristic abstractions, such as Person, Property, and Obligation, which all European legal systems have achieved only with the help of the Romans. Finally, it was already the Republic which had created the Praetor's ius honorarium, which supplemented the formalism of the old ius civile through a progressive legal ethic, i.e. through the ideas of bonum et aequum and bona fides, and through the struggle against dolus and the old rigidity of formalism. And all that was not only a mere promise of a great classical future, but had already been perfected in the finest technical detail."

In the same vein, see Frier, Roman Jurists, pp. 139 sqq.: "Around the middle of the second century B.C., Roman jurisprudence was profoundly transformed. [What emerged from this revolution was, first and foremost, the concept of] 'autonomous law' —a theory that not only became the guiding ethos of classical Roman law, but also is perhaps the single most important Roman contribution to the Western legal tradition" (pp. 156, 188 sqq.; on the doctrine of "autonomous law" cf. pp. 188 sqq.; 269 sqq.). For a comprehensive evaluation cf. now the authoritative study by Wieacker, Romische Rechtsgeschichte, pp. 519 sqq.

34On which, see Kaser, RPr I, pp. 202 sqq.; Honsell/Mayer-Maly/Selb, pp. 57 sqq.

35On these terms cf. supra, pp. 563 sqq.

36On the interpretation of wills cf. Voci, DER, vol. II, pp. 885 sqq.; Hans Josef Wieling,

Testamentsauslegang im romischen Recht (1972), passim; Kaser, RPr I, pp. 241 sqq.; RPr II, pp. 84 sq.

37Cf. supra, pp. 599 sq.

3H Supra, 156 sqq., 165.

39 Supra, pp. 510 sq., 565

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transaction was ultimately based on the consent of the individual parties concerned.

(c)The causa Curiana: the case before the court

The most prominent individual turning point within this development, incidentally, was the causa Curiana,40 argued in 92 B.C. before the centumviral court.41 It had all the ingredients of a sensational cause celebre, for it involved a clash between Lucius Licinius Crassus, the leading orator of his time,42 and Quintus Mucius Scaevola, Pontifex Maximus, Consul in 95 B.C., author of an influential treatise on the ius civile43 and probably the most outstanding jurist of the late Republic. The case was of particular significance, since it concerned the interpretation of a testament, i.e. a strictly formal legal act. It must have occurred quite frequently that a paterfamilias instituted as his heir a son who had not as yet attained the age of puberty. When the testator died, the pupillus (if such he still was) would, of course, become sui iuris, but he would not be able to make a testament himself: for persons under the age of puberty lacked the ius testamenti faciendi.44 Thus, the danger existed that the testator's property might ultimately pass ab intestate Considering the specific importance attached by upper-class Roman citizens to testate succession (designation of an heir was regarded as the social duty of every bonus paterfamilias),45 that was a result to be

On the causa Curiana cf. Johannes Stroux, Summum ius summa iniuria (1926), pp. 29 sqq.; Gandolfi, op. cit., note 19, pp. 288 sqq.; Franz Wieacker, "The causa Curiana and Contemporary Roman Jurisprudence", (1967) 2 The Irish Jurist 151 sqq.; idem, "La 'causa Curiana' e gli orientamenti della giurisprudenza coeva", (1968) 1 Antologia giuridica romanistka ed antiquaria 111 sqq.; Wieling, Testamentsauslegung, op. cit., note 36, pp. 9 sqq., 60 sqq.; Alan Watson, The Law of Succession in the Later Roman Republic (1971), pp. 153 sqq.,

94 sqq.; J.W. Tellegen, "Oratores, Iurisprudentes and the 'Causa Curiana' ", (1983) 30 RID A 293 sqq.; Richard A. Bauman, Lawyers in Roman Republican Politics (1983), pp. 341 sqq.; Frier, Roman Jurists, pp. 135 sqq.

On the jurisdiction of this court cf. Kaser, RZ, pp. 37 sqq.

42 Was Crassus merely an orator, or also a recognized jurist? Cf. Bauman, op. cit., note 40, pp. 341 sqq.

Cf. supra, pp. 24 sq. On the relationship between Crassus and Scaevola (they were of the same age and had held the quaestorship, aedileship, praetorship and consulship together), cf. Bauman, op. cit., note 40, pp. 341 sqq. He also discusses the question whether the causa Curiana had political overtones and whether it soured the relations between the two men.

"GIL II, 113.

45 On the "Roman Passion for Testacy" Maine, pp. 128 sq. ("No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will"); Schulz, Principles, p. 156. But see David Daube, "The Preponderance of Intestacy at Rome", (1964—65) 39 Tulane LR 253 sqq. In support of the Roman dislike of intestacy, a famous remark by the elder Cato is usually referred to; according to Plutarch (Vitae, Cato maior, 9, 6), he had made three mistakes in his life, one of them being that he had remained without a will for an entire day. Daube, Roman Law, p. 73 finds it indefensible "to base on such an utterance by an eccentric one's estimate of the mores among, say, the tailors or carpenters or even the bankers of Rome. . . . The same Cato, let me remind you, remarked that he never made love to his wife except during a thunderstorm. Are we to

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avoided. The paterfamilias was therefore allowed to appoint a substitute who was to become heir in case his son died as a pupillus. Such a clause, contained in the will of the paterfamilias, was known as a substitutio pupillaris, and it ran like this: "Titius filius meus mihi heres esto; si filius meus prius moriatur quam in suam tutelam venerit, tune Seius heres mihi esto."4*1 A substitutio pupillaris thus covered the situation where the heir died before attaining the age of puberty; whether this occurred after he had accepted the inheritance or before the paterfamilias himself had died was immaterial. It did not cover the situation where the son did not in fact die at all for the simple reason that he had never been born.

This, however, is exactly what had happened in the causa Curiana: a testator by the name of Marius Coponius had instituted as heir a son whom he had only hoped to have;47 by way of a substitutio pupillaris, he had nominated a certain Curius as a substitute. But what Coponius had taken for granted did not materialize: for when he died, he neither had a son, nor was a postumus on its way. In such a case, a simple substitutio vulgaris would have helped. This was the appropriate device if the testator wanted to institute a third person as an alternative heir in the event of Titius (i.e. the person appointed in the first place) for some or other reason failing to inherit: be it because he refused to accept the inheritance, be it that he had predeceased the testator or that he had never been born. In order to be on the safe side, a testator who wanted to institute a future son was therefore well advised to combine a substitutio vulgaris (to cover the possibility that a son would not be born) and a substitutio pupillaris (to provide for the eventuality that by the time of the testator's death a son had been born but had died before having been in a position to make a will).48 A substitutio vulgaris was, however, not contained—expressis verbis—in the will before the court in the causa Curiana. The question therefore arose whether it could not possibly be read into the substitutio pupillaris. Scaevola, the jurist, rejected such a proposition; and, in fact, on a strict and literal reading of the substitutio pupillaris he was undoubtedly correct.49 The condition

generalize this too?" Contrary to Daubc, the word абкйдцтос; used by Plutarch can, incidentally, have the meaning "without a will". According to Daube, it means "without serious, planned work".

46 On substitutio (pupillaris and vulgaris) Gai. II, 174 sqq.; D. 28, 6; Inst. II, 15 sq.; Schulz, CRL, pp. 260 sqq.; Voci, DER, vol. I I , pp. 160 sqq.; Kaser, RPr I, pp. 688 sqq.

47 On the institution of postumi, see Kaser, RPr I, pp. 684 sq. The postumus did not even have to have been conceived at the time the will was made: Ulp. D. 28, 2, 4.

4H Cf., for example, Mod. D. 28, 6, 1, 1.

49 Kaser, RPr I, p. 236, remarks that Scaevola's viewpoint was no mere formalism, but arose from the moral awareness of the educative force of compulsory form. For a sympathetic evaluation of the "legal" point of view, represented by Scaevola, cf. Wkacker, (1967) 2 The Irish Jurist 157 sqq. He also emphasizes that "fb]efore the great court of the centumviri the skilled jurist Scaevola, as advocate opposing the famous orator Crassus, was in an uncomfortable situation. As a rule, the old aristocratic jurist stood as an impartial adviser above the parties; Scaevola's cousin, the augur, looked down with amused contempt

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under which Seius had been instituted as alternative heir had not been met.

(d) The causa Cunana: jurists and orators

But such a narrow construction no longer commended itself to the court. It was Crassus, the orator, who carried the day.50 He placed the emphasis on the overriding intention of the testator, rather than on the wording of the will. The testator had evidently wanted his son to inherit, but had regarded Seius as his second choice. This is why he had instituted Seius to become heir after his son. The possibility that he might not have a son had evidently not occurred to him. It is quite obvious, however, that he would have preferred Seius to inherit his estate in this event too, rather than to die intestate. Undoubtedly, therefore, it was in accordance with the testator's (unexpressed and hypothetical) intention, and generally in his interests to construe the substitutio pupillaris as containing a substitutio vulgaris.51

The causa Curiana, no doubt, was only one milestone within a long development, and Crassus' victory did not mean that henceforth a willoriented, subjective or individualizing approach had definitely superseded or replaced the old and rigid literal interpretation.52 In fact,

on the juristic ignorance of the average court speaker. We do not know what duty of friendship . . . induced him to enter into the legal arena. In any case he tried, at least in the beginning, to accommodate himself to the rhetorical style. At length the jurist broke through. Therefore one has the impression that in his plea rhetorical and juristic arguments were not quite happily combined." Cicero, who of course favoured Crassus' point of view, pays tribute to Scaevola with a rather malicious compliment: he was "iuris peritorum eloquentissimus, eloquentium iuris peritissimus" (De oratore, 1, XXXIX—180; cf. also Brutus XLI—151: "videtur mihi in secunda arte [i.e. jurisprudence] primus esse maluisse quam in prima [rhetoric] secundus"). Watson, (1969) 37 TR 366 draws attention to the fact that Quintus Mucius Scaevola himself was prepared to take a wider view; he refers to Pomp. D. 35, 2, 33 concerning the rather queer case of a senator who wore women's dinner dresses; how was a legacy of "women's clothing" to be understood under those circumstances? On whether Watson's argument can be construed as an implied attack on Quintus Marcius' integrity (in that he "cut his coat according to his cloth"), see Bauman, op.cit., note 40, pp. 349 sqq. Wieacker's evaluation of the causa Curiana and of the role of the two main protagonists in the case are rejected by Tellegen, (1983) 30 RIDA 300 sqq. The latter asserts that the accepted distinction "between oratores and iurisprudentes is fundamentally wrong", and that the causa Curiana cannot be appreciated properly if one assumes that the members of these professions were "opposite extremes" (pp. 294 sq.); but see the detailed analysis of the (different) roles of orators and jurists by Frier, Roman Jurists, passim (e.g. pp. 127 sqq., 184 sqq.); cf. also Wieacker, RR, pp. 666 sqq.

50 His speech was regarded as a masterpiece of forensic oratory; for details, see Wieacker (1967) 2 The Irish Jurist 160 sq.; Tellegen, (1983) 70 RIDA 297 sq., 307 sqq.

In classical law, a pupillary substitution was in fact construed as containing a vulgar substitution and vice versa: cf. the constitutio by the Emperors Marcus Aurelius and Lucius Verus referred to in Mod. D. 28, 6, 4 pr. In our own time, § 2102 I BGB can mentioned: the appointment of a reversionary heir contains, in case of doubt, also the appointment of a substitutional heir.

52 This was essentially the view of Stroux, op. cit., note40, pp. 29 sqq.: the causa Curiana marked the victorious breakthrough of rhetoric and intention-oriented interpretation against the archaic formalism of the older lawyers. Contra e.g. Wieacker, (1967) 2 The Irish Jurist 155 sqq., 161 sqq., who in turn, however, appears to play down the importance of this

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