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(b) The Proculian view

The Proculians were not impressed by this argument. They stressed the technical differences between the two types of transaction:

". . . nam ut aliud est vendere, aliud emere, alius emptor, alius venditor, sic aliud est pretium, aliud merx: quod in permutatione disccrni non potest, uter emptor, uter venditor sit."103

And indeed, the praetor had to know to whom he had to grant the actio

empti and to whom the actio venditi. A whole variety of substantive issues depended on who was vendor and who was purchaser.104 The

alternative, namely to regard both parties, at the same time, as vendor and purchaser, would not really have made sense either.105 Caelius Sabinus tried to overcome this difficulty by suggesting that the rem venalem habens had to be regarded as seller.106 However, quite apart from the practical difficulties of establishing who had in actual fact held out his thing for sale, such a distinction would have been unfair:107 since both parties owe a thing (rather than money), it would not have been equitable to expect one of them (the "purchaser") to transfer ownership, the other only to provide habere licere. Ultimately, therefore, the Proculian view prevailed. Some sort of compromise was reached, though, in that the buyer was allowed to promise something in addition to money. As long as at least part of the price was in money, the Proculian objections were met and the actions on sale could be granted. No text deals specifically with the case where the counterperformance consisted in money and an object that was to be exchanged, but we find the actio venditi being granted in analogous situations: where, for instance, the purchaser, in addition to paying a certain price, had agreed to repair one of the vendor's houses108 or to take a lease of one of the vendor's estates.104 Transactions of this kind can, of course, lead to difficult questions of where to draw the line, for it would hardly be reasonable to apply the law of sale in all these cases no matter what the parties had actually intended, no matter, too, how insignificant the balance payable in money was compared to the rest of the counterperformance.

(c) Sale and exchange

The distinction between exchange and sale is less important today than it was under classical Roman law, for to us the one transaction is as

w3 Paul. D. 18, 1, 1, 1; cf. also Paul. D. 19, 4, 1 pr.

104 For instance: the purchaser had to transfer ownership, the vendor only had to afford habere licere; the purchaser could avail himself of the actio empti if he was evicted. Cf. infra, pp. 296 sqq.

105"Absurdum videri": Gai. Ill, 141.

106Gai. Ш, 141 in fine.

107Seckel/Levy, (1927) 47 ZSS 133.

108Pomp. D . 19, 1, 6, 1.

109lav. D. 18, 1, 79.

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valid and enforceable as the other. It has, however, not entirely lost its practical significance, even in systems which boldly provide that the rules relating to sale "apply mutatis mutandis to exchange".110 Such blanket provisions do not solve the problem, since, for instance, many of the rules implying an obligation to pay a purchase price cannot even be applied mutatis mutandis.111 Today, the classification problem often arises with regard to the common trade-in agreements. If A buys a motor car from В for 10 000 rand, trading in his old car for 1 000 rand and paying the remainder in cash, the transaction is usually regarded as a contract of sale, the purchaser being allowed to provide a substitute for part of the purchase price.112 The situation in German law has, however, been somewhat distorted owing to considerations of saving turnover tax. Thus the transaction has been split into a contract of sale

and an agency agreement, the vendor (of the new car) undertaking to sell the purchaser's old car for him (i.e. not in his own name).113

2. Pretium verum

In conclusion then, the price generally had to consist in money. Furthermore, it had to be verum and certum but not necessarily iustum. The first of these requirements was fairly straightforward: "Cum in venditione quis pretium rei ponit donationis causa non exacturus, non videtur vendere."114 The price had to be seriously meant; otherwise the transaction was merely a donation in disguise. That the price was very low did not in itself invalidate the sale, as long as the vendor seriously intended to demand it. Only if it was derisory ("nummo uno")115 could it normally be assumed116 that the parties did not actually have in mind the conclusion of a genuine contract of sale.

110 § 515 BGB. In other codifications, a distinction is recognized as far as remedies for eviction arc concerned (under a contract of exchange a party that has been evicted may either claim damages or restitution of the thing delivered; cf. e.g. art. 238 OR); in the code civil the provisions relating to rescission for lesion do not apply to exchange: art. 1706. For further details and analysis, see T.B. Smith, "Exchange or Sale?", (1974) 48 Tulane LR 1031 sqq; A.D.M. Forte, "A Civilian Approach to the Contract of Exchange in Modern Scots Law", (1984) 101 SALJ 691 sqq; R.L. Purves, "Asset-Transfer Contracts", 1987 Respotisa meridiana 237 sqq.

" Cf. e.g. § 472 I BGB, which provides with regard to the actio quanti minoris (on which see infra, p. 318): "In case of reduction, the purchase price shall be reduced in the proportion which, at the time of the sale, the value of the thing in a condition free from defect would have borne to the actual value." For further criticism, see Theo Mayer-Maly, "Dogmengeschichtliches zu BGHZ 46, 338", in: Festschrift fur Karl Larenz (1973), pp. 673 sqq.

112The relation is different, for instance, if A and В swop their motorcars (A's car being worth 9 000 rand, B's 10 000 rand) and A has to throw in 1 000 rand as a makeweight. The crucial factor in determining the type of contract is the intention of the parties: cf. e.g. Voet, Commentarius ad Pandectas, Lib. XVIII, Tit. I, XXII; Kerr, Sale and Lease, pp. 23 sqq. See further Smith, (1974) 48 Tulane LR 1034 sqq; Forte, (1984) 101 SALJ 693 sqq.

113For details, see H.P. Westermann, in: Munchener Kommentar, vol. Ill 1 (2nd ed., 1988),

§515, n. 4.

1Ulp. D. 18, 1, 36. For a comprehensive discussion of this text, see David Daube, Studi Arangio-Ruiz, vol. I, pp. 192 sqq.

1Cf. Ulp. D. 19, 2, 46 (dealing, however, with locatio conductio); Pothier, Traite du

central de vettte, n. 19.

116 But sec Michel, Gratuite, pp. 244 sqq.

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3.Pretium certum

(a)Borderline cases

The certainty requirement, on the other hand, led to a couple of very interesting borderline cases; for "certum pretium" was not taken to imply that the parties must necessarily name the actual figure. Thus we find the following statement by Ulpianus: "Huiusmodi emptio 'quanti tu eum emisti' . . . valet." Reason: ". . .magis enim ignoratur, quanti emptus sit, quam in rei veritate incertum est."117 In this example the purchaser does not know the price. He seems to be very keen to have the object, whereas the vendor just has an interest not to sell at a loss. Perhaps he does not remember what he once had to pay for it when he himself bought the thing; hence, the parties do not specify a sum, but fix the price at "whatever sum the vendor has bought it for". Here the price is objectively certain, and this was sufficient for the validity of the sale. The fact that the parties did not know the actual amount, did not matter. In other words: the price had to be certum in the sense of at least being ascertainable. Whether the same holds true in the other example given in D. 18, 1, 7, 1 ("quantum pretii in area habeo") is very doubtful.118 First of all: do the parties really deserve protection for what can only be described as a gamble? What sober motive could induce a purchaser to promise whatever he happens to have in his safe as the purchase price? More importantly, though, there is, of course, the possibility that no money at all appears to be in the safe. In that case the sale cannot conceivably be valid. It is, one can say, a chance (alea) that the purchaser is substituting for a real price. Whilst, however, one might be able to buy or sell a chance ("emptio spei"), it can hardly have been regarded as possible to pay with a chance. After all, the price had to consist in money. There are thus, I think, strong reasons for regarding this second example as spurious.

We are back on safer ground with regard to the situation where a piece of land was sold for a certain figure, plus the possible profit made by a resale:

"Si quis ita emerit: 'est mihi fundus emptus centum ct quanto pluris eum vendidero', valet venditio . . .: habct enim certum pretium centum, augebitur autem pretium, si pluris emptor fundum vendiderit."ny

This contract is valid, the price being centum and hence certum. The possible future payment is merely a subsidiary duty, also enforceable with the actio venditi, but not rendering the price uncertain. It has been suggested that transactions of this type are impractical: the vendor

117 D. 18, 1, 7, 1.

ия For a detailed analysis, see David Daube, "Certainty of Price", in: Studies in the Roman Law of Sale in memory of Francis de Zulueta (1959), pp. 9 sqq. Cf., however, alsoJ.A.C. Thomas, "Marginalia on certum pretium", (1967) 35 TR 77 sqq., who comes to the

conclusion that the two cases can "in fact stand perfectly well together". 119 Ulp. D. 18, 1, 7, 2; cf. also Ulp. D. 19, 1, 13, 24.

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cannot hope to derive any advantage from a term such as this, since the purchaser has no incentive to make a profit.120 But one has only to change the example slightly ("one hundred plus half of what I can (re)sell it for") in order to meet this objection.121

(b) Determination of the price at a later stage

The "certainty of price" requirement was primarily intended to help ensure that in its essential elements the bargain was the work of the parties. Secondly, however, the Roman lawyers seem to have wanted to ensure that the bargain was in actual fact struck; they tried to avoid recognizing a contract of sale where a breakdown of the transaction was still possible due to the fact that in the end a price might either be lacking or be unascertainable. Hence their reluctance to accept an arrangement by the parties "ut quanti Titius rem aestimaverit, tanti sit empta".122 The possibility existed that Titius did not want to or could not fix a price. Opinions ■were divided in classical law,123 for there may, of course, be good reasons why the parties do not want to determine the price themselves, but would rather leave that to an (impartial) third party. Justinian settled the dispute by construing the clause as a (suspensive) condition: if the third party names a price, the sale becomes effective; otherwise the transaction is void for lack of price.124 This solution implied, however, that the sale did not already come into existence at the time of its conclusion. A different view was taken if the price had to be fixed, not by a third party, but by the purchaser. This was unacceptable in Roman law: "Illud constat imperfectum esse negotium, cum emere volenti sic venditor dicit: 'quanti velis, quanti aequum putaveris, quanti aestimaveris, habebis emptum'."125 The problem here was not so much that the purchaser might in the end not fix a price at all—it was rather that the vendor would have had an interest in the failure of this disadvantageous arrangement. The main objection of the Roman lawyers was probably that the determination of an essentiale negotii had been left to one party and that thus the institutional check against the danger of gross and unreasonable contractual imbalance (namely negotiation about the price) had been removed. Other ways and means of seeing to it that the purchaser did

Cf. e.g. Arangio-Ruiz, Compravendita, pp. 139 sq.

121Daubc, Studies De Zuiueta, p. 27. He continues: "As a matter of fact, one can think of situations, where even the term of 18, 1, 7, 2 . . . would be perfectly in order. I sell the farm next door to mine to a farmer though I have higher offers from building speculators. A clause obliging him to cede any profit by a resale will keep him out of tempcation—to my advantage. Nor will it deprive him of his chief interest in the contract—which is to get and work the farm" (pp. 27 sq.).

122Gai . Ill, 140.

123Gai . Ill, 140.

124 С 4, 38, 15, 1; I n st . I ll, 23, 1.

125 Gai. D. 18, 1, 35, 1. Cf. Arangio-Ruiz, Compravendita, p. 141; differently Daube,

Studies De Zuiueta, pp. 21 sqq.

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not abuse his power were not available. More particularly, as we shall presently see, judicial control concerning fairness of price was not the policy of Roman law.

Modern legal systems tend to take a more liberal view with regard to the two last-mentioned problem areas. The German Code allows determination of the performance by a third party;126 if the third party cannot or will not make the determination, or if he delays it, either his declaration is substituted by court decision127 or the contract is void.128 The determination of the price may, however, even be left to one of the contracting parties, be it that he has to decide "in an equitable manner" or even in his free discretion.129 This represents a deviation from Roman law which is based on pandectist doctrine.130 Finally, even an agreement to pay a fair and reasonable price is not regarded as too uncertain.131 South African law is still more firmly wedded to Roman law,132 even though Roman-Dutch practice may have been less cautious: attention has recently been drawn to a decision of the Hooge Raad of 1719, where the Court was actually prepared to determine the price bom viri arbitratu.133

4.Pretium iustum

(a)The Roman attitude

The price had to be meant seriously and it had to be certain. It was not a requirement for the validity of a contract of sale that the price be just or fair.134 This is a reflection of the liberalistic (rather than paternalistic)

^ § 317 I BGB.

127 If the third party is to determine the performance in an equitable manner (which is to be presumed): § 319 I BGB.

1 8 If the third party may make the decision at his discretion: § 319 II BGB. There can be no judicial substitution for or control of a discretionary declaration of this kind.

1 c' § 315 I BGB. § 315 III provides: "If the determination is to be made in an equitable manner, the determination made is binding upon the other party only if it is equitable. If it is inequitable, the determination is made by court decision; the same applies if the

determination is delayed."

130 The pandectists tended to interpret "impcrfectum" in Gai. D. 18, 1, 35, 1 not as invalid, but as (validly concluded but) not yet effectiveOn the pandectist doctrine with regard to determination of the purchase price by either one of the partners to the contract or a third party, ьсе Windscheid/Kipp, § 386; Hans-Joachim Winter, Die Bestimmtmg der Leisliing durch den Vertragspartner oder Dritte (§§ 315 bis 319 BGB) ur.ter besondert'r Berucksichtigung der Rechtsprechung tmd Lehre des 19. Jahrhunderts (unpublished Dr. iur. thesis, Frankfurt, 1979), passim.

131Cf. already Windscheid/Kipp, § 386, n. 5 d.

For details, see Kerr, Sale and Lease, pp. 26 sqq. and e.g. Adcorp Spares PE (Pty.) Ltd. v.

Hydromulch (Pty.) Ltd. 1972 (3) SA 663 (T) (with reference, i. a., to Vinnius, Institutiones 3, 24, 1, and Voct, 18, 1, 2).

133Johannes van der Lip v. De Weduwe en boedelhoudster van Adolph Snelierwaart (cf. Van Bynkershoek, Observations Tumultuariae, n. 1558, but particularly the report in (1975) 92 SALJ 278 sq.); on this decision and its (possible) implications, see H.J. Erasmus, P. van Warmelo, D. Zcffcrtt, "Pretium certum and the Hooge Raad", (1975) 92 SALJ 268 sqq.

134On iustum pretium generally, see Theo Mayer-Maly, "Der gerechte Preis", in:

Festschrift fur Heinrich Demelius (1973), pp. 139 sqq.

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spirit of Roman law,135 as well as of the sovereign position and practically unfettered authority of the paterfamilias. Roman private law was the law of the free Roman citizen, who could not only be relied upon to look after his own interest, but whose duty it also was to protect the (economically, socially, intellectually or emotionally) weaker members of the community—notably women, children and slaves—in so far as they belonged to his household.136 Determination of the price could thus be left to the parties; whatever they agreed upon could be taken to represent a fair price in the circumstances of the individual sale. Judicial reconsideration and interference would have been an improper infringement of the freedom of the parties to strike their own bargain and to assess the balance of performance and counterperformance according to their own economic needs and interests. This attitude is encapsulated in Paul. D. 19, 2, 22, 3:

"Quemadmodum in emendo et vendendo naturaliter conccssum esc quod pluris sit minoris emere, quod minoris sit pluris vendere et ita invicem se circumscribere, ita in locationibus quoque et conductionibus iuris est."137

The parties were free to charge (much) more or (much) less than what others might consider to be a fair price. This, according to Paulus, is a matter of course and it applies not only to contracts of sale but to all bilateral contracts in which the performance of one of the parties is in money. "Invicem se circumscribere" is very difficult to translate: to "overreach" or "outwit" each other would perhaps come closest to what is meant. It would be inappropriate, though, to take this term as implying and thus condoning deceit.138 That circumscribere cannot be equated with dolus is obvious if one takes into consideration that the contract of sale gives rise to iudicia bonae fidei.

(b) Invicem se circumscribere

Paul. D. 19, 2, 22, 3 does not contain a carte blanche for foul play, for neither actio empti nor actio venditi could be granted in case of fraudulent machinations. There was no licence for wangling and knavery. However, the Roman lawyers were realistic enough to see that the usages of trade and commerce do not always conform to particularly high standards of honesty: "Sed aliter leges, aliter

Sec generally Schulz, Principles, pp. 140 sqq.

136Under the Principate, the Roman State looked after the basic needs of the poor by way of the cura annonae (public distribution of free grain) and cura carnis. Cf. e.g. Theodor Mommsen, Staatsrecht, vol. II, pp. 502 sqq.; Stephan Brassloff, Soziatpolitische Motive in der romischen Rechtsentwicklung (1933), pp. 167 sqq. The number of people on the corn dole was usually about 150 000 under Caesar and Augustus, 175 000 under Sepiimius Severus. In addition, the lex Iulia de annona was enacted in order to combat unfair practices in the sale and transportation of grain (on these, cf. Ulp. D. 47, 11, 6 pr.).

137Cf. further Ulp. D. 4, 4, 16, 4 ("Pomponius ait in prctio emptionis et venditionis naturaliter licerc contrahentibus se circumvenire"); Hermog. D. 19, 2, 23.

138Cf., however, Ulrich von Lubtow, "De iustiria et iure", (1948) 66 ZSS 499 sqq.; Antonio Carcaterra, Dolus bonus/dolus malus. Esegesi di D. 4, 3, 1, 2-3 (1970), pp. 143 sqq.

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philosophi tollunt astutias",139 or, more generally: "Non omne quod licet honestum est."140 Some grain merchants sail from Alexandria to famine-stricken Rhodos, where grain has become a very precious commodity. May the merchant whose vessel arrives first sell his grain to the starving Rhodians without indicating that various other vessels are about to arrive within a short while? The answer of the philosopher might well be "No". He would tend to postulate a moral duty of disclosure.141 The lawyer, on the other hand, will be reluctant to base his decision upon too moralizing an attitude. He will remember that the messenger god and intermediary Hermes (with whom its Roman counterpart Mercurius was largely identified) has always been taken to be the patron and protector of both merchants and thieves. Thus he will realize that a merchant is out to make a profit and that to be cunning and shrewd is part of business life.142 It is, therefore, not according to abstract ethical ideals, but with a view to average business decency that his actions have to be evaluated. The behaviour of the fastest of the above-mentioned grain merchants, for instance, is clever exploitation of an advantageous situation, not deceitful machination.143 Only the latter would have fallen foul of the bona fides requirement inherent in sale.144 Anything short of dolus was invicem se circumscribere, and it was naturaliter concessum, not on account of the precepts of natural law (ius naturale) but in the sense of being in accordance with the nature of trade (natura contractus).145 In a certain way, therefore, the Roman

139Cicero, De offiais, 3, XVII —68.

140Paul. D. 50, 17, 144. A similar attitude (and not as has often been alleged: cf. e.g.

Leonhard Freund, Lug und Trug unter den Germanen (1863), passim, a higher moral standard) can be found in the old Germanic law. Here the words for "tauschen" (exchange) and "tauschen" (deceive) have the same etymological root; a horse-dealer was called rosriuschaere

('lRosstduscher"). The basic principle was "Jeder Kaufman» labt seine Ware. Loben und bieten gehort гит Kauf (Every merchant praises his goods. Puffing and bidding are part of the game). Cf. Andreas Wackc, "Circumscribere, gerechtcr Preis und die Arten der List",(1977) 94 ZSS 202. As far as English law is concerned, see, for instance, Smith v. Hughes (1871) LR 6 QB 597 at 603: ". . . the question is not what a man of scrupulous morality or nice honour would do under such circumstances."

141 Cicero. De qfficiis, 3, XXIII —57.

4 Cf. e.g. Conradus Rittershusius, Differentiarum iuris civilis et canonici sen Porttificii Htm septem (1638), Lib. Ill, Cap. X: ". . . ilia industna et solertia et vigilantia in rebus propnis et suis commodis augendis . . . est homini naturahs ct laudabilis potius quam vitupcranda."

143 For a similar, very interesting case cf. Laidlaw v. Organ 4 US (2 Wheat) 178 (1817) as discussed by Zweigert/Kotz, vol. II, p. 125. During the war of 1812-14 between England and the United States, and as a result of the British blockade, the tobacco prices in New Orleans had fallen drastically. One morning the plaintiff learnt that a treaty of peace had been signed in Ghent; he immediately proceeded to buy a great quantity of tobacco from the defendants, who were unaware of these developments. The tobacco price, as was to be expected, subsequently rose by some 50 %. Chief Justice Marshal upheld the contract. For England, see Smith v. Hughes (1871) LR 6 QB 597.

1 4 Theo Mayer-Maly. "Privatautonomie und Vertragsethik im Digestenrecht", (1955) 6 /ига 128 sqq.; Wacke, (1977) 94 ZSS 184 sqq.

145 Cf., for example, Gliick, vol. 17, p. 19; Erich Genzmer, "Die antiken Grundlagen der Lehrc vom gcrechten Preis und der laesio enormis", in: Deutsche Landesreferate гит II.

Intemationalen Kongress fur Rechtsvergleichung im Haag (1937), pp. 36 sq.

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lawyers seem to have resigned themselves to the realities of life and business morals. The licentia they were prepared to grant to any party to a (prospective) contract of sale found its limitations only in the rejection of dolus, in the remedies available in case of latent defects and — above all—in the smartness and alertness of the other party.146

(c) Private autonomy

Ius vigilantibus scriptum: there was very little in the Roman law of contracts to limit this core feature of economic liberalism. The law merely provides the framework within which the individuals may operate;147 it does not have protective functions. One notable exception was the legislation limiting interest rates on loans.148 But no attempts were ever made in classical Roman law to interfere with the freedom of the parties to a contract of sale to fix their price. Yet, these situations are not at all dissimilar. In both instances, leaving technicalities aside,149 it is an imbalance between performance and counterperformance with which the legal system is faced. It is on this basis that § 138 II BGB provides one and the same rule for all bilateral contracts: loans against interest, sale, hire, etc. According to this rule, not even an obvious disproportion between the performance and the pecuniary advantages granted in exchange for it is m itself sufficient reason to set aside the contract as invalid: in addition, there must have been exploitation of a distressed situation, inexperience, lack of judgemental ability, or grave weakness of will of the disadvantage^ party.150

IJ'' Wacke. (1977) 94 ZSS 202 sqq., who also (pp. 198 sq.) draws attention to the fact that some haggling took place as a matter of course and commercial practice before a contract of sale was concluded. The parties usually took their time before they reached an agreement: on the weekly market days (dies nun din a rum) no work was done on the farms. (The nundinae are apparently derived from the word tor haggling.) The initial offer of the vendor could therefore not have created a reasonable expectation that the object was really worth this price. A philosopher such as Cicero looked down on the mercatores and found their occupation "sordid": "nihil enim prohciant, nisi admodum mentiantur" (Dc officiis. 1, XL1I—150). As far as the bargaining process is concerned, cf. also C. 4. 44, 8 (Diocl.): " . . .

quod videlicet si contractus emptioms atque venditionis cogitasses substantial]} et quod emptor viliori comparandi, venditor canori distrahendi votum gerentes ad him с contractum accedam vixquc post multas contentiones paulatini venditore de eo quod petierat detrahente, emptore autem huic quod obtulerat addenre, ad certum consentiant pretium. . . . " For details about prices in Italy and the African provinces, see R. Duncan-Jones, The Economy of the Roman Empire, Quantitative Studies (1974), pp. 63 sqq.

14 "The formal equality ot Romans before the law became a shield behind which the mercantile economy of Rome could operate with greater confidence": Frier, Ronuiti jurists,

p.192.

14M Cf. supra, pp. 166 sqq

1 4 1 Mutuum differed from sale in that it was a strictly unilaterally binding contract in Roman law. Interest could be promised only by way of a separate stipulation. Cf. supra, pp. 154 sq.

b" For an analysis in English, see John P. Dawson. "Economic Duress, and the Fair Exchange in French and German Law". (1937) 12 Titlanc LR 48 sqq.; idem, "Unconscionable Coercion: The German Version". (1976) H9 Harvard LR Ш52 sqq. As lar as English law is concerned, cf. e.g. Lloyds Bank Ltd. v. Bundy |1975] QB 326 (CA) at 337 (per Lord Denning MR).

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§ 138 II was formulated in the second half of the 19th century.151 It was a child of the then—once again — dominant ideas of economic liberalism:152

"[E]vcry person who is not. from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses: and whether his bargains are wise and discreet, or profitable or unprofitable, or otherwise, are considerations, not for courts of justice, but for the party himself to deliberate upon."1"11

5.Laesio enormis and equality in exchange

(a)C. 4, 44, 2

There were times, however, when an entirely different attitude prevailed. It found its legal expression in the doctrine of laesio enormis,154 an awe-inspiring piece of legal architecture, built upon the frail foundations of two texts from Justinian's Code. The better known of these texts reads as follows:

"Rem maions pretii si tu vel pater tuus minoris pretii distraxit, humanum est, ut vel prctium te restituente emptoribus fundum venditum rccipias auctoritate intercedente iudicis, vel, si emptor elegcrit, quod deest iusro pretio recipies. minus autem pretium esse videtur, si nee dimidia pars veri pretii soluta sit."'"

This rescript was ostensibly issued by Diocletian. It is not unlikely, however, that we are dealing with ajustinianic interpolation.15'1 Even a

151 On its history, see Zimmermarm, Moderationsrecht, pp. 147 sqq.; Klaus Luig. "Vertragsfreiheit und Aquivalenzprinzip lm gemcinen Recht imd im BGB", in: Festgabe fur Helmut Going (1982), pp. 171 sqq.

""" Cf. e.g. Franz Wieacker, Das Sozialmodt'll der klassischen Privatrechtsgeseizbiicher und die Etttwicktung der modernen Gesellschaf! (1953).

- Joseph Story, Commentaries on Equity Jurisprudence (11th ed.), vol. I (1873), § 244. On the age ot freedom of contract and its intellectual background, see, above all, Atiyah, Rise and Fall, pp. 219 sqq.

154 The term was introduced by the glossators.

lib C. 4, 44. 2. The other text is C. 4, 44, 8. a long and involved piece of legal draftsmanship ("Si voluntate tua fundum tuum filius tuus venumdedit, dolus ex calliditate atque insidns emptoris argui debet vel metus mortis vel cruciatus corporis imminens detegi, nc habeatur rata venditio. hoc enim solum. quod paulo minori pretio fundum venumdatum significas, ad rescindendam emptionem invalidum cst. quod videlicet si contractus emptionis atque venditionis cogitasses substantiam et quod emptor vilion comparandi, venditor carion distrahendi votum gerentes ad hunc contractum accedant vixque post multas contentiones, paulatim venditore de со quod petierat detrahente. emptore autem huic quod obtulerat addente. ad certum consentiant pretium, profecto perspiceres neque bonam fidern, quae emptionis atque venditionis conventionem tuetur, pati neque ullam rationem concedere rescindi propter hoc consensu finitum contractum vel statim vel post pretii quantitatis disceptationem: nisi minus dimidia iusti pretii, quod fuerat tempore venditionis, datum est, electione iam emptori praestita servanda").

ft The question is much disputed. Arguing in favour of interpolation atfecting the substance of the text cf.. for example, Rene Dekkexs, La lesion hwrme (1937), pp. 16 sqq.: Genzmer, op. cit., note 145, pp. 55 sqq.: A.J.B. Sirks. "La laesio enormis en droit romain et byzantin", (1985) 53 TR 291 sqq.; Hannu Tapani Klami. " 'Laesio enormis' in Roman Law", (1987) 33 Labeo 48 sqq.; cf. also idem. Roman Law and Hardship (1987), pp. 156 sqq.; contra e.g. Karoly Visky, "'Die Proportionality von Wert und Freis in den romischen Rechtsquellen des III. Jahrhmiderts". (1969) 16 RID A 374 sqq.. 385 sqq.; cf. now also idem, Spuren, pp. 24 sqq.; Karl Hackl, "Zu den Wurzcln der Anfcchtung wegen laesio enormis".

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superficial reading of the text raises suspicions. Thus, for instance, the object of the sale is referred to as "res" at the outset, as "fundus" later on. The first sentence has "iustum pretium", the second "verum pretium".1S7 The vendor is at first "tu vel pater tuus" (the verb relating only to the third person), then only "tu". And the plurality of purchasers mentioned in the first part of the text femptoribus) corresponds equally badly with the single emptor in the second part. But even if the text was indeed subjected to later alterations, it does not necessarily follow that the substance of this fragment is entirely spurious.158 Yet, there are other arguments to confirm our suspicion. Up to the time of Justinian there is no sign that a remedy on the lines of that suggested in C. 4, 44, 2 was ever granted. The Codex Theodosianus, in particular, made no mention of such a remedy, even though there would have been occasion to do so had it already existed by that time.159 Furthermore, it sounds unlikely that a conservative and classicist emperor such as Diocletian160 should have been responsible for as uncouth an intrusion into a core principle of classical contract law as the remedy for laesio enormis represents.161 Diocletian did indeed try to curb the freedom of the parties to determine the price of goods, but only by means of public-law regulations. His edictum de pretiis rerum venalium162 was a sweeping attempt to relieve the lot of wage earners (mainly workmen, public officials and soldiers) suffering under the galloping inflation163 by imposing maximum prices for a whole variety

(1981) 98 ZSS 147 sqq. Alan Watson. "The Hidden Origins of Enorm Lesion", (1981) 2 Journal of Legal History 186 sqq.. finds that "it is simply logically impossible to provide [an answer]"; in che same vein, Klami ((1987) 33 Labeo 63; Roman Law and Hardship, p. 172) states: ". . . the riddle of laesio enormis cannot be solved. I suppose." For an analysis of the arguments pro and contra interpolation, see also Walter de Bondt, "Lesion in the Roman Law of Contracts", V)79 Juridical Review 45 sqq.

b7 This point is emphasized by Klami, (1987) 33 Labeo 55 sqq.

158Cf. e.g. Kaser, RPr II, p. 389.

159CT 3, 1, 1 (a. 319); 3, 1 , 4 (a. 383); 3, 1, 7 (a- 396). On the impact of these provisions

on early medieval law, cf. Kenneth S. Cahn, "The Roman and Frankish Roots of the Just Price of Medieval Canon Law", (1969) 6 Studies in Medieval and Renaissance History 6 sqq.,

43sqq.

шTypical for his approach to law, e.g. Coll. XV, III, 2: "Maximi enim criminis est retractare quae semel ab antiquis statuta et definita suum statum et cursurn tenent ac

possident."

lf>1 Cf. e.g. C. 4, 44, 4 and C. 4, 44, 3, both also attributed to Diocletian; they are not in harmony with C. 4, 44, 2 and 8.

16-For details, see Hugo Blumner, "Der Maximaltarif des Diokletian vom Jahr 301, 1893", in: 72 Preussische Jahrbikher 453 sqq.; Graser, The Edict of Diocletian on Maximum Prices (1940); Siegfried Lauffer (ed.), Diokletians Preisedikt (1971); Marta Giacchero (ed.). Edictum Diocletiani et Collegarum de pretiis rerum venaliwn (1974).

In the second half of the 3rd century, the prices apparently rose by something like 800 %; in Egypt one unit of wheat seems to have cost 12-15 drachmai between A.D. 200 and 250, but 120 000 drachmai in about 300 B.C. For details, see Fritz Heichelheim, "Zur Wahrungskrise des romischen Imperiums im 3. Jahrhundert n. Chr.". (1933) 26 Klio 96 sqq.; Gunnar Mickwitz, Geld und Wirtschaft im romischen Reich des vierten Jahrhunderts n. Chr. (1932), pp. 45 sqq.; Jones, The Roman Economy (1974), pp. 187 sqq.; Jean-Pierre Callu, La politique monetaire des empereurs romains de 238 a 311 (1969), pp. 196 sqq.; Michael H.

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