!!Экзамен зачет 2023 год / The Law of Obligations

(d) Common law (ius civile) and employment relationships

But wherever exactly the "upper" limit of locatio conductio operarum was drawn, it has become clear that this type of contract covered only a relatively small (middle) sector of the services available. If that was so, and if it is also kept in mind that the claims of middle-class wageearners were not likely to come to the attention of the Roman jurists in great numbers,40 the somewhat cursory treatment of this branch of law becomes much less surprising. Furthermore, there are other legal systems where the "common" law has not had a major formative influence on employment relationships either. In England, for instance, the courts traditionally paid no attention "to the reality of subordination which lurks behind the facade of contractual equality",41 and as a result

"the worker's obligation to obey the lawful commands given by management and the employer's obligation to remunerate the worker are [regarded as] contractual obligations freely incurred among equals. Pacta sunt servanda".42

The whole body of what we today know as labour law has been built up from different sources. One may well ask why this is so: are the courts simply not willing to lift the veil of equality, have they lacked the opportunity of doing so (because exploited workers have had no access to the courts or were deterred from litigating), or are we dealing with an inherent inability of (judge-made) case law to meet the expectations of society and to cope with the challenges presented by individual industrial relations?43 Whatever the answer may be: one

have changed. The Emperors granted them immunitas and other privileges (Below, op. cit., note 36, pp. 22 sqq.). Antonius Musa (a libertus and another pupil of Asklepiadcs) became personal physician to Augustus and was able to cure a severe liver disease of the Emperor by way of hydrotherapy. He received the anulus aureus (entailing equestris dignitas), and a statue of him was made. For further details, see Manfred Just, "Der Honoraranspruch des medicus ingenuus', in: Sodalitas, Scritti in onore di Antonio Gttarino, vol. VI (1984), pp. 3072 sqq.; generally on Roman physicians and their medicines cf. Jackson, op. cit., note 37,

pp.56 sqq. From C. 4, 43, 3 it is evident that even in Justinian's time medical practitioners could well be slaves. They were, incidentally, valued at three times the rate of slaves with no trade, and double the rate of skilled slaves (cf. Watson, Failures, pp. 67 sq.).

Did medicine belong to the artes liberales, as opposed to the "quaestus illiberales", activities which could not be reconciled with upper-class status? Cf. e.g. Thomas, (1961) 64 BIDR 241 sqq. (yes); Visky, op. cit., note 21, pp. 73 sqq. (no); Just, Scritti Guarino, vol. VI, pp. 3057 sqq. (at first not, but later on yes). For a detailed analysis of the social status and legal position of medical practitioners cf. Bernard, op. cit., note 23, pp. 57 sqq.; Below, Der Arzt im romischen Recht (1953), passim; Visky, op. cit., note 21, pp. 73 sqq.; Watson, Failures, pp. 66 sqq.

Cf. supra, pp. 348 sq. The same point has been emphasized with regard to English law; cf. Kahn-Freund's Labour and the Law (infra, note 41) p. 35; cf. also Otto Kahn-Freund, "Blackstone's Neglected Child: The Contract of Employment", (1977) 93 LQR 508 sqq., 521.

41 Kahn-Freund's Labour and the Law (3rd ed., 1983, by Paul Davies, Marc Freedman (eds)), p. 36.

Kahn-Freund's Labour and the Law, op. cit., note 41, p. 35.

All these factors are discussed in Kahn-Freund's Labour and the Law, op. cit., note 41, pp. 29 sqq.

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should in any event not blame the Roman lawyers for an exceptional and entirely unprecedented lack of social conscience.

(e) The contribution of Roman law

Finally, the great contributions the Roman lawyers have made even to this field of law must not be overlooked. Two major points, in my view, stand out. First of all, critical as we tend to be today of freedom of contract in labour relations, the move from status to contract, as it occurred during the Roman Republic,44 represents a considerable advance in the management of human resources. Some of the more radical modern attempts to discredit contract as the basis for the relations between employers and workers, and to think in terms of incorporation and of what has been termed "pevsonenrechtliches Gemeinschaftsverhdltnis"45 have soon become thoroughly discredited. And secondly; the nature of locatio conductio as a consensual contract giving rise to reciprocal rights and duties, the rules relating to merces and the refined way of determining liability and of allocating risks: these have remained essential elements of the contract of service ("'Dienstmiete") of the continental ius commune. Much of it has been preserved in modern law.46 And even though, for instance, it is often

44Not very much is known about the early history of service transactions. But it seems certain that, whereas locatio conductio presupposed at least formal equality of the parties, the legal institutions preceding it were based on a relationship of subordination; thus, the right of the paterfamilias to the services of his slaves and of his sons in power (and his right to transfer them into the service, i.e. the power, of another paterfamilias), the right of the patron to the services of his clientes and of the manumissor to those of his liberti were all based on relationships of power and status. For details, see Kaufmann, Altromisdie Miete, e.g.

pp.44sqq., 67sqq., 118 sqq., but also the summary by Mayer-Maly, 1967 Recht der Arbeit 283. The contract of locatio conductio did not involve a change of the legal status on the part of the employee: Norr, (1965) 82 ZSS 86 sqq. as against De Robertis, op. cit., note 25, pp.

143sqq. More recently on the transition, as far as the activities of artisans are concerned, from status relationships to the liberalistic and individualistic contractual system, see Behrends, op. cit., note 14, pp. 193 sqq. Regarding the English common law, Kahn-Freund, (1977) 93 LQR 508 sqq. has argued that Blackstone's classification of the relationship of master and servant as essentially one of status impeded the development in England of a contractual approach to employment. Contra: John W. Cairns, "Blackstone, Kahn-Freund and the Contract of Employment", (1989) 105 LQR 300 sqq. One of the points at dispute between Kahn-Freund and Cairns is whether Blackstone's neglect of the contract of employment is a "specimen case to demonstrate the contrast between English legal thinking and the legal thinking of the continental nations of Western Europe". On Pothier's analysis (Traite du contrat de louage) cf. Kahn-Freund, (1977) 93 LQR 514 sqq. and Cairns, (1989) 105 LQR 302 sq. Other civilian authors did not deal with the master-and-servant relationship as part of the law of contract, but did so when they discussed various status relationships within the society at large. So did, incidentally, the Prussian General Land Law (§§ 1 sqq. II 5).

45On these developments, which occurred as part of the permeation of the law by

national-socialistic thinking, see Bernd Riithers, Die unbegrenzte Auslegung. Zum Wandet der

Privatrechtsordnung im Nationalsozialistttus (1968), pp. 379 sqq.

46 Cf. , for e xample , M aye r-M aly, 1967 R e ch t de r A rbe it 281 sqq. ; Rcinhold T rinkne r,

Maria Wolfer, "Modernes Arbcitsrecht und seine Beziehung zum Zivilrecht und seiner Geschichtc", 1986 Betriebsberater 4 sqq.; as far as the problem of risk allocation is concerned, cf. in particular Riickert, (1984) 6 ZNR 50 sqq. On the (earlier) ius commune, cf.,

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claimed in Germany that labour law has become a distinctive and autonomous field of law, the §§ 611 sqq. BGB still remain of fundamental importance in individual labour relations. Apart from that, they govern all service contracts falling outside the area of labour law, particularly the services rendered by the so-called liberal professions: doctors, lawyers, chartered accountants, etc.47

II.LOCATIO CONDUCTIO OPERIS

1.Essential characteristics and range of application

We have seen that medici were able to work for mcrces.48 In other words, they could render their services under a contract of locatio conductio. Such a contract was, however, not necessarily locatio conductio operarum. Indeed, in one of the texts referred to above,4У the doctor was said to be liable ex locato: "Proculus ait, si medicus servum imperite secuerit, . . . ex locato . . . compctere actionem."5" Had he been employed under a contract of service, he would himself have been the locator. But since we are dealing with an operation, the services as such were not the object of the contract. What was owed was opus faciendum, a particular job to be done as a whole. This is the essential characteristic of locatio conductio opens.51 One person undertakes to perform or execute a particular piece of work, and he promises to produce a certain specified result. This person is called the conductor (operis). The person commissioning the enterprise (the customer) is the

in this respect, Thco Mayer-Maly, "ESemcme der Entwicklung des Arbeitsrecht", in: La formazione storica, vol. Ill, pp. 1320 sqq. He draws attention to the fact that the history of labour law does not commence with the Industrial Revolution, but that a scientific body of law dealing with labour relations already existed in the late Middle Ages.

47 Cf. e.g. Gottfried Schiemann, "Der freie Dienstvertrag", 1983 Juristische Sdiulung 649 sqq. and also § 1163 ABGB. In so far as modern law deviates from the IUS commune which, like Roman law, did not regard the services of members of the free (liberal) professions as being rendered under a contract of locatio conductio: cf. e.g. Gliick, vol. 17, pp. 315 sqq.; D.J. Joubert, "Die kontraktuele verhouding tussen professioncle man en khe'nt", 1970 Acta Juridica 15 sqq.; Coing, pp. 458 scj.; cf. also Wmdscheid/Kipp, § 404 (emphasizing, however, thai the legal regime is the same as if one were dealing with locatio conductio); § 895 I 11 PrALR; art. 1779 code civil. The situation in modern South African law is unclear (locatio conductio or mandatum?): cf. Joubert, 1970 Acta Juridica 22 sqq. (with very sensible suggestions). Generally on locatio conductio operarum in modern South African law, cf.

James Fourie, Die Diemkontrak in die Suid-Afrikaans? Arbeidsre^ (unpublished LLD thesis, Pretoria, 1977).

4H Cf, supra, p. 390.

49At, p. 390, note 36.

50Ulp. D. 9, 2, 7, 8. Cf. e.g. Heldrich, (1939-40) SSJhJb 150; Just. Scritti Guarino, vol. VI, p. 3061.

51Cf. e.g. Wmdscheid/Kipp, §§ 399, 401; Berger, ED, p. 567; Buckland/Stcin, p. 505; Kaser, RPr I, p. 570; Thomas. (1961) 64 BIDR 236 sq.; F.B.J. Wubbe, "Opus scion la definition de Labeon" (1982) 50 TR 241 sqq.; for the historical development cf. particularly Kaufmann. Altromische Miete. pp. 205 sqq.

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394 The Law of Obligations

locator: he places out the work to be done. "Locavi opus faciendum . . . "52 or, as Paulus says:

"Opere locato conducto: his verbis Labeo significari ait id opus, quod Graeci баготЁкеа/га vocant, non ?p"yov, id est ea opere facto corpus aliquod perfectum."53

In what manner was this contract utilized? Very often there was a physical object to be worked upon or to be created: clothes to be cleaned or repaired,54 cloth to be produced from wool,55 jewels to be engraved,56 a ring to be made,57 a house to be built.58 Sometimes the object did not undergo any physical change (for example: goods or passengers to be transported),59 occasionally it was not a thing but a person (an apprentice to be taught)60 and in other instances of locatio conductio operis there was no physical subject matter at all (games to be arranged or a trumpet signal to be given).61 The decisive feature of all these transactions is that the customer was not interested in the services or the labour as such, but in the product or result of such labour. Indeed, he usually was not even interested in whether the conductor performed in person or whether he drew on the assistance of his employees. The conductor was responsible for producing the result; how he did this was (usually) up to him. Thus, the conductor was typically also not bound to obey orders or instructions as to the manner of carrying out the work.

2. Problems of classification

Obviously, where somebody employs a group of labourers to work, say, in his silver mine, we are dealing with a labour relationship (locatio conductio operarum); the jeweller, on the other hand, who engraves the initials of his customer on a bracelet, works under a contract of

52lav. D. 19, 2, 51, 1.

53Paul. D. 50, 16, 5, 1. On this text, see Wubbe, (1982)50 TR 241 sqq. He points out that opus does not refer to a material result (in the form of a physical object produced) but to an

activity defined by and sustained up to an end (а т?\од).

54Cf. e.g. Gai. Ill, 205; Ulp. D. 19, 2, 9, 5.

55Ulp. D. 7, 8, 12, 6.

5f> Uip. D. 19, 2, 13, 5.

57Gai. D. 19, 2, 2, 1; lnst. Ill, 24, 4.

58Alf. D. 19, 2, 30, 3; Lab. D. 19, 2, 60, 3; lav. D. 19, 2, 59; Paul. D. 19, 2, 22, 2. Cf.

Robert Rohle, "Das Problem der Gefahrtragung im Bereich des romischen Dienstund Werkvertrages", (1968) 34 SDHl 206 sqq.; Susan D. Martin, Building Contracts in Classical Roman Law, (unpublished Ph.D. thesis, Michigan, 1982; not available to me). The codifications of the civil-law countries still regard building contracts as a normal instance of a contract for work (locatio conductio operis) and provide only very few special rules dealing with this subject matter. On the growth of self-made "law" in the building industry which has occurred since then, see Werner Lorenz, "Contracts for Work on Goods and Building Contracts", in: International Encyclopedia of Comparative Law, vol. VIII, 8, nn. 6 sqq. Modern commentators usually deal with building contracts as a distinctive category within the framework of locatio conductio opens.

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locatio conductio operis (or, to use the terminology of English law, as an independent contractor). It is easy to establish the intention of the parties in these cases and to categorize their agreement accordingly. It is equally obvious, however, that there are a variety of marginal cases where it can be very difficult to decide on which side of the borderline between locatio conductio operis and operarum they fall.

These difficulties continue to persist in all those modern legal systems which have adopted the trichotomy of contracts grafted on to the Roman locatio conductio by the writers of the ius commune. Take, for example, the legal relationship between physician and patient. It is normally taken to be a contract of service by the modern German courts: the contract only obliges the physician to carry out, lege artis, an indicated medical treatment; it is not intended to make him liable for the success of such treatment.62 But it is very doubtful whether the same applies if a physician accepts a patient for sterilization.63 The Federal Supreme Court has gone further and even regarded it as a contract of service if a dentist promises to produce a dental prosthesis or to crown a tooth.64 This appears to be wrong,65 even if it is conceded that removal of the toothache cannot reasonably be taken to be the object of the contract. It is, indeed, not a therapeutic success that the dentist promises. Nevertheless, he undertakes to produce a more limited result (namely to prepare and fit onto the tooth a suitable crown), which in turn will (it is hoped) have the desired therapeutic consequences. Another notorious problem area in German law is the classification of the contract between an architect and his customer.66

One may ask, in view of the general recognition of "pacta sunt servanda",67 why the classification of contracts still attracts so much of our attention. In German law it is mainly the fact that special (aedilitian-type) remedies have been introduced to deal with the problem of liability for defects under a contract for work.68 They are

62 Cf. e.g. Dieter Giesen, Arzthaftungsrecht—Medical Malpractice Law (1981), pp. 158, 283, who also refers to French law, where the position is the same as in German law: the obligation medicale is an obligation de moyens, not an obligation de resultat; Franz Bydlinski, "Vertrage ubcr arztliche Leistungen, in: Festschrift fiir Winfried Kralik (1986), pp. 345 sqq.

и Cf. BGH, 1980 Neue Juristische Wochenschrift 1452 (1453) and LG Freiburg, 1977 Neue Juristische Wochenschrift 340.

64BGHZ 63, 306 sqq.

65Horst Heinrich Jakobs, "Die 2ahnarztliche Behandlung als Werkleistung", 1975 Neue

Juristische Wochenschrift 1437 sqq.

6(1 Cf. e.g. Horst Heinrich Jakobs, "Der Architektenvertrag im Verhaltnis zum Dienst-und

Wcrkvertragsrecht", in: Beitrdge гит Zivilund Wirtschaftsrecht, Festschrift fur Kurt Ballerstedt (1975), pp. 355 sqq.

67Cf. infra, pp. 576 sqq.

68Neither Roman law nor the ius commune knew such special remedies. The conductor had to produce the work lege artis and according to the specifications laid down in the contract (cf. e.g. Pothier, Traite du contrat de louage, n. 419: he was under an obligation "de faire bien I'ouvrage"). If the work was defective, the customer could bring the actio locati: the conductor had not (properly) fulfilled his obligation. According to the BGB, the customer may, first of all, demand removal of the defect. In the second place, he may either cancel the

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subject to very harsh prescription periods, however.69 Claims based on malperformance under a contract of service, on the other hand, prescribe in 30 years. Such a vast discrepancy of prescription periods in closely related areas of law has proved to be a most unfortunate source of unsatisfactory distinctions and distortions.

In South Africa, the term "workman" in the Workmen's Compensation Act70 has given rise to the most interesting and historically thorough judicial attempt at drawing a line between locatio conductio operis and operarum.71 After reviewing Roman and classical RomanDutch law, Joubert JA rejected the supervision and control test of English law (that had been adopted in an earlier decision)72 and stated that a right of supervision and control on the part of the employer is merely one out of several indicia (albeit an important one) in favour of a contract of service. The legal relationship between the parties as a whole has to be evaluated in order to establish the true object of the contract. In this context a variety of important legal characteristics are

contract or claim a reduction of the purchase price (i.e. bring the actiones redhibitoria or quanti minoris). If the defect was due to the fault of the conductor, damages may be claimed instead of cancellation or reduction (§§ 633 sqq. BGB). May the customer, insread of demanding removal of the defect, insist on the production of a new work? The BGB is silent on this point, the problem therefore controversial. It is obvious that the system of remedies as provided by the BGB has been inspired by the rules relating to the purchase of fungibles. This was not without precedent, for §§ 318 sqq. I 5 PrALR had already used the aedilitian remedies as a model for the contract of work. For a thorough comparative analysis concerning the obligation to execute the work free from defects and the remedies in case of breach of this obligation, cf. Lorenz, op. cit., note 58, nn. 50 sqq.; idem, "Rechtsvergleichendes zur Mangelhaftung des Werkunternehmers", in: Festschrift fur Ernst von Caemmerer (1978), pp. 907 sqq. In fact, contracts of sale and for work are closely related. This is particularly obvious where the work is to be produced from material provided by the contractor. According to Roman law, this was a contract of sale (cf. supra, p. 235). The BGB deals with these cases under the heading of contract for the delivery of work. If a fungible thing is to be produced, the law of sale applies; in case of a non-fungible, most of the rules relating to the contract for work are applicable (§ 651 BGB). All in all, as Lorenz points out, the law of sale has in many respects provided the basis for the proper development of rules governing defects liability in contracts for work. As to the interaction, along very similar lines, between the law of sale and the law of contract for work in the English common law, cf. Lorenz, op. cit., note 58, nn. 86 sqq.: the rules relating to the seller's warranty against defects have been transferred to the contract for work.

69Six months; in the case of work on land, one year; in the case of work on buildings, five years. The prescription begins to run from the moment of acceptance of the work (§ 638 I BGB). Thus it can happen that the claims are prescribed before it was possible for the customer to discover the defect. For details, critical evaluation and, particularly, what we have termed "systemsprengendende Kraft dijferenzierter Verjahrungsfristen" (distorting influence of diverging prescription periods), cf. Peters/Zimmermann, Verja'hrun%sfristen, pp. 196 sqq.

70Act 30/1941.

71Smit v._ Workmen's Compensation Commissioner 1979 (1) SA 51 (A).

72Colonial Mutual Life Assurance Society Ltd. v. MacDonald 1931 AD 412 at 434 sq. The

court also rejected the "organisation test" (turning on the integration of the employee into the employer's business) as being of a "vague and nebulous nature"; cf. also the critical dictum by MacKenna J in the English case of Ready Mixed Concrete (South East) Ltd. v.

Minister of Pensions and National Insurance [1968] 1 All ER 433 (QB) at 441H-444H.

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listed in respect of which the two types of contract tend to differ.73 They provide indicia as to the nature of the contract, and it is in this context that the problem of supervision and control, the employee's duty to obey lawful commands, orders or instructions, and his obligation to render his services in person feature prominently. The more independent, generally speaking, the position of the person rendering the services, the stronger the probability that we are dealing with locatio conductio operis. Very similar considerations prevail in German law.74

3. Range of liability of the conductor

With regard to the conductor's (the contractor's) liability we have the following interesting testimony by Gaius:

"Qui columnam transportandam conduxit, si ca, dum tollitur aut portatur aut reponitur, fracta sit, ita id periculum praestat, si qua ipsius corumque, quorum opera uteretur, culpa accident."75

We are dealing with the transportation of a column,76 locatio conductio operis. Hence, "qui . . . conduxit". First of all, then, the conductor is liable for (his own) fault ("ipsius . . . culpa"). We see, secondly, that he was obviously allowed to use others in performing his obligation.77 But how did this affect his liability: was he liable not only for his own fault but for theirs also? Or was his liability still dependent upon whether he himself had been at fault? This is the most interesting question addressed by our text.

(a) Imperitia and custodia

Before considering this problem, we should, however, first take note of the fact that the conductor's liability actually went beyond mere culpa in two important respects. On the one hand, he was taken to have guaranteed, by implication, that he possessed the skills necessary for the

Hilfspersoncn im romischen Recht", (1983) 100 ZSS 419 sqq.

76Columns were very valuable and had to be handled with great care. In Rome whole columns rather than tambours were normally used and one can easily imagine that their transportation threw up problems and required special skills. For details cf. Vitruvius, De architectura, Lib. X, 2, §11, and Kniitel, (1983) 100 ZSS 420 sq.; also Story. Bailments, §432.

77But see also Ulp. D. 45, 1, 38. 21; Ulp. D. 46, 3, 31. Cf. further Gliick, vol. 17, p. 317; Maycr-Maly, Locaiio conductio, pp. 27 sqq. In modern civil-law systems the conductor is, as a rule, permitted to employ servants; sub-contracting is deemed to have been authorized by the customer if the contract or the nature of the relationship so permits. For a comparative analysis, see Lorenz, op. cit., note 58, nn. 26 sqq. Artists, for instance, may often have to perform in person, even where that is not expressly stipulated (as it was in the case of Albrecht Diirer, who undertook to paint the middle section of the Heller altarpiece himself, "and no other human being than myself shall paint one stroke of it": Rudolf Huebner,

A History of Germanic Private Law (1918), p. 555).

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job that he had undertaken. After all, he had made himself contractually responsible for the finished product and had thus engendered a reasonable expectation in the person of his customer that he was competent to perform or execute such opus faciendum. If this was not in fact the case, he was liable for the resulting damages.78 Again, this is liability based on imperitia and we find it wherever it could be said that the contractor "ut artifex . . . conduxit".79 Jewellers and engravers provide an example ("si gemma includenda aut insculpenda data sit eaque fracta sit, si . . . imperitia facientis [factum sit, ex locato actio] erit"),80 but so do those "[qui] vitulos pascendos vel sarciendum quid poliendumve condux[erunt] ":81 cattle-breeders, jobbing tailors and fullers.82

With regard to the objects, on the other hand, which the contractor received from his customer, there was a kind of guarantee too: for the contractor was liable for custodia. Gaius is very clear on this topic, at least as far as fullones and sarcinatores are concerned:

"Item, si fullo pohenda curandave aut sarcinator sarcicnda vcstimenta mercede certa acceperic caque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest ca non pcriisse, cum iudicio locati a fullonc aut sarcinatorc suum consequi possit, si modo is fullo aut sarcinator rei praestandac sufficiat. . . . "нз

It is the fuller or the tailor (i.e. the conductor) and not the locator/owner who can sue for theft if the clothes are stolen. The locator/owner does not need any protection in the form of an actio furti, for, irrespective of whether or not it was due to the conductor's negligence that the clothes were stolen, as long as the conductor was solvent, he was always able to recover his damages from him. Theft, of course, was a typical instance of what we have termed "vis minor", and it fell squarely within the conductor's duty of custodiam praestare.84

For the inherent limitation of imperitia liability, Jones, Bailments, p. 99, gives the following example (borrowed from Muhammadan law): "A man who had a disorder in his eyes, called on a farrier for a remedy; and he applied to them a medicine commonly used for his patients: the man lost his sight, and brought an action for damages; but the judge said, 'No action lies, for, if the complainant had not himself been an ass, he would never have employed a farrier'." This example had already been discussed by Pufendorf, Dejure naturae el gentium. Lib. V, Cap. V, 3, and was also taken up by Story, Bailments, § 435 (who referred to Inst. Ill, 15, 3 as a basis for the argument that liability ought not to be imposed in cases such as these).

74Cels./Ulp. D. 19, 2, 9, 5.

m Ulp. D. 19, 2, 13, 5; cf. also Ulp. D. 9, 2, 27, 29. On these texts cf. recently Peter Birks, "Other Man's Meat: Aquilian Liability for Proper User", (1981) 16 The Irish Jurist 163 sqq. (D. 9, 2, 27, 29) and 169 sqq. (D. 19, 2, 13, 5).

81Cels./Ulp. D. 19, 2, 9, 5.

82On imperitia cf. further Arangio-Ruiz, Responsabilitd, pp. 188 sqq.; Cannata, Colpa,

pp.131 sqq., 241 sqq.; Bchrends, op. cit., note 14, pp. 145 sqq. Pothier, Traite du contrat de louage, nn. 425 sq.; Coing, p. 460. Pothier, as usual, has had his impact on English law; in particular, courts and writers have drawn inspiration from the civil-law maxim "spondct peritiam artis—imperitia culpae adnumeratur": cf. Harmer v. Cornelius (1858) 5 CB (NS) 236 at 246 (per Willes J); cf. further Lorenz, op. cit., note 58, nn. 86 sqq. Cf. also Story,

Bailments, §§ 428, 431.

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This duty was imposed on the conductor, even though he received his merces primarily for performing the work, not for safeguarding the locator's clothes: "[N]am et fullo et sarcinator non pro custodia, sed pro arte mercedem accipiunt, et tamen custodiae nomine ex locato tenentur."85

It is likely that fullers and tailors are merely used as examples and that the custodia liability applied to other types of conductores also.86 Yet, it is impossible to prove this suggestion, for other texts in the Digest also concentrate on those professions. Two fragments of Ulpianus (D. 47, 2, 12 pr. and D. 19, 2, 13, 6) may be quoted in this context, the latter of them, incidentally, making it clear that custodia liability did not only comprise theft. Here we read of mice gnawing the customer's clothes: "Si fullo vestimenta polienda acceperit eaque mures roserint, ex locato tenetur." Culpa on the part of the fuller seems to have been irrelevant and cannot simply be read into the text as a matter of course; for clothes were dried in via publica87 and the conductor was therefore not always able to prevent damage. Nevertheless, this type of vis minor was attributed to his sphere of influence.88

(b) Gai. D. 19, 2, 25, 7 and the problem of vicarious liability

We are now better equipped to consider the problem of the liability of the conductor for the fault of his assistants, raised in D. 19, 2, 25, 7. ". . . ipsius eorumque, quorum opera uteretur, culpa . . ." is what this text says, and the crucial question is how to translate the particle, "que". "And", we would normally be inclined to think: the conductor is liable if he and his servants were at fault. But sometimes "que" can be used disjunctively, in the sense of "or".89 In fact, Gaius himself occasionally used it this way, as we can see from D. 26, 8, 11. Our fragment concerning the transportation of the column, in my view, provides another example: the contractor is liable if the incident was due either to his own culpa or to that of his servants. In other words, D. 19, 2, 25, 7 presents an instance of vicarious liability stricto sensu,

85 Gai. D. 4, 9, 5 pr.

se' Cf. Ulp. D. 47, 2, 14, 17 (dealing with the liability of a nuntius) and Schulz, CRL, p. 547; Kaser, RPr I, p. 508; M olnar, ANRW, op. cit., note 6, pp. 599 sqq.; contra: Roscnthal, "Custodia und Akiivlegitimation zur Actio furti", (1951) 68 ZSS 239 sqq. Cf. further Arangio-Ruiz, Responsabititd, pp. 124 sqq.; De Robertis, op. cit., note 2, pp. 164 sqq.; also MacCormack, "Custodia and Culpa", (1972) 89 ZSS 159 sqq., 191 sqq. The horrearius was liable for custodia even though he was not conductor operis but locator rei (cf. supra p. 346, note 37). On the question of exemption from liability ("Locator horrei propositum habuit se aurum argentum margaritam non recipere suo periculo"), see Lab. D. 19, 2, 60, 6 and Andreas Wacke, "Rechtsfragen der romischen Lagerhausvermietung", (1980) 28 Labeo 312 sqq.

87D. 43, 10, 4; Arangio-Ruiz, Responsabiiita, p. 127.

88Маусг-Maly, Locatio conductio, pp. 207 sq.

89Cf. e.g. Heumann/Seckei, p. 486.

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i.e. of liability based (merely) on the fault of others.y0 Only this interpretation would seem to fit in with the conductor's custodia liability: for it would appear odd if he were held responsible for theft and for damage done by mice, but not for the fault of his own servants whom he used in performing his obligation. Their behaviour, after all, can hardly be qualified as vis maior. Thus, we are merely dealing with yet another example of a "lesser" accident which fell within the range of custodia liability. This is confirmed in the very next sentence, for our fragment continues, after the words "culpa accident": "culpa autem abest, si omnia facta sunt, quae diligentissimus quisque observaturus fuisset." Of course, the star-pupilish figure of the diligentissimus is suspect.91 But even if we have to reckon with the possibility of an interpolation, there is nothing to suggest that the substance of this sentence does not represent good classical law. The conductor was under a very strict—in fact, under the strictest conceivable standard of liability short of an unmitigated no-fault liability, and Justinian merely tried to cast into subjective terminology what had originally been conceived of from a more objective point of view. Custodia thus provided—at least as far as locatio conductio operis was concerned— the basis for vicarious liability.92

In the course of time, Gai. D. 19, 2, 25, 7 became the central battlefield in the dispute surrounding the question of contractual liability for the acts of others. Those, of course, who were convinced that there could be no liability without fault ("It is not the occurrence of harm which obliges one to make compensation, but fault. This is as simple as the chemical fact that what burns is not the light but the oxygen in the air"),93 took "que" in "eorumque" to mean "and" and quoted the Gaius fragment in support of their culpa theory.94 Ultimately, however, the contrary opinion93 prevailed and found its way into the BGB. In the formulation of § 278 (". . . and of persons whom he employs in performing his obligation") we are still able to recognize the phrase "quorum opera uteretur" of Gai. D. 19, 2, 25, 7. Thus, the code today imposes strict (contractual) liability for others,

'*' In this sense, in particular, Knutcl, (1983) 100 ZSS 419 sqq. Contra (liability based on culpa) e.g. Mayer-Maly, Locatio conductio, pp. 28 sq.; MacCormack, "Culpa in eligendo", (1971) 18 RIDA 541 sq.

'" Cf. supra, pp. 192 sq., 376. However, the superlative is not as objectionable here as in other texts, for in Gai. D. 19, 2, 25, 7 Gaius docs not attempt to give a definition of culpa but merely says that there is no culpa if the utmost diligence is observed, (MacCormack, (1971) 18 RIDA 542). All interpolation hypotheses (many ot them very far-reaching) relating to Gai. D. 19. 2, 25, 7 are listed by Knutcl, (1983) 100 ZSS 419 sq, (n. 335). who himself accepts the text as genuine.

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