!!Экзамен зачет 2023 год / The Law of Obligations

the main policy reason being that a debtor who avails himself of the advantages of the distribution of labour creates additional risks for the creditor's property, for which, in turn, he must be responsible.96 He must bear the consequences for performing his obligation in the way he does.

4.The problem of risk allocation

(a)Perkulum conductoris

At the moment the contract is concluded, the promised work is not yet in existence; locatio conductio operis involves a process of production which usually takes some time. Thus, it may happen that the work is destroyed or damaged, or that it becomes incapable of performance before it has been completed. If this is due to some fortuitous event, the question of risk distribution arises. Does the contractor receive no remuneration for the time and effort that he has invested in the (unsuccessful) attempt to produce the work (periculum conductoris)? Or will the customer have to pay even though he does not receive the promised work (periculum locatoris)? It will be noted that we are dealing here again with price risk: what happens to the claim for the counterperformance agreed upon if the performance becomes impossible due to circumstances outside the control of either of the parties?97 According to Labeo, the risk was on the contractor (conductor). "Si rivum, quern faciendum conduxeras et feceras, antequam eum probares, labes corrumpit, tuum periculum est."98 Tu (the conductor) has undertaken to build a canal. The embankment collapses. Since the locator does not receive the work, the conductor will not receive his wages. Of course, there had to be a time when the risk would pass to the locator. One might have thought of the moment when the conductor had carried out his obligation to execute the work free from defects, or of the moment when the work was delivered to the locator. In Roman law, the crucial event was adprobatio. "Antequam eum adprobares": it is a matter of course, and therefore not even mentioned, that after adprobatio the risk of accidental damage or destruction falls

96Cf. e.g. "Motive", in: Mugdan, vol. II, p. 16. For a detailed discussion of liability for persons employed in performing an obligation, see Karl Spiro, Die Haftung fur ErfjiUungsgehilfen (1984).

97Cf! particularly Kascr, (1957) 74 ZSS 186 sqq.; Emilio Betti, "Zum Problem der Gefahrtragung bei zweiseitig vcrplichtendcn Vertragen", (1965) 82 ZSS 13 sqq.; Alzon, (1966) 12 Labeo 324 sqq.; Rohle, (1986) 34 SDHI 203 sqq.; Cannata, Colpa, pp. 219 sqq.; J.A.C. Thomas. "Reflections on Building Contracts", (1971) 18 RIDA 680 sqq.; Molnar, ANRW, op. cit., note 6, pp. 651 sqq.; Felix Wubbe, "Labeo zur Gefahrtragung im Bauvertrag", in: L'homme dans son environment—Mensch und Umwelt, Festgabe der rechts-, wirtschafts-, und sozialivissenschaftlichem Fakultat der Universitat Freiburg zum Schweizerischen

Juristentag (1980), pp. 131 sqq.; idem, (1982) 50 TR 247 sq. Generally on the passing of risk in contracts for work and on the different meanings of risk in this context, see Lorenz, op. cit., note 58, nn. 124.

'}Я D. 19, 2, 62. Cf. also Lab. D. 14. 2, 10 pr.

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on the customer (locator). But before adprobatio: (omne) periculum est conductoris." A very similar approach, incidentally, was adopted in the famous English case of Appleby v. Myers; the conductor's action to recover payment for work done and materials supplied failed, because

he was deemed to have entered into a contract "to complete the whole, and be paid when the whole is complete, and not till then".100 And the

BGB restates the Roman rule in § 644 11: "The contractor bears the risk up until acceptance of the work." But it is a harsh rule. To be sure: the workman, under a contract of locatio conductio operis, does not receive the merces for his services as such, but for the production of a certain specified work or result. This is a strong argument in favour of periculum conductoris. However, one should not lose sight of the fact that a contract of work does not only entail a straightforward exchange of a piece of work for money, but a whole production process too. The conductor has to put in time and effort, usually by working on a physical object provided by (and belonging to)101 the other party. It is at least as much in the locator's interest as it is in his own that he undertakes to produce the work and one may therefore well ask why, under these circumstances, the whole of the production process should be at his risk.102 Thus, a splitting of the risk suggests itself as an equitable alternative.

(b) Equitable distribution of the risks

This is exactly what we find being proposed in the later classical literature. Paulus, taking up Labeo's canal example, draws the

99 But see Cannata, Colpa, pp. 216 sqq.; Wubbc, Festgabe Schiveizerischer Juristentag, op.

cit., note 97, pp. 131 sqq.

1(10 (1867) LR 2 CP 651 at 660 (per Blackburn J).

101 Occasionally the conductor became owner of what was handed over to him for the purposes of opus faciendum. Take Alf. D. 19, 2, 31, where grain was shot by several customers into one heap in Saufeius's vessel. Saufeius was to transport the grain. At the first port at which the ship called, one of the customers received back his share of the grain. In the course of the subsequent journey the vessel sank ("navis perierat": i.e. due to vis maior). The only thing that seems to be reasonably clear from Alf. D. 19, 2, 31 is that the contract was treated as one of locatio conductio operis. In later times, it became known as locatio conductio operis irregularis; for details, see Gliick, vol. 17, pp. 424 sqq.; Windscheid/Kipp, § 401, n. 12; Nikolaus Benke, "Zum Eigentumserwerb des Unternehmers bei der 'locatio conductio irregularis"1, (1987) 104 ZSS 156 sqq. (according to whom the distinction between locatio conductio regularis and irregularis was introduced by Lauterbach in his Collegium theoretico-practicum). Most of what has been written on this type of contract is based on speculation. One of the main problems with the Alfenus fragment is that it does not deal with the actio locati, but with an actio oneris aversi (of which, in turn, we do not know anything else). Cf. e.g. Mayer-Maly, Locatio conductio, pp. 34 sqq.; Francesco M. de Robertis, "D. 19, 2, 31 et il regime dei trasporti marittimi nell' ultima eta repubblicana", (1965) 31 SDHI 92 sqq.; Watson, Obligations, pp. 106 sqq.; J.A.C. Thomas, "Trasporto marittimo, locazione ed 'actio oneris aversi' ", in: (1968) 1 Antotogia Giuridica Romanistica ed Antiquaria 223 sqq.; Rohle, (1968) 34 SDHI 219 sq.; Kaser, RPr I, pp. 571 sq. and, most recently, Benke, (1987) 104 ZSS 156 sqq., 191 sqq.

102 For a slightly diffe re nt conside ration cf. Gltick, vol. 17, p. 439: the conductor can be

required to provide only what the locator would have obtained had he done the work himself (or let it out to another conductor).

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following distinction: "Immo si soli vitio id accidit, locatoris erit periculum, si operis vitio accidit, tuum erit detrimentum."103 Vitium soli and vitium operis do not imply culpa but are to be taken as accidents, typically emanating from (and therefore attributable to) the risk sphere of the two parties concerned.104 It is the locator who provides the place where the excavation work is to be done. If the soil turns out to be unsuitable for the building of a canal and makes the walls collapse, he has to carry the risk. On the other hand, it is the conductor who performs the work. Every accident related to the way in which the work is carried out is therefore attributable to him: if the walls collapse because the conductor falls ill and is therefore unable to get the work done according to schedule, he will not receive any remuneration for what he has done.

What D. 19, 2, 62 does not settle is the question of who, in postLabeonic times, had to carry the risk for vis maior. lav. D. 19, 2, 51, dealing with "vis naturalis veluti terrae motus", provides the answer: periculum locatoris.105 This is in accordance with the allocation of risk under a contract of locatio conductio rei.106

The development107 in Roman law from a very strict and dogmatic distribution of risks towards a more flexible one finds its parallels in other legal systems. In England the rule established in Appleby v. Myers seems to be widely regarded as unsatisfactory today.108 In Germany the fathers of the BGB laid down a number of exceptions to the principle expressed in § 644 I 1 BGB: If the work, before its acceptance by the customer, is destroyed, or damaged, or becomes incapable of performance in consequence of a defect in the material provided by the customer, or in consequence of instructions given by him for its execution, the contractor may demand a part of the remuneration proportionate to the labour performed, and compensation for any outlay not included in the remuneration (§ 645 I 1). This rule is purportedly based on equitable considerations,109 but finds its justification in the fact that the customer appears to be "closer" to the source of the risk. Another exception, eventually laid down in § 644 I 2 BGB, can be traced back to lav. D. 19, 2, 37: the risk passes to the locator (customer) even before approval has taken place, if he ought to have approved the work. It has consistently been claimed that these

103D. 19, 2, 62.

104Cf. particularly Kaser, (1957) 74 ZSS 189 sq.

Cf. further Afr. D. 19, 2, 33 ("quemadmodum . . ."); lav. D. 19, 2, 37; Flor. D. 19, 2, 36. The arguments in favour of periculum locatoris are analysed succinctly by Wubbe,

Feslgabe Schweizerischer Juristentag, pp. 142 sqq. lA Cf. supra, pp. 369 sqq.

107According to Cannata and Wubbe (supra, note 97) there was no such development; the rules pertaining to risk of the time of Labeo were essentially the same as those in classical law.

108Lorenz, op. cit., note 58, n. 149.

109"Motive", in: Mugdan, vol. II, p. 280.

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exceptions do not go far enough. Thus, the requirements of § 645 I 1 have been applied in a most liberal manner and the norm has been used, repeatedly, as the basis for an argumentum per analogiam.110 Apart from that, a theory has attracted considerable support which favours the allocation of risk on the basis of typical spheres of risk:111 a nice example of how ideas from the "Treasure House"112 of the ius commune can prevail even against the odds of codificatory intervention.113

5. Adprobatio operis

We have been referring to adprobatio operis. In fact, in modern German law it is the key moment in most contracts for work.114 Upon successful completion of adprobatio operis, the contractor's remuneration becomes due, any claims of the locator, based on defects in the work that were known to him, are excluded, with regard to all other defects the short prescription periods begin to run and, as we have seen, the price risk usually passes to the customer. But what does adprobatio operis entail? In the previous paragraph, we translated the German term "Abnahme" on one occasion as "acceptance" and on another as "approval". In fact, according to the prevailing opinion, it comprises both: it is regarded as a two-membered act consisting of (physical) acceptance and an acknowledgement by the locator that what is produced to him is what he had asked for.115

The discussion of adprobatio operis in Roman law seems to have been confined to building contracts.116 In our sources we find two different forms of adprobatio.117 Sometimes it is referred to as an act of the conductor: he has to demonstrate that the building has been constructed skilfully and according to the specifications of the contract:

"° For details, see Hans Hermann Seiler, in: Erman, Burgerliches Gesetzbuch (7th ed., 1981), vol. I. § 645, nn. 2 sqq.

11 Walter Erman, "Der Spharengedanke ah Gesichtspunkt fur die Verteilung der Preisgefahr beim Werkvertrag", 1965 Juristenzeitutig 657 sqq.

112H.U. Kantorowicz, Bractonia» Problems (1941), p. 126.

113On this subject, more generally, see Theo Mayer-Maly, "Die Wiederkehr von Rechtsfiguren", 1971 Juristenzeitung 1 sqq.

114Cf. § 640 I BGB ("The customer is bound to accept the work completed according to the contract, unless this is impossible by reason of the nature of the work"). On the significance of adprobatio operis in modern German law, cf. Horst Heinrich Jakobs, "Die

Abnahmc beim Werkvertrag", (1983) 183 Archiv fur die civilistische Praxis 145 sqq.

115Cf. e.g. BGHZ 48, 257 (262); 50, 160 (162)'.

116Cf. e.g. Susan D. Martin, "A Reconsideration of probatio operis", (1986) 103 ZSS 321 sqq. She advances the interesting argument that probatio operis with regard to building contracts had a similar function to liability for imperitia in other types of locatio conductio operis. On probatio operis in Roman law cf. particularly Richard Samter, (1905) 26 ZSS 125 sqq.; Kaser, (1957) 74 ZSS 187 sq.; Thomas, (1971) 81 RID A 679 sqq.; Cannata, Colpa, pp. 193 sqq.; and the study by Martin.

117Matthias Pietsch, Die Ahnahme itn Werkvertragsrecht—Geschichtlirtie Entwicklung und geltendes Recht (unpublished Dr. iur. thesis, Hamburg, 1976), pp. 37 sqq.

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". . . ut bonitas [locatori] a conductore adprobaretur."118 No declaration of approval is required. In other places, however, it is exactly this approval on the part of the locator that is emphasized; Paulus provides a detailed discussion:

"Si in lege locationis comprchensum sit, ut arbitratu domini opus adprobetur, perinde habetur, ac si viri boni arbitrium comprehcnsum fuisset, idemquc servatur, si alterius cuiuslibet arbitrium comprehensum sit: nara fides bona exigit, ut arbitrium tale praestetur, quale viro bono convenit. . . ."ni)

Whether he examines the structure himself or designates a knowledgeable third party to do so, probatio is incumbent upon the customer. The standard set for his approval is that of the arbitrium viri boni. From both D. 19, 2, 24 pr. and Lab. D. 19, 2, 60, 3 it appears that this second type of adprobatio obtained only where it had been agreed upon in lege conductionis. As a general rule, therefore, adprobatio was regarded as having taken place, if in the course of the conductor's demonstration of the work, the locator did not specifically disapprove of any of its features. This concept obviously avoids all difficulties arising from the possibility that the locator might delay or withhold a declaration of approval. It has therefore been suggested that the modern concept of "Abnahme" be re-evaluated in the light of the Roman sources.120

Where the construction work was let "per aversionem"121 (i.e. as a whole and for a lump-sum price), probatio operis of the completed work was necessary to relieve the builder finally of whatever price risk he still had to carry. It also terminated his responsibility for defects in the work.122 Problems could arise in cases where the work was let "in pedes mensurasve":123 by units of measure, or where the price was quantified in singulos dies. The latter example is discussed by Iavolenus.124 The payment plan fixed in the contract could have some bearing on the question of adprobatio operis. Especially where the progress of the work was determined by the orders and instructions of the locator, the day-by-day equivalent of probatio could be regarded as sufficient:

"[S]i ita opus locasti, ut bonitas eius tibi a conductore adprobaretur, tametsi convenit, ut in singulas operas certa pecunia daretur, pracstari tamen tibi a

118lav. D. 19, 2, 51, 1; d. also Lab. D. 19, 2, 62; lav. D. 19, 2, 37.

119D. 19, 2, 24 pr.; cf. also Lab. D. 19, 2, 60, 3.

120Pietsch, op. cit., note 117, pp. 18 sq., 152 sqq., 220 sqq.; this suggestion has been

followed e.g. by Seller, op. ci t . , note 110, § 645, n. 6.

121Flor. D. 19, 2, 36.

122Cf. e.g. Cannata, Coipa, pp. 204, 207 sqq.; Thomas, (1971) 18 RIDA 688. The conductor continued to be liable only in the case of fraudulent behaviour: ". . . quibus conscquens cst, ut irrita sit adprobatio dolo conductoris facta, ut ex locato agi possit" (Paul. D. 19, 2, 24 pr. in fine).

123Flor. D. 19, 2,36. Мауег-Maly, Locatio conductio, pp. 40 sq.; Kaser, (1957) 74 ZSS 187 sq.; Cannata, Colpa, pp. 209 sqq.; Rohle, (1968) 103 ZSS 327 sqq.; Thomas, (1971) 18 RIDA 677 sqq., 685 sq.; Martin, (1986) 103 ZSS 327 sqq.

124D. 19, 2, 51, 1. On this text, see, e.g. Cannata, Colpa, pp. 211 sqq.; Thomas, (1971) \8RIDA 678sq.;Molnar, ANRW, op. cit., note 6, pp. 655 sq.; Martin, (1986) 103 ZSS 330 sqq.

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conductore debet, si id opus vitiosum factum est. . . . nisi si ideo in operas singulas merces constituta erit, ut arbitrio domini opus efficerctur: turn enim nihil conductor praestare domino de bonitatc opens videtur."125

6. Lex Rhodia de iactu

"Opus" is a fairly abstract term, and hence locatio conductio operis, as we have seen, covered a wide variety of situations: building contracts, repair work, vocational training relationships and transportation, to mention a few. The fathers of the German Code, on the one hand, maintained this liberal definition of the scope of the contract for work;126 on the other hand, however, they tried to lay down precise rules regulating the various details of this type of transaction. But since we are not dealing with a "type" of transaction in anything but a very abstract sense, problems were bound to arise.127 Not all rules relating to an architect's contract are necessarily suitable for the carriage of passengers. The reason why these problems had not already cropped up in Roman law lies in the inherent flexibility of the iudicia locati and conducti: on the basis of the ex bona fide clause the Roman lawyers were able to make such adjustments as were necessary to suit the specific situation at hand. One example of how ingeniously this flexibility could be used is the incorporation of the so-called lex Rhodia de iactu into Roman jurisprudence.

(a) The reception of the lex Rhodia into Roman law

We are dealing with carriage by sea, an enterprise which had become increasingly important during the last two centuries of the Republic.128 The trading of slaves depended on it, and it was vital for securing the Roman food supply (the annona),129 more particularly the transportation of grain. Apart from that, luxury goods were brought to Rome from distant parts of the world: ivory from Africa, or even silk from China.130 The two natural ports of Puteoli (Pozzuoli) and Ostia were soon no longer able to cope with the turnover of goods and thus an artificial Portus was built and connected, by means of a canal, with the Tiber.131 Of course, persons also had to be transported by ship; indeed,

125lav. D. 19, 2, 51, 1.

126§ 631 II BGB.

127

Cf. e.g. Seller, op. cit., note 110. Vor § 631, n. 1.

'~м For details cf. Jean Rouge, Recherches sur ['organisation du commerce maritime en mediterranee sous {'empire remain (1966), pp. 459 sqq.; A.J.M. Меуег-Tcrmeer, Die Haftung der Schiffer im griechischen und romischen Recht (1978), pp. 147 sqq.; De Martino, Wirtschajisgeschichte, pp. 151 sqq.

i24 Cf. e.g. Meyer-Termcer, op. cit., note 128, pp. 148 sqq.; De Martino, Wirtschaftsgeschichte, pp. 366 sqq.

130De Martino, Wirtschaftsgeschichte, pp. 357 sq. On the trade with India and China cf. Albrecht Dihle, John Ferguson and Manfred G. Raschke, in: ANRW, vol. II, 9 (1978), pp. 546 sqq., 581 sqq., 604 sqq.; Lionel Casson, Ancient Trade and Society (1984), pp. 182 sqq.

131For details, cf. e.g. De Martino, Wirtschaftsgeschichte, pp. 365 sqq.; Russell Meiggs, Roman Ostia (2nd ed., 1973), pp. 149 sqq., 159.

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certain ships were specifically designed for that purpose.132 It has already been mentioned that any voyage by ship was a somewhat hazardous venture, particularly in the Mediterranean Sea.133 It was (and still is) notorious for its storms, and shipwreck (naufragium) was no

rare occurrence, even if one travelled in season (i.e. when the seas were not "closed").134

Sometimes, however, the ship's master (magister navis)135 was able to save the vessel from foundering by throwing goods overboard and thus lightening the ship.136 Of course, in a situation of distress there is no time carefully to pick and choose and thus the magister navis and his deck-hands grabbed and jettisoned what was nearest or what was heaviest. But must the unfortunate owner of these goods then carry the loss? That would most certainly not be equitable. After all, his property was sacrificed in order to save that of the others: he incurred a loss for the common benefit. Obviously then, if the benefit was common, so should be the loss. "Si commune periculum aliter depelli non possit, quam rem alienam perdendo; earn perdere licet, damnum vero commune esse debet":137 this is how, long after the demise of the Roman Empire, the underlying principle of natural equity was formulated; or, on an even more general level: "Omnium contributione sarciatur, quod pro omnibus impensum est."138 These words are taken, almost verbatim, from the Digest, where we find the following statement by the jurist Paulus: "Lege Rhodia cavetur, ut, si levandae navis gratia iactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est."139 It is essentially what has become known in England as a general average,140 and is referred to in Germany as "(grosse) Haverei".l41i 142 In antiquity the doctrine goes back to one of the seafaring nations par excellence, the Rhodians. Their sea law was a sort of common lex mercatoria maritima for the states

132Cf. e.g. Ulp. D. 14, 1, 1, 12.

133Cf. supra, p. 182.

134Cf. supra, p. 184, note 191.

13D On the position and the duties of the magister navis cf. e.g. Ulp. D. 14, 1, 1, 1-5; on the management of a ship generally and on the role of dominus navis, excrcitor, magister navis and gubernator, see Meyer-Termeer, op. cit., note 128, pp. 150 sqq.; Rouge, op. cit., note 128, pp. 213 sqq.; J.A.C. Thomas, "juridical Aspects of Carriage by Sea and Warehousing in Roman Law", in: (1974) 32 Recueils de la Societe Jean Bodin pour I'Histoire Comparative des Institutions 124 sq.

' For a well-known example of this practice cf. St. Paul's dangerous voyage towards Rome, as recounted in Ada Apostolorum, 27.

137Christian Wolff, Jus Naturae, Pars VI, Cap. IV, § 621.

138Leyser, Meditationes ad Pandectas, Sp. CLX.

139Paul. D. 14, 2, 1.

140Cf. e.g. Story, Bailments, § 583; Lowndes and Rudolf, General Average and York Antwerp Rules (10th ed., 1975).

141For details cf. §§ 700 sqq. HGB; Philipp Heck, Das Recht der grossen Haverei (1889).

142On the origin of the words Ня^еш/average cf. e.g. H. Kellenbenz, HRG vol. 2, col. 2 (from the Arabic word awdr (damaged cargo)) and Lowndes and Rudolf, op. cit., note 140, pp. 11 sq. (from the Italian avere, the having of property).

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bordering on the Mediterranean Sea;143 and part and parcel of these trade usages was the so-called lex Rhodia de iactu.144 Based on the idea of

a community of risk and emanating from the principle of aequitas,145 late

Republican jurisprudence received the lex Rhodia de iactu into Roman law:146 not by way of legal surgery, but in a most natural or

homeopathic manner. Carriage by sea was usually undertaken by way of locatio conductio operis.147 This contract bound the magister navis to transport the customer's goods to the port of destination. He was not supposed to throw them overboard. This action (intentional, as it were!) amounted to a breach of contract, and he was therefore liable to his customer under the actio locati. If, however, it was inequitable to let the loss lie with the person whose goods had been sacrificed, it would have been equally inequitable to see the magister navis lose out. He was therefore able to proceed against the other customers whose goods had been saved; to this end he could avail himself of the actio conducti.148 As, in the end, the loss was to be split equally between all participants of this communal enterprise, the actions were adjusted accordingly. The first locator could sue the magister navis for the value of his property that had been jettisoned, minus his own share of the loss; the magister navis, in turn, would sue the other locatores for their pro rata contribution. The Rhodian custom thus became an integral part of the contractual relationships existing between the parties to a contract of carriage by sea.14y

Their conception of what was due, ex bona fide, between the parties gave the Roman lawyers ample scope to refine the application of the lex

143 Cf. e.g. Rouge, op. cit., note 128, pp. 407 sqq. and, on a compilation of the 8th century A.D. and its influence in medieval law, Walter Ashburner, The Rhodian Sea-Law,

1909. Cf. also Т.Е. Donges, The Liability for Safe Carriage of Goods in Roman-Dutch Law (1928), pp. l s q q .

Hans Kreller, "Lex Rhodia. Untersuchungen zur Quell en geschichte des romischen Sccrcchtes"', (1921) 85 ZHR 337 sqq.

141 Paul. D. 14, 2, 2 pr. (". . . aequissimum enim est commune detrimentum fieri corum, qui propter amissas res aliorum consecuti sunt, ut merces suas salvas haberent").

141 Franz Wieacker, "Iactus in tributum nave salva venit (D. 14, 2, 4 pr.). Exegescn zur Lex Rhodia de iactu", in: Studi in memoria di Emilio Albertario, vol. i (1953), pp. 513 sqq.; Francesco M. de Robertis, "Lex Rhodia, Critica e anticritica su D. 14, 2, 9", in: Studi in onore di Vincenzo Aranqio-Ruiz, vol. Ill (1953), pp. 155 sqq.; Thomas (1974) 32 Recueih Jean Bodin

152, 155.

147 Depending on the object of transportation, it was locatio conductio rerum vehendarum or vectorum vehendorum. Alternatively, the contract could be locatio conductio rei (the hiring of space on the ship). In this case, a duty to carry out transportation was created only if the parties had added a special agreement to that effect. For details cf. Meyer-Termeer, op. cit., note 128, pp. 177 sqq.;J. A.C. Thomas. "Carriage by Sea", (1960) 7 RIDA 496 sq.; idem, (1974) 32 Recueih Jean Bodin 119 sqq.

148Or he could induce the other consignors to make their payment by withholding their goods; on this ius retentionis cf. Paul. D. 14, 2, 2 pr. According to Wieacker, Studi Albertario, vol. I, pp. 516 sq., this was the primary way of effecting the contribution: the ship's master availed himself of the ius retentionis ex iure tertiorum (i.e. the other consignors who have to receive their contribution from the cargo saved).

149Cf. Paul. D. 14, 2, 2 pr.; Wieacker, Studi Albertario, vol. I, p. 516; Kascr, RPrl, p. 572; Thomas, (1974) 32 Recueih Jean Bodin 152 sqq.; idem, TRL, p. 300.

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Rhodia; one basic requirement for the duty of contribution being that the ship was saved from this specific danger.15" The Digest title 14, 2 is full of interesting cases and distinctions. Thus, we read of a ship which encountered two storms on its voyage: from the first it emerged unscathed because the goods of one merchant had been thrown overboard, but in the second one it sank. The shipwreck, however, seems to have occurred in shallow waters, for paid divers managed to recover the cargo of some of the other merchants. Do they have to contribute to the first merchant's loss?15' Do those locatores, whose goods added no weight to the ship ("velut gemmas margaritas") have to contribute like everyone else?152 Or: the mast and the riggings of a ship were struck, adverso tempestate, by lightning. In Hippo, the ship was equipped with temporary riggings and was thus able to proceed to Ostia with the cargo safe and sound. Should the cargo-owners contribute towards the loss of the shipowners? (Interesting) answer: no, "hie enim sumptus instruendae magis navis, quam conservandarum mercium gratia factus est".153

(b) Subsequent history of the lex Rhodia

The history of the lex Rhodia de iactu can be told as one of gradual extension. Confined, originally, to iactus mercium, it was already in classical Roman law applied to cases where part of the cargo was used to ransom the ship from pirates (redemptio a piratis),154 where the mast of the ship was cut down and cast off removendi communis periculi causa155 or where a dinghy was lost, onto which part of the cargo had been transferred in order to lighten a ship that could otherwise not have entered a river or port.156

In the Middle Ages157 the lex Rhodia began to be applied beyond the area of maritime law, because the basic underlying principle lent itself to generalization. Thus, Accursius emphazised: "Et not. quod si quid pro communi utilitate, vel alterius damni patior, quod mihi est restitutio facienda. . . ,"158 Fire and war were the principal disasters to

150On the nave salva requirement cf. Kreller, (1921) 85 ZHR 288 sqq.; Wieacker, Studi Albertario, vol. I, pp. 515 sqq. Today cf. §§ 700, 703 HGB (and Heck, op. cit.. note 141, p. 600). Proof of causation (that iactus saved the ship) does not seem to have been required (cf., however, § 703 HBG and Wieacker, Studi Albertario, vol. I, pp. 530 sq.).

151Answer: yes; cf. Call. D. 14, 2, 4, 1. After all, the iactus has saved the remaining cargo; otherwise the ship would never have reached the point, where the water was shallow enough for the cargo to be saved by the divers; cf. Wieacker, Studi Albertario, vol. I, pp. 523 sqq., 531 sq.

152Paul. D. 14, 2, 2, 2.

153Iul. D. 14, 2, 6. Cf. today Rule XIV of the York Antwerp Rules (1974).

154Paul. D. 14, 2, 2, 3.

155Pap. D. 14, 2, 3; Herm. D. 14, 2, 5, 1.

156Call. D. 14, 2, 4 pr.; Wieacker, Studi Albertario, vol I, pp. 520 sqq.

157As to the following, see Gunter Wesener, "Von dcr Lex Rhodia de iactu zum § 1043

ABGB", in: Festschrift fur Johannes Barmann (1975). pp. 36 sqq.

158 Gl. Aequissimum ad D. 14, 2, 2, pr.

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410 The Law of Obligations

which the idea of contribution was applied: "Igne orto in aliqua contrata, si domus alicuius destruitur a vicinis, ne ignis alterius extendatur, fieri potest hire", and "Milites, qui tempore propter defensionem vadunt ad bellum, si ibi perdunt equum, sibi per communem debet emendare."159 As in the case of shipwreck, we are dealing with a common danger, in which the property of one party is used to save that of the others.

Another momentous innovation in the application of the lex Rhodia also goes back to Accursius. In his gloss "agere potest" ad D. 14, 2, 2 pr., he suggested that the person whose goods had been sacrificed should be able to proceed directly ("via recta") against the other persons deriving a benefit therefrom, for their pro rata contribution. Thus one would be able to avoid the somewhat cumbersome detour via the conductor. At the same time, the lex Rhodia moved into close proximity to another well-known institution, namely that of negotiorum gestio.160 Various attempts were made, over the centuries, to locate and to categorize this direct claim properly; it was described as actio generalis, quae ex variis figuris causarum oritur,161 as an actio in rem (based on consuetudo maritima)162 and as a condictio ex lege (based on a quasi-contractual obligation).163 But it was finally recognized that such a search for a procedural niche no longer really mattered; after all, one had moved away from the Roman concept of actional law, procedural formulae and "ubi remedium, ibi his".164 The natural lawyers, of course, seized upon the equitable principle of "omnium contributione sarciatur, quod pro omnibus impensum est" and were eager to entrench the lex Rhodia in its extended version.165 Their discussions culminated in the incorporation of the following rule into the ABGB:

"A person who has sacrificed his property in case of emergency in order to prevent greater damage to himself and others, shall be indemnified proportionally by those who have derived an advantage therefrom. '"IM>

In its typical fatherly tone, the second sentence of § 1043 ABGB kindly informs the reader that the particular application of the provision in regard to maritime risks is set forth in the maritime laws. This, then,

1э9 This is how Baldus describes the relevant situations (Commentaria, Vcneths, 1586, ad D. 14, 2, 2). Cf. also e.g. Lauterbach, Collegium theoretko-practicum. Lib. XIV, Tit. II, XIV; Lcyser, Meditationes ad Pandectas, Spec. CLX. Contra, for example, Voet, Commentarius ad Pcmdectas, Tit. XIV, Cap. II, XVIII; cf. also Gluck, vol. 14, pp. 234 sqq.

160 For a contrary view cf. e.g. Cuiacius, "Commentarii in Lib. XXXIV Pauli ad Edictum" (in: Opera Omnia, vol. v. (Mutinae, Mil), col. 518 sqq.).

161Modcstinus Pistoris, Consilia sive responsa, vol. I, Cons. XVI, n. 19.

162Brunnemann, Commentarius in Pandectas, Lib. XIV, Tit. II, ad L. Si laborante 2 pr.

163Johann Schilter, Praxis juris Romani, Exercitatio ad Pandectas XXVII, §§ XXVI sq.

164Cf. Gluck, vol. 14, pp. 232 sq.

165Cf. supra notes 138, 158, 159.

166§ 1043, 1 ABGB. For the history of this provision cf. Wesener, Festschrift Barmann, pp. 45 sqq. For a comparison with § 904 BGB (emergency) cf. Andreas Hatzung,

Dogmengeschichtliche Grundlagen und Entstehung des zivilrechtlichen Notstands (1984), pp. 52 sqq.

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