!!Экзамен зачет 2023 год / The Law of Obligations

throughout classical Roman law we find cases where the verba prevailed against voluntas.53 But it became an oft-quoted54 precedent, a cause celebre, where at a crucial juncture a free exegesis had triumphed over rigidity. For this is probably the most important feature of the causa Curiana: it demonstrates the flexibility that had been gained by the time of the late Republic. A case no longer necessarily had to be decided on the basis of the verba; other factors were taken into account and, where appropriate, they could even determine the result of the decision.

The causa Curiana is also characteristic of the influence of Hellenistic theories of forensic rhetoric on contemporary Roman jurisprudence.55 Roman court orators adopted the Greek "status" doctrine,56 particularly the antithesis of verba fscriptum) and voluntas (aequitas). Rhetoric, of course, was a theory of advocacy, and the orator had to adopt whichever view suited the interests of his clients.57 Thus, he was not necessarily on the side of voluntas or aequitas; it could just as well be his duty to plead a case on the basis of a strictly literal interpretation.58 The function of the Roman jurist was a different one.59

decision too much. For a rejection of Stroux's view cf. also Feliciano Serrao, Ctassi, Partiti e Legge neila Repubblica Romana (1974), pp. 142 sqq.; Burge, op. cit., note 11, pp. 46 sqq.

53For the interpretation of wills cf. e.g. Wicling, Testamentsauslegung, op. cit., note 36, pp. 59 sqq., 107 sqq. and passim.; cf. also Felix Wubbe, "Der Wille des Erblassers bei lav. D. 32, 100, 1", in: luris Professio, Festgabe fur Max Kaser (1986), pp. 371 sqq.

54Cf. the references to Cicero and Quintilian in Schulz, RLS, p. 79, Gandolfi, op. cit., note 19, pp. 291 sqq. and Wieacker, (1967) 2 The Irish Jurist 157 sqq.

55Cf. generally Stroux, op. cit., note 40, passim (with too extreme and far-reaching conclusions); contra (equally extreme) e.g. Gerhard von Beselcr, "Recuperationes iuris antiqui", (1938) 45 BIDR 169 sqq.; cf. also Schulz, RLS, pp. 76 sqq.; Behrends, Fraus legis, pp. 73 sqq.; for a more balanced evaluation, see Wunner, Contractus, pp. 182 sqq.; Kaser, RPr I, jp. 236; Honsell, Festschrift Coing, vol. I, pp. 143 sq.; and, in particular, Franz Wieacker, "Ober das Verhaltnis der romischen Fachjurisprudenz zur griechisch-hellenistischen Theoric", (1969) 20 lura 469 (on the whole, possibly still underrating the influence of

rhetoric); Frier, Roman Jurists, pp. 95 sqq., 127 sqq. ("The Ciceronian court, with its shameless tattoo of loci communes, formed . . . an indispensable laboratory where Rome's fledgling legal scientists could create and test their abstract rules in relation both to specific cases and community values. . . . It seems reasonable to discover, within the intensely competitive arena of forensic discussion, many of the impulses towards breadth and equity which gave Roman private law its vitality as a living system and its vast influence as a dead one" (pp. 137 sq.); cf. also p. 267: "This indirect and selective flow of legal ideas from judicial oratory into law is perhaps . . . the real basis Roman law's growth into maturity"). Cf. now also the magisterial summary of the discussion by Wieacker, RR, pp. 662 sqq.

56 For details cf. Uwe Wesel, Rhetoristhe Statuslehre und Gesetzesauslegung der romischen

Juristen (1967), pp. 22 sqq.; Franz Horak, "Rhetorische Statuslehre und der moderne Aufbau des Verbrechensbeg riffs", in: Festgabe fur Arnold Herdlitczka (1972), pp. 121 sqq.; Richard A. Bauman, "The 'leges iudicorum publicorum' and their interpretation in the Republic, Prindpate and later Empire", ANRW, vol. II, 13 (1980), pp. 112 sqq.; Wieacker, RR, pp. 669 sqq.

57Schulz, RLS, pp. 76 sq.; cf. also Gandolfi, op. cit., note 19, pp. 257 sqq.; Wieacker, (1969) 20 lura 475; Burge, op. cit., note 11, pp. 58 sqq.

58On the "relativistic framework of rhetorical argument" see Frier, Roman Jurists, pp. 127

sqq. ("All that rhetoric offered was a loose framework of alternatives for interpretation"); Frier provides a brilliant and fascinating analysis of Cicero's speech pro Caecina which, according to him, reflects the crucial transformation that the Roman judicial system

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He was concerned with questions of law, not with the selection and skilful presentation of an argument that could possibly strengthen the case of a particular client. "The question of law, namely which of the two interpretations, the literal or equitable, ought to prevail", states Schulz,60 "was simply outside the province of rhetoric"; and he concludes that the Roman jurists cannot have found anything worth learning in rhetoric. But this view is much too negative. The elements of rhetoric were taught at school,61 and every Roman jurist must therefore, from an early age, have been familiar with the relevant "status" and techniques of argument. The speeches of the orators in court merely reminded them of what they already knew themselves: namely, that, as for many other problems, more than one point of view can be adopted on the question of the interpretation of contracts, wills or statutes. The jurists were constantly made aware of the arguments for and against a literal interpretation, and it is hard to believe that this should not have affected them at all. Of course, they still had to decide which argument was to prevail. But the important progress that had been made lay in the fact that both rigid and wide, both objective and subjective interpretation could now prevail.62

(e) The "individualizing" approach

The causa Curiana has taken us into the field of the law of succession. So do most of the cases contained in the Digest which deal with problems of interpretation. They would all have to be considered for a more thorough appraisal of the approach of the classical Roman lawyers on this matter; for strict dogmatic borderlines between the interpretation of contracts, of testaments, and even of statutes did not exist.63 Of course, the Roman lawyers were aware of the differences between the individual types of transactions: the conflict of interest between declarant and recipient of the declaration in the case of contract; strict observance of the prescribed formalities (but also: no reasonable reliance on the part of any addressee that needed to be protected!) in the case of wills. We do not find any express statement in the sources analysing or clarifying these policy issues, but they are reflected in the way the Roman lawyers dealt with the individual cases

underwent during the time of the late Republic (cf. e.g. pp. 252 sqq.; summary on p. 267). On "words vs. intent" within the context of pro Caecina, cf. pp. 128 sq.

59On the distinction (and antagonism!) betweenjurists and orators, cf. e.g. Schulz, RLS, pp. 53 sqq., 69 sqq., 108 sq.; Frier, Roman jurists, pp. 130 sqq.. 155 sqq.; Wieacker, RR,

pp. 668 sqq. Contra: Tellegen, (1983) 30 R1DA 293 sqq. W1 RLS, p. 76.

fl1 Cicero, DP oratore, 1, LVII—244; Schulz, RLS, p. 54; Wieacker, RR, p. 668. Cf. also

the remarks by Tellegen, (1983) 30 RIDA 2У4 sq.

62For parallel developments with regard to the problem of interpretation of statutes, see Honsell, Festschrift Coing, vol. I, pp. 143 sq. Contra: Behrends, Fraus legis, pp. 33 sqq. and passim. Cf. also Wieacker, RR, pp. 670 sqq.

63So, too. Maycr-Maly, (1969) 37 TR 591.

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brought before them. The dominant impression is the highly "individualizing" approach adopted throughout,64 and as far as the construction of wills was concerned, that entailed specific significance of "mens testatoris" or "quid sensit testator".65 In the case of contract, it was a slightly different criterion by which the process of interpretation was guided. "Id quod actum est" is the phrase that we find emphasized again and again. The felling of timber was sold for five years. Whose is the mast which might fall from the trees? "[P]rimum sequendum [est] quod appareret actum esse."66 A piece of land had been sold, and the parties had provided that the water rights should go with it. Does that include the right of way to the water? "[R]espondit sibi videri id actum esse."67 Some water pipes were supposed to pass into the property of the purchaser of an estate. What about the reservoir from which the water is drawn through the pipes? "[R]espondi apparere id actum esse, ut id quoque accederet, licet scriptura non continetur."68 Or, to take the case of a stipulation: somebody had promised to give or to perform something "kalendis Ianuariis". Which date did he have in mind? "[S]i autem non addat quibus Ianuariis, facti quaestionem inducere . . . quid inter eos acti sit [utique enim hoc sequimur quod actum est]."69

(f) Id quod actum est

Id quod actum est70 referred to the common intentions of the individual parties to a contract, as they became apparent from the specific context within which the negotiations had taken place and the declarations had been made. This "context" included the individual, personal circumstances of the contracting parties as well as those of their expectations that were based on other than purely internal motives. The literal meaning of the words used by the parties and other objective standards were relevant wherever they could help to determine id quod actum est; otherwise they were only fallen back upon where the individual circumstances remained in the dark ("si non appparet quid actum sit").71 In this connection, certain standard arguments, based on general

M Bern, Istituziotii, vol. I, pp. 139 sqq. has tried to replace the clumsy and simplistic verba/voluntas doctrine by introducing a more refined distinction between typical (typifying) and individual (individualizing) interpretation (the former classical, the latter Justinianic). But it is not possible to draw a clear distinction between the two approaches; for terminological clarification, see Wieacker, (1966) 83 ZSS 438 sq.; Horak, Rationes decidendi, pp. 194 sqq.; c(. also Gandolfi, op. ci t ., note 19, pp. 83 sqq.

65For details cf. Voci, Wieling, Kaser. as quoted supra in n. 36.

66Lab. I). 18, 1, 80, 2.

bl Paul. D. 18, 1, 40, 1. 6MLab. D. 18, 1, 78 pr.

69Ulp. D. 45, 1, 41.

70Of fundamental importance is Fritz Pringsheim, "Id quod actum est'", (1961) 78 ZSS 1 sqq.; cf. further Wunner, Contractus, pp. 179 sqq.; Gandolfi, op. cit., note 19, pp. 116 sqq.,

308 sqq.

71 Cf. e.g. Ulp. D. 45, 1, 41.

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experience or policy, could also be of assistance:72 "commodissimum est id accipi, quo res de qua agitur magis valeat quam pereat";73 "[i]n obscuris inspici solere, quod verisimilius est aut quod plerumque fieri solet"74 or the well-known interpretation contra proferentem.75 They were all of a fairly subordinate significance in Roman law; it was not until the time of the glossators that they began to be used as general maxims of interpretation.

All in all, I think that the position under classical Roman law can with some justification be described as an (unstable but) happy equilibrium.76 Neither verba nor voluntas reigned supreme: the original archaic formalism in interpretation had been left behind, but it had not (yet) been replaced by an equally radical subjectivism. The advance of voluntas not only started in post-classical times; it in fact contributed to the refinement of classical law. The Byzantine animus theory was therefore neither novel nor intrinsically false: "The idea is an old and a great one; it is only its exaggeration that creates the novelty or the danger" and that turns what was once progress into decline.77

(g) Excursus: the animus novandi

Thus, not even every reference to animus is spurious. It was often only by isolating and dogmatizing it that Justinian interfered with the sources of classical law. Merely by way of example,78 we may here refer to the problem of the animus novandi. Novation was defined by Ulpianus as "prioris debiti in aliam obligationem . . . tnmsfusio atque translatio".79 An existing obligation was extinguished and substituted by an new one. A novation was effected by way of a stipulation that was causally framed; it referred to what was owed under the previous obligation.80 It was often used, for instance, in order to achieve a change in the person of the debtor or of the creditor. "Quod mihi Seius debet, mihi dari spondes?" "Spondeo":81 on account of this stipulation the promisor replaced Seius as the debtor of "ego". Seius' obligation was terminated ipso iure. In order to have this "novatory" effect, the (new) stipulation basically had to comprise the same debt (idem

72Hans Erich Troje, "Ambiguitas contra stipulatorem", (1961) 27 SDHI 95.

73Ulp. D. 34, 5, "12; cf. also Ulp. D. 50, 17, 67.

74_ Paul. D. 50, 17, 114.

3 Cf. infra, pp. 639 sqq.

76Pringsheim, (1933) 49 LQR 47.

77Pringsheim, (1933) 49 LQR 48.

78For an overview of the various acts for which animus became—at some time or other—an essential requirement, see Pringsheim, (1933) 49 LQR 49 sqq.. 379 sqq.; Kaser, RPr II, pp. 87 sqq.

7'' D. 46, 2, 1 pr. Cf. also Gai. HI, 176: "novatione . . . nova nascitur obligatio ct prima

tollitur, translata in posteriorem."

80 Cf., most recently, Max Kaser, "Zu Novation und Delegation", in: Saturn Roberto

Feenstra oblata (1985), pp. 141 sqq. 81 Cf. e.g. Ulp. D. 45, 1, 75, 6.

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debitum), but it also had to contain a new element (aliquid novi).82 In the above example, the change of creditor is the new element. Often this pair of objective criteria (idem debitum—aliquid novi) was both satisfactory and sufficient to determine when a particular stipulation had to be viewed as a novation. But sometimes it was not. In our discussion of suretyship stipulations we have seen that a sponsio could, according to Proculian practice, be concluded both ex intervallo and in the absence of the main debtor.83 That entailed a change of the standard formula, which could now no longer refer to idem, but had to read, for instance, like this: "Quod Seius mihi debet, mihi dari spondes?" It was exactly the same as in the case of a novation. And yet, in the one instance (sponsio) the promisee was to become debtor alongside Seius, in the other (novatio) he was to replace him. It was in order to deal with these kinds of problems that the classical lawyers brought in a new, subjective requirement: they made the decision dependent upon the intention of the parties, and this was the origin of animus novandi.84 In some of our sources even the very term appears to be of classical origin, although, as a rule, a formulation such as "hoc agere, ut (novetur)" was used.85 Thus, for instance, Ulpian amplifies his definition of novation with the words: ". . . hoc est cum ex praecedenti causa ita nova constituatur, ut prior perematur. "86 As a result, therefore, the construction of a stipulation as a novation depended on a characteristic mixture of both objective and subjective criteria. It was only in postclassical times that animus novandi became the dominant feature in the dogmatic make-up of this institution and conclusively determined the novatory effect of a transaction.87

III.POST-RECEPTION DEVELOPMENTS

1.The older ius commune

Any more than a superficial or impressionistic assessment of the approach to the interpretation of contracts during the various phases of the ius commune would require a thorough analysis of the decisions of the courts: a task which has yet to be undertaken. Questions of

82 Cf. e.g. Gai. Ill, 177; Ulp. D. 46, 2, 8, 5; Pomp. D. 45, 1, 18; David Daube, "Novation of Obligations Giving a Bonae Fidei Iudicium", (1948) 66 ZSS 91 sqq.; Robert Feenstra, "L'effet extinctif de la novation", (1961) 29 TR 400 sqq.; Franco Bonifacio, La novazione net diritto rotnano (2nd ed., 1959), pp. 123 sqq.; Sturm, Stiputatio Aauitiana, pp. 200 sqq.

кэ Cf. supra, pp. 118 sq.

M4 For details, see Apathy, Animus novandi, passim, e.g. pp. 261 sqq.

85 Apathy, Animus novandi, pp. 253 sqq. against earlier interpolatkmist views (e.g. Fritz Pringsheim, "Zur Geschichte des "animus novandi'", in: Studi in ouore di Vincenzo Агащю-Ruiz, vol. 1 (1952), pp. 509 sqq.).

86Ulp. D. 46, 2, 1 pr.

87Justinian ultimately required the parties expressly to declare their intention to novate; cf. C. 8, 41, 8 and lust. HI, 29, 3 sq. On the significance of animus novandi injustinianic law, see Kaser, RPr II, pp. 450 sq.; Apathy, Animus novandi, pp. 266 sqq.

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interpretation are (or can be) dependent upon so many different circumstances that it is particularly difficult to say whether the abstract formulations, the rules and guidelines found in contemporary literature do in fact reflect the actual jurisprudentia forensis, the law in action.88 As far as the textbooks, the commentaries and the academic treatises are concerned, a subjective approach is prevalent throughout the centuries.89 Papinian's statement to the effect that the will of the parties must be considered rather than the words'* was quoted over and over again, and thus examination of the common intention of the parties was the primary objective of the interpreter.91 "Quod actum est" was still an oft-quoted phrase, but it was now usually understood to refer to "id, de quo contrahentes senserunt".92 The supremacy of subjective criteria was endorsed by humanists as well as by the writers of the usus modernus, and it found, of course, its culmination in the 19th century. For the pandectists, it became a natural consequence of private autonomy and of the "will theory" of contract. If contractual obligations are by definition self-imposed, it follows that the exclusive task of the courts is to discover what the parties have agreed upon and to give effect to this, their true intention.

2. True intention and justifiable reliance

Modern German law tends to follow a more objective, or normative, approach; the emphasis is not so much on what a party may have meant, but on how a reasonable man would have understood his declaration.93 There is no room for an inquiry into the "true intention" of the parties if the justifiable reliance of the addressee deserves protection. A declaration of intention, as the emanation of an individual's autonomy, does not exist in a social vacuum; it gives rise to reasonable expectations on the part of others, which must not be disappointed. This reflects a significant shift from a theory of contract based on individualism to a perspective which accentuates the social

8K Cf. also Coing, p. 411. On the nature of the ius commune in the 16th, 17th and 18th centuries, not as professorial law characterized by impractical abstractions, deductive reasoning and concept jurisprudence, but asjudicial law, jurisprudentia forensis, developing through lawyers' interpretation andjudicial opinions, cf. e.g. Gino Gorla, Luigi Moccia, "A 'Revisiting' of the Comparison between 'Continental Law' and 'English Law' (16th—19th century)", (1981) 2 journal of Legal History 143 sqq. Protagonists of the law in action were judges and legal counsel, lawyers such as Molinaeus and Domat, Grotius and Bynkershoek, Huber and Sande, Carpzov and Mevius; the method of their decisions was largely casuistic; and a particularly important part of legal literature written or compiled during this time was forensic in character.

89Cf. supra, p. 625.

90D. 50, 16, 219.

91Cf. e.g. Pothier, Trails des obligations, n. 91.

92Donellus, "Ad. Tit. Dig. de Rebus dubii", Ad L. Ubicst 21., in: Opera Omnia, vol. XI (Lucae, 1767), col. 99.

93Cf. e.g. Flume, AT, pp. 51 sqq., 307 sqq.; Ludentz. op. cit., note 2, pp. 278 sqq.; Wieacker, Privatrechtsgeschichte, p. 517.

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consequences of human behaviour.94 It is a change of perception which had been prepared and foreshadowed in the writings of the natural lawyers. They had laid, it will be recalled, the foundations for the modern concepts of contract and of a declaration of intention.95 More particularly, they had emphasized that the will to be bound must find some external manifestation. Both voluntas and signum voluntatis are essential elements within the process of contract formation. Consequently, then, the interpretation of contracts cannot be determined by a purely subjective criterion either. Grotius firmly rejected Cicero's advice "[sjemper autem in fide quid senseris, non quid dixeris, cogitandum",96 and expressed his own view in the following words:

"Sed quia interni actus per sc spcctabilcs non sunt, . . . ipsa dicante naturali ratione jus est ei cui quid promissum cst promissorem cogere ad id quod recta interpretatio suggerit."y7

But how is this recta interpretatio to be established? "Si nulla sit conjectura quae ducat alio, verba intelligenda sunt ex proprietate, non Grammatica quae est ex origine, sed populari ex usu."96

3. Rules of interpretation: in general

A second characteristic feature of the literature of the ius commune on the interpretation of contracts is the great variety of special rules and maxims that were collected and put forward, usually on the basis of some more or less isolated texts taken from the Digest.98 Every clause in a contract must be interpreted in the light of all the other clauses, whether they precede or follow it ("Incivile est nisi tota lege perspecta una aliqua particula eius proposita iudicare vel respondere": Cels. D. 1, 3, 24);99 ambiguous clauses must be construed in a sense which will give them some effect rather than render them inoperative ("Quotiens

in stipulationibus ambigua oratio est, commodissimum est id accipi, quo res, qua de agitur in tuto sit": Ulp. D. 45, 1, 80) ;100 of two possible

constructions, the one which is most agreeable to the nature of the contract must be chosen {"Quotiens idem sermo duas sententias

94 Bona fides and its Germanic counterpart "Treu und Glauben" have been instrumental in the shaping, first of the one, then of the other point of view; for details, see Okko Behrends, "Treu und Glauben. Zu den christlichen Grundlagen der Willenstheorie im heutigen Vertragsrecht", in: L.L. Vallauri, G. Dilcher (eds.), Christentum, Sakuiarisation und modernes Recht, vol. II (1981), pp. 957 sqq., 1001 sqq. 95 Cf. supra, pp. 567 sqq. 9(1 De Officiis, 1, ХШ40.

Anson, op. cit., note 99. pp. 149 sqq. ("Ut res magis valeat quam pereat").

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exprimit, ea potissimum excipiatur, quae rei gerendae aptior est": Iul. D. 50, 17, 67);101 the interpretation of ambiguous terms must be guided by the custom and trade usage of the country in which the contract has been concluded ("Semper in stipulationibus et in ceteris contractibus id sequimur . . . quod in regione in qua actum est frequentatur": Ulp. D. 50, 17, 34);102 a contract is understood to contain the customary clauses, although they may not have been expressly inserted (". . . ea enim, quae sunt moris et consuetudinis, in bonae fidei iudiciis debent venire": Ulp. D. 21, 1, 31, 20);103 however general the terms of a contract may be, they only apply to matters which were contemplated by the parties

at the time of conclusion of the contract ("nam . . . iniquum est peremi pacto. id de quo cogitatum non docetur":104 Ulp. D. 2, 15, 9, 3);105 and so

on. In an 18th-century German work, we find a hotchpotch of no fewer than 100 different rules of interpretation.106 French authors — and their successors—were on the whole more successful in domesticating this casuistic jungle: Domat relates 15, Pothier 12 and Van der Linden merely 9 rules.107 The first and most influential attempt to establish a hierarchy of criteria, incidentally, goes back to the glossator Johannes Bassianus: quod actum—ut magis valeat quam pereat—quod verisimilius — contra proferentem.108 The scheme was later refined by Hugo Donellus, the main representative of the systematically oriented branch of the humanist school of jurisprudence. The importance attached to special canons of construction in the ius commune is probably a direct consequence of the narrowing down of "id quod actum est" to a purely subjective criterion; for if only the intention of the parties matters, then certain guidelines and criteria are needed to determine their presumed intention where the actual will cannot in fact be established. It is not surprising, therefore, that those who favoured a more objective approach to interpretation, more particularly the natural lawyers,109 no longer held on to these canons of interpretation. The drafters of the BGB, too, abandoned them. The interpretation of contracts is dependent upon the individual circumstances of each case and must be undertaken "according to the requirements of good faith".110 Within

"" Pothier, Traite des obligations, n. 93; art. 1158 code civil; Flume, AT, p. 317. 102 Pothier, Traite des obligations, n. 94; art. 1159 code civil. 1()l3 Pothier, Traite des

obligations, n. 95; art. 1160 code civil.

1(14 Cf. the note appended by Mommsen to his edition of this text: n. 10 in Mommscn/Kriiger, D. 2. 15, 9, 3.

1(b Pothier, Traite des obligations, n. 98; art. 1163 code civil.

106 Cf. Hans Erich Troje," "Ambiguitas contra stipulatorem", (1961) 27 SDMI 105.

107 For a de taile d synopsis, see Paul van Warmelo, "D ie uitle g van kontrakce ", ( 1960) 77

SAL) 69 sqq.

"l8Cf. Troje, (1961) 27 SDHI 99.

109 Though not the codes inspired by natural law; cf. §§65 sqq. I 4 PrALR; artt. 1157 sqq. code civil and §§ 914 sqq. ABGB. 1ИЧ 157 BGB.

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this framework courts of law need flexibility, and general and abstract rules are leading strings of rather doubtful value.111

4.Rules of interpretation: the contra proferentem rule

(a)Interpretatio contra eum qui clarius toqui debuisset

There is, however, one rule of construction which, though not incorporated into the BGB, has nevertheless experienced a surprising renaissance in modern German law. It appears last in the scheme devised by Johannes Bassianus and provides a good example of how isolated utterances of the Roman jurists were able to become the fons and origo of a general rule of law: the interpretatio contra proferentem. "Cum quaeritur in stipulatione, quid acti sit, ambiguitas contra stipulatorem est":112 this is how Celsus formulated the idea that in case of ambiguity the interpretation unfavourable to the stipulator has to be adopted. As will be remembered, it was the stipulator who formulated the question which, in turn, determined the content of the stipulation. Any ambiguity was therefore attributable to him, for he could just as well have made it clear what he wanted the other party to promise him.113 The underlying idea is that of an "interpretatio contra eum qui clarius loqui debuisset".114 It was applied not only to stipulations. "In contrahenda venditione ambiguum pactum contra venditorem interpretandum est":115 as far as contracts of sale were concerned, the interpretatio was contra venditorem; and in case of locatio conductio, ambiguum pactum contra locatorem appears to have been the accepted guideline.116 The reason is that the (ancillary) terms of a contract of sale (the leges venditionis) were drawn up by the vendor,117 and those of a contract of lease (the leges locationis) by the locator.118 Ambiguitas contra stipulatorem (emptorem, locatorem) appears in a variety of fragments in the Digest; most of them, however, are abstract statements, and examples of its practical application are conspicuously absent.114 The only exception is Pomp. D. 18, 1, 33, where a provision

1 Cf "Morivc", in: Mttgdan. vol. I. pp. 436 sqq. and the evaluation of the rules contained in the code civil by Zweigert/Kotz, pp. 98 sqq. (trite, empty of content, rules of thumb, misleading).

112Cels. D. 34, 5, 26; cf also Ulp. D. 45, 1, 38, 18.

113Cf. Cel. D. 45, 1, 99 pr.: ". . . ac fere sccundum promissorem interprctamur, quia stipulatori liberum fuit verba late concipere"; cf. also Paul. D. 18, 1. 21 in fine; Pap. O. 2, 14, 39 in fine.

4 Justus Helming Boehmer, Dissertatio de interpretation? faciendf contra eum qui clarius loqui

debuisset (Halae 1700); Christoph Krampe, Die Utiklarheitenre^el (1983). pp. 14 sq.

1IS Paul. D. 50, 17, 172; cf. further Paul. D. 18, 1, 21; Pap. D. 2, 14, 39 (referring to the

"vcteres").

1111 Pap. D. 2, 14, 39.

117Wolf, Error, p. 41.

118Mayer-Maly. Locatio conductio, pp. 106 sqq.

119For an analysis of the Roman sources, see Troje, (1961) 27 SDHI 115 sqq.; Gandolfi,

op. cit,, note 19, pp. 390 sqq.; Christoph Krampe, "Die ambiguitas-Regel: Interpretatio

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in a sale determining that "flumina stillicidia uti nunc sunt, ut ita sint" was found to be ambiguous, because it was unclear to which flumina and stillicidia it referred. Pomponius gives the following opinion: "[P]rimum spectari oportet, quid acti sit: si non id appareat, tune id accipitur quod venditori nocet: ambigua enim oratio est."120 His answer shows that (at least by the time of classical law) the ambiguity rule was of a merely subsidiary nature: it was to be resorted to if determination of "id quod actum est" had not been possible. "Id quod actum est", however, as we have seen, was a very wide and flexible concept that could refer both to the individual will of the parties concerned and to the more objective and typical features of the contract. It allowed the jurists to read into the transaction what was either objectively or subjectively reasonable. Obviously, under these circumstances, little room was left for subsidiary rules such as ambiguitas contra stipulatorem (venditorem or locatorem).121 For all practical purposes, they were on their way out.122

(b) The contra proferentem rule in medieval and in modem law

The revival of the ambiguity rule was due to medieval jurisprudence.Х2Ъ The glossators, first of all, established a general rule of interpretatio contra proferentem: for this is the common denominator of ambiguitas contra stipulatorem, venditorem and locatorem. Bartolus even took the generalization one step further. If the purchaser formulates the leges venditionis, they will usually reflect his interests. The contra proferentem policy is therefore regardful of the fact that "pactum appositum [fuit] gratia emptoris".124 Hence the following reformulation of the rule: interpretatio fit contra proferentem seu contra eum, pro quo profertur.125 More often than not, the person who benefits from the special clauses added to the contract is the creditor. Interpretatio contra

contra stipulatorem, venditorem, locatorem", (1983) 100 ZSS 185 sqq.; Heinrich Honsell, "Ambiguitas contra stipulatorem", in: Iuris Professio, Festgabe fur Max Kaser (1986), pp. 75 sqcL

™ On this text, see Troje, (1961) 27 SDHI 170 sqq.; Krampc, (1983) 100 ZSS 212 sqq.;

Honsell, Festgabe Kaser, p. 81.

*"' Why do we find so many abstract formulations of the rule and so little case law in our sources? The most probable explanation is the one proposed by Honsell, Festgabe Kaser, pp. 76 sqq. Ambiguitas contra stipulatorcm (attnbuted by Papinian to the "vcteres": D. 2, 14, 39) goes far back in Roman legal history. Its origin appears to lie in sacral law. Every ambiguity had to be avoided ("in precibus nihil ambiguum esse debet") if one did not want to run the risk of being held bound, by the gods, to the (for them) more favourable interpretation of a promise. The same principle (which is intimately connected with the old word formalism) was applied to promises in private law, until (s.v. id quod actum esi) the will of the parties concerned had become an essential element in the process of interpretation.

122 Honsell, Festgabe Kaser, pp. 75 sqq.; cf. also Troje, (1961) 27 SDHI 115 sqq. Differently Gandolfi, op. cit., note 19, pp. 393 sqq.

123For what follows, see Troje, (1961) 27 SDHI 96 sqq.

124Bartolus, Commentaria, D. 2, 14, 39, § Veteribus, 2.

125Bartolus, Commentaria, D. 2, 14, 39 and D. 18, 1, 34 pr., § Si in emptione; Troje,

(1961) 27 SDH/100.

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