formation of consensual contracts of purchase and sale and hiring in Mark Portsija Katona's works «De agricultura» and Mark Terentsija Varrona «De re rustica»

The judgement sinallagmaticheskoj structures of consensual contracts of purchase and sale during the period between III-I centuries BC is presented in Mark Portsija Katona's treatises (234-149 BC) «About agriculture» («De agricultura») [352] and Mark Terentsija Varrona (116-27 BC) «About agriculture» («De re rustica») [353].

1) Mark Portsija Katona's Work «De agricultura»

In chapters 144-150 of treatise Katona recommendations to the land owner on registration of contracts of purchase and podrjada concerning agricultural production are collected. Chapters 144 and 145 are devoted podrjadu on gathering of olives and preparation of oil, chapter 146 and 147 - sale of olives from a tree and grapes on rods, chapter 148 - wine sale in dolijah (vessels), chapters 149 and 150 - rent of a winter pasture and the sheep herd.

Katon describes the conclusion of contracts of purchase and podrjada by results of auction [354]. It follows from chapter 146 express indication where it is told, that at price calculation it joins expenses on services of the auctioneer: «Qui oleam emerit, amplius quam quanti emerit omnis pecuniae centesima accedet, praeconium praesens SS. L» («the Buyer should add the one 100-th it to a purchase price; 50 sestertsy - to the auctioneer») [355].

Positions of the named heads partially contain ready formulations of contracts [356], partially the recommendations of the general character addressed to the land owner [357]. Stylistic raznoboj positions speaks, possibly, different time of their occurrence [358].

Interest is represented used Katonom by terminology. In chapters 147 and 148 after the survey description of procedure of making contract the author names contract positions leges, marking the following: «Cetera lex, quae oleae pendenti» («In the rest the law operates, that is applied to olives hanging on a tree»). In the literature following sights express value lex in private-law relations in general and at Katona, in particular: lex as some additional agreement to the contract [359], the agreement of the parties [360], the contract, including all possible additional agreements (lex contractus) [361]. The term lex, or lex contractus is simulated with lex dictum, the additional agreement to mantsipatsii, the ritual transaction which were making out, including, relations of purchase and sale [362]. With the advent of purchase and sale in the free form the term lex remains for a designation of treaty provisions. In

This last value lex contractus, possibly, uses and Katon. Such conditions, however, could not be adjusted the parties as equal subjects of legal relations, and were established more by a strength in legal relations as truly marks O.Karlov [363]. At Katona such strength the owner of a manor who was in one situations the seller, in others as the customer, and capable to impose to the counterpart the conditions acted. Difference lex contractus from pactum in that also consists, that in the first concept the idea of joining of one party to conditions another, instead of equal participation in the coordination of the maintenance of the contract [364] is accented. Process of making contract in days of Katona passed in such a manner that in the beginning the buyer, or the contractor accepted established in lex conditions which were disclosed at auction, and only then made agreement, meaning submission lex contractus.

Reference Katona to the term lex says that the author is in a context of terminological tradition. Equality of subjects of the contract in value of equal access to registration of treaty provisions for it is not obvious, primary definition of treaty provisions by one party and simple joining to them another therefore is admissible.

Successively on gathering of olives it is considered Katonom in chapter 144 (Cato, De agr., 144):

1. Oleam legendam hoc modo locare oportet.

2. Oleam cogito recte omnem arbitratu domini, aut quem custodem fecerit, aut cui olea venierit.

1. It is necessary to hand over gathering of olives with podrjada thus.

2. Olives to oblige the contractor to collect all as follows under instructions of the owner or whom it will put

3. Oleam ne stringito neve verberato iniussu domini aut custodis.

4. Si adversus ea quis fecerit, quod ipse eo die delegerit, pro eo nemo solvet neque debebitur.

5. Qui oleam legerint, omnes iuranto ad dominum aut ad custodem sese oleam non subripuisse neque quemquam suo dolo malo ea oletate ex fundo L. Manli.

6. Qui eorum non ita iuraverit, quod is legerit omne, pro eo argentum nemo dabit neque debebitur.

7. Oeam cogi recte satis dato arbitratu L. Manli.

8. Scalae ita uti datae erunt, ita reddito, nisi quae vetustate fractae erunt.

9. Si non erunt redditae, aequom viri boni arbitratu deducetur.

The supervisor or to whom will sell olives.

3. He does not dare neither to tear, nor to force down olives without an order of the owner or the supervisor.

4. If somebody arrives contrary to it anybody to it will not pay that it has collected this day, and anybody should not it.

5. All contractors are equally obliged to swear before the owner of a manor or the supervisor, that they did not steal olives during this gathering from manor Lutsija Manlija and covered nobody in this business.

6. Who from them will not give such oath, nobody will give to that of money for all its work and anybody should not.

7. The contractor is obliged to assure, that olives will be collected, as follows, under instructions Lutsija Manlija.

8. Let will return ladders which have been given thus if only they owing to decay have not broken.

9. If they have not been returned, let under the decision of the respectable person the corresponding sum will be subtracted from its compensation.

10. Siquid redemprotis opera domino 10. If actions of the contractor put

damni datum erit, resolvito; id viri to the owner any damage, it

boni arbitratu deducetur. Is obliged to pay it the sum, which,

Under the decision of the diligent person, it will be subtracted from its compensation.

In the contract it is involved four participants - the owner of the ground area acting as the customer [365], its supervisor, the contractor and workers of the last. Thus the contractor and workers act as one party of the contract, the owner and its supervisor another. Actually workers who consist in contractual relations with the contractor, submit to instructions of the customer or its supervisor [366]. Reception of compensation is caused by them appropriate execution of the obligation on gathering of olives and instructions of the owner or its supervisor.

The description of the rights and duties of the parties begins with definition of a duty of the contractor to carry out gathering of olives properly under instructions of the owner of the ground area, or its supervisor (the offer 1 -

2). Then to workers it is in addition established will lock to force down and collect olives without the order of the owner or its supervisor (the offer 3). Duplication of a duty of the contractor and its workers in the beginning in the positive form, and then in the form of the authorised interdiction shows intention of the owner of the ground area and its supervisor to put the contractor and it

Workers under the total control [367]. Besides, in the first case the duty is addressed the contractor, in the second case - to workers.

Conditionality of payment of compensation by appropriate discharge of duties shows to workers, that at the heart of legal relation the consensual contract since only he is capable to create functionally - sinallagmaticheskuju dependence of duties arising from it lays.

Further in offers 5-6 it is told, that the contractor and its workers are obliged to take the oath (ius iurandum) in shape stipuljatsii to some Lutsiju Manliju that did not make theft of olives during gathering and did not cover others.

Along with the oath the contractor as follows from the offer 7, gives the guarantee in shape stipuljatsii (satisdatio) about appropriate discharge of duties on gathering of olives. Fulfilment such stipuljatsii is again subordinated L.Manlija's to control.

Duties of the contractor and its workers, on the one hand, are defined by the consensual contract (offers 1-3), with another, are formalized also by means of stipuljatsii (offers 5-7). Imposing of legal forms can speak, according to U background Ljubtova, creation of positions of chapter 144 at various times: newer (offers 1-3) describe the duties following from simple konsensualnogo of the agreement, old - with use stipuljatsy for an establishment of a guarantee of discharge of duties. But even if to admit, that such norms have been created at various times, Katon, nevertheless, has placed them together, that, in our opinion, specifies more likely in existence in III-II centuries BC practice of a combination of the consensual contract with verbal transactions.

Further duties are assigned to workers to return ladders if those have not broken because of decay, and to indemnify other property loss

(Offers 8-10). A consequence of their default is proportional reduction by the customer of compensation to the contractor and workers on the basis of an estimation of the reasonable person (arbitratus boni viri). Refusal to formalize return of stock by means of guarantee stipuljatsii means, that the duty on return is covered by the consensual contract podrjada. Moreover, such refusal shows, that guarantee stipuljatsii did not mention the contract maintenance as that. The mutual rights and duties of the parties, i.e. the turnkey contract maintenance, and only warranting of duties of the contractor properly were not their object to execute the obligations. Authorisation of a non-return of stock occurred, as marks Katon, on the basis of judgement abitra, as special form of display of a principle of conscientiousness (arbitrium boni viri) [368]. Probably also, that under arbitirum boni viri Katon means judicial protection by means of claims for kind conscience.

The following chapter 145th chapter under the maintenance is similar to chapter 144.

In chapters 146-147 Katon addresses to consideration of purchase and sale of olives from a tree and grapes on rods, i.e. contracts concerning the future thing. Consensual contract use in this situation shows its ability to project the maintenance of the future obligation [369]. Special interest is represented by following norms of chapter 146:

It should promise to give a guarantee, under instructions of the owner, the owner or the one whom it will appoint, that all will be, as follows, is paid and made, and to the owner to give maintenance. While it will not pay or will not give maintenance everything, that is taken by it with itself in a manor, is considered as pledge; he does not dare to take out anything from a manor; if will take out, it becomes the property of the owner. The juridical fact defining occurrence of the rights and duties of the seller and the buyer, the consensual contract of purchase and sale [370] was. In addition to it the parties as follows from a fragment, addressed to stipuljatsii which served the purpose of formalisation of duties of the buyer [371]. stipuljatsii, according to A.Behmanna, it is necessary to search for use reasons in the maintenance of duties of the buyer. The reimbursement of the auctioneer, and also granting were assigned to the buyer besides price payment in the natural form - olives and the oil received from them according to chapter 146. From chapter 146 text follows, that recommendations about purchase and sale registration concerned two situations: before harvesting and after it. In the first case payment term constituted 10 months, since November kalend, i.e. since November, 1st. In the second - the buyer has been obliged to pay olives in idy, i.e. in the middle of November and to refund to the seller expenses for contract works. In the latter case the seller has been interested to receive the price as soon as possible

For olives. Such difficult definition of the price and terms of payment by the buyer was beyond the consensual contract by results of auction. Stipuljatsija in this connection as believes A.Behmann, served specification of volume of duties of the buyer. Before its fulfilment concerning property of the buyer brought on a site of the seller, real pledge (pignus datum) was established. It is difficult to agree With such interpretation. The obligation from the consensual contract covered including all collateral duties, and volume of grantings opredeleljalsja taking into account a conscientiousness principle. On the contrary, fulfilment stipuljatsii created risk neucheta other duties of the buyer as from the moment of its fulfilment agreement by parol lost a validity. It is obvious, that here stipuljatsija simply establishes an additional guarantee of execution by the buyer of the duties, instead of defines their volume which is formalized by the consensual contract. The final phrase that before fulfilment stipuljatsii all brought by the buyer on the ground area of the seller is considered being in pledge, shows advantage of a guarantee in shape stipuljatsii before real pledge which is considered the prisoner as though under subsequent condition of fulfilment similar guarantee stipuljatsii.

Further Katon results rules about indemnifications of the property damage similar of 8-10 chapters 144 specified in offers. Breakage of stock of the land owner had the consequence payment of its cost. Unique difference from chapter 144 was that the parties did not address to an estimation of the diligent person for the resolution of conflict.

In chapter 146 final provisions delegation possibility - payments by the land owner to directly workers of the buyer of compensation for gathering of olives with subsequent indemnification of such compensation from the buyer is provided:

Si emptor legulis et factoribus qui illic If the buyer has not paid opus fecerint non solverit, cui dari to collectors and maslodelam, which

Recte haec dari fierique satisque dari domino, aut cui iusserit, promittito satisque dato arbitratu domini. Donicum solutum erit aut ita satis datum erit, quae in fundo inlata erunt, pigneri sunto; nequid eorum de fundo deportato; siquid deportaverit, domini esto.

oportebit si dominus volet solvet, there worked, and to which followed

emptor domino debeto et id satis dato to pay, let will pay, if

proque ea re uti supra scriptum est wants, the owner. The buyer will be

pignori sunto. Owe to the owner, and in its this business

The property will be pledge as it is written above.

The given design concerned a situation when the parties concluded the contract concerning the collected olives, thus, that such gathering has been carried out by forces of the seller. In this case the buyer guaranteed in shape stipuljatsii (satisdatio) to refund expenses of the seller on the involved contract workers. The parties resorted again to the guarantee in shape stipuljatsii to guarantee discharge of duty by the buyer. To its conclusion pledge on all brought by it on the ground area of the seller remained.

Chapters 147 and 148 it is compressed inform on procedure of sale of grapes on rods and fault in dolijah (vessels) and specify in application to them in the rest of chapter 146 positions (Cato De agr. 147, 148: Cetera lex, quae oleae pendenti.). Behmann [372] and Talamanka [373] fairly consider, that such reference assumed also application of a design guarantee stipuljatsii. It is probable, that the combination guarantee stipuljatsy with purchase and sale period Katona had universal character and extended on all kinds of contracts.

Chapter 149 is devoted purchase and sale of a winter pasture [374]. After the description of rights of use which the seller kept concerning a pasture

(Offers 1-7), Katon specifies in its mutual responsibility and the buyer for a possible property damage:

7. Si quid emptor aut pastures aut pecus emptoris domino damni dederit, viri boni arbitratu resolvat.

8. Si quid dominus aut familia aut pecus emptori damni dederit, viri boni arbitratu resolvetur.

7. If the buyer, slaves or cattle put to the owner the loss under the decision of the reasonable person let will pay.

8. If the owner, its slaves or cattle put to the buyer the loss to it it will be paid under the decision of the diligent husband.

9. Donicum pecuniam solverit aut satisfecerit aut delegarit, pecus et familia, quae illic erit, pigneri sunto.

9. While the buyer will not pay, either will not execute differently, or will not present the guarantor, its cattle and slaves which there are, should remain as pledge.

10. Si quid de iis rebus controversiae erit, Romae iudicium fiat.

10. If on these affairs dispute trial should occur in Rome begins.

For an establishment of volume of responsibility for a property damage of the party addressed to an estimation of the reasonable person (arbitratus boni viri), as one of forms of display of a principle of conscientiousness. Thus duties of the buyer, unlike chapter 146, have not been formalized by means of guarantee stipuljatsy: Katon uses concepts satisfacere and delegare (the offer 9) which are not connected with use of verbal transactions. So, satisfacere acts as a synonym solvere and means obligation execution, or clearing of the obligation [375] is wider. A verb delegare

Also acts in value of delegation or the guarantee and specifies in the legal act made in the free form [376]. Thus, agreement by parol admits sufficient for definition of a liability of infringement of obligations arising from it. Further from the offer 10 follows, that dispute between the parties came under to proceeding in Rome that confirms existence during Katona judicial protection of agreements by parol though its form directly is not named [377].

Further in chapter 150 rent of the sheep herd is considered. Katon addresses to the procedure similar to those that is stated in chapter 146. The parties concluded guarantee stipuljatsii before which fulfilment the shepherd from the tenant was in pledge at the owner of a pasture. The owner of a pasture and the tenant concluded also special stipuljatsiju, expressed in words «agnos XXX ne amplius promittat» («Let does not promise to it more than 30 lambs»). According to M.Talamanki, it has been directed on court order of number of the lambs who have appeared as an issue in rent [378]. Flah believes, that stipuljatsija served restriction of agrarian practice on replacement of adult sheep by lambs [379]. With similar interpretation R.Kardilli in which opinion, stipuljatsija created a guarantee has acted, that no more than 30 sheep who will be lost, will be replaced new [380]. Thus, the basic obligation was established on the basis of agreement by parol of the parties. Stipuljatsija, as well as in all previous

Heads, it has been here again directed on formalisation of any collateral duties and guarantees. Its use acts as some superfluous usage of contractual practice.

2) Purchase and sale in treatise Varrona «De re rustica»

About a purchase and sale configuration during the period between II and I centuries BC informs treatise Varrona «De re rustica» («On agriculture»). In the beginning of 2nd head Varron notices, that for transition of the property right besides stipuljatsii fulfilment of the veshchno-legal certificate (Varro, De re rust is necessary. 2, 1, 15): «Quod enim alterius fuit, id ut fiat meum, necesse est aliquid intercedere, neque in omnibus satis est stipulatio aut solutio nummorum ad mutationem domini» («that was, thus, the stranger that it became mine, is necessary to make something, and not in all cases for change of the owner it is sufficient stipuljatsija or price payment»). After that he addresses to consideration of procedure of the conclusion and purchase and sale execution of a contract (Varro, De re rust. 2, 2, 5-6):

In emptionibus iure utimur eo, quo lex At purchase we operate by rules, praescripsit. In ea enim alii plura, alii ordered by treaty provisions. Here pauciora excipiunt...De reliquo one define more conditions, others antiqua fere formula utuntur. Cum it is less. Minus it it is applied emptor dixit «tanti sunt mi emptae?» The old formula (antiqua formula): when Et ille respondit "sunt" et expromisit the buyer has told: «They are bought by me for nummos, emptor stipulatur prisca such price?» - and the seller has answered:

formula sic, "illasce oves, qua de re agitur, sanas recte esse habereque recte licere, haec sic recte fieri spondesne?"

"Yes", - also promises money on stipuljatsii, he demands from the seller of the answer under the ancient formula (prisca formula): whether «you Promise under all truth, what here these sheep about whom the transaction is concluded, are absolutely healthy and what I will have a possibility or free to own?»

After that the herd does not change

Cum id factum est, tamen grex dominum non mutavit, nisi si est adnumeratum; nec non emptor pote ex empto vendito illum damnare, si non tradet, quamvis non solverit

The proprietor while sheep are not counted; the buyer can oppose

The seller with the claim for the contract about kupleprodazhe if that does not transfer it herd,

nummos, ut ille emptorem simili let even it has not executed a duty on iudicio, si non reddit pretium. To price payment; with the similar claim

Can oppose the buyer and the seller if this last has not paid it the price.

Varron similarly Katonu uses the term lex for a designation of conditions precedent after which coordination of the party addressed to ancient procedure (antiqua formula). Under antiqua formula Varron understands stipuljatsiju, in addition formalizing the duties of the seller before adjusted in lex and the consensual contract [381]. After antiqua formula the parties addressed to prisca formula. This term Varron designates stipuljatsiju by which presence of certain qualities at sheep was established, absence of lacks, and to the buyer was guaranteed quiet possession (habere licere). Thus, the procedure of purchase and sale described Varronom, assumed the conclusion of three transactions - konsensualnogo agreements on the basis of preliminary adjusted conditions (leges), two stipuljatsy, prisoners to execute such konsensualnogo agreements. However further according to the statement most Varrona antiqua formula and prisca formula appeared insufficient for property carrying over on the sold herd which was res nec mancipi, i.e. a thing in which relation it was not applied mantsipatsija. Readout of sheep and their direct transfer (traditio) were necessary, on what following words specify: «Cum id factum est, tamen grex dominum non

mutavit, nisi si est adnumeratum... "(" After that the herd does not change the proprietor while sheep are not counted... »).

The impossibility sproetsirovat through an exchange stipuljatsijami confirms required veshchno-legal effect, that a legal ground of transition of the property right (iusta causa traditionis) was the consensual contract.

Varron notices, that the buyer could oppose the seller with the claim from the purchase (actio ex empto). In similar process (similis iudicium) the seller could demand price payment. Simili iudicia on which informs Varron are claims for kind conscience - iudicia bonae fidei - which were shown on the basis of simple konsensualnogo agreements. The difference between two claims consisted only in the demonstration formulation. Thus, already in days of Varrona protection konsensualnoj purchase and sale in litigation on kind conscience has been admissible. Varron notices, that the seller can act with the claim against the buyer even if itself has not executed the obligation. These words show, that Varronu is familiar sinallagmaticheskaja communication of obligations from the consensual contract, and he understands, that it is broken off through the additional conclusion guarantee stipuljatsy, novirujushchih purchase and sale. Differently, through negation sinallagmy from stipuljatsii Varron shows, that sinallagma to it it is known.

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A source: Novitskaya Anna Andreevna. DOCTRINE FORMATION About the CONTRACT In the ROMAN JURISPRUDENCE. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2014

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