Roman Law - Roman Slave Masters
Roman Law
Question 1
To what extent was a slave a thing or a person in classical Roman law?
A. The Role of the Slave in ancient Rome
The Roman slave was perhaps the most well treated of slaves in any civilization that was accustomed to the practice. Instances of maltreatment, although not all expressly banned by law, were seen as socially unacceptable forms of treatment toward slaves. In addition, the role of the slave was extremely varied and many undertook professional occupations in the service of their masters, such as banking, accountancy, medicine acting and entrepreneurship. This therefore meant that the slave had the potential to become a vast asset for masters and the careful selection and education of slaves constituted an investment from which the master could establish a portfolio and generate a sizeable income. Slaves were therefore a cornerstone of the Roman economy.
B. The status of rights for the Slave
In our modern society, all human beings possess the same body of rights, either as human rights or other legal guarantees. We are set aside from animals on account of the fact that we possess rights that reflect our independence. The legal status of slaves will be analysed here with reference to their position in ancient Rome as regards treatment, liability for offences, property rights, contractual capacity and legal relationships.
1. The treatment of slaves
As stated above, the maltreatment of slaves resulted in public disgrace and this applied to both unskilled and skilled slaves alike but the killing of slaves did not become a crime until 81 BC with the new law of the unjustified killing of another's slave. The penalty was however nowhere near as severe as that of the killing of a free man and the right of recourse was held by the master although, under Hadrian, masters could still kill slaves with the consent of a magistrate. This evolved under Constantine into a ban of all killing that was in an inhumane manner, regardless of the cause. Other laws against maltreatment followed in the first century AD with the prohibition of both castration and forcing slaves to fight wild animals in amphitheatres (lex Petronia).
Clearly the autonomous status of the master meant that slaves were treated as working pets, especially since compensatory mechanisms for death were for restitution to the master. The outlawing of cruel treatment is also a mere mirror image of the growing recognition of animal welfare in our society of today.
The offer of freedom is the only humanlike legal mechanism that applied to the treatment of slaves but manumission was mostly at the sole discretion of the master. Exceptions existed and one example was for slaves abandoned through old age and sickness who were granted freedom under the hybrid status of Junian Latin. This was not a full freedom as marriages could not be civil and the former master had exclusive status as beneficiary to estates upon death. It is therefore best described as a status that facilitated independent survival upon abandonment that was available as an option due the fact that the slave, as a human could be independent.
2. Liability for offences
Slaves could be found guilty of criminal offences but, paradoxically, as non people (pro nullus habentur) slaves could not sue or be sued and recourse for restitution lay strictly with the master who would also compensate for the torts of his slave by either handing the slave over to the victim (noxal liability) or by making payment. A slave victim of tort only gave rise to a right of recourse by the master. Further to this, slaves could be compelled to appear as witnesses in court but never against their own master.
Here the master's right of recourse is identical to the sorts of rights associated with the right for a thoroughbred owner to sue for its injury or liability for owners to incur costs for damage caused by riotous animals. In addition, court appearances by the slave are simply utilization of the advantage of linguistic ability that is not held by animals for which the slave constitutes mere 'evidence' as opposed to being a 'witness'.
3. Property Rights
Slaves could not own property because they themselves were property under Roman law. Their masters could however bestow gifts for use and enjoyment of the slave (peculium) however the property right for such items continued to vest with the master. A counter argument to this animal-like treatment is that the practice of Roman society was generally to regard peculium as the property of the slave but when considering the legal question of status; lay practices are irrelevant, as are the sophisticated uses of peculium by many slaves. In legal terms the status of peculium is no different than that of a dog's 'chew toy'.
4. Contractual Capacity
Slaves could not be parties to contractual agreements but their human specie status meant that they had the capacity to act as proxies for their masters and Roman law permitted this as a great asset of convenience. This was of particular importance in the great expansion days of Roman commerce when actions against masters for debts incurred by slaves (actions adiecticiae qualitatis) could finally be raised.
5. Legal Relationships
Slaves were not permitted to marry but cohabitation was widely accepted within households where the couple in question were both owned by the same master. This made perfect sense given that all offspring would fall under the ownership of the master who essentially gained a free slave. This type of status is identical to that of an owner of mating cats or dogs.
Conclusion to Question 1
The above analysis shows that slaves were property but as intelligent human beings, they were governed by laws that evolved in line with the concept of the human capable of sophisticated communication. However, these abilities were clearly utilised as advantages to be exploited by the master and not as a reason to create independent legal rights for the slave. This is especially true for mechanisms of granting manumission as they were fully the discretion of the master and freedom granted out of maltreatment, such as abandonment, only resulted in a hybrid freedom.
The legal status of the slave therefore rendered them as objects without contractual capacity or compensatory, marriage or property rights and is far more in keeping with animal status of today.
Question 2
In relation to the Contract of Sale, examine the three elements required for a valid contract and illustrate how the law relating to them developed
Introduction
This paper provides an explanation and examination of the development of the law in relation to the three elements of the Contract of Sale, which are the creation of a binding agreement and ascertainment of the objects of sale and the price.
A. Development of the Agreement
1. Emergence in sponsio and stipulatio
It is important to note that Roman law consisted of a number of concepts for a contract, which is why it is best described as the law of 'contracts' as opposed the law of 'contract'. The presence of a requirement for a formal agreement that created the binding obligation is the earliest development of the three essential elements for the later concept of the consensual contract of sale emptio vendito. The requirement for a binding agreement began with the development of the stipulatio contract prior to the time of the Twelve Tables which was a secular version of the earlier sponsio. Sponsio was the making of an oath to the Gods that a debt would be repaid. The real property version of this was that of mancipatio. The form that stipulatio took was that of the exchange of a formal question and answer. Typically, the potential creditor of the bargain would ask, Do you solemnly promise to pay 150 sesterces? to which the potential debtor would reply, I solemnly promise to pay 150 sesterces.
2. Drawbacks to stipulatio
There were however two fundamental drawbacks to the stiplatio from. The first was that the contract required a great deal of formality in that the parties had to be present in order for the agreement or consensus ad idem to be fully effectual. In addition, there were no implied terms under the contract and all eventualities had to be 'stipulated' in writing from the outset. Stipulatio was however an extremely diverse and all embracing contractual form and it is for this reason that the later consensual contracts such as mandate, for gratuitous promises, and emptio vendito for sale, are derived from the stipulatio model.
3. The emergence of emptio vendito for the contract of sale
The arrival of the consensual contract of sale emptio vendito marked a crucial turning point in the development of contract law in classical commerce. The reason for this was due to the fact that, unlike the earlier contractual form of stipulatio, emptio vendito contained implied terms relating to warranty of quality, good faith and the timing of the passing of risk at the very end of the contract once all essential elements of the agreement, delivery of goods and payment of price had been made.
Crucially however, the effect that this contractual form had on the nature of the consensus was that it was no longer essential for the parties to be present at the time of the agreement. Instead, other less formal instances of conduct that could prove the presence of an agreement, such as the shaking of hands or the giving of money, arra, were deemed to be satisfactory for emptio vendito.
B. Ascertainment of the goods to be sold and the fixed price
The second essential element of the emptio vendito was that of the ascertainment of the thing to be sold. This therefore meant that a sale of generic goods was not valid as they did not satisfy the requirement for specific identification of the subject matter. In order for such goods to constitute part of a binding emptio vendito, it was therefore necessary for these goods to be physically separated and earmarked for the purpose of the sale. This continues to be a necessary step in English sale of goods law but only it is a condition of the passing of risk as opposed to the validity of the contract. In Roman times while it might have seemed that this requirement would cause problems in the sale of generic goods, the process of earmarking proved, as it does today, to be straightforward on account of the fact that acts incidental to delivery, such as harvesting, gathering and loading onto ships were easily modified in order to satisfy the earmarking requirement. Ascertainment of a large 'whole mass,' of goods and a specific field of pre-harvested crops were and continue to be equally acceptable.
The fixed price under emptio vendito was a compulsory condition of the contract but certainty of price, such as clear ascertainment, certum est quod certum redid potest was equally acceptable and the price also had to be a monetary amount.
C. Rationale
The reason for the requirement for the legal development of a contract that required a fixed price and ascertainment of goods is clear given that the relaxation of the requirement for the parties to be present at the time of the agreement resulted in a more than obvious need for strict ascertainment of the two key objects of price and goods. Emptio vendito was a contract designed for the more complex circumstance of long distance negotiation and completion over a longer period of time as opposed the stipulatio model that suited instances where agreement, delivery and payment were to take place on the spot. Rome was also able to adopt this stringent emptio vendito form as stipulatio continued to exist as a fall back or alternative option where either price or goods or both were agreed to be ascertained at a later date. Other alternatives such as loans repayable in kind and promises to pay could also be implemented for the sale of generic goods.
This therefore meant that Roman business men had an array of contractual types from which they could choose the form that best fitted their needs and circumstances.
Conclusion to Question 2
The development of the three pronged emptio vendito paved the way for the standard requirements for valid contracts of today. The reason for this is that, as with Rome, Western Society has seen an acute need for a contractual type that is suited to distance negotiation of the required agreement, in which certainty of the other essential elements of item and the price requires to be set in stone.
Bibliography
Legislation
Sale of Goods Act 1979
Animal Welfare Bill (available at For further insight, see A Borkowski and P du Plessis, Textbook on Roman Law, (Oxford University Press, 3rd edition, 2005) at pp 90-91. See also, J.A. Crook, Law and Life of Rome, 90 BC-AD (Cornell University Press, 1967) at p 55
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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