Justinian and institutes and contracts and obligations

The reading for today is taken from Book III of the Institutes, the legal textbook for students drawn up by Justinian in 533 CE. The Institutes was part of the triad of sources, preceded by the Code (a collection of enactments from Imperial Rome) and the Digest (a 2000+ page summary of the teachings of about a dozen Roman jurists of the Imperial period), which summarized and made accessible the law of the Roman Empire which Justinian tried, unsuccessfully, to revive in the 6th century CE. It wasn't until the 11th century in Bologna that this legal tradition was revived, and it formed the basis for the civil law system found in most European countries. Today we will look at a few excerpts from the Institutes. Instead of giving you reading from the medieval Glossators, I will provide additional excerpts from the Institutes in the next essay so we can see in more detail how the work is structured. This essay will probe the selections assigned from the textbook.

Let's begin with a quotation from J. Moyle, the leading Engliah-language interpreter of the Institutes a century ago. He described how the Institutes and Digest were learned by law students.

"The Institutes were published on Nov. 21, A.D. 533, with statutory force, along with the Digest, from Dec. 30th of the same year. At the same time Justinian fixed the system of study to be in future followed in the public schools of law. The course was to occupy five years. The first was to be devoted to the Institutes and the first four books of the Digest; the second, to the parts of the latter relating to judicia and res creditae (Books 5-19), and also to certain portions of later books dealing with the proprietary relations of husband and wife, guardian and ward, and testaments and legacies. In the third year Books 20-22 of the Digest were to be studied, and also certain portions to be gone over again which had been already read in the preceding year. These were to be followed, in the fourth year, by the parts of Books 20-36 which had not already engaged the student's attention. The subjects prescribed for the last year of the course were Books 37-50 of the Digest, and the Code: these were read privately, so that the subject-matter of the professorial lectures, which spread themselves over the first four years, were the Institutes and the first thirty-six books of the Digest."

The Law of Obligations

The middle of Book III of the Institutes deals with the issue of obligations (3.13-22). Our text gives us 3.13-15 and 3.21-22. The rest of the book describes various kinds of stipulations (3.16-20) and issues such as purchase and sale (3.23), letting and hire (3.24), partnerships (3.25), agency (3.26), quasi-contracts (3.27), persons through whom obligations are incurred (3.28) and modes of discharging obligations (3.29). As with most issues, there is really no way to learn the law except by working through the individual texts. My questions here will be directed to what the law provides as well as what is absent. I then will reproduce 3.16.

1. 3.14 speaks of contracts by conduct. First, it describes a loan called a mutuum. What is characteristic of this loan? What does the borrower have to "give back"? If this is not a purchase and sale (3.23), but if the recipient owns the goods, what kind of transaction is in view? How is this loan different from the loan to use in 3.14.2?

2. How do the two halves of 3.14.1 relate to each other? (i.e., payment by mistake; payment to child without permission of guardian)

3. What is the "standard of care" in 3.14.2? Why do you think liability for loss changes depending on where goods are lost?

4. What is the standard of care for the keeper of a deposit in 3.14.3? For a creditor in 3.14.4? How do you explain the different standards of care?

5. What do you think about "magic words" creating a contract, such as in 3.15.1?

6. Describe the various kinds of stipulations.

7. Why can't contractual obligations be entered into for things in the past or present (3.15.6)?

8. What does 3.21 cover? 3.22?

One Other Section

I think it might be helpful to give you 3.16, also, about joint creditors or debtors. What is the basic difference between having separate contracts with two debtors/creditors or joint creditors/debtors?

"There may be two or more parties on either side in a stipulation, that is to say, as promisors or promisees. Joint promises are so constituted by the promisor answering, ‘I promise,’ after they have all first asked the question; for instance, if after two promises have separately stipulated from him, he answers, ‘I promise to give so and so to each of you.’ But if he first promises to Titius, and then, on another’s putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all. The usual form to constitute two or more joint promisors is as follows, -- ‘Maevius, do you promise to give five aurei? Seius, do you promise to give the same five aurei?’ and in answer they reply separately, ‘I promise.’

1 In obligations of this kind each joint promisee is owed the whole sum, and the whole sum can be claimed from each joint promisor; and yet in both cases but one payment is due, so that if one joint promisee receives the debt, or one joint promisor pays it, the obligation is thereby extinguished for all, and all are thereby released from it. 2 Of two joint promisors one may be bound absolutely, while performance by the other is postponed to a future day, or made to depend on a condition; but such postponement or such condition in no way prevents the stipulator from at once suing the one who was bound absolutely.

The next essay presents the introductory paragraphs of the Institutes.

2073