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FACETS OF LIABILITY
IN ANCIENT LEGAL THEORY
AND PRACTICE
PROCEEDINGS OF THE SEMINAR
HELD IN WARSAW 17–19 FEBRUARY 2011
EDITED BY
JAKUB URBANIK
O F
T H E J O U R N A L
Supplement XIX
10:05 PM
CULPA
J
U R I S T I C
P
A P Y R O L O G Y
SUPPL_XVIII_CULPA_str
WARSAW 2012
Culpa. Facets of Liability in Ancient Legal Theory and Practice
Proceedings of the Seminar Held in Warsaw 17–19 February 2011
TABLE OF CONTENTS
Cosimo Cascione & Carla Masi Doria
Prefazione . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Alessandro Adamo
Di alcune ipotesi di colpa
nella legislazione criminale del Codice Teodosiano . . . . . . . . . . . . . . . . . .
3
José Luis Alonso
Fault, strict liability and risk in the law of the papyri . . . . . . . . . . . . . . 19
Zuzanna Benincasa
Pro portionibus exercitionis conveniuntur.
Sul problema della responsabilità di plures exercitores
qui per se navem exerceant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Stanisław Kordasiewicz
La colpa e la responsabilità del tutore . . . . . . . . . . . . . . . . . . . . . . . 105
Alessandro Manni
Noxae datio del cadavere e responsabilità . . . . . . . . . . . . . . . . . . . . . . . . 115
Giovanna Daniela Merola
Accertamento della responsabilità e mantenimento dell’ordine:
il ruolo del centurione . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Natale Rampazzo
Note sulla responsabilità del giudice e dell’arbitro nel processo romano . . . 181
VI
TABLE OF CONTENTS
Paulina ŚwiĘcicka
La colpa aquiliana e il ragionamento dei giuristi romani.
Alcune riflessioni sulla struttura dell’argomentazione e delle regole
di preferenza nel discorso dogmatico giurisprudenziale
in tema di danneggiamento . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Anna Tarwacka
‘Censorial stigma’ and the problem of guilt . . . . . . . . . . . . . . . . . . . . . . . 241
Fabiana Tuccillo
Alcune riflessioni sulla responsabilità del magistrato e dell’adsessor.
Dolus, diligentia, culpa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Jakub Urbanik
Dilligent carpenters in Dioscoros’ papyri and the Justinianic (?)
standard of diligence. On P. Cairo Masp. ii 67158 and 67159 . . . . . . . . . 273
Culpa. Facets of Liability in Ancient Legal Theory and Practice
Proceedings of the Seminar Held in Warsaw 17–19 February 2011, pp. 273–296
Jakub Urbanik
DILIGENT CARPENTERS IN DIOSKOROS’ PAPYRI
AND THE JUSTINIANIC (?) STANDARD OF DILIGENCE*
ON P. CAIRO MASP. II 67158 AND 67159
1. CULPA-BASED LIABILITY IN THE LATE PAPYRI
T
he most natural first move before even attempting to discuss the
problem of liability based in negligence in the late Byzantine1 papyri
is to check what Rafał Taubenschlag would have to say in the subject in
his standard reference book. And in fact, the scholar, presenting the
problem of culpa-liability, makes an explicit reference to two papyri
found among the papers of Dioskoros,2 the notorious poet and lawyer
* I owe thanks for all the useful comments to Józef Mélèze Modrzejewski and José
Luis Alonso, who have read the earlier drafts of the paper.
1
I am using the term ‘Byzantine’ as an equivalent of ‘Late antique’, in reference to the
papyri in accordance to the well-established papyrological practice which terms post-Diocletian Egypt as ‘Byzantine’.
2
It would be unnecessary to quote all the literature on Dioscoros, suffice it to recall his
classic biography by Leslie MacCoull, Dioscorus of Aphrodito, Berkeley – Los Angeles –
London 1988 for an overview of his life, and for the most recent update on the scholarship and the literature a collection of studies edited by Jean-Luc Fournet, Les archives de
Dioscore d’Aphrodité cent ans après leur découverte. Histoire et culture dans l’Égypte byzantine
(Études d’archéologie et d’histoire ancienne), Paris 2008.
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JAKUB URBANIK
from Aphrodite, the man on whose legal oeuvre I have been conducting
my research in the recent years. There are two contracts of partnership
between artisans, P. Cairo Masp. ii 67158 and ii 67159 (= 67160). Taubenschlag states that these ‘[t]wo Byzantine contracts of artisan-partnership
were evidently drawn up under the influence of Justinian’s legislation …
[T]he parties exceed the provisions of Justinian’s legislation establishing
culpa omnis as the standard of ca{s}<r>e’.3 Both documents were executed
during the Antinoopolitan period of our scholastikos, in the course of the
year 568 and bear far-reaching similarities. What I would be mostly interested here is, obviously, the standard of the parties’ liability and its possible origin in the legislative effort of the great codifier. These two specimens, however, are worth a more in-depth look not only because they
seem to portrait rather curious realities of the legal life of the sixth century Antinoopolis. They also constitute examples of extremely rare
occurrences of partnerships in the papyri.4 To neither of them the scholarship has devoted the attention they definitely deserve, to my knowledge neither of them has also been translated to any modern languages.5
3
R. Taubenschlag, The Law of Greco-Roman Egypt in the Light of the Papyri, Warsaw
1955 (2 ed.), p. 393.
4
For the – list of the documents – see Orsolina Montevecchi, La papirologia, Milano
1988 (2 ed.) p. 225.
5
In the earlier literature they have been only briefly described, none of the authors has
devoted an in-depth analysis. See, hastily, H. Lewald, rev. of P. Cairo Masp. i–ii, ZRG RA
33 (1912), pp. 620–628, at p. 622; a more detailed description: R. Taubenschlag, ‘Societas
negotiationis im Rechte der Papyri’, ZRG RA 52 (1932), pp. 64–77, at pp. 76–77 (the author
seems to have drawn a bit too far-reaching conclusions, arguments bulit upon a comparison of all, very scarce, documents registering partnerships in the Greek papyri, especially
these executed under Ptolemies and Byzantine ones, lead to dubious results); see also
A. Steinwenter, ‘Aus dem Gesellschaftsrecht der Papyri’, [in:] Studi Riccobono i, Palermo
1936, pp. 485–504 at 488–489. This article still remains a useful introduction to the problem of partnership in the papyri, providing a general overview of the issue, terminology
and the form of the documents. V. Arangio Ruiz in his Fontes Iuris Romani Anteiustiniani (hereinafter FIRA) iii. Negotia provided P. Cairo Masp. ii 67158 with a Latin translation and with a brief commentary (nº 158).
DILIGENT CARPENTERS
275
2. PARTNERSHIPS
OF FINE-CARPENTERS FROM ANTINOOPOLIS
Let me start from the earlier one, P. Cairo Masp. ii 67158, probably dated
to 28 April 568.6 Unfortunately it lacks a strip 10–15 letters wide on the
left margin, hence its interpretation is based on a reconstruction suggested by the editor. Its content merits a special attention for the particular social circumstances in which it was executed. As no translation to
modern languages has been so far made public I shall first attempt at providing the Reader with an English interpretation of the text and then
proceed to clarify its contents.
a) P. Cairo Masp. ii 67158, 28 April/May 568
?† χµγ\
[☧ βασιλείας καὶ ὑπατ]είας τοῦ θ[ει]οτάτου ἡµ[ῶν] δεσπότο[υ]
Φλαυΐου ᾿Ϊ[ο]υστίνο(υ) τοῦ αἰωνίο(υ) Αὐγούστου Αὐτοκράτορος
ἔτους
[τρίτου, Παχὼν τρ]ί1τῃ ἀρξοµένης δευτέ[ρα]ς ἐπινεµ[ή]σεως κατὰ2
θεῖον νεῦµα. ἐν Ἀντινόο(υ) πόλει τῇ λ[α]µπροτάτ[ῃ].
[ταύτην ποιοῦ]ν2ται καὶ τίθενται πρὸς ἀλλήλους τ[ὴ]ν πα[ρ]οῦσαν1
ἁ2πλῆν ἔγγραφον κοινὴν ὁµολογίαν κατὰ κοι1[νὴ]ν
4 [γνώµην καὶ ἄν]ευ π2α2ντὸς δ2όλου καὶ φόβ1ο(υ) καὶ βίας καὶ ἀνάγ3κης καὶ
ἀπάτης καὶ οἵας δήποτε συναρπαγῆς τε καὶ [π]ερι[γραφῆς, ἐφ’ αἷς π]ε1ρ3ιέχει δι[α]στολα2ῖ1ς ἁπάσα2ι1[ς] ἐ2πὶ τοῖς ἑ[ξ]ῆς
δ2[η]λου[µ]ένοις συµφώνοις, ἐκ µὲν ἑνὸς µέρους Αὐρήλ[ιο]ς
[Ψόϊς υἱὸς Ἰσακίο(υ)], ἐκ µη2τρὸς Μαρίας, τέκτων λεπτουργός,
ὁρµώµενος ἀπὸ ταύτης τῆς λ[α]µπρᾶς Ἀντινοέων πόλεως,
[ἐκ δὲ θατέρου µέρο]υς Αὐρήλιος ᾿Ϊωσῆφις ὁ καὶ Πεκῦσις, υϊὸς
Παύλου, µετὰ συνεστώσης καὶ συνευδοκούσης καὶ
συνπει[θ]οµέ(νης)
6
The name of the month, Pachon, has been reconstructed in the left-margin lacuna.
As R. S. Bagnall & K. A. Worp, Chronological Systems in Byzantine Egypt, Leiden 2004 (2 ed.),
p. 101, n. 1 observe, Pauni is also possible, thus giving us a date one month posterior:
28 May 568.
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8 [αὐτῷ τῆς αὐτοῦ γαµετ]ῆς Αὐρηλ2ίας Τικολλο(ύ)θου, θυγατρὸς
Ὡρο2υ2ωγχίο(υ), ἐκ µητρὸς Παυλίνης, γ[α]µετῆς συµβίο(υ)
αὐτο(ῦ), τῆς κ(αὶ) συναινο(ύ)σης
[αὐτῷ ἐπὶ ταύτῃ τῇ αὐ]το(ῦ) ὁµολογίᾳ ἐγγράφῳ ἀκολο(ύ)θως τῇ
δ[υ]νά2[µ]ει αὐτῆς ἐκ παντὸς τρόπο(υ). καὶ ὁµολογο(ῦ)σιν
ἀλλήλοις οἱ ἀφ’ ἑκατέρο(υ)
[µέρους τὰ ὑποτετ]αγµένα χ(αί)ρ(ειν). ὁ[µ]ολογοῦµεν ἡµεῖς οἱ
προγεγραµµένοι Ψόϊς ᾿Ϊσακίο(υ) λεπτουργὸς καὶ ἀνὴ2ρ τυγχάνων
τῆς θυγατρὸς ᾿Ϊωσ2[η]φίο(υ)
[καὶ Τικολλο(ύ)θου τῶ]ν συνκοινωνῶν µο(υ) τῇ το2(ῦ) Θεοῦ προνοίᾳ κα2ὶ1
συµπραγµατευτῶν µο(υ), κα(ὶ ἐγ)ὼ α2ὐτὸς ᾿Ϊωσῆφις ὁ προρηθεί[ς],
12 [µετὰ συνεστώσης τῆ]ς συνο(ύ)σης καὶ συναινούσης µοι γαµετῆς εἰς
ταύτην τὴν κοινὴν καὶ ἔγγρ3αφον ἀπαράβατον ὁµολογία2ν2,
[ἑκουσίως τε καὶ] κοινῇ γνώµῃ καὶ ἀδόλῳ3 πρ3ο2αιρέσ[ει],
συνεργάζασθαι ἀλλήλοις εἰς τὴν κοινὴν ἡµῶν πραγµατείαν2, καὶ
[πάντων τῶν συµβη]σοµένων [ἡ]µῖν ἐµποι1ῆ2σ2αι ὠνίων διάπρασιν κατὰ
κοινὴν πειθαρχίαν καὶ βουλὴν καὶ συναίνεσιν ποιήσασ?θαι\,
[δίχα πάσης ῥᾳδ]ιουργίας κ[αὶ] µ1έµ[ψ]εως κ[αὶ] κ2α[τ]α
καταφρονήσεως καὶ οἵας δήποτε ὀκνηρία[ς], ἐνδείξασθαι ?τε\
ἀλλήλοις πρόθεσιν µετὰ
16 [προαιρέσεως(?)] συγκάµνοντες, καὶ συµπνεεῖν ὁµοδυµαδὸν ὡς ἐκ
µιᾶς ψυχῆς καὶ θάρσο(υ)ς ϊσχύος καµατερῶν ἐξ ἴσου
[πάντων τῶν ἐρ]γαστηριακῶν καὶ πραγµατευτῶν ταύτης τῆς πόλεως
ἡµῶν Ἀντινόο(υ), κα[ὶ] ϋπακούειν ἀλλήλοις ἐν πᾶσι
[καλοῖς καὶ ὠφ]ελείµοις ἔργοις καὶ λόγοις, χωρὶς ἀντιλογίας οἵας
δήποτε καὶ ἀντιπαθείας καὶ ὕ!!ϋ!!βρεως, καὶ τὸ εἰσοδευόµενον
[ἡµῖν ἀπὸ παν]τὸς κοινω2φ3ελοῦς ἡµῶν ἐκ τῆς ἐργασίας κέρδος ?ἐξ\
οἵου δήποτε πράγµατος καὶ ἐργοχείρο(υ) εἶναι ἐξ ϊσοµοιρί?ας\
20 [ἡµῖν κατὰ τὸ ἥ]µ1ισυ2 µέρος, µετὰ τὴν ἀποπλήρωσιν τῆς µεταξὺ ἡµῶν
ο(ὔ)σης µέντοι προχρείας, κα2ὶ1 τήν, ὅπερ ὡσαύτως ἀπείη, ἐσοµένην1
[ζηµίαν ἐξ ὁµοίο(υ) τ]ρόπο(υ) ἐξ ἴ̈σης ἡµίσειας µοίρας
ἀπολογήσασθαι. ο[ὐ]δὲν ἧτ’τον, εἰ ἐθελήσοιµεν ἀποστῆ[ν]αι τῆς
κοινῆς µετ’ ἀλλήλων ἐργασίας,
[ἑτοίµως ἔχειν τ]ὰ δάνια το(ῦ) ὄπιθεν χρόνο(υ), [τ]ὰ γενάµενα ἡµῖν
κοινῶς πραγµατευοµένοις, ἐπιγνῶναι κατὰ τὸ αὐτὸ ἥµισυ µέρος
DILIGENT CARPENTERS
277
[ἐξ ἰσοµοιρίας,] ἐφ’ ὅ τε ἐν µιᾷ ἐργασίᾳ καὶ εὐζωΐᾳ κοινῇ µετ’
ἀλλήλων δ2ιήξαµεν τὸν κατ’ ἐκείνο2(υ) καιρο(ῦ) χρόνον: καὶ οὐ
δύνατόν τινι
24 [ἡµῶν περὶ τούτ]ο(υ) ἀµφιβάλλειν ποτέ, µάλιστα ?ἐµε\ Ψόϊν τὸν ϋµ[έτ]ερον γαµβρόν, ἐπὶ προσδοκία[ς] ἔχοντα, εἰ τῷ θεῷ δόξειεν εἶναι,
[τόν τε κληρονό]µον καὶ διάδοχ(ον) ϋµῶν λήµψεως καὶ δόσεως ϋπὲρ3
ϋµῶν γενέσθαι, µετὰ τὴν ϋµῶν1 ἀποβίωσιν. καὶ σὺν Θεῷ ἐν µιᾷ
[ἐργασίᾳ γενησόµ]εθα καὶ βίωσει µετ’ ἀλλήλων µεθ’ ὁµονοίας ἔργου,
ἀπὸ τῆς σήµερον καὶ προγ[εγ]ραµµέ(νης) ἡµέρας, ἥτις ἐστὶν
τρίτη το(ῦ)
[Παχὼν µηνὸς τῆς] ἀρξοµένης κατ’ Αἰγυπτίους δευτέρας ἐπινεµήσεω2ς,
ἐπὶ τὸν ἀεὶ ἑξῆς ἅπαντα πρ3οσελαύνοντα χρόνον, ἀµέµπτως κ(αὶ)
28 [ἀκαταγνώστως. καὶ] εἰς ἀσφάλειαν πά1ν1των1 τ1ῶ2ν1 προδιωµολογηθέντων παρ’ ἡ2[µ]ῶν, ἐπωµ1οσάµεθα τὸν φ3ρικωδέστατο[ν] ὅρκον ἐν
οὐδενὶ µὴ παραβῆναι, καὶ πρόστιµον
[κατὰ τοῦ παρ]αβαίνειν ἐπιχειρή[σον]τος ἐπικεῖσθαι χρυσο(ῦ)
νοµισµατί[ω]ν ἓξ εὐστάθµων καταβλη2θ2ῆναι, ὥστε ?τα[ύτ]α\
τ[ῷ] ἐµµένοντι καὶ στοιχοῦντι µέρει ἐξ ἐπερωτήσεω?ς\
[δοθῆναι, µετὰ] κ2[(αὶ)] τ1ο(ῦ) αὐτὸν τὸν παρα2βάτην ἄκοντα ἐµµεῖναι τοῖς
ἐγγεγραµµ(ένοις) [συ]µ1φώνοις: ἐφ’ οἷς ἐρωτηθέν2τε2 ς παρ’ ἀλλήλ[ων]
καὶ ἀλλήλο(υ)ς ἐπερωτήσαἐπερωτήσαντες ταύθ’ οὕτως ἔχειν δώσειν
[φυλάττειν ὡµολογ]ήσαµεν, ϋποθέµενο[ι] δὲ καὶ ἀλλήλοις εἰς ταῦτα
πάντα τά τε νῦν ὄ2ν2[τα] ἡ2µῖν καὶ ἐσ2[ό]µενα πράγµατ1α, γεν1ικῶς
καὶ ϊδικῶς, ἐ1[ν]εχύρο(υ) λόγῳ καὶ ὑ1ποθήκ(ης) δικαίῳ καθάπερ ἐκ
δίκης ☧
9. BL vii 35: ἐν original ed.; corr. from εγγραφο | 13. l. συνεργάζεσθαι | 15. l. ἐνδέξασθαί. | 15. BL i 448: µετα[λαβεῖν τὸ ἥµι(?)]συ κάµνοντες original ed. | 16. l. συµννεει.
| 16. corr. from ὁµοθυµατὸν, l. ὁµοθυµαδὸν | l. καµατηρῶν | 18 l. ὠφ]ελίµοις. | 22. BL
iii 35: ἔχοµεν original ed. | L. δάνεια | 24. BL i 448: [τοῦτ]ο original ed. | 28. l. προδιοµολογηθέντων | 29. subsequent ed.: ἐπιχειρή[σαν]τος original ed.
ll. 1–2: † χµγ During the reign and consulship of our most pious Lord,
Flavius Iustinus, the eternal August and Imperator, year third, on the
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third of Pachon (?) of the second indiction (year), commenced according
to the divine (i.e. imperial)7 will, in the most splendid city of Antinoe.
ll. 3–10: Aurelios Psois, son of Isakios, his mother being Maria, fine-carpenter,8 coming from the same splendid city of Antinoe on one side, and
on the other side, Aurelios Iosephis also known as Pekysis, son of Paulos
in assistance of jointly consenting and co-agreeing his consort, Aurelia
Tikollouthos, daughter of Horounchios, of mother Pauline, his weddedconsort, who is agreeing with him in regard to his written agreement in
accordance with her will in all places. make and prepare for one another
out of their common will and without any kind of fraud and fear and force
and constraint and deceit and whatever kind of treachery and robbery and
circumvention, this present common agreement written in a single copy
under the articles (that it) contains and according the below apparent
common agreement. And they agree what is below appended from either
of them. Greeting.
ll. 11–20: We, I, the above-written Psois (son) of Isakios fine carpenter
and who also happens to be the husband of the daughter of Iosephios and
Tikollouthos, my partners and associates by God’s will, and I, Iosephis,
the above-said, with assistance of my wife joining with me and agreeing
with me to this common and written and unalterable agreement, agree
voluntarily and of joint will and non-fraudulent conviction, that we collaborate with one another to the joint our business and that the sale of all
merchandise produced that may come to us (from this agreement) shall be
made according to joint management and will and approval without any
laziness or blame or negligence or whatever dilly-dallying, and that we will
involve as much as possible commitment and conduct, straining ourselves
together and that we will breath together with one accord, as if we had
one soul and courage (and) might, (providing work-labour) equal to the
one of all the craftsmen and workmen of this our city of Antinoe, and to
comply with one another in every proper and beneficial action and word,
without any protest whatsoever or opposition or outrage, and that the
work-profit collected for us from everything of common utility of all kinds
of matters and work of our hands shall be equally divided between us, halfto-half, having deducted in full all the former debts between us, and similarly any future loss – which may not happen! – will be borne in equal halfshares.
ll. 20–25: And should we wish to abandon this joint labour-partnership
between us we shall immediately admit the loans of the preceeding time,
7
Cf. Bagnall & Worp, Chronological Systems (cit. n. 6), p. 34.
8
Cf. Dioc. Ed. vii 3. Cf. S. Laufer, Diokletian’s Preisedikt, Berlin 1971, comm. ad h.l. with lit.
DILIGENT CARPENTERS
279
which came into existence between us because of the joint undertakings,
in the same half-parts, that is equal shares, for the period of time in which
we have led one labour-community and harmonious joint-life. And it shall
not be allowed to neither of us to bring any type of suit because of these
matters, and especially to me, Psoi, your son-in-law, who has got the
expectation, should it please God, of being taken and of appointment by
you still in life to (be) your heir and successor after the completion of your
life. And so we shall be, with God’s will, in one labour-partnership and living of harmonious work, from this, the above-written day, that is the third
of Pachon of the coming second Egyptian indiction, for ever, all time
coming afterwards, blamelessly and not giving reason to be brought to
court.
ll. 26–31: And to secure all points conceded on both sides beforehand
by us we are swearing the awe-inspiring oath not to transgress in anything,
and that a fine of six coins of gold of fine weight should be paid by the
party in breach to the party abiding and keeping the agreement in virtue
of a stipulation, and because of it, the same transgressor, (even) an involuntary one, will abide to the above-written terms, on which both of us
have agreed, being formally asked to do so by each other, and having stipulated that they shall have and give and guard all these, and we are mortgaging to each other all the matters that we have now and shall have, both
generally and singularly by virtue of pledge and right of hypothec, executable without a trial.
The parties, Aurelios Psois, son of Isakios and Aurelios Iosephis also
known as Pekysis, son of Paulos together with his wife Aurelia Tikollouthos, daughter of Horounchios, fine carpenters, make a joint agreement of partnership.9 They will work together in their trade and divide
9
It is not my purpose in this place to analyse in detail the dogmatic foundations of the
contract of societas in Roman law, I will only address some points as to the standard liability of the partners towards the end of this paper. For the most general overview of this
legal figure see R. Zimmerman, The Law of Obligations. The Roman Foundations of the Civilian Tradition, Oxford 1996 (2 ed.), pp. 451–467 and two excellent recent books on the subject. 1. F. S. Meissel, Societas. Struktur und Typenvielfalt des römischen Gesellschaftsvertrages,
Frankfurt a/M 2004, passim, esp. pp. 131–204, for the so-called societas negotiationis alicuius
and societas unius rei which would correspond to our cases here (the author very soundly
points out that the Roman jurists did not aim at theoretical and terminological diversifications, and so the ultimate distinction between various types of societas cannot be reasonable based on our, somewhat nominally blurry, sources); for a brief commentary on our
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the proceeds from the sale of the produced objects. The loss is to be similarly borne in equal shares. Two circumstances catch our attention. The
first, and the most outstanding, is the standard of conduct to which the
parties undertake to abide to. They stipulate to act with the diligence
typical for all the craftsmen of the city of Antinoopolis: ἐξ ἴσου | [πάντων
τῶν ἐρ]γαστηριακῶν καὶ πραγµατευτῶν ταύτης τῆς πόλεως ἡµῶν Ἀντινόο(υ) – ‘equal to the one of all the craftsmen and workmen of this our
city of Antinoe’. This criterion could be understood in the slightly
anachronic terms of the Romanistic scholarship as culpa levis in abstracto:
the standarised type of negligence/diligence-based type of conduct which
would be proper to an abstract representative of the given class of contactor. In most cases this pattern is set by the behaviour typical for a
good and diligent father of family (bonus et diligens pater familias),10
but sometimes the standard seems to be fixed at an example typical for a
given situation – like ‘a (diligent craftsman’ in D. 19.2.9.5 (Ulpianus 32 ed.),
analysed below. I shall return to this point in a moment (infra, pp. 292–294).
The second interesting feature of our document is its supposed aim.
It is seemingly a contract of partnership of artisans. Psois, however, is the
son-in-law of the other party, Iosephis and Tikollouthos. Obviously there
is nothing awkard or out-of-order in making business within a blood or
political family. Let us notice that Psois expresses his expectation to
become the heir to the estate of his parents-in-law. This estate, moreover, seems to be treated as a joint matrimonial property, and that is possibly why, the wife appears alongside her husband in the terms of the
agreement. It could be argued, therefore, that the societas-agreement here
operates as a particular matrimonial settlement between the parents-inlaw and the husband of their daughter (who, interestingly, is not admitted to the bond at all). It may be yet another ingenious example of how
to manage property after marriage and how to secure proper care over the
papyri see pp. 152–153. 2. G. Santucci, Il socio d’opera in diritto romano. Conferimenti e responsabilità, Padova 1997, who, however, does not really engage with the sources of the legal
practice, apart from a Dacian triptych, FIRA iii nº 157 (on which cf. infra, pp. 291–292).
10
See, e.g. Zimmerman, Law (cit. n. 9), pp. 210–211 in respect to depositum.
DILIGENT CARPENTERS
281
family estate in a different way than a classical standard dowry agreement.11
The whole agreement is concluded by a stipulation clause, typical for
all types of contracts and secured by a general mortgage.
b) P. Cairo Masp. ii 67159, 16 December 568
Before I discuss further the liability model assumed by the carpenters, let
me present the other case, P. Cairo Masp. ii 67159. It has been preserved
in two copies,12 none written by Dioskoros himself. This circumstance
opens an interesting question about the reason of their existance in his
archives. Slightly more correct P. Cair. Masp. ii 67160 may have been a
second, perhaps the final, draft of the agreement. Again we are faced with
a partnership of carpenters.
☧ βασιλείας [κ]αὶ [ὑπ]ατεί[ας] τ2οῦ θειοτάτ[ου ἡµ]ῶν δεσπότου
Φλαυΐου
Ἰουσ[τί]νου τοῦ αἰω2[νίου] Α2ὐγούστου Αὐτοκράτορος ἔτους τετάρτου,
Χοι[ὰ]κ εἰκάς δευ[τέ]ρ1ας ἰνδ(ικτίονος). ἐν Ἀντι(νόου) πόλει τῇ
λαµπροτάτῃ.
4 ☧ ταύτην τίθεντα[ι] καὶ ποιοῦνται πρὸς ἑαυτοὺς τὴν ἀντισύγγραφο?ν\
κοινὴν δισσὴν ὁµολογίαν, ἐπὶ τοῖς ἑξῆς δηλουµένοις συµφώνοις
ἐφ’ αἷς περιέχει διαστολαῖς ἁπάσαις: ἐκ µὲν τοῦ ἑνὸς µέρους Αὐρήλ(ιος)
Δανιῆλις ἐκ πατρὸ2ς Ἰω2σηφίου, ἐκ µητρὸς Θέκλας, λεπτουργὸς
11
Another example of such invention to be found among the papers of Dioskoros is a
set of documents P. Michael. 42a – a mortgage by which the groom and his parents convey
to the bride 10 arurae of land to secure repayment of the latter’s dowry – and P. Michael.
42b by which the bride leases the same land back to her political family for the rent
equalling the annual tax on the estate. See further my ‘Marriage and divorce in the late
antique legal practice and legislation’ [in:] Esperanza Osaba (ed.), Derecho, cultura y sociedad
en la Antigüedad Tardía, Bilbao 2013 (in print).
12
Heidelberger Gesammtverzeichnis der Papyri (and after it also the website Papyri Info
<<www.papyri. info>>), wrongly states that P. Cairo Masp. iii 67315 recto is a third copy of
the same document.
282
JAKUB URBANIK
8 τέκτω2ν τῇ τέχνῃ, ὡ2ρ1µώµενος ἀπὸ ταύτης τῆς καλλιπόλε(ως)
Ἀντινοέων,
ἐκ δὲ θατέρου µέρους Αὐρήλιος Βίκτωρ υἱ̈ὸς Φιλήµµωνος, ἐκ µητρὸς
Μαρίας, καὶ αὐτὸς τῆς αὐτῆς τέχνης συνκείµενος, ἀπὸ ταύτης τῆς
Ἀντινοέων πόλεως, καταγόµενος ἀλλήλοις τὰ ὑποτεταγµένα,
12 χαίρειν. ὁµολογο2[ῦ]µεν κοινῇ γνώµῃ καὶ ἀδόλῳ προαιρέσει, συνεργάζεσθαι ἀλλήλοις εἰς {εἰς} τὴν ἡµῶν τῆς λεπτουργίας τεκτονικὴ?ν\
τέχνην, διὰ τ2αύτης ἡµῶν τῆς ἐγγράφου ὁµολογίας, ἄνευ παντὸς
δόλου καὶ φόβου καὶ βίας καὶ ἀπάτης καὶ ἀνάγκης καὶ πάσης συν16 αρπαγῆς τε καὶ περιγραφῆς κατὰ νόµους, ἑτοίµως ἔχειν ἡµεῖς
οἱ προγεγραµµένοι ἄνδρες τέκτονες, ἀπὸ τῆς σήµερον καὶ
προτεταγµένας ἡµέρας, ἥτις ἐστὶν τοῦ µηνὸς Χοιὰκ εἰκὰς
ἡµέρα τῆς παρούσης δευτέρας ἐπινεµήσεως, µέχρι περαιώσεως
20 ἑνὸς καὶ µόνου ἐνιαυσιαίου χρόνου, ψηφιζοµέ(νου) τοῦ αὐτοῦ χρόνο(υ)
ἀπὸ τῆς προειρηµένης ἡµέρας, ἐφ’ ᾧ ἡµᾶς, δίχα πάσης
ῥᾳδιουργίας, ἀµέµπτως καὶ ἀκαταγνώστως, συνοµονοεῖν
ἀλλήλοις καὶ συνκαµεῖν καὶ συνπνεεῖν εἰς πάντα τὰ ἁρµόττοντα2?α\
24 ἔργα τῇ ἡµῶν τέχνῃ, µετὰ πάσης ὑποταγῆς καὶ ὑπακοῆς
παρ’ ἀλλήλων εἰς ἀλλήλους ἐν ἅπασι καλοῖς καὶ ὀφελείµοις ἔργοις ?τε\
καὶ λόγοις ἀµέµπτως καὶ ἀκαταφρονήτως, δίχα πάσης
ῥᾳδιουργίας καὶ γογγισµοῦ καὶ ὑ2π2ερθέσεως καὶ ἀναβολῆς
28 ἔργων διόλου, εἰς πάντα τὰ ἐπιταττόµε2ν2α ἡµῖν ἢ καὶ προσταχθησόµενα παρ’ οἵου δήποτε ἀνθρώπο[υ] λόγῳ ἐργοχείρου
ἐπιταγῆ, ὥστε ἡµ2[ᾶ]ς πάντα ποιῆσαι καὶ ἐκτελέσαι µεθ’ ὑγιοῦς
τῆς πίστεως, καὶ ἀποκαταστῆσαι τοῖς ἰδίοις ἀβλαβῶς, καὶ τοὺς
32 µισθοὺς ¨ἱκανῶς [ἀ]π2ολαµβάνειν καὶ δι2αµερίσασθαι εἰς ἑαυτοὺς
τούτους κοινῇ ἐφ’ ἡµίσείας µερισµοῦ, δίχα πάσης κλοπῆς καὶ
ἀποστασίας: µὴ δυναµένου τινὸς ἡµῶν µήτε δυνησοµένο(υ)
ἀποστῆναι τῆς ἐµ2πιπ2τούση2[ς ἡ]µῖν ἐργ3[α]σ2ίας
36 καθ’ οἷον δήπο[τε χ]ρόνον ἢ καιρὸν ἢ ἡµέραν, καὶ ὑπερθέ[σ]θαι καὶ προφά2σ2ει2ς2 ἐπανατεῖναι καὶ τοῦ ἔργου καταφρονήσιν
κα2[ὶ εἰ] ἀποσταίνη τις παρὰ ταῦτα τὰ συντεταγµένα σύµφωνα ὑπερβῆ[ναι], καὶ µὴ δικ2[αί]ως ἐξακολουθῆσαι τῷ ἐπίοντι ἔργῳ καθ’
40 ἑκά2στην Θεοῦ βου2λ2οµένου, δίχα νοσήµ2α2τος, παρέξει τὸ παραβαῖ[ν]ον µέρος ὑ2πὲ2 [2 ρ ἀµ]ελείας χρυσοῦ [νοµ]ί1σµ(ατα) τέσσαρα. καὶ εἰ ἀπο-
DILIGENT CARPENTERS
283
σταί2η τοῦ ἔργου πρὸ συµπληρώσεως το[ῦ ἐ]νιαυτοῦ, τὸ αὐτὸ
πρόστιµον
ἐπιγινώσκειν δίχα κρίσεως καὶ δίκης καὶ οἵας δήποτε εὑρεσιλογίας
44 καὶ παραγραφῆς νόµ2ο[2 υ], ὑποκειµένων ἀ[λλή]λοις εἰς τοῦτο καὶ εἰς πάντα
τὰ προγεγραµµένα [π]άντ2ων ἡµῶν τῶν ἡµῖν ὄντων καὶ ἐσοµένων
πραγµάτων, κινη[τῶν τ]ε καὶ ἀκινήτων καὶ αὐτοκινήτων, ἐνεχύρου λόγῳ
καὶ ὑποθήκης δικαί[ῳ, εἰς] ἀποπλήρωσιν πάντων µέχρι τοῦ αὐτοῦ ἑνὸς
48 ἐνιαυτοῦ. καὶ ἐφ’ ἅπαντα τὰ προγεγραµµένα σύµφωνα ἐπερωτηθέντες
παρ’ ἀλλήλων καὶ ἀλλήλους ἐπερωτήσαντες καὶ εἰς πέρας ἄγειν
ὡµολ(ογήσαµεν) †
3. l. εἰκάδι | or Ἀντινό[ου π]όλει | l.ὁρµώµενος | or Ἀντι(νοέων) | 10. or συγκείµενος:
corr. from συνκειµενος | 11. l. καταγόµενοι | 13. or ?τῆς\ | 18. l. προτεταγµένης | 20.
corr. from ενιαυτιαιου | 23. l. συνπνεῖν | l. ἁρµόττοντα | 25. l. ὠφελίµοις | 27. l. γογγυσµοῦ | 30. l. ἐπιταγῆς | 37. l. καταφρονήσειν or καταφρονήσει?ν\ | 38. l. ἀποσταίη |
41. or ἀµελείας λόγο2[υ] | 43. l. εὑρησιλογίας | 48. or προειρηµένα
ll. 1–12: During the reign consulship of our most divine Lord Flavius Iustinus, the eternal Augustus Imperator, the fourth year, on the twentieth of
Choiak, in the second indiction year, in Antinoe, the most splendid.
Aurelios Danielis of father Iosephios and of mother Thekla, fine carpenter by trade, coming from the beautiful city of the Antinopolites, on one
side, and on the other side Aurelios Victor, son of Philemmon, of mother
Maria, of the same trade, belonging to the same city of the Antinoites
make and prepare for each other this mutually signed common and double agreement, upon the below revealed and concordant all conditions
which (it) contains. Greeting.
ll. 12–34: We agree with common will and non-fraudulent conviction to
work together for our trade of fine carpentry through this written agreement without any kind of fraud and fear and force and constraint and
deceit and all treachery and circumvention against the laws, that we, the
above-written artisans, are ready from today and the fixed date, which is
the twentieth day of the month Choiak of the present second indiction
(year), until the fulfilment of just one and single yearly time, the time
counted from the above-mentioned day, on which we, without any laziness, and being blameless and behaving in such a way that they would not
284
JAKUB URBANIK
be brought to the court come to one mind with one another and (decided)
to make joint efforts and breath together for all the corresponding works
of our trade with all subordination and compliance between one another
in all good and beneficial acts and words being blameless and behaving in
such a way that they would not be brought to the court and without any
laziness and indignation and entirely without delay and putting off the
works towards all commanded to us ordered by whichever man as an order
for manual labour, and to do and accomplish everything with sound trust
and to restore13 without any defect at our expense and to receive corresponding wages and to distribute by common consent to ourselves in halfshares, without any theft and (secretly) putting anything away.
ll. 34–37: And it is not allowed, and shall not be allowed, to neither of
us to withdraw from the work befalling on whatever time, period or day,
and to defer and to plead any excuses, and to disregard (our) labour.
ll. 38–44: And if anyone should withdraw from these conceded agreements and transgress (them), so it will happen that some work will result
(from this) to the party abiding the terms of the contract on a daily basis,
with an exception, with God so willing, of a disease (as a reason thereof),
the transgressing party shall pay because of this negligence, four coins of
gold. And if anyone should withdraw from the agreement before the year
is completed, he shall observe the same penalty without judicial proceedings and judgment and whatever tricky argumentation and circumvention
of the law.
ll. 44–49: And we are mortgaging to each other (in order to secure) all
this, and what is written above, all matters that belong and shall belong to
us: movable and immovable and self-movable by the by virtue of pledge
and right of hypothec, for the fulfillment of all (the agreements) until the
end of the same one year. And being mutually asked the formal question
about the above-written agreements, we have both stipulated and have
agreed to act (accordingly). †
The parties to the agreement, Aurelios Danielis son of Iosephios and
Aurelios Victor, son of Philemmon, both fine carpenters and originating
from Antinoopolis – just like in the preceding case – have established
their partnership for one year. Their undertake to work together, accept
orders from the clients and not to shrink away from the commanded
13
With Maspero, comm. ad h.l.: ‘faire des reparations’.
DILIGENT CARPENTERS
285
labours. It seems that any damage caused by their work should be personally amended by the partner responsible thereof (l. 31). The wages that
their singularly will collect should be divided in equal shares between
both associates. The parties also stipulate a penalty to be paid in case of
their negligent actions, in fact absence from work but for the case of illness, amounting to four solidi of gold. The partners additionally promise
to each other that they would not secretly keep for themselves anything
from the common labour – this clause has no parelel in the precedent
document where perhaps the ‘family’ context made it obsolete. Yet this
may have been a rather typical arrangement as among the Coptic ostraka
from Medinet Habu we find two sherds corresponding to one another
with oaths by which labour-partners assure each other not to have taken
money and trading goods from among common things.14
Just like the previous specimen also this one is concluded by a stipulatory clause and a general hypothec securing proper execution of the
contract.15
14
The editors, Elizabeth Stefanski and Miriam Lichtheim note that the sherds
match, and that the hand-writing on both belongs to the same person who must have executed them for illiterate promisees. O. Medinet Habu 89 (7th/8th cent.): I, Daniel, swear
(an) oath to | Mark, thus: By this place, by | its holy power, since | I have worked with you,
neither in | the north nor in the south have I | concealed from you the two | carats, | nor
in | the trading verso: goods. and O. Medinet Habu 90 (7th/8th cent.): I, Mark, swear (an)
oath, | thus to Daniel: By this place, | by its might, by its holy power, | since I have worked
| with you, neither I, | nor my wife, nor my | daughter, have ... verso: | whether | you were
in the north | or whether you were in the south, | I have not deceived | you in the trading
goods, | nor have my wife or | my daughter.
15
On this type of collateral, and especially its efficiency see my recent study ‘How to
make collaterals effective? A study of the late antique “real” securities’, § 2, with literature
therein cited (in print). One cannot but recall that the Byzantine legal practice virtually
equated conventional pledge (hypotheca) and possessory one (pignus – enechyron): our
papyrus is just yet another example proving this fact: see further ‘Tapia’s banquet hall and
Eulogios’ cell. Transfer of ownership as security for debt in Late Antiquity’ [in:], P. Du
Plessis (ed.), New Frontiers: Law and Society in the Roman World, Edinburgh 2013, pp. 151–
–174, at pp. 151–152 with notes.
286
JAKUB URBANIK
3. PARTNERSHIPS
IN THE ROMAN-BYZANTINE PAPYRI
I have already pointed out that our contracts are quite singular. Partnerships in general are rarely represented in the papyri. Many of the available
counterparts, dated to a later period, and thus comparable because of the
presumed influence of the Roman legal practice, are unions between
farmers who undertake to jointly cultivate estate leased by one of them,
sharing the duty to pay the rent (and so they cannot provide exact paralels).
And such is the case of P. Amh. ii 94 (= WChr. 347, Hermoupolis, 29
August 208), where a lessee of the public land undertakes to pay S of the
rent and taxes and his partner the remaining third share. The surplus is
to be divided in the same proportion. The associates will continue their
relation if the tenant should be obliged to continue the cultivation after
the expiry of the five-year period of the lease.16 Apart from a very generic
undertaking to jointly farm the land, no further duty of neither party and
their standard liability is specified.17 Another, and slightly earlier, contract from the Fayum closely follows the same pattern: in P. Oxf. 12 (Arsinoite nome, 153–154) a man, whose name has been lost, joins three colessees of a fishing right from two reservoirs of the village Karanis,
assuming a quarter share in their enterprise.18 The new partner accepts to
16
Cf. A. Ch. Johnson, An Economic Survey of Ancient Rome ii. Roman Egypt to the Reign of
Diocletian, Baltimore 1936, pp. 118–119, for a short commentary and translation. On a marginal note, one could recall that such a practice of the fisc and public officials was deemed
unjust (ἀδικία) already in the Edict of Tiberius Julius Alexander, of ad 68 (cf. OGIS 669,
ll. 10–15 and G. Chalon, ĽÉdit de Tiberius Julius Alexander. Étude historique et exégétique,
Lausanne 1964, pp. 101–108). Furthermore an imperial rescript by Hadrian to a judicial
inquiry deemed inhumane (valde inhumanus mos est iste: D. 49.14.3.6, Callistratus, 3 de iure
fisci; cf. further, Claudia Kreuzsaler & J. Urbanik; ‘Humanity and inhumanity of law.
The case of Dionysia’, JJurP 38 (2008), pp. 119–156 at 145). Obviously the steps against
abuse of the tenants were not really applied in practice as our papyrus shows.
17
See also, two slightly posterior, and almost more laconic in this respect, P. Lips. i 18
(Hermoupolis, 3rd/4th cent.), another ‘Teilpacht’ entered into by Aurelios Ausonios – the
owner of the cultivated land and Aurelioi Olympios and Paesis, and P. Oxy. x 1280
(Oxyrhynchos, 4th cent.), a partnership in lease of a camel-shed.
18
A similar agreement, of which details are lost, is to be found under P. Amh. ii 100
DILIGENT CARPENTERS
287
do all the work befalling his share and to pay one-fourth of the rent.
He will receive back the quarter of the surplus.19
From the later examples of such, the Dioskorean corpus brings one similar covenant. P. Lond. v 1705 (Aphrodite, 1st half of the 6th cent.), presents
an agreement between Besarion, uncle of our notary, and Viktor. They
agree to jointly cultivate a farm belonging to the Holy New Church, leased
earlier by Besarion, the duration is set to two years. It is indeed unfortunate that only the opening lines of the deed have been preserved, in fact we
may only find out that Besarion’s share was fixed at R. We do not know
how – if at all – a standard of care of the parties was agreed upon.
It is quite interesting to compare this document to another act involving Besarion, not an infrequent party20 to land leases in Aphrodite, especially of church estates, P. Lond. v 1694 (Aphrodite, 1st half of the 6th
cent.). In this document Dioskoros’ relative sub-leases21 a terrain belonging to the same Holy New Church to Aurelioi Mathias son of Ponnis and
Ibeis son of Apollos. The rent is to be paid in kind, both the lessees and
the lessor are to share the burdens to upkeep of a sakya and irrigation,
they also divide duties as to the provision of sowing seeds (Besarion is
responsible for the seeds of the main crop and his tenants for these of
(Ashmunen, 198–211): Hermes having obtained a lease of a lake for three years accepts
Kornelios alias Hermophilos as his partner in one-sixth share.
19
Other, still earlier, cases, bear similar features. In P. Mich. v 348 (Tebtynis, 27), again
a fourth partner is admitted into a partnership farming catoecic land, leased by one of
partners. A cheirographon, P. Flor. iii 370 (Hermoupolites, 4 December 132), documents
two Romans’ entering a partnership in equal shares to cultivate leased public land. Possibly similar content is to be expected in the poorly preserved P. Princ. ii 36 (?, 195–197) and still
unpublished P.CtYBR inv. 616 dated to the year 99, of which only the lower part survives: cf.,
<<http://wwwapp.cc.columbia.edu/ldpd/apis/item?mode=item&key=yale.apis.0006160000>>.
The fact that in the archive of the grapheion of Tebtynis there is only one entry on a partnership may show that the low number of papyri representing partnerships may not be entirely accidental. This enterprise was made by Orseus and others between 24 and 29 July 42
(P. Mich. ii 121 recto, col. viii, l. 12).
20
See also, e.g., P. Cairo. Masp. i 67107, which Maspero dated to 541, but may have been
executed earlier (cf. Introduction to P. Lond. v 1694, p. 95), by which Besarion leases land
from the priest Ioannes.
21
I am following the editor’s suggestion to correct τῇ ἁγίᾳ καινῇ | ἐκκλησίᾳ in lines 7/8
into genitive (see P. Lond. v, pp. 95–96).
288
JAKUB URBANIK
grass). Finally the produce of the field is to be divided into halves.22
Indeed this lease, functionally, is not far an agricultural partnership.
One more lease needs to be recalled here. SB iv 7369 (Hermopolis,
September 512) records an agreement to rent a vineyard by Apollos son of
Isidoros and Apollos son of Isaios from Flavius Taurinos, former soldier,
now a priest of the Main Church of Hermopolis.23 The land in question
consists of two parts: a fully productive one and of a half of parcel with
newly planted vegetation. The rent for the vineyard itself is fixed in kind,
the crop to be shared between the lessor, on one side, and the tenants and
their water supplier, on the other. The whole date-crop, instead, will belong to Apolloi upon payment of ´R gold solidus (cf. Frisk, introduction).
What is extremely interesting for our case is the way in which the tenants
undertake to take care of the land: for the cultivation of vines they will apply
all care and attention.24 They will secure the proper product of the vineyard
by working the vine according to the way it is usually done in the said plot
of land belonging to Taurinos.25 Dieter Nörr saw in these terms a fixing of
an objective standard of care, just like in the case of our carpenters.26
Obviously labour-partnerships would provide a far better comparison
to our cases. There are only three instances27 of such in the papyri. P. Köln
22
Ll. 18–19: κ1ατὰ τὸ ἥµισυ εἰς ἡµᾶς µὲν ὑπὲρ τῶν καµάτων | εἴς σε δὲ ὑπὲρ τῶν ἐκφορίων κτλ.
23
Flavius Taurinos ii is one of the personae of the multi-generational archive of Fl. Taurinos son of Plousammon and his descendants, on which, most recently, see Karolien
Geens, ‘Archive of Flavius Taurinos, son of Plousammon’ at <<http://www.trismegistos.org/
arch/archives/pdf/259.pdf>> (28.05.2004); original publication by H. Frisk, ‘Vier Papyri
aus der Berliner Sammlung’, Aegyptus 9 (1928), pp. 291–295: ‘Pachtvertrag über Rebenland’.
24
L. 11: πρὸς ἀµπελουργικὴν ἡµῶν ἐργασίαν καὶ πᾶσαν ἐπιµέλειαν καὶ φιλοκαλίαν, κτλ.
25
Ll. 21–22: ὥ2σ2τ2ε2 ἡ2µ2ᾶ2ς τὴν πᾶσαν ἀ2µπελ[ουργ]ικὴ[ν] ἐ2[ργα]σίαν ποιήσασθα[ι] ἀ[µ]έµπ[τ]ως κατὰ µίµησιν τοῦ µεγάλου σου | ἀµπελικοῦ χωρίου, κτλ. Cf. as well the Dioscorean P. Ham. i 21 (Antinoopolis, 4 September 569), ll. 22–29, yet without this ‘objective’ term
of comparison.
26
D. Nörr, Die Fahrlässigkeit im byzantinischen Vertragsrecht, München 1960, p. 191 and n. 3
See further J. L. Alonso, ‘Fault, strict liability and risk in the law of the papyri’, in this volume, pp. 19–108 at pp. 28–29.
27
I am not taking into consideration a curious Christian letter sent from from to Arsinoites, P. Amh. i 3a (= WChr. 126), in which Amelotti and Migliardi Zingale (infra, n. 30),
see an allusion to a non-profit partnership baking bread, as the context is too obscure to
DILIGENT CARPENTERS
289
ii 101 (Oxyrhynchos, 28 September 274 or 280)28 is a beginning of a contract of Aurelioi Sarapion and Silvanos forming an enterprise for the period of 18 months of some kind of work, perhaps to produce objects made
of tin.29 The only surviving clause foresees joint purchase of the objects
necessary for the undertaking.
The second, very particular, instance almost constituting a category of
its own, is given by two papyri from the Great Oasis, P. Genova 20 (25
June 319) and 21 (25 July 320).30 Aurelios Timotheos and Aurelios Uonsis
form twice a partnership designed to organise transport of men in and
out of the Great Oasis. Whereas the former partner should manage the
business, the latter associate provides the capital (12 talents in the earlier
case, 26 talents and 3000 drachms in the later). Both documents formulated as receipts of the manager for the money paid and his declaration to
that he would spend it to hire the porters.31
The last, securely identifiable,32 undertaking to joint-work is P. Lond. v
1794 (Hermopolis, 21 June 488). This, unfortunately badly damaged
papyrus – its whole lower part has been lost – documents a partnership
between two fruit sellers, Aurelioi Isidoros and Dorotheos. Because of its
state of preservation we cannot know with certainty what the exact condraw any reasonable conclusions. On this letter see M. Naldini, Il cristianesimo in Egitto.
Lettere private nei papyri dei secoli ii–iv, Firenze 1968, nº 6, pp. 79–85 with literature.
28
H. Harrauer, Paläographie, Textband, pp. 368–369, nº 178, opts for the year 280.
29
‘βρυτανική τέχνη’: see Bärbel Krämer & D. Hagedorn, P. Köln ii 101, comm. ad. l. 9;
and, more detailed, H. Hagedorn in the original publication: ZPE 13 (1974), pp. 127–129.
30
See the original edition and commentary of the editors: M. Amelotti & Livia
Migliardi Zingle, ‘Una società di trasporto nella Grande Oasi’, [in:] Studi di Storia Antica in memoria di L. De Regibus, Genova 1969, pp. 167–176 [= M. Amelotti, Scritti giuridici,
a cura di Livia Migliardi Zingle, Torino 1996, pp. 87–99] and D. C. Gofas, ‘Quelques
observations sur un papyrus contenant un contrat de société (PUG ii, appendice i)’, [in:]
Studi in onore A. Biscardi ii, Milano 1982, pp. 499–520.
31
P. Genova 20, l. 6 and 21, l. 8, assuming a very hypothetical reconstruction of the editors, cf. comm. ad h. ll.
32
Another deed of partnership from Hermopolis, P. Lond. v 1795 (datable to the 6th century), preserves only the penalty clause, stipulations and the subscriptions of the parties
and witnesses, one cannot therefore reconstruct what may have been the goal of this association.
290
JAKUB URBANIK
tract terms were, yet the whole act seems to be much simpler than cases
under examination. The parties undertake to share in equal parts the gains
and losses, nothing is said about the way in which they should execute their
tasks, or what their exact character would be. It seems that the division of
the profit would be conducted after the loss is covered and taxes paid.33
The final example comes from the Roman Dacia34 – and therefore cannot be used as a close comparison case to the Antinoopolitan carpenters
associations. Yet, it cannot be overlooked as it contains a very particular
formulation, perhaps the only direct reference to the standard of liability
adopted by the partners apart from P. Cairo Masp. ii 67158 and 67159 under
discussion here. The Transylvanian wax-tablets, CIL iii xiii (pp. 950–951 =
33
P. Lond. v 1794, ll. 12–16: ἐπ2ὶ1 κοινῷ λήµ|µ2ατι καὶ ἀναλώµ2[α]τ2ι καὶ ο2ὕ2τ2ω ἡµᾶς πα2ρ1α2σχεῖν
| [ο]ι1νῶς τα 2[ 2 2 2 ]2 2ια ἀν2α2λώµατα τῆς αὐτῆς τεχνῆ2 | κ2[αὶ] µ2ε2τ2ὰ τὴ[ν ἀπόδο(?)]σ2[ιν(?)] τῶν
φόρ[ω]ν καὶ τῶν ἀνα|λω2µάτων2 κτλ.
34
For a description and an overview of the literature, see most recently Meissel, Societas (cit. n. 9), pp. 171–174 and especially, Santucci, Il socio d’opera (cit. n. 9), pp. 206–209
with a particular analysis of the deceit-based liability assumed by the partners. The latter
author evokes as well in this instance (cf. n. 41 at the p. 207) a fragment of the second table
of Vipasca, the so-called lex metalli dicta, refering to division of the necessary expenses in
the mine by all the partners. A partner who would fradulently avoid contributing his
respective part of the costs, shall be deprived of the digging share corresponding to him.
Contrariwise, any expenses which would appear to have been made in good faith are to
be recovered from the other partners. The lex, thus, on one hand foresees a modification
on the standard terms on which a mining society would operate in the public mine, and,
on the other, additionally safeguards the good-faith nature of the contract of partnership.
2
See, FIRA I nº 104, now amended by S. Lazzarini, ‘Seconda tavola di Vipasca
(a. 117–138 d.C.’, [in:] G. Purpura (ed.), Revisione ed integrazione dei Fontes Iuris Romani
Anteiustiniani (Fira). Studi preparatori. i. Leges, Torino 2012, nº 2, pp. 43–62): col ii,
ll. 18–19: … Qui non ita contulerit, quive quid dolo | malo fecerit quominus conferat, quove
quem quosve ex sociis fallat, is eius putei partem ne | habeto, eaque pars socii sociorumve
qui inpensas fecerint esto. [Ei v]el ii<s> coloni<s> qui inpensam fecerint in eo puteo, in
quo plures socii fuerint, repetendi a sociis quod | bona fide erogatum esse apparuerit ius
esto. – ‘If anyone does not thus contribute or does anything with malice aforethought to
avoid contributing or to deceive one or more of his partners, he shall not have his share
of such diggings, and that share shall belong to the partner or partners who cover the
expenses. Alternatively, tenants who cover expenses in such diggings in which there are
many partners shall have a legal right to recover from their partners anything that is
shown to have been expended in good faith’. (transl. T. G. Parkin & A. J. Pomeroy,
Roman Social History. A Sourcebook, London – New York 2007, p. 283).
DILIGENT CARPENTERS
291
FIRA iii nº 157),35 document a societas (rei) danistariae. They were executed
on the 28 of March 167, yet the partnership in question had been created
earlier, on the 23rd of December 166 and was still to last for a fortnight
more (till the 12th of April of the same year). The parties, Cassius Frontinus and Iulius Alexander brought in, respectively, 267 and 500 denarii (the
former through agency of a slave Secundos, owed by Cassius Palumbus – as
we may imagine from the name, a co-freedman of Frontinus). The profit
35
Inter Cassium Frontinum et Iulium | Alexandrum societas dani[st]ariae ex | x Kal(endas)
Ianuarias q(uae) p(roximae) f(uerunt) Pudente e[t] Polione cos. in | prid[i]e idus Apriles
proximas venturas ita conve|n[i]t, _ut´ ut, quidq[ui]d in ea societati ab re | natum fuerit
lucrum damnumve acciderit, | aequis portionibus su2[scip]ere debebunt. | In qua societate
intuli[t Iuli]us Alexander nume|ratos sive in fructo (denarios) [qu]ingentos, et Secundus |
Cassi Palumbi servus a[ctor] intulit (denarios) ducentos | sexaginta septem pr[o Fron]tin[o
— —]s [—]chum e2i1s | [—]ssum Alburno [— —] d[ebeb]it. | In qua societ[ate] si quis d[olo
ma]lo fraudem fec[isse de]|prehensus fue[rit], in a[sse] uno (denarium) unum [— in] |
d[en]ar[ium] unum (denarios) xx [— —] alio inferre debe[bi]t, | et tempore perac[t]o
de[duc]to aere alieno sive | summam s(upra) s(criptam) s[ibi recipere sive], si quod superfuerit, | dividere d[ebebunt]. Id d(ari) f(ieri) p(raestari)que stipulatus est | Cassius Frontin[us,
spopon]dit Iul(ius) Alexander. | De qua re duo paria [ta]bularum signatae sunt. | [Item]
debentur Cossae (denarii) l, quos a socis s(upra)s(criptis) accipere debebit. | [Act(um)
Deusa]re v Kal. April(es) Vero iii et Quadrato co(n)s(ulibus). – ‘A partnership of moneylenders was made between Cassius Frontinus and Iulius Alexander from the 23rd of December 166 to the coming 12 of April in the following terms: that whatever shall be born in this
partnership or happen to gain or to loss they shall share it in equal parts. Iulius Alexander
has brought to this partnership five hundred denari, counted or in gain (following Arangio
Ruiz’s suggestion, p. 482, n. 1), and Secundus, the slave-representative of Cassius Palumbus
has brought two hundred sixty-seven for Frontinus [...…] he will owe (?). If anyone is found
to have committed fraud employing evil deceit in this partnership, he will owe to the other
for one as, one denarius, and for one denarius, 20 denarii. After this time, and having
deducted loans from the others, they shall divide either the above written sum or what shall
be left. Cassius Frontinus has asked a formal question that it shall be done, undertaken and
guaranteed, Iulius Alexander has promised. Of this thing two equal tablets have been
sealed. Similarly 50 denari are owed to Cossa, which he shall receive from the partners.
The deed was made on the 28th of March 167.’
For a detailed description of the deed, yet without further dogmatical considerations, see
V. Şotropa, Le droit romain en Dacie, Amsterdam 1989, pp. 220–223 and G. Ciulei,
Les triptyques de Transylvanie (Études juridiques), Amsterdam 1983, pp. 61–65, ch. v: ‘Notes sur le
contrat concernant une société. c.i.l., iii, p. 951’, as well as E. Pólay, ‘Ein Gesellschaftsvertrag
aus dem rö mischen Dakien’, Acta Ant. Acad. Scient. Hung., Budapest 1960, pp. 417–436 (non
vidi), and on the function of the stipulation in this instance, idem, ‘Die Rolle der Stipulation
in den Urkunden der siebenbürgischen Wachstafeln’, JJurP 15 (1965), pp. 185–220 at p. 218.
292
JAKUB URBANIK
was to be divided in equal shares. The parties enforced their agreement by
stipulations, expressively excluding any fraudulent conduct in their actions
and promising to pay ten-fold or twenty-fold penalty, for respectively damages lesser and greater in value than one denarius:
Pag. iii, ll. 3–4. In qua societ[ate] si quis d[olo ma]lo fraudem fec[isse
de]|prehensus fue[rit], in a[sse] uno (denarium) unum [— in] | d[en]ar[ium]
unum (denarios) xx [— —] alio inferre debe[bi]t ...
If anyone is found to have committed fraud employing evil deceit in this
partnership, he will owe to the other for one as, one denarius, and for one
denarius 20 denarii. …
What was the exact function of this clause? Obviously the parties did
not have to agree to provide fraud-based liability – exclusion of dolus as a
term of a contract would expressively contravene the principles of boni
mores, and hence would be void. Would we then have to read it as a limitation of their liability, excluding cases of any culpa, gross or lesser negligence?
4. THE STANDARD OF DILIGENCE
IN LABOUR-PARTNERSHIP AND THE CARE ASSUMED
BY THE ANTINOOPOLITAN CARPENTERS
An answer to this question depends on a solution adopted for much greater
dogmatic problem, which I cannot profoundly address in this paper, namely what the standard liability of a socius was.36 Part of the scholarship, especially older, assumes that it was limited to fraud.37 The newer approach sees
a gradual extension of the liability, imposed by the evolution of the social
and economic conditions.38 The good-faith principle governing the contract
36
See a very comprehensive overview in Santucci, Il socio d’opera (cit. n. 9), pp. 193–230.
37
To this directions goes, e.g., F. Schulz, Classical Roman Law, Oxford 1951, pp. 551–552,
who also points at irresolvable problems with the sources, professing at the end the ars
nesciendi in this instance.
38
Cf. Zimmerman, Law (cit. n. 9), pp. 461–465 with sources. This view might be corroborated by the fact that Lex Irnitiana reserves actio pro socio to the sole competence of
DILIGENT CARPENTERS
293
made grossly negligent conduct, especially one that a partner would have
abstained from in his own affairs, equal to fraud.39 There is only a tiny step
from this approach to adopting diligentia quam in suis as the model of liability.
And then finally the objective standard of care: as – so Zimmerman – Ulpian
in D. 17.2.52.2 seems to be going towards. The Justinianic attitude, however,
seems to have kept the former solution.40
<
As we have noticed none of the papyri documenting partnerships foresees a standard liability imposed on the parties. It is true that the material we possess – given its scarcity and quite unfortunate state of preservation – does not allow solid and irrefutable conclusions. Yet even with
all due diligence one may venture a statement that P. Cairo Masp. ii 67158
and 67159 are in this respect unique.41 How come then do we find such
covenants in these two – rather petty – agreements?
For Arthur Steinwenter these formulations simply express the will of the
parties: they decide to exceed the standard terms of the contract and instead
the provincial governor when quod dolo malo factum esse dicatur (Lex Irnitiana ixb, ll. 9–11).
The municipal magistrates would in turn try cases in which only culpa of a partner was
investigated and whereby a condemnation would not incur infamia. See, Francesca Lamberti, Tabulae Irnitanae. Municipalità e ius Romanorum, Napoli 1993, pp. 155–156 with lit.,
ibidem, pp. 348–349 for the text, and Santucci, Il socio d’opera (cit. n. 9), pp. 203–204.
39
Just as was the case in the contract of deposit in Celsian view: D. 16.3.32, with Zimmerman, Law (cit. n. 9), p. 463.
40
Cf. Just. Inst. 3.25.9 and D. 17.2.72 (Gai. 2 rer. cott.) with Zimmerman’s commentary,
Law (cit. n. 9), pp. 466–467 with nn. 96–99. On these passages cf. also Santucci, Il socio
d’opera (cit. n. 9), pp. 212–230. A profound examination of the Byzantine doctrine is to be
found in Nörr, Die Fahrlässigkeit (cit. n. 27), pp. 30–35.
41
W. Kunkel’s old hypothesis interpreting ἐπιµέλεια as the forerunner of the Byzantine
culpa, (‘Diligentia’, ZRG RA 45 [1925], pp. 266–351) must be refuted, see, now for all, Alonso,
‘Fault’ (cit. n. 26), pp. 26–36. One cannot agree with Kunkel’s view, who interpreted ἀµελέλια
in 67159 and the work-standard of the Antinopolitan craftsmen as hypostases of ἐπιµέλεια.
He was followed by F. Wieacker, ‘Haftungsformen des römischen Gesellschaftsrecht’, ZRG
RA 54 (1934), pp. 35–79, at pp. 75–76.: ‘In P. Masp. 67160 versprechen Handwerker einem
Akkordeur ἡµῶν τέχνη’ die Korrelativität zu ἀµέλεια zeigt, daß damit eine Diligenzpflicht
übernommen ist.’
294
JAKUB URBANIK
of assuming the duty to be as diligent as in their own matters they choose
the model of omnis culpa.42 Franz Wieacker, in turn, saw in these clauses a
way in which the notary exemplified the abstract terms of the fault liability.43
There seems to be, however, yet another explanation, even if rather
risky, dwelling not so much in the general ‘Schuldtheorie’ as in the personal style and educational background of the scribe. Reading the reference to the standard conduct of the Antinoopolitan artisans I could not
help but to recall well-known fragments of the Roman jurisprudential
texts which describe the liability of conductor operis.
D. 19.2.9.5 (Ulpianus libro 32 ad edictum): Celsus etiam imperitiam culpae
adnumerandam libro octavo digestorum scripsit: si quis vitulos pascendos
vel sarciendum quid poliendumve conduxit, culpam eum praestare debere
et quod imperitia peccavit, culpam esse: quippe ut artifex, inquit, conduxit.
Celsus wrote in the Eighth Book of his Digest that also imperitia (want of
skill) counts as negligence (culpa). If someone rents calves to be fed, or
accepts something for repair or polish, he must answer for his negligence, and
want of skill is negligence, because he receives the item as a (skilled) artisan.
D. 19.2.13.5 (Ulpianus libro 32 ad edictum). Si gemma includenda aut
insculpenda data sit eaque fracta sit, si quidem vitio materiae fractum sit,
non erit ex locato actio, si imperitia facientis, erit. Huic sententiae addendum est, nisi periculum quoque in se artifex receperat: tunc enim etsi vitio
materiae id evenit, erit ex locato actio.
If a precious stone has been given for the purpose of being set or engraved,
and it broke, if it was due to a defect in the material, there shall be no action
on hiring, but if it was due to lack of skill, there shall be action. This, it must
be added, unless the artisan assumed the risk: for then, even if it happened
due to a defect in the material, there shall be an action on hiring.
42
Steinwenter, ‘Gesellschaftsrecht’ (cit. n. 4), p. 502: ‘Wir sehen also, dass die Parteien
über die dem Recht der ‘societas’ übliche eingeschränke Sorgfaltsplicht hinausgehen und
Haftung für ‘culpa omnis’ vereinbaren.’
43
Wieacker, ‘Haftungsformen’ (cit. n. 37), p. 76: ‘Diese Versuche der Urkundenschreiber, ein konkretes Haftungsmaß zu finden, geben den Gedankengängen der vorjustinianischen Schuldtheorie ein deutlicheres Relief.’
DILIGENT CARPENTERS
295
D. 19.2.25.7 (Gaius ad edictum provinciale): Qui columnam transportandam
conduxit, si ea, dum tollitur aut portatur aut reponitur, fracta sit, ita id periculum praestat, si qua ipsius eorumque, quorum opera uteretur, culpa acciderit: culpa autem abest, si omnia facta sunt, quae diligentis-simus quisque
observaturus fuisset. Idem scilicet intellegemus et si dolia vel tignum transportandum aliquis conduxerit: idemque etiam ad ceteras res transferri potest.
If a column is broken when raised or carried or unloaded by someone who
took charge of it for transportation, he will be responsible for the damage,
whether this happened through his fault or through that of any of those
whose services he employs. There is no fault, however, if all precautions
are taken which a very diligent and careful man would take. The same of
course applies, we believe, if someone agrees to transport casks or lumber;
and the same also applies to all other things.
It is true that these texts concern a legal figure different from societas.
Yet I think they are perfectly applicable in our case: we have seen above
that in the legal practice leases of land for agricultural purposes come very
closely to agricultural partnerships. Moreover, the artisans forming a
labour-partnership will accept orders from their clients under the regime
of locatio-conductio operis, and while carrying them out they will have to
provide their clients with standard dilligence of a skilled artisan. It is,
therefore, quite reasonable to put these texts next to our contracts of partnership. In their description of the standard of liability Gaius and Ulpian
used the abstract notions of ‘want of skill’ – imperitia, ‘skilled artisan’ –
artifex, and finally the most diligent man – quae diligentissimus quisque observaturus fuisset. This is culpa in abstracto, the same one that the Antinoopolitan carpenters adopted, exceeding the statutory limits of liability in regular
partnerships in the times of Justinian.44 Further on, one could easily understand why they did so. In relations with their clients they would have to
provide the standard dilligence typical for a craftsman. Default of such
would constitute a breach of contract and consequently a loss, which would
eventually befall the formed partnership. No wonder then, the partners
were keen to secure this standard for their relationship, obliging themselves to keep it in all the external relations resulting from the partnership.
44
Cf. Nörr, Die Fahrlässigkeit (cit. n. 27), pp. 190–191.
296
JAKUB URBANIK
This particular formulation of P. Cairo Masp. ii 67158 is to be found
nowhere outside the Dioskorean corpus. It may be very well so, that the
phrasing of this papyrus as well as of P. Cairo Masp. ii 67159, also characterized by distinctly more legal flavour than any clause-formats in the earlier contracts of partnerships, bring forward reminiscences of Dioskoros’
legal education. It seems even more likely as the Digest cases I have just
cited seem to be perfect school examples, designed to a comprehensive
exposition of the particular standards of liability for the students. Should
that be the case – and by no means I am trying to exceed the limits of a
mere hypothesis – we would have yet another example of our notary’s
juristic skill.45 A question remains, as always in these instances, who were
the unqualified men who taught Dioskoros his trade, which at least in this
case proved to be perhaps not as spurious as Justinian deemed it to be.46
Jakub Urbanik
Chair of Roman Law and the Law of Antiquity
Institute of History of Law
Faculty of Law and Administration
University of Warsaw
Krakowskie Przedmieście 26/28
00–927 Warsaw
Poland
e-mail: kuba@adm.uw.edu.pl
45
On this subject see, more recently P. van Minnen, ‘Dioscorus and the law’, [in:] A. A.
MacDonald, M. W. Twomey & G. J. Reinink (eds.), Learned Antiquity. Scholarship and Society
in the Near-East, the Greco-Roman World, and the Early Medieval West, Leuven – Paris – Dudley
MA 2003, pp. 115–133, and the conclusions of my studies: ‘Dioskoros and the law (on succession): lex Falcidia revisited’, [in:] Les archives de Dioscore d’Aphrodité cent ans après leur découverte.
Histoire et culture dans l’Égypte byzantine, éd. par J.-L. Fournet, Paris 2008, pp. 117–142 as well
as ‘P. Cairo Masp. i 67120 recto and the liability for latent defects in the late antique slave sales:
or back to epaphe’, JJurP 40 (2010), pp. 219–248; ‘Broken marriage promise and Justinian as a
lover of chastity. On P. Cairo Masp. i 67092 (553) and Novela 74’, JJurP 41 (2011), pp. 123–151.
46
Cf. Const. Omnem 7. … quia audivimus etiam in Alexandrina splendidissima civitate et
in Caesariensium et in aliis quosdam imperitos homines devagare et doctrinam discipulis
adulterinam tradere … – ‘as we have heard that even in the most splendid city of Alexandria and in that of Caesarea and in some others unqualified men deviate and pass spurious knowledge to the students’.