The past is a different country
Roman law, contract damages and the right side of history
Recently, I wrote a piece for the University of Melbourne’s Pursuit online magazine, describing how I’d ended up researching the history of contract damages, from Roman law onwards. I was particularly interested in principles of “remoteness”. Generally, a defendant has to compensate a plaintiff for losses suffered as a result of what has occurred. This is an ancient principle in many different legal systems.
But is there a point when the defendant should no longer have to pay for the consequences? The law says that there is such a point, and from that moment onwards, in Anglo-Australian law, the loss is said to be too “remote” from the breach for the defendant to have to pay for it.
Maybe it’s easier if I use an example. Let’s say I’m in the business of making wine. I make a contract with you, where you agree to provide me with green grapes. Instead, you provide me with red grapes: that’s a breach of contract. As a result, I can no longer make my fine riesling wine. Many things result from your failure to supply me with green grapes. I can’t supply my customers with riesling. I’m so distressed by this that I become extremely depressed, and start drinking (wine is on hand, after all). I drunkenly crash my car, and break my leg. I’m put in gaol for drunk driving. I fail to pay the mortgage installments, and my house gets repossessed…
To what extent should you, as the person who failed to supply me with green grapes, have to pay for all of those consequences? On one level, none of these things would have happened if you hadn’t breached your contract. But on another level, you might think that you shouldn’t have to pay for all of these things. There has to be a point where you’re not responsible for all that has happened to me. That’s why remoteness principles exist for contract damages.
I’ll leave you to read the Pursuit article to discover how these principles evolved. However, I didn’t have room in the article to discuss how eerily familiar Roman law is, but also how very different and disturbing it is at other times. Warning: this post will now discuss slavery.
Let’s look at what the Roman jurist Paulus says about damages for the Roman actio empti (the action allowing a buyer in a contract of sale to recover losses for breach from the seller).1 He starts out with the example of someone who makes wine, just as I have:
When the seller is responsible for nondelivery of an object, every benefit to the buyer is taken into account provided that it stands in close connection with this matter. If he could have completed a deal and made a profit from wine, this should not be reckoned in…
So far, so good, right? Under this rule I can’t get the profits lost if you sell me the wrong grapes. Parenthetically, the Roman law rule seems to have been more complex than this, because, in a different passage, the jurist Ulpian seems to suggest that things would be different where the seller had knowledge of any defect in the goods.2 Again, the examples used by Ulpian are entirely familiar to the modern lawyer: defective timber and diseased cows.
Clearly, lawyers have been using hypothetical bargains to illustrate principles for millennia. And, as I discuss in the Pursuit piece, the moral underpinnings of the rules which govern limitations upon liability for damages seem to have salience in different times and different cultures. Many cultures and peoples have a notion that there should be a point where a defendant doesn’t have to pay for the loss.
However, Paulus continues his description of the law with another example, stating that damages for the Roman actio empti are also unavailable in other circumstances:
…if [the buyer] buys wheat and his household suffers from starvation because it was not delivered; he receives the price of the grain, not the price of slaves killed by starvation…
When I first read this, I felt a little jolt of shock, as if I’d accidentally touched a live wire. Here was a reminder that, while we may share some notions of justice with the Romans, we are also very different. There’s no moral discomfort present in Paulus’s example, with the starvation of the slaves. The question is simply whether the defendant should have to pay for this outcome.
As it happens, I know about the Roman laws governing ownership of both animals and people, as I’d researched this in detail for Guilty Pigs. The Roman laws governing slavery were very complex, and detailed both how people could become slaves (by sale of children, punishment, capture or by birth) and how people could be freed from slavery.3 Unlike some other forms of slavery, Roman slavery was not imposed on a particular ethnic or racial group, and former slaves could become full citizens, with some proudly detailing their manumission on their gravestones.
However, all slavery is offensive to modern eyes, because it denies a person dignity and self-determination. I am a child of the modern age. I will always have a horrified jolt of shock at the very notion.
When I undertake historical and comparative research, I start to wonder about contemporary calls to be ‘on the right side of history’. I know exactly why people make these calls: they’re appealing precisely because, if we are decent moral people, we want to ensure that our actions do not cause further injustice, and we also want people to think well of us.
On the other hand, a person who is absolutely convinced that he or she is on the right side of history can be terrifying and unjust. Various genocides have been motivated by the need to eliminate those who raise questions about the progression towards a better, utopian future. Sometimes, I wonder if we should be most scared of moments when we feel moral certitude that everything we do will ultimately have beneficial consequences.
One of the fundamental lessons to be learned from remoteness principles is that there are limits to human foresight, and limits to the predictability of what will occur when we commit wrongdoing. This point can be extended more broadly. How can I know how people of the future will judge me? I can’t even know what the full consequences of a breach of contract will be.
I very much doubt that the Roman jurist Paulus foresaw that I would be morally repulsed by the legal example he furnished, of starving slaves. It seems to me that I can only act according to current information and moral principles, and do the best I can, realising that consequences are unpredictable, and the future is unknowable. I cannot know how history will judge me, or even if it will remember me at all.
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The Digest of Justinian, Vol 2 (English language translation edited by Alan Watson) (1998), Paul, Edict, book 33, para.18.104.22.168.
Ibid, Ulpian, Edict, book 32, para.19.1.13.pr.
See Paul du Plessis, Borkowski’s Textbook on Roman Law (Oxford: Oxford University Press, 2019, 6th edn), my go-to text on all things Roman law.