You break it, you’ve bought it…

By skepticlawyer

… or the really disturbing origins of performance contracts:

A text with which those of us who teach Roman law like to tease our students is Gaius, Institutes, 3.146. Gaius poses to his students what appears to be a hypothetical problem. If I provide gladiators to you on the understanding I get 20 for each who come unharmed and 1,000 for those who are killed and maimed, is this lease or sale? He says the received opinion is that it is lease of those who return and sale of those killed or maimed. Events determine the result: it is either a conditional sale or lease of each.

This text has generated much discussion, which I shall ignore. But your blogger’s colleague, Dr Paul du Plessis, has posited an elegant solution to this conundrum in his new book, Letting and Hiring in Roman Legal Thought, 27BCE-284CE (Leiden/Boston: Brill, 2012), at pp. 106-8. He points out that contracts for gladiators were for a show and that the Lanista (the owner, agent or venture capitalist) was not letting out the enslaved gladiators under a contract to let a res, but rather was contracting to provide gladiators to put on a show: it was a contract for the performance of a task, a contract for operae.

Some terms: res means ‘thing capable of being owned’ – animal, vegetable or mineral, including land (the mercantile Romans drew far fewer distinctions between realty and chattels than is traditional at common law). The person with whom the lanista — a truly revolting noun impossible to translate into English; suffice to say it is a compound of lanius (butcher) and leno (pimp) — would be contracting was the editor. For those with no classics background, the editor was the ‘gamesmaster’ or… Seneca Crane in The Hunger Games. ‘Operae’ means ‘work’, and like the English, the Romans divided paid employment into operae illiberales and operae liberales. Practitioners of the former, of course, used the tradesman’s entrance.

The lanista engaged in trade, while the editor enjoyed professional status.

Oh, trade. But the lanista would aspire for his children to go — often via citizenship — into the City.


  1. Posted May 21, 2012 at 8:32 pm | Permalink

    Ah, those Romans; such a direct and practical folk.

    (Said he, who has just observed four splendid examples of Roman trade amphora piled up in the courtyard of a C13th castle built by Stupor Mundi himself.)

  2. kvd
    Posted May 22, 2012 at 1:14 pm | Permalink

    SL I found your Gaius reference here when I was trying to figure out “20 or 1000” what, but I thought you might like to review the major collections full texts listed by this organisation.

    You probably have an alternative source for them, but I find it interesting.

  3. Posted May 22, 2012 at 3:51 pm | Permalink

    I didn’t know Liberty Fund had started providing the Roman jurists – that’s good news. I go to one of their conferences every couple of years (one coming up in November, in fact), and they are terrific for supplying the whole ‘Online Library of Liberty’ to people free of charge on a DVD.

    I should have silently inserted ‘denarii’ into that translation (provided by Edinburgh Uni), yes, sorry about that. The denarius was the silver coin of the Roman world, and the one we find most commonly in archaeological digs. For most of the empire’s history it was maintained at 80% silver content, but during the Crisis of the Third Century was devalued, which meant the Romans had a meaningful encounter with both inflation and Gresham’s law.

    Just on the translation issue, Gaius is discussing the point at which the contract is being reduced to writing (the Romans, like the English, had the parol evidence rule, but no Statute of Frauds). Not every editor-lanista contract would have had those terms, although what Gaius discusses is a legally ingenious solution to that sort of problem. Clearly some good legal draftsmen running around the Roman world, albeit dealing with some fairly repellent cultural practices…

  4. Patrick
    Posted May 22, 2012 at 6:15 pm | Permalink

    You’re such a Christian harpy SL, always with the moralising and what-not 😉

  5. Posted May 22, 2012 at 6:56 pm | Permalink

    *chuckle*, Patrick.

    The Romans are at least a wonderful corrective to the pablum (currently engaged in by no less a figure than Deirdre McCloskey, who really should know better) that free market societies with a large middle class are inevitably less cruel and more democratic. They were far more mercantile than any society after them until the 18th century. ‘Capitalism without factories’ as du Plessis (the scholar quoted in the article) says.

  6. Ripples
    Posted May 25, 2012 at 6:46 am | Permalink

    The whole idea was an excellent way to avoid those nasty employment law issues except there were some problems when Sparticus developed a fairly robust union movement.

  7. kvd
    Posted May 27, 2012 at 3:32 am | Permalink

    SL in anticipation of a chit chat thread I thought you might like to exercise your analytical skillz with this interactive mapping of Roman communication routes. Takes two minutes to understand, but then you can investigate the various options and costs in, say, travelling from Roma to Londinium – both seasonally and with many different transport options – military march, oxcart, etc..

    More interesting than your average vehicle satnav 😉

  8. Posted May 27, 2012 at 4:38 pm | Permalink

    Yes, there’s some splendid economic history and modelling in that. I posted the link on Facebook after being alerted to it by an Oxford classics friend – which caused quite a few of my friends to waste a great deal of time…

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