!!Экзамен зачет 2023 год / The Law of Obligations

fidepromissio in practice and has become the prototype of the modern contract of suretyship. This development provides a good example of how well-intentioned legislation, designed to achieve better protection of the debtor, can in the end defeat this very purpose. The new type of suretyship was called fideiussio and the question and answer required for its conclusion were as follows: "Quod Maevius mihi debet, id fide tua esse iubes?" "Fideiubeo."43 Fideiussio was not subject to the provisions of the lex Appuleia, the lex Furia or the lex Cicereia.44 Otherwise than in the case of sponsio or fidepromissio, the obligation was transmissible on death, i.e. the creditor could sue the heirs of a deceased fidejussor.45 Furthermore, fideiussio was not restricted to securing stipulations; it could be used to guarantee any debt, however created.46 It has been suggested that there was a further, more fundamental and structural difference between the new and the two older forms of suretyship and that this is what Gaius really had in mind when he emphasized: "Sponsoris vero et fidepromissoris similis condicio est, fideiussoris valde dissimilis":47 fideiussio, it is said, was "accessory", while sponsio and fidepromissio were not.48

III. THE ACCESSORINESS OF SURETYSHIP IN ROMAN LAW

1.Limited accessoriness of fideiussio

(a)". . . nee plus in accessione fest]"

Any discussion of the accessory nature of the Roman suretyship stipulations immediately involves the danger of superimposing modern concepts and thinking patterns upon historical legal system. Suretyship, in modern law, is an "accessory" contract,49 accessoriness indicating, in the present context, dependence, to a greater or lesser extent, of the surety's obligation upon that of the principal debtor. Both the term and the idea do, indeed, go back to Roman law, but it would, of course, be ahistorical to expect the Roman sources to conform to, for instance, the rigid conceptualization of the BGB: "The

On the notion of "fides" as part of the declarations required for "fide-iussio", see Flume, op. cit., note 42, pp. 52 sqq.

44A lex Cornelia (81 B.C.), limiting the sum for which one person could stand surety for the same debtor to the same creditor in any one year to 20 000 sesterces, did, however, apply to all three types of suretyship promises: Gai. Ill, 124.

45Gai. Ill, 120.

4(1 Gai. Ill, 119 a. 47 Gai. Ill, 118.

4 Wilhelm Girtanner, Die Burgschaft nach gemeinem Civilrechc (1850-51), pp. 20 sqq.; Flume, op. cit., note 42, pp. 64 sqq.; Schulz, CRL, pp. 495 sqq.

4У Cf. e.g. John Gilissen, "Esquisse d'une histoire comparee des suretes personnelles", (1974) 28 Recueils (op. cit., note 2) 100 sqq.; Albert Kiralfy, "History of the Law of Personal Guarantee in England since 1500", (1971) 29 Recueils (op. cit., note 2) 411 sqq., 421 sqq.; L.R. Caney, CF. Forsyth, The Law of Suretyship in South Africa (1982), p. 28; Burge,

Suretyship, p. 3.

Created with novaPDF Printer (www.novaPDF.com)

extent of the principal obligation at any time determines the obligation of the surety."50 Whilst, in fact, many of their decisions would fit in well with this definition, the Roman lawyers took a much more flexible line and never allowed themselves to be hemmed in by rigid dogmatic categories such as "accessoriness".51 Nor did they actually use that term in the modern technical sense. When Gaius says, "[n]am [sponsores et fidepromissores] quidem nullis obligationibus accedere possunt nisi verborum"52 or ". . . et horum [referring to sponsores, fidepromissores and fideiussores] obligatio accessio est principalis obligations",53 he merely describes the obligation of the surety as one which is added to that of the principal debtor. The adjective "accessorius", incidentally, was created by the glossators ("in accessione . . . id est in accessoria obligatione"). How far, then, was this "added" obligation of the fidejussor dependent upon the obligation it was designed to secure? The answer of the Roman lawyers was, in a nutshell: in so far as the structure, function and purpose of the surety's promise required. Thus, for example, the obligation of the fidejussor could not exceed the principal obligation: ". . . nee plus in accessione esse potest quam in principali re."54 If, in the framing of the fideiussio, reference had to be made to the main obligation, it is hardly imaginable how the surety could be made to promise "eadem quindecim quae Maevius debet", where Maevius in fact only owed decern. On the other hand, the surety could be liable for less than the main debtor, for if the latter owed ten, he would in any event and by implication also owe the five which the surety might have made himself liable for: minus in maiore inest.55 Generally speaking, one can say that the surety was not to be liable more strictly than the main debtor. Suretyship is a way of ensuring that the creditor gets what the debtor owes him; where the debtor does not owe anything, the third party cannot really be said to stand surety. This type of reasoning can also be applied, for instance, to conditional promises:56 where the main obligation was conditional, the fideiussor could not be made to promise unconditionally. Yet it was perfectly possible to secure a promise that was not itself subject to a condition, by means of a conditional fideiussio.57

50 § 767; cf. already the pandectist writers, e.g. Girtanner, op. cit., note 48, pp. 402 sqq.

э1 Cf. e.g. Ernst Levy, "Principal and Surety in Classical Roman Law", (1951) 14/15 BIDR 217: "No doubt, the liability of the fideiussor was accessory, i.e. dependent in some way upon the principal's obligation. How far, however, this dependence made itself felt, is another matter."

52Gai. Ill, 119.

53Gai. Ill, 126.

54Gai. Ill, 126.

55Cf. supra, p. 74 (note 39).

36 As Justinian put it: "Non solum enim in quantitate, sed etiam in tempore minus et plus intellegitur" {Inst. Ill, 20, 5). 57 Cf. Inst. Ill, 20, 5.

Created with novaPDF Printer (www.novaPDF.com)

(b) The availability of the debtor's exceptions

Similar considerations seem to have been relevant in determining whether the fidejussor could avail himself of the exccptiones which the debtor was entitled to raise. This problem crops up in a variety of texts. Cclsus D. 12, 6, 47 provides an example:

"Indebitam pecuniam per errorcm promisisti: cam qui pro te fideiusserat solvit. . . .

sijn autem] fidejussor suo nomme solvent quod non debebat, ipsum a stipulatore repcterc posse, . . . . "5)*

Macvius (the main debtor) promised, by mistake, to pay what he did not in actual fact owe. Seius stood surety for this promise. In order to discharge his suretyship obligation, Seius then paid the money to Titius (the creditor). As л consequence of the mistake, Titius is unjustifiedly enriched. The question is, however, whether Seius or Maevius can institute the condictio indebiti.54 On the one hand, one may argue that Seius has paid a debitum; thus, he can sue Maevius only for reimbursement, and it is up to the latter to claim the unjustified enrichment back from Titius. Celsus opines otherwise: Maevius could have raised an exceptio doli should Titius have tried to sue him. The same exceptio was available to Seius, who, in honouring his obligation arising from the fldciussio, has paid something he did not have to pay—an indebitum which he will now be able to claim back himself. A similar view is expressed in many other sources.60 But it would be rash to accept the generalizing statement by Marcianus (D. 44, 1, 19): "Omnes exceptiones, quae reo competunt, fideiussori quoque etiam invito reo competunt" at face value. 1fa debtor became insolvent owing to misfortune, he was able to avoid the harshness of personal execution by way of cessio bonorum, i.e. by ceding his property to the creditors.61 Once he had done that, he could bar further claims with the exceptio nisi bonis cessent. Defences of this kind, which were based on certain snags pertaining to the person of the main debtor, rather than the principal obligation, could not be raised by the fideiussor: ". . . ideo quia, qui alios pro debitore obligat, hoc maxime prospicit, ut, cum facultatibus lapsus fuerit debitor, possit ab his quos pro eo obligavit suum consequi."62 But if the fideiussio was designed to protect the creditor against exactly this type of eventuality, it was certainly not intended to provide him with a sum of money which the principal debtor had promised only by mistake and which he was therefore

5K This text is discussed by Fritz Schulz. "'Condictio indebiti' und die Accessor!etat der 'sponsio' und 'fideiussio' (D. 12. 6. 47.)", (1952) 3 Iura 15 sqq. and Max Kaser, "Celsus D. 12. 6. 47 und die Akzessorietat der Burgschaft", in: Festgabe fur Arnold Herdliti'zka (1972), pp. 143 sqq.

"^ The most important of the unjustified enrichment claims. For details, see infra pp. 848 sqq.

'■"Cf. e.g. Ulp. D. 17, 1, 29 pr.; Pap. D. 46, 1, 49 pr.; lui. D. 46. 1, 15 pr.; Ulp. D. 36.

4, 1 pr.

(l1 Kaser, RZ, pp. 316 sq. ('2 Inst. IV, 14, 4.

Created with novaPDF Printer (www.novaPDF.com)

entitled neither to receive nor to retain. This is the underlying policy reason for Celsus' decision discussed above;63 to sue the surety while the main debtor can raise the exceptio doli is in itself a breach of good faith which may, in turn, be met with an exceptio doli.

(c) invalidity of the principal obligation

If the principal obligation was invalid (perhaps because it was illegal or immoral), a contract of suretyship could not be validly created either, for there was nothing to secure. The position was different in the case of a naturalis obligatio: where a ward or woman had incurred an obligation sine auctoritas tutoris, a fideiussio undertaken to secure his or her (natural) obligation was valid and enforceable.64 Again, the "snag" about the principal obligation related to the person of the main debtor, and it did not run counter to the function of suretyship to afford coverage for the creditor in these cases: the surety is supposed to secure the creditor against any inability on the part of the debtor to pay his debt, whatever the reason. The same principle applied where somebody had stood surety, for instance, for the obligation of a slave.65 By the same token, the surety's obligation normally66 expired when the principal obligation came to an end. Thus, where the debtor had paid what he owed, or where he had been released by acceptilatio, where his obligation was discharged by novatio or where, for example, the creditor became his universal successor (confusio), the fideiussor automatically became free too.67 Problems could arise where fulfilment of the principal obligation had become impossible through no fault of the principal debtor: both principal debtor and fideiussor were free. This was the situation even if the fideiussor had been responsible for the fact that the debtor had become unable to render performance. If, for instance, Seius (the surety) killed the slave that Maevius (the principal debtor) had promised to deliver to Titius, Maevius' obligation was discharged and, as a consequence, Seius' obligation fell away as well. This result was, of course, intolerable and thus we find the praetor granting either an actio utilis or an actio de dolo against the fideiussor.68

*'3 Kaser, Festgabe HerdUtczka, pp. 154 sqq.

' Gai. Ill, 119 a. As far as the example of the woman or ward is concerned. Gains conhncs his statement (III, 119) to sponsio and fidepromissio; it is very unlikely, however, that stipulations of these persons, incurred without auctoritas tutoris, should have provided a sufficient basis for sponsio and fideprornissio, but not for fideiussio; here it did not even matter whether the woman or ward had engaged (sine auctoritas tutoris) in a stipulation (cf. esp. Francesco dc Martino, Legaranzie personali deU'obbligazione 1 (1940), pp. 86 sqq.; Frezza, Garatizie, vol. I, pp. 43 sqq.). In late classical law they were regarded as naturales obligationcs: Pap. D. 46, 3. 95, 4; Ulp. D. 46, 2, 1, 1.

65 Gai. Ill, 119 a.

1For exceptions (based, again, on the creditor's security interest), see Kaser, RPr 1, p. 664, n. 44; Buckland/Stein, p. 446. n. 1.

67Schulz, CRL, pp. 500 sq.

68 Ner./Iul ./Pap. D . 4 , 3 . 19; Paul . D . 45, 1, 49 pr.; Flume, op. c i t . . note 42, pp. 105 sqq.; Fre zz a, Ga ran zie , vol . I , pp. 87 sqq.

Created with novaPDF Printer (www.novaPDF.com)

All in all, therefore, one can conclude that the obligation of the fidejussor was dependent upon that of the main debtor, but only in a limited way/'9 Thus, to characterize fideiussio as "accessory" is safe only as long as it is kept in mind that one does not thereby describe the precise nature and scope of all legal effects involved.7"

2. Sponsio and fidepromissio

If, then, the first part of the above-mentioned proposition (fideiussio was accessory) can be maintained only cum grano salis, the other half is open to far more serious criticism. The opinion that sponsio and fidepromissio were not "accessory" to a principal obligation, but independent, is based on far-reaching interpolation hypotheses, supported, in some instances, by large-scale rewriting rather than careful reconstruction of the available sources.71 The main problem is that very little direct evidence is available, for sponsio and fidepromissio had already disappeared as living institutions soon alter the end of the classical period.72 By the 6th century they had become totally obscure. Justinian, therefore, systematically removed sponsores and fidepromissores from the classical sources and substituted the fideiussor in their place. Thus, while we certainly have to expect a certain degree of corruption in our texts dealing with suretyship, it is hardly justified to relate whatever does not seem to tie in with the idea of accessoriness in our sources to the older sponsio/fideprornissio layer of the law. Both sponsio and fidepromissio were certainly not accessory in any strict or dogmatic sense of the word,73 but they were also, in all likelihood, no more independent of the main obligation than fideiussio was.74

IV. IDEM DEBITUM

1. The classical principle of "Konsumptionskonkurrenz"

One further very important aspect was common to sponsio, fidepromissio and fideiussio (even though that has also been disputed). The surety promised "idem" or "id quod Maevius mihi debet". As a result, he and the main debtor owed the same; their obligations were

M Kascr, RPrl, pp. 661, 663. 70 Levy, (1951) 14/15 RIDR 217.

1 An example of this method is the restoration of the Celsus text (D. 12, 6, 47, discussed supra, p. 123) by Schulz. (1952) 3 Lira 18. Contra: Kaser, Festgabe Herdlitczka, pp. 143 sqq.,

146sqq.

-Levy, Obligationenrecht, pp. 196 sqq.

■ Cf. Gai. Ill, 119: ". . . inierdum ipse qui promised t non fuerit obligat us, velut si mulier aut pupilhis sine tutoris auctoritatc. aut quilibet post mortem suam, dari promiserit. at illud quaeritur, si servus aut peregrinus spopondent. an pro eo sponsor aut hdepromissor obligetur."

Robert Feenstra, "Le caractere accessoire des differents types de cautionnement 'verbis' en droit romain classique", in: Etudes offertes a Jean Macqueron (1970), pp. 301 sqq.; Kaser,

Festgabe Herdlitczka, pp. 154 sqq.

Created with novaPDF Printer (www.novaPDF.com)

considered eadem res." From the point of view of the creditor, this entailed a certain risk relating to the enforcement of his claim. For reasons of procedural economy and respect for the judicial function, nobody was allowed to come to court more than once in the same matter: bis de eadem re agere non liceat76 had been the hallowed rule since the days of the legis actiones. The key moment was litis contestatio; once this joinder of issue had taken place, the action was consumed77 and any attempt to institute a second trial would (as tar as iudicia legitima in personam with a formula in ius concepta were concerned)78 have been met by denegatio actionis.79 If, therefore, the actions against main debtor and surety were identical with respect to both their causa and their objective, any action brought against the one automatically made the other's obligation fall away too: not only did litis contestatio with the main debtor destroy the obligation of the surety (that could possibly still have been explained on the basis of the "accessoriness" of the latter)80 but litis contestatio with the surety also extinguished the obligation of the main debtor.81

Thus, the creditor had to be careful about whom he chose to sue. Once, for instance, he had brought his action against the main debtor without being able to obtain full satisfaction, he was barred from suing the surety. The concurrence of actions, as Levy82 has put it, was determined in the sense of reciprocal process consumption ("Konsumptionskonkurrenz").

2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"

To any modern lawyer this must seem rather strange.83 The Romans, however, can hardly have considered these effects of litis consumptio as

5 Cf. e.g. Levy, Konkurrenz, vol. I, pp. 190 sqq.: Liebs, Klagenkonkurrenz, p. 250. 76 Quintilianus, Declamations, 226; cf. Levy. Sponsio. pp. 48 sqq.; Kaser, Altromisches ius, pp. 115 sqq.

Hence the old saying (Gai. III. 180): "Ante litem contcstatam dare debitor oportet, post litem contestatam condemnari oportet, post condemnationem iudicatum facere oportet." For a discussion, see Detlef Liebs, "Die Klagenkonsumption des romischen Rechts", (1969) 86 ZSS 169 sqq.

78 Gai. Ill, 180 sq., IV, 106 sq.; in the case of all other actions, consumption was effected by granting to the defendant the exceptio rei ludicatae vel in iudicium deductae.

As to the barring effect of litis contestatio. cf. Kaser, RZ, pp. 229 sqq.; Buckland/Stcin, pp. 695 sqq.; cf. also supra p. 61, note 195.

1 This is the Hue of argument adopted by William Warwick Buckland, "'Principal and Fideiussor. Consumptio litis", (1941) 53 juridical Review 281 sqq.

But see Buckland, (1941) 53Juridical Review 281 sqq., who disputes eadem res as far as fideiussio vas concerned. His view, shared e.g. by Schulz, C.RL, p. 501, has been refuted by Ernst Levy, "Principal and Surety in Classical Roman Law", (1951) 14/15 BIDR 207 sqq.; cf. also Fr'zza, Qaranzie, vol. I, pp. 129 sqq. Schulz, incidentally, comes to the same conclusion for sponsio and fidepromissio (p. 497); if the creditor sued the principal debtor, so he argues, the obligation of the sponsor/fidepromissor remained intact. This is a consequence of his view that sponsio was not accessory. 82 Konkurrenz, passim. нз According to Liebs, Klagenkonkurrenz, pp. 183 sq., 251, 252 sq., the reciprocal process

Created with novaPDF Printer (www.novaPDF.com)

unbearable in practice.84 There were ways and means for creditors to avoid them: in place of fideiussio they could have used the manda turn credendae pecuniae for: qualificatum) in order to obtain a surety;85 and the promissio indemnitatis,86 as Levy87 has pointed out, was invented for the very purpose of thwarting litis consumptio. Yet, fideiussio remained the central suretyship institution. Even in post-classical vulgar law the principle of reciprocal process consumption was faithfully retained,88 although by now the bipartite formulary procedure had fallen into disuse and litis contestatio had consequently lost its technical significance. With these changes, as far as the procedural background was concerned, the time was now ripe to adopt a more rational approach. The decisive step was eventually taken by Justinian:

"Generaliter sandmiis, quemadmodum in mandatoribus statutum est, ut contestationc contra unum ex his facta alter non liberetur, ita et in fideiussioribus observari. Invenimus enim et in fideiussorum cautionibus plerumque ex pacto huiusmodi causae esse prospectum, et ideo generali lege sancimus nuUo modo electionc unius ex fideiussoribus vel ipsius rei alterum liberari, vcl ipsum reum fideiussoribus vel uno ex his electo liberationem mereri, nisi satisfiat creditori, sed manere ius integrum, donee in solidurn ei pecuniae presolvantur vel alio modo satis ei fiat."8'-*

Here, the barring effect of litis contestatio was relinquished between surety and principal debtor as well as between several co-sureties: both principal and sureties were now to be liable until payment was rendered or until the creditor had otherwise obtained full satisfaction. Thus, process consumption had been replaced by what one could call a principle of concurrence of solutiones (satisfaction consumption, "Solutionskonkurrenz"): the actions concur in the sense that it is no longer litis contestatio with regard to the one, but rather solutio, that makes the creditor lose the other. The same reform, incidentally, was

consumption in classical Roman law was a relic from the days when personal execution held sway. Where personal liability was the ultimate and only consequence, it did not matter that all other (security) rights fell away once proceedings had been instituted: execution was always possible and could never turn out to be unsuccessful (because ot insolvency).

84Cf. Buckland, (1941) 53 Juridical Review 285.

85Cf. infra, pp. 139 sqq.

86"Quanto minus a Titio debitore exegissem, tantum dari spondes?" (c{. LJip. D. 46, 2, 6 pr.); sec Levy, Sponsio, pp. 149 sqq.; Frezza, Garanzie, vol. I, pp. 136 sqq.; Rolf Knutel, "Zur Frage der sog. Diligenzpflichten des Glaubigers gegenuber dem Burgen", in: Festschrift fur Werner Flume (1978), vol. I, pp. 568 sqq.

87(1951) 14/15 BIDR 216.

m Cf. e.g. Gai. Epitome II, 9, 2: "Creditor autem, qui pecumam dedit, in potestate habet ad reddendam pecuniam, quern velit tenere, utrum ipsum debitorem an fideiussorcm. Sed si debitorem tenere clegerit, fideiussorem absolvet: si vero hdeiussorem tenuerit, debitorem absolvet; quia uno electo, quern idoneum creditor iudicavit, alterum liberat"; Levy,

Obligatiotienrecht, pp. 199 sqq.

8У C. 8, 40, 28 pr. and 1. This reform, according to Justinian, had been prompted by an increasingly popular practice of the parties to set aside the effects of litis consumptio by special agreement: "Si cnim pactis conventis hoc fieri conceditur et in usu quotidiano semper hoc versari adspicimus, quare non ipsa legis auctoritate hoc permittatur, ut nee simplicitas suscipientium contractus ex quacumque parte possit ius creditoris mutilare?" (C. 8, 40, 28, 3). Cf. Levy, Obligationetirecht, pp. 204 sq.

Created with novaPDF Printer (www.novaPDF.com)

carried out with regard to plures rei promittendi,90 the closely related prototype of a situation where two or more persons were liable for eadem res.yi Over and above this, all the other instances in which a plurality of debtors lead to joint obligations92 had to be brought in line with this new approach. Hence, Justinian faced the formidable task of eliminating litis consumptio, across the board, from all the texts he intended to incorporate into the Digest as well as the Codex.93 Inadvertently, however, he left a number of the classical texts unchanged.94 And as in some instances—especially as far as bonae fidei iudicia were concerned—the classical jurists had already abandoned process consumption in favour of concurrence of solutiones,95 the most dramatic confusion was bound to arise as soon as legal writers set themselves the task of constructing a logically consistent doctrinal building on the basis of the Roman sources—on the basis, that is, of a veritable heap of ruins.96

3. Correality and solidarity

This is exactly what happened, however, in the course of the 19th century. A distinction was drawn between (simple) solidarity97 and correality:98 the term "solidarity" was used to indicate two (or more) obligations directed to one and the same juristic end, but not identified, and thus extinguished only by solutio; correality, on the other hand, was taken to refer to the concurrence of two (or more) obligations which were objectively identified so as constructively to form one, the liability of correi falling away as soon as litis contestatio with one of them had taken place. Fideiussor and main debtor, for example, in these terms were related to each other in the form of correal liability (as were plures rei promittendi). As far as the basis for this distinction was

90C. 8, 40, 28, 2. As to the structure of the whole enactment contained in C. 8, 40, 28 (pieced together in various stages), cf. Fritz Schulz, "Interpolationen in den Justinianischen Reformgesetzen des Codex Justinianus vom Jahre 534", in: Studi in onore di Pietro Bonjantt, vol. I, pp. 357 sqq.; Liebs, Klagenkonkurrenz, pp. 38 sqq.; c{. further Giuseppina Sacconi,

Studi sulle obbligazioni solidali da contralto in diritto romano (1973), pp. 4 sqq.

91Cf. supra, p. 118.

92Overview in Kaser, RPr I, p. 657; Sacconi, op. cit., note 90, pp. 51 sqq.

93Cf. e.g. the interpolations discussed by Liebs, Klagenkonkurrenz, pp. 60 sqq.

1)4 Cf. e.g. Paul. D. 11, 1, 8 (Liebs, Klagenkonkurrenz, pp. 71 sq.) and the references in Kaser, RPr I, p. 658.

95 Pap. D.46, 1,52, 3; lui. D. 26,7, 18, l;Ulp. D. 16,3, l,43;Ulp. D. 13, 6,5, 15; Liebs, Klagenkonkurrenz, pp. 184 sqq.; Sacconi, op. cit., note 90, pp. 51 sqq.

9 Jors/Kunkel/Wenger, p. 210 ("Fur das klassische Recht haben wir ein Trummerfeld vor uns. Die justinianischen Kompilatoren haben tiefgreifende Interpolationen vorgenommen und durch Spezialgesetze neue Grundsatze eingefiihrt, aber einen einheitlichen, in sich gefestigten Neubau nicht zu schaffen vermocht").

97 Each of the several debtors is liable for the whole ("in solidum"); hence the term "solidarity".

9H This term has been derived from "correus" (conreus), which, however, appears only once in our sources (Ulp. D. 34, 3, 3, 3).

Created with novaPDF Printer (www.novaPDF.com)

concerned, the sheer quantity of literature" that came to be produced was equalled only by its absolute barrenness. Rudolf von Jhering referred to the correal obligations as a legal figure "possessed with a truly demoniacal obstinacy",100 and the refined and esoteric levels of analysis to which they were elevated is probably the most striking example of what he described in the following terms:

"Then there arise opinions and theories which can maintain their life only in the place where they received the same, to wit, in the lecturer's chair, but which, if they venture into the outside world, at once prove that they cannot bear the raw air of reality; opinions . . . in the highest degree learned, but also in the highest degree perverted—hot-house plants without sap and energy, bastards of logic and erudition with law, unsound lecture-room jurisprudence."101

It was pandectism at its worst.102 Today, such theorizing in terms of "solidarity" and "correality" should be avoided, not only for the reasons given by Jhering but also because it would be an entirely ahistorical enterprise. The Roman lawyers neither knew this terminology nor were they concerned with abstract analyses concerning the conceptual nature of the various cases of plurality of debtors.

V. THE TRIPLET OF PRIVILEGES AVAILABLE TO THE FIDEIUSSOR

1. Beneficium excussionis vel ordinis

C. 8, 40, 28 paved the way for another reform regarding fideiussio. In Novellae 4, 1 we read:

"Si quis igitur crediderit et fideiussorem . . . accepcrit: is non primum adversus . . .

fideiussorem . . . accedat, . . . sed veniat primum ad eum qui . . . debitum . . .

contraxir. Et si quidem inde receperit, ab aliis abstineat."

With this enactment103 the liability of the surety became subsidiary: the fideiussor could avail himself of a defence (later on called beneficium

99Starting with F.L. Keller, Ueber Litis Contestation und Unheil nach dassischetn Romischem Recht (1827), and Georg Julius Ribbentrop, Zur Lehre von den Correal-Obligationen (1831); cf. further Windscheid/Kipp, § 292, pp. 197 sq. They quote a statement from 1829 ("Es ist . . .

nicht leicht uber irgend einen anderen Hauptpunkt des romischen Rechts die Literatur so durftig, wie uber diesen") and comment, somewhat sarcastically: "Mancher mochte wohl diesen Zustand zuruckwunschen" (Not easily will one find another main problem in Roman law about which the literature is equally scarce; many a one would probably desire the return of this state of affairs).

100Scherz und Ernst in der Jurisprudenz (13th ed., 1924), p. 8.

101Jhering, Geist, vol. II 2, p. 324 (as translated by J. Kerr Wylie, Solidarity and Correality (1923), pp. 5 sq.). Cf. also, again, Rudolf von Jhering, Scherz und Ernst, op. cit., note 100, p. 9: "A juristic writing which fundamentally ignores the practical application of its subject! a cunningly constructed watch which is not intended to go!"

102For a new version of pandectism, namely exclusive emphasis on doctrinal consistency (even at the expense of extensive reconstruction of the sources), see J. Kerr Wylie, Solidarity and Correality (1923).

~On its history cf. Schindler, Justinians Haltung zur Klassik, pp. 36 sqq.

Created with novaPDF Printer (www.novaPDF.com)

excussionis vel ordinis)104 which lasted until the creditor had brought action against the principal and execution under the resulting judgment had proved to be abortive; if the debtor was absent, the fideiussor could ask the praetor to be granted some time within which to produce him. It is obvious that a regulation such as this had not been conceivable at a time when litis contestatio still had its barring effect: it would have made suretyship practically worthless. Thus, indeed, throughout the classical period and up to the time of Justinian, the debtor and his surety were liable on an equal footing and not the one only if satisfaction could not be obtained from the other:105 in other words, the creditor was free to choose whom of the two he wanted to sue first. And yet, this statement has to be qualified to a certain extent: it is correct, as far as the strictly legal side of things was concerned; in actual practice, however, the surety was what he was (arguably) only intended to be, namely a subsidiary debtor. Public policy and well-established business morals required the creditor to approach the debtor first (out of court, obviously) and turn against the surety only as a last resort: "Non enim aliter salvo pudore ad sponsorem venit creditor quam si recipere a debitore non possit."106 To sue the surety when the debt was fairly easily obtainable from the "principal" debtor was regarded as offensive and whoever did this could become liable under the actio iniuriarum: not for having behaved improperly towards the surety but for having insulted the "principal" debtor; "[s]i creditor meus, cui paratus sum solvere, in iniuriam meam fideiussores meos interpellaverit, iniuriarum tenetur."107 The Romans were somewhat touchy in pecuniary matters, especially as far as their creditworthiness was concerned;108 and even though gossip may no longer have been as important in the Augustan metropolis as in the country town of the times before the Punic wars,109 the mere fact that the creditor had, by implication, not considered the debtor to be able to honour his debt was enough seriously to jeopardize the reputation and social status of the latter. Whether animus iniuriandi (i.e. the intention to embarrass the debtor by proceeding in the way he

104 "Excussionis" from "excutere", in the sense of bringing action and attempting execution against one debtor before another debtor could be sued; "ordinis" because an order was established in which the creditor had to pursue his remedies. Cf. e.g. Burge, Suretyship, pp. 332 sq. Sometimes, too, the term "benefidum discussionis" is used.

l l b Unless the suretyship stipulation had been drafted accordingly; cf. e.g. lui. D. 46, 1, 16, 6 (fideiussio indemnitatis).

' Quintilianus, Dedamationes, 273. Cf. also Cicero, Epistulae ad Atticum, 16, 15, § 2, and, generally, Levy, Sponsio, pp. 41 sqq. The Cicero text, incidentally, has recently been subjected to a detailed analysis by Berthold Kupisch, "Cicero ad Atticum 16, 15, 2", (1979) 96 ZSS 43 sqq.; it provides the basis for his argument that litis contestatio was not an essential element of classical formulary procedure. The traditional doctrine has, however, in the meantime, been reasserted by Max Kaser, "Cicero 'ad Atticum' 16. 15. 2. Formularprozcss ohne 'litis contestatio'?", in: Sodalitas, Scritti in onore di Antonio Guarino, vol. VII (1984), pp. 3151 sqq.

107Gai. D. 47, 1U, 19. Cf. further Ulp. D. 47, 10, 15, 32 sq.; Mod. D. 47, 10, 20.

108Cf. e.g. Kelly, Roman Litigation, p. 21.

109Cf. Schulz, CRL, p. 496.

Created with novaPDF Printer (www.novaPDF.com)