Ars boni et aequi PDF

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Ars boni et aequi (the art of knowing what is good and just)

I.

Transaction of the business of others

Concerning the transaction of the business of others (Negotiorum gestio): many totally different types of activity in another person’s interest. Civil law still keeps defending the necessity of the negotiorum gestio. Common law is said to not recognize a doctrine of negotiorum gestio. It this sense civil law seems to be more humanitas-oriented and common law more “individualistic”. Even though common law accepts a big variety of cases where agency for others is recognized. For instance, the principle that those who rescue persons or property from the perils of the sea should be rewarded. (ZIMMERMANN, 449) D. 3.5.9.1 Ulpianus, On the Edict, Book X. Primus is the owner of a building in Rome. Because of an urgent business he had to travel to Naples. During the time Primus was away the house seemed to be a risk to collapse. A friend of Primus – Secundus – ordered the reparation of the house and payed the salary of the workers. After finishing the reparation of the house it was burned by a big fire in the whole city. When Primus came back Secundus demanded reimbursement of the money.1

 Labeo (times of Augustus) he has the right to demand the reimbursement.  Celsus (praetor 106) necessary for the head of the household (pater familias).  Julianus (Edictum Perpetuum 130) in an advantage, even if the general result was not beneficial.  Ulpianus (+ 228) he thought he was acting advantageously, but he was wrong: no right to demand reimbursement.

1

Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient if he conducted the business properly even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also adopted; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus very properly (eleganter) ridicules this opinion; for he states that the party who transacts business in a suitable manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household (pater familias). What Julianus wrote is applicable where he who repairs a house or cures a sick slave is entitled to an action based on business transacted, if what he does is an advantage, even if the general result was not beneficial (si utiliter hoc faceret, licet eventus non sit secutus). I ask what must be done if he thought he was acting advantageously, but it did not profit the head of the household (pater familias)? I say that he will not be entitled to an action based on business transacted, for the beginning ought to be advantageous, even though we do not consider the result.

II.

Ius est ars boni et aequi: some theoretical considerations

II.1. The text

D.1.1.1.pr. Ulpianus, Book I, Institutes: Those who apply themselves to the study of law (ius) should know, in the first place, from whence the science is derived. The law obtains its name from justice (iustitia); for (as Celsus elegantly says), law (ius) is the art (ars) of knowing what is good and just (boni et aequi). (1)Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy (vera philosophia). D.1.1.1.10 Ulpianus, Rules, Book 1: Justice is the constant and perpetual desire to give to every one that to which he is entitled.

II.2. Translation of ars boni et aequi:  OKKO BEHRENDS: Art of what is good and just  MAX KASER: Creative teaching of what is good and just  DIETER NÖRR: Knowledge of what is good and just  THEO MAYER-MALY: Artistic skill to provide what a just ordering of society  HEINRICH HONSELL: (similar to the version adopted by Hungarian translators): Art of what is good and fair  W OLFGANG W ALDSTEIN: Science of what is good and just II.3. Ancient greeks: Ars – greek techné – techné closed to poiesis – art of building, architecture – building of ship. The opposite of techné was praxis (virtue) and theoria (knowledge). Greeks thought, the skills and abilities acquired through work (techné) do not allow man to reach perfection as a man. Aristotle, in his work Politics holds the view that salaried occupations “degrade the mind by devoiding it of its leisure time” (MARIA PIA CHIRIONOS).

II.4. Perspective of modern legal science: CARL BENEDIKT FREY and MICHAEL A. OSBORNE wrote a famous article dedicated to the future of employment examining how susceptible jobs are to computerisation. With regard to legal professions the wrote: “In the present study, we will argue that legal writing and truck driving will soon be automated, while persuading, for instance, will not. (…) More specifically, law firms now rely on computers that can scan thousands of legal briefs and precedents to assist in pre-trial research. (…) For example, we find that paralegals and legal assistants – for which computers already substitute – in the high risk category. At the same time, lawyers, which rely on labour input from legal assistants, are in the low risk category.”

III.

Case studies

D. 12.4.3.7 Ulpianus, On the Edict, Book 24

Primus stayed in his last will that his slave Stichus should be free if he will pay the heir ten aurei. Sometime later he gave freedom to the slave absolutely, without any condition. Stichus who ignored that Primus has written a second last will payed the ten aurei to the heir. He asks if there is any possibility to recover the money.2

D. 19.1.13.6 Ulpianus, On the Edict, Book 32

A seller announced a land property. In the advertisement he said that taxes are required only by one municipality. Afterwards he inserted in the contract that, if any tributes ore taxis should be due the purchaser must make payment. After concluding the contract, it turns out, that several municipalities require tax payment.3

2 Where a slave who was directed under a will to pay the heir ten aurei and become free, received his freedom absolutely under a codicil, but, being ignorant of the fact, paid ten aurei to the heir; can he bring an action for their recovery? He states that Celsus, his father, held that he could not recover them; but Celsus himself, being influenced by a feeling of natural justice, thinks that suit can be brought for their recovery. This opinion is the more correct one, although it is established (as he himself states) that a party who paid money with the expectation that he would be remunerated by the person who received it, or that the latter would be more friendly to him in the future, cannot recover it; because he was deceived by a false opinion. 3 Julianus also says that the vendor is usually responsible for fraud, and he explains this by means of the following case. Where a vendor knew that the land which he offered for sale was charged with legacies to several municipalities, and stated in the advertisement that it was only indebted to one municipality, but afterwards inserted in the contract of sale that, if any tributes, taxes, or anything by way of imposts, or for the repair of highways, should be due, the purchaser must make payment, perform said acts, and be responsible; the vendor will be liable to an action on purchase as having deceived the purchaser. This opinion is correct.

Cicero De officiis 3,50 At Rhodes is a time of hunger. Primus has imported a large cargo of grain from Alexandria and to his certain knowledge also several other importers are due to arrive. The question arose if he is to report the fact to the Rhodians or can he take advantage from the fact that he is the first to arrive and sell his stock at the highest market price?...