(PDF) European Legal Culture Through the Prism of Jokes The Example of Philogelos

Scholastic philosophers can be quite funny. What's more, they have good reason to be: Aristotle himself lists ready wit (eutrapelia) among the virtues, as a mean between excessive humor and its defect. Here, I assess Scholastic discussions of humor in theory, before turning to examples of it in practice. The last and finest of these is a joke, hitherto unacknowledged, which Aquinas makes in his famous Five Ways. Along the way, we'll see (i) that the history of philosophy is not so hostile to humor as is commonly supposed; and (ii) that the competing theories of humor like the Incongruity Theory and the Release Theory are not altogether incompatible. We'll also see at least one example of an apparent attempt by modern translators to excise humor from a medieval text. Our considerations will open a window into what oral discussion and debate at medieval universities was actually like, and how we should understand the relationship between the texts we have now and the exchanges that actually occurred then.

Classical Association Annual Conference 2015, University of Bristol, 12 April 2015. A. Serafim explores how speakers employ humour as a rhetorical strategy to assist them in the attainment of their argumentative objectives. He will suggest that the use of humour in Greco-Roman discourse can help us better understand its use in contemporary discourse.

European Legal Culture Through the Prism of Jokes The Example of Philogelos Anna Tarwacka European Legal Culture Through the Prism of Jokes The Example of Philogelos Anna Tarwacka Copyright © by Michał Marusik Recenzja: dr hab. Zuzanna Benincasa prof. KUL dr hab. Maciej Jońca Tłumaczenie: Dagmara Łata Korekta: Katarzyna Kresak Skład, projekt okładki: Kamil Gałczyński Zdjęcie na okładce: https://commons.wikimedia.org/wiki/File:9226 (Rufus_est).jpg#/media/File:9226(Rufus_est).jpg Wydanie I Wrocław 2018 ISBN 978-83-952600-1-8 Wydawca: Pracownia Artystyczna Gałczyński Sp. z o.o. Tel: +48 602 526 963 www.facebook.com/KamilGalczynski Printed in Poland Preface European culture is based on three pillars that can be represented by three hills: The Acropolis of Athens symbolizing Greek philosophy, the Capitol denoting Roman law and Golgotha representing Christianity. The European legal consciousness is still shaped by Roman law understood as a universal set of principles and norms that underlie the legal systems of today’s Europe. The study of Roman law deals with the analysis of ancient source texts, which allow us to learn the laws of ancient Rome in its various periods of its existence, as well as its reception in later centuries up to the present day. However, what is important is not only the content of individual regulations but also their role in practice. The latter can be learned on the basis of preserved practice documents, such as papyri or tablets, or on the basis of various types of literary texts. Yet studying the social resonance of the law and its impact on everyday life cannot be lined solely to the analysis of high culture sources. Reaching a bit ‘lower’ literary resources can give answers to many questions and show some new sensu largo aspects of the law and its role in Europe. The research results described in the book show the realities of ancient Rome, which was the first to unite the peoples of Europe (and not only). However, the ancient perspective allows us to look also at present times. Philogelos, meaning ‘the one who loves laughter’ is the only preserved collection of ancient jests. Jokes play a big social role, being a part of popular culture and cultural code; they usually present a good yet distorted image of everyday life, fears, joys, as well as fixations of a given community. One of the elements of this image is also the law, though not its theory but practice. From the point of view of the jurist, Philogelos turns out to be a surprisingly interesting source text. It gives plenty of information that is true, selective but which helps to complement the image that we know from typical legal and non-legal sources usually used in Romanist studies. Without having it, would we know that ancient people already used ‘all you can eat’ offers? This book is a slightly extended and revised version of the publication entitled Obrócić prawo w żart. Instytucje prawne w zbiorze dowcipów ‘Philogelos’ (Turning the Law into a Joke. Some Remarks Apropos Philogelos) published by the Wydawnictwo Naukowe Uniwersytetu Kardynała Stefana Wyszyńskiego in 2016. I would like to express my deep gratitude to all of those without whom the monograph would not have come into existence. A huge thank you goes, first and foremost, to Professor Jan Zabłocki, whose support, advice, constructive criticism and sense of humour I can always rely on. I would like to thank MP Michał Marusik, who does not hesitate to support scientific undertakings. I extend thanks to Paulina Walo, whose friendship and help are always invaluable. I also thank Zuzanna Benincasa with all my heart for understanding and all the talks that opened my eyes to new aspects of the researched jokes. Table of contents Preface ............................................................................................... 5 List of abbreviations .......................................................................... 9 Introduction........................................................................................ 11 I. Relation between humour and law in Antiquity ........................... 1. Law in humorous literary texts ................................................ 2. Humour in court speeches ....................................................... 3. Humour in jurists’ work ........................................................... 4. Jurists in Philogelos ................................................................. 5. Summary .................................................................................. 22 22 27 30 32 35 II. Legal position of persons in public and private law in the light of Philogelos .............................................................. 1. Public law ................................................................................ 1.1. The state and its apparatus ................................................ 1.2. The army ........................................................................... 1.3. The Games ........................................................................ 1.4. Roman citizenship ............................................................. 2. Private law .............................................................................. 2.1. Marriage ............................................................................ 2.2. Paternal authority.............................................................. 2.3. Slaves ................................................................................ 3. Summary .................................................................................. 37 37 37 46 50 52 57 57 70 74 80 III. Legal and economic issues in Philogelos .................................... 81 1. The law of things...................................................................... 81 2. The law of succession .............................................................. 89 3. Contracts .................................................................................. 96 3.1. Loan ................................................................................... 96 3.2. Commodate ....................................................................... 100 3.3. Sale contracts .................................................................... 104 3.4. Lease contracts .................................................................. 121 3.5. Mandates ........................................................................... 147 4. Summary .................................................................................. 150 IV. Philogelos protagonists conflicting the law ................................. 1. Torts.......................................................................................... 2. Criminal law ............................................................................ 3. Lawsuits and trials ................................................................... 4. Summary .................................................................................. 154 154 163 170 176 Conclusions ........................................................................................ 178 Source index ...................................................................................... 186 Bibliography....................................................................................... 198 List of abbreviations AARC Acta UWr. AHB AJP Annales UMCS ANRW – Atti dell’Accademia Romanistica Costantiniana – Acta Universitatis Wratislaviensis – Ancient History Bulletin – American Journal of Philology – Annles Universitatis Mariae Curie-Skłodowska – Aufstieg und Niedergang der römischen Welt. Geschichte und Kultur im Spiegel der neueren Forschung, red. H. Temporini, Berlin-New York Athenaeum – Athenaeum. Studi di Letteratura e Storia dell’Antichità AUPA – Annali del Seminario Giuridico dell’Università degli Studi di Palermo BIDR – Bulletino dell’Istituto di Diritto Romano CA – Classical Antiquity CB – Classical Bulletin CJ – Classical Journal CP – Classical Philology CPH – Czasopismo Prawno – Historyczne CQ – Classical Quarterly Diritto@Storia – Diritto@Storia. Rivista internazionale di Scienze Giuridiche e Tradizione Romana, http://www.dirittoestoria.it/ Eos – Eos. Commentarii Societatis Philologae Polonorum FIRA – Fontes iuris romani anteiustiniani in usum scholarum ediderunt S. Riccobono, J. Baviera, C. Ferrini, J. Furlani, V. ArangioRuiz, I-III, Florentiae 1940-1943 GRBS – Greek, Roman, and Byzantine Studies Hermes – Hermes. Zeitschrift für Klassische Philologie Historia – Historia. Zeitschrift für Alte Geschichte HSCP – Harvard Studies in Classical Philology Index – Index. Quaderni camerti di studi romanistici. International Survey of Roman Law Iura Ius Antiquum JHS JJP JRS Klio KPP Labeo Latomus Meander NBAC NNDI OIR Philologus PK RE RGDR RH RHD RhM RIDA SDHI TAPA TSDP TR ZP TBSP UJ ZSS – Iura. Rivista internationale di diritto romano e antico – Ius Antiquum. Древнее Право – The Journal of Hellenic Studies – Journal of Juristic Papyrology – Journal of Roman Studies – Klio. Beiträge zur alten Geschichte – Kwartalnik Prawa Publicznego – Labeo. Rassegna di diritto romano – Latomus. Revue et collection d’études latines – Meander. Miesięcznik poświęcony kulturze świata antycznego – Nuovo Bullettino di Archeologia Cristiana: ufficiale per i resoconti della Commissione di Archeologia Sacra sugli Scavi e su le Scoperte nelle Catacombe Romane – Novissimo Digesto Italiano, Torino – Orbis Iuris Romani – Philologus. Zeitschrift für antike Literatur und ihre Rezeption – Prawo Kanoniczne – Paulys Realencyclopädie der classischen Altertumswissenschaft, Stuttgart – Revista General de Derecho Romano, http://www.iustel. com/v2/revistas/detalle_revista.asp?id=11 – Revue Historique – Revue Historique de Droit Français et Etranger – Rheinisches Museum für Philologie – Revue Internationale des Droits de l’Antiquité – Studia et Documenta Historiae et Iuris – Transactions and Proceedings of the American Philological Association – Teoria e Storia del Diritto Privato – The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d’Histoire du Droit – Zeszyty Prawnicze Towarzystwa Biblioteki Słuchaczów Prawa Uniwersytetu Jagiellońskiego – Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung Introduction Ancient people loved anecdotes but they also did not avoid ordinary, or even crude jokes. It happened, moreover, that one story functioned as an anecdote assigned to a particular individual, and as a joke detached from personal data. The only preserved1 collection of ancient jokes is Philogelos (literally: ‘one who loves laughter’), an anthology of about 265 jokes dated back to the 4th-5th century AD;2 its authorship is attributed to Hierocles and Philagrius.3 The volume is often called the ‘black sheep’4 of the classical heritage as it is a poor text and – in the context of lost masterpieces – seems to be of little value. Perhaps this is why little attention has been given to it in Romanist studies. Philogelos is a collection of popular jokes, ones probably told at the hairdresser’s.5 However, the compilation was possibly created by a scholar who decided such an anthology could serve scientific purposes.6 Research on any aspect of the ancient world is like reconstructing an incomplete mosaic. That is why every piece of knowledge, even when 1 Cf. however R. Kassel, Reste eines hellenistischen Spaßmacherbuches auf einem Heidelberger Papyrus?, «RhM» 99/1956, pp. 242-245; W. F. Hansen, Anthology of Ancient Greek Popular Literature, Bloomington-Indianapolis 1998, p. 274. On jokes cf. also Plaut., Capt. 472; 482; Stich. 400; Quint., Inst. or. 6,3,65. 2 Cf. C. Wessely, Ein Altersindizium im ‘Philogelos’, «Sitz. Akad. der. Wiss. in Wien. Phil.hist. Klasse», 149.5/1905, pp. 1-47; B. Baldwin, The ‘Philogelos’: an Ancient Jokebook, [in:] Roman and Byzantine Papers, Amsterdam 1989, pp. 624-627; M. Andreassi, Le facezie del ‘Philogelos’. Barzellette antiche e umorismo moderno, Lecce 2004, pp. 33 ff. 3 Cf. M. Andreassi, Le facezie..., p. 27 and others. In contrast, the Suda mentions Philistion as the author of Philogelos, who was also supposed to write mimes: Lib. Sud., s.v. Filivstiwn (f 364). 4 Cf. V. Jennings, rec. (Philogelos, ed. R. D. Dawe, München-Leipzig 2000), «Bryn Mawr Classical Review» 2001.04.05. 5 Cf. Lib. Sud., s.v. Filivstiwn (f 364). 6 Cf. M. Andreassi, Barbieri, umorismo e la redazione del ‘Philogelos’, «Annali della Facoltà di Lettere e Filosofia. Università degli Studi di Bari» 54-55/2011-2012, pp. 68-73. 12 INTRODUCTION seemingly insignificant, may turn out to be valuable. Scholars dealing with Roman law are most likely to use legal sources but these only allow to examine some of its aspects. Still some things would be much less surveyed, and some issues completely unfamiliar without many kinds of non-legal texts. On the other hand, however, there are such legal institutions that, it would seem, have been so thoroughly analysed by Roman jurists, and presented in practice documents that literary sources will say nothing new about them. And yet, as doubts are a powerful engine of progress, it may be worth taking a look at even such an unusual source, still bearing Cicero's warning in mind. Cic., De or. 2,217-218: “Ego vero,” inquit “omni de re facilius puto esse ab homine non inurbano, quam de ipsis facetiis disputari. Itaque cum quosdam Graecos inscriptos libros esse vidissem de ridiculis, non nullam in spem veneram posse me ex eis aliquid discere; inveni autem ridicula et salsa multa Graecorum; nam et Siculi in eo genere et Rhodii et Byzantii et praeter ceteros Attici excellunt; sed qui eius rei rationem quandam conati sunt artemque tradere, sic insulsi exstiterunt, ut nihil aliud eorum nisi ipsa insulsitas rideatur; qua re mihi quidem nullo modo videtur doctrina ista res posse tradi”. “I indeed,” says Caesar, “think that a man who is not destitute of polite learning can discourse upon any subject more wittily than upon wit itself. Accordingly, when I met with some Greek books entitled ‘On Jests,’ I conceived some hope that I might learn something from them. I found, it is true, many laughable and witty sayings of the Greeks; for those of Sicily excel in that way, as well as the Rhodians and Byzantines, but, above all, the people of Attica. But they who have attempted to deliver rules and principles on that subject, have shown themselves so extremely foolish, that nothing else in them has excited laughter but their folly. This talent, therefore, appears to me incapable of being communicated by teaching.” (transl. J. S. Watson) Cicero put in the mouth of Caesar Strabo a criticism of any attempts to describe the theory of joke and to explain ways of creating jokes. His words conclude that you cannot learn anything from Greek books devoted to this INTRODUCTION 13 issue. Indeed, the Sicilians, the Rhodians, the Byzantines, and, above all, the inhabitants of Attica excelled in the art of inventing jokes, but it did not give in to any interpretation. Those who tried to penetrate its secrets were ridiculed while writing about that in a boring and unattractive way. An attempt to explain the joke can therefore lead to spoiling it. Such a view is is strongly represented even today. Umberto Eco, for example, stated7 that scholars who approach jokes scientifically do not actually understand them because they lack a sense of humour... Our mentality, however, is so different from the ancient one that it is difficult to make an assumption that any contemporary layman or specialist will understand and fully appreciate the source of humour. Therefore, research on the text aimed at analysing its various aspects seems necessary. Although the language of Philogelos is Greek, most8 jokes describe the reality of the Roman Empire,9 and this is because the readers of the collection were Roman citizens. In 212 AD, under Caracalla’s famous edict Constitutio Antoniniana,10 almost all free inhabitants of the state were granted citizenship. This did not lead to the complete disappearance of local legal orders, but it made Roman law begin to be universally applied and become 7 U. Eco, Il comico e la regola, [in:] Sette anni di desiderio, Milano 1983, p. 253 ff. 8 It should be noted, however, that some jokes have a very old, often Republican pedigree, while some of them came not from Rome but from other countries. An example can be an anecdote deprived of personal details, also known from the Plutarch's Moralia, on how Philip of Macedon fell asleep while performing the duties of a judge: Philogelos 264; cf. Plut., Mor. 178 f; Val. Max. 6.2 ext. 1; Stob. 3,13,49; M. Andreassi, Le facezie..., pp. 77-78. 9 Cf. H. Zalewska-Jura, Obyczajowe obrazki z ‘Philogelosa’, «Symbolae Philologorum Posnaniensium Graecae et Latinae» 20.2/2010, pp. 106-107. 10 P. Giss. 40 I, FIRA I, pp. 445-449, no 88. Cf. D. 1,5,17 (Ulp. 22 ad ed.); Aug., De civ. Dei 5,17; W. Osuchowski, ‘Constitutio Antoniniana’. Przyczyny wydania edyktu Karakalli z r. 212 w świetle współczesnych źródeł historyczno-prawnych, «Roczniki TeologicznoKanoniczne» 10.4/1963, pp. 65-82; A.N. Sherwin-White, The Tabula of Banasa and the ‘Constitutio Antoniniana’, «JRS» 63/1973, pp. 66-98; H. Wolff, Die Constitutio Antoniniana und Papyrus Gissensis 40 I, Köln 1976, passim; J. Mélèze Modrzejewski, Edit de Caracalla conferant aux habitants de l’empire le droit de cité romaine (constitutio Antoniniana, 212 ap. J.-C.), [in:] Les lois de Romains. 7e édition des Textes de droit romain, II, Napoli-Camerino 1977, pp. 478-490; P. Gumiela, Divdomi poleiteinRwmivwn. Treść i zakres nadania obywatelstwa w ‘Constitutio Antoniniana’, «Zeszyty Prawnicze» 10.1/2010, pp. 129-147; A. Torrent, La ‘Constitutio Antoniniana’. Reflexiones sobre el papiro Giessen 40 I, Madrid 2012, passim; P. Kuhlmann, Die ‘Constitutio Antoniniana’: Caracallas umfassende Bürgerrechtsverleihung auf dem Papyrus Gissensis 40, [in:] Bürgerrecht und Krise. Die ‘Constitutio Antoniniana’ 212 n. Chr. und ihre innenpolitischen Folgen, ed. B. Pferdehirt, M. Scholz, Mainz 2012, pp. 45-50. 14 INTRODUCTION a common point of reference.11 It was often the case that people who did not know much wanted to make documents according to Roman rules (or at least they thought so) to be more sure of their validity and effectiveness. It must be remembered that bilingualism had been characteristic for Rome since the 2nd century BC when the elite began to use Greek as a second language. The literature of the Empire was created in Greek as well as in Latin. Obviously, it is not always possible to determine with certainty whether a given text should be qualified as part of the broadly understood Hellenic or Roman culture. The latest research, however, clearly indicates that the Romanization process of the Empire also consisted of Hellenization, paradoxically carried out by the Romans. Texts written in Greek could have been created by Roman senators (like Cassius Dio) or even jurists. Additionally, we need to quote a very accurate observation of Mary Beard,12 who noticed that the concept of jests as a text that you can save, collect, sell or use in the professional comedian’s work is a Roman product. In Greece, there is no trace of such use of jokes. Yet it should be emphasized that jokes in Philogelos are rooted in sometimes very distant times. Quite numerous of them have their source in the Republican period, others come from the Early Principate, some reflect the history of Hellenistic states. All jokes, however, were stripped of personal details and (usually) chronological references in the process of their typification and generalization. The protagonists of Philogelos, also mentioned in the titles of the chapters the collection is divided into in some manuscripts, are several types of people as well as the inhabitants of some cities. The first to be mentioned is the scholastikos – scolstikov– which can be described as a man who received education but lacks experience and wisdom as well as common sense, and 11 Cf. The summary of an ongoing scientific discussion on the results of the Constitutio Antoniniana: K. Tuori, Legal Pluralism and the Roman Empires, [in:] Beyond Dogmatics. Law and Society in the Roman World, ed. J.W. Cairns, P. du Plessis, Edinburgh 2007, pp. 39-52. 12 M. Beard, Laughter in Ancient Rome. On Joking, Tickling and Cracking Up, Berkeley-Los Angeles-London 2014, p. 201 ff. 13 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover. Translated with an introduction and commentary, Amsterdam 1983, p. 52; J. J. Winkler, Auctor & Actor. A Narratological Reading of Apuleius’s Golden Ass, Berkeley – Los Angeles – London 1985, pp. 160-165; A. Łukaszewicz, [Onhsi jpo; biblivwn, «JJP» 24/1994, p. 97 ff.; M. Andreassi, Le facezie..., pp. 43-51; L. L. Welborn, Paul, the Fool of Christ. A Study of 1 Corinthians 1-4 in the Comic-Philosophic Tradition, London-New York 2005, p. 45 ff. INTRODUCTION 15 who behaves oddly from the observer’s point of view. The translation of the term proves extremely difficult: the egghead, student dunce or smart alec are some of the possibilities. It is someone who Roman jurists would probably describe as a person who does not understand what everyone understands (qui non intellegit quod omnes intellegunt).14 On the other hand, his characteristic feature is a research flare, which makes him classified as a scientist with the head in the clouds.15 It is worth mentioning that the term scolstikov could also sometimes mean a jurist,16 but it did not probably have a positive overtone in this context. In addition to an indeterminate scholastikos, many jokes include communities (or their representatives) who were commonly thought to be exceptionally thoughtless: they are residents of Sidon,17 Kyme18 and Abdera.19 A separate type is someone who ineptly performs their profession (jfuhv) and the madman (mwrov). A great intelligence and sense of humour are characteristic features of theeujtrvpelo,20 or a brilliant erudite. He can accurately comment on the situation, showing his broad knowledge. This is the only hero of Philogelos who arouses sympathy. The other human types are the glutton (limovxhro), the coward (deilov), the rogue (duvskolo), the misogynist (misoguvnio), the miser (filvrguro), the drunkard (mevquso), the envier (fqonerov), the sluggard (ojknhrov).21 What is more, body ailments are also ridiculed in Philogelos: a separate chapter is devoted to people with bad smell from the mouth (ojzovstomo), several jokes also describe those suffering from hernias or eunuchs.22 The object of mockery are quite often 14 Cf. D. 50,16,213,2 (Ulp. 1 reg.); D. 50,16,223 pr. (Paul. 2 sent.). 15 Cf. A. Rapp, A Greek ‘Joe Miller’, «CJ» 46/1951, pp. 286-290; R.D.Griffith, R.B.Marks, A Funny Thing Happened on the Way to the Agora. Ancient Greek and Roman Humour2, Kingston 2011, pp. 126-127. 16 Cf. OGI 693. 17 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund. Von Hierokles und Philagrios, München 1968, p. 16; M. Andreassi, Le facezie..., pp. 51-52. 18 Cf. Strab. 13,3,6; A. Thierfelder, ‘Philogelos’ der Lachfreund..., p.16; M. Andreassi, Le facezie..., pp.53-54; M. Beard, Laughter in Ancient Rome..., pp. 191-193. 19 The reputation of the Abderites probably suffered due to the actions of Democritus, who ridiculed human stupidity, giving as example the behavior of his fellow citizens, Cf. Cic., Ad Att. 4,17,3; 7,7,4; Mart., Ep. 10,25; A. Thierfelder, ‘Philogelos’ der Lachfreund..., p.16; M. Andreassi, Le facezie..., pp. 52-53; M. Beard, Laughter in Ancient Rome..., pp. 191-193. 20 Cf. M. Andreassi, Le facezie..., pp. 54-56; M. Beard, Laughter in Ancient Rome..., pp. 191-193. 21 Cf. M. Andreassi, Le facezie..., pp. 57-58. 22 Cf. M. Andreassi, Le facezie..., pp. 56-57. 16 INTRODUCTION women, with one chapter concerning them directly, which results even from the title peri;gunikwn.23 Apart from the characters appearing in the chapter titles, it is also worth mentioning those often occurring in jokes:24 doctors,25 hairdressers,26 fortune tellers. Because the book presents an analysis of Philogelos, we should – before discussing other sources used – deal with the manuscript tradition and the editions of this set of jokes. It can be considered a paradox that the version of Philogelos known to the contemporary reader was not given in any manuscript. We rely on several manuscripts,27 each of which contains other corpus of jokes. The oldest of them comes from the 10th century and contains only 28 jokes. In the second half of the 18th century, more manuscripts were discovered: the Vindobonensis (68 jokes) and the Monacensis (212 jokes). More than half a century later a Greek Minoidos Menas found a manuscript containing 258 jokes in a Greek monastery, made a copy, and erased all the traces of the manuscript. The history of the modern editions of Philogelos begins28 with the edition of Joannes Fr. Boissonade29 of 1848, who used – apart from previously known manuscripts – a copy of the mysterious codex made eight years earlier by Menas.30 The next edition was prepared by Alfred Eberhard31 in 23 Cf. M. Andreassi, Le facezie..., p. 58. 24 Cf. P. Schulten, Ancient Humor, [in:] After the Past. Essays in Ancient History in Honour of H.W. Pleket, ed. W. Jongman, M. Kleijwegt, Leiden 2002, pp. 222-227. 25 Cf. D.W. Amundsen, Images of Physicians in Classical Times, «Journal of Popular Culture» 11/1977, pp. 643-655; B. Baldwin, Beyond the House Call. Doctors in Early Byzantine History and Politics, «Dumbarton Oaks Papers», 38/1984, pp. 15-19 = [in:] Roman and Byzantine Papers..., pp. 253-257; Idem, Doctors in Roman and Byzantine Society, [in:] Roman and Byzantine Papers..., pp. 558-564. 26 Cf. M. Andreassi, Barbieri..., pp. 61-73. 27 B.E. Perry, On the Manuscripts of the ‘Philogelos’, [in:] Classical Studies in Honor of William Abbott Oldfather, Urbana 1943, pp. 157-166. 28 Earlier editions included only 28 jokes of the oldest manuscript. 29 G. Pachymeris Declamationes XIII quarum XII ineditae. Hieroclis et Phylagrii grammaticorum Filovgelolonge maximam partem ineditus, ed. J.Fr. Boissonade, Parisiis 1848, p. 263 ff. 30 In the introduction of Boissonade (op. cit., p. III), he reprimanded Menas for failing to provide where exactly the codex had been found, what state it had been in, or even what period it had been from. It seems that the Greek was plundering monastic libraries. 31 Philogelos. Hieroclis et Philagrii Facetiae, ed. A. Eberhard, Berolini 1869. On pp. 58-59 the publisher was speaking about Menas in a very unflattering way. INTRODUCTION 17 1869, and the following ones (with commentary) by Andreas Thierfelder32 and Barry Baldwin.33 The latest edition is that of Roger D. Dawe’s.34 It caused controversy among researchers35 as one introducing few new affairs and omitting some important issues. The edition used in the book is that by Thierfelder. In Chiliades36 by a Byzantine author John Tzetzes, there is another joke that perhaps comes from the researched collection.37 But Tzetzes treated Philogelos as the author, not the title of the work. The credibility of this message is therefore questionable and is not taken into account in contemporary editions. Other source texts used in the work constitute a fairly diverse collection. There will be numerous references to legal texts: the Law of the Twelve Tables, the Institutes of Gaius, the Code of Justinian, the Pauli Sententiae, as well as to epigraphic sources: municipal laws and other inscriptions, tablets and papyri. Among the literary sources, there are Plautus’ comedies, works by Polybius, Cicero, Velleius Paterculus, Plutarch, Quintilian, Aulus Gellius, Martial’s epigrams, and those from the Palatine Anthology and the Latin Anthology. All the sources used will be the background for the issues discussed, allowing Philogelos jokes to be placed in the broadest possible socio-legal context. References will be made to legal regulations to which jokes refer, as well as texts that help highlight the understanding of a given institution, its practical application and knowledge about it in society. Research on the text of Philogelos is written into the broader interest in the ancient sense of humour. These issues were the subject of monographic studies both in relation to ancient Greece and Rome. The choice of jokes along with a comprehensive introduction was published by Quintio 32 A. Thierfelder, ‘Philogelos’ der Lachfreund... 33 B. Baldwin, The ‘Philogelos’ or Laughter-lover... 34 Philogelos, ed. R. D. Dawe, München-Leipzig 2000. 35 Cf. V. Jennings, op. cit.; M. Beard, Laughter in Ancient Rome..., p. 268 n. 2. 36 Tzetzes, Chiliad. 8,963-973 (ed. Leone); cf. Tzetzes, Ep. 50 (ed. Leone). 37 Cf. More in B. Baldwin, John Tzetzes and the ‘Philogelos’, «Byzantion» 56/1986, pp. 339-341 = [in:] Roman and Byzantine Papers..., pp. 329-331. In the joke quoted, a friend came to a patient and was sitting there for too long. Then the patient got out of bed and left the house. This joke does not seem too funny. Baldwin supposed that there was a wordplay in it and that the sick person did not just leave the house but died. 18 INTRODUCTION Cataudella.38 Stephen Halliwell39 wrote about laughter in Greece, however, with the omission of Philogelos; John R. Clarke40 about the visual aspects of humour in Rome; R. Drew Griffith and Robert B. Marks41 about Greek and Roman sense of humour; and Wilhelm Süss42 about laughter in jokes. An interesting article about ancient humour was written by Paul Schulten.43 Much attention was devoted to this issue by Mary Beard44, who also tackled Philogelos in some detail. Philogelos itself was primarily of classical philologists’ interest. Among researchers who dealt with it, we should fist mention the authors of the editions of the text with translations and commentaries. These were Andreas Thierfelder45 and Barry Baldwin.46 A translation with an interesting introduction was made by William Berg47 and it is the one used in the present study. Mario Andreassi is the author of a monograph on jokes from the collection and later sense of humour, as well as several articles.48 The issue of children in Philogelos was discussed by Christian Laes.49 Lucia Floridi 38 Q. Cataudella, La facezia in Grecia e a Roma. Saggio introduttivo e ampia antologia, Firenze 1971. Cf. Idem, Note critiche al testo del ‘Philogelos’, «Rivista di Cultura Classica e Medioevale» 12/1970, pp. 349-356. 39 S. Halliwell, Greek Laughter. A Study of Cultural Psychology from Homer to Early Christianity, Cambridge-New York 2008. 40 J. R. Clarke, Looking at Laughter. Humor, Power, and Transgression in Roman Visual Culture, 100 B.C.-A.D. 250, Berkeley-Los Angeles-London 2007. 41 R.D.Griffith, R.B.Marks, A Funny Thing Happened on the Way to the Agora... 42 W. Süss, Lachen, Komik und Witz in der Antike, Zürich-Stuttgart 1969. 43 P. Schulten, Ancient Humor..., pp. 209-234. 44 M. Beard, Laughter in Ancient Rome... 45 A. Thierfelder, ‘Philogelos’ der Lachfreund... Cf. Idem, ‘Philogelos’, «RE» Suppl. 11/1968, col. 1062-1068. 46 B. Baldwin, The ‘Philogelos’ or Laughter-lover... Cf. Idem, Beyond the House Call..., pp. 15-19; Idem, John Tzetzes..., pp. 339-341; Idem, Doctors in Roman and Byzantine Society..., pp. 558-564; Idem, The ‘Philogelos’: an Ancient Jokebook..., pp. 624-637. 47 W. Berg, ‘Philogelos’. A Laugh Addict. The World’s Oldest Joke Book, London 2008, http:// publishing.yudu.com/Library/Au7bv/PhilogelosTheLaughAd/resources/index.htm (access 14.10.2016). 48 M. Andreassi, Le facezie...; Idem, Citazioni teatrali nelle facezie del ‘Philogelos’, [in:] Memoria di testi teatrali antichi, ed. O. Vox, Lecce 2006, pp. 11-32; Idem, Il limovxhro nella ‘Vita Aesopi’ e nel ‘Philogelos’, «Zeitschrift für Papyrologie und Epigraphik» 158/2006, pp. 95-103; Idem, Barbieri..., pp. 61-73. 49 Ch. Laes, Children in the ‘Philogelos’, «AHB» 24.3-4/2010, pp. 129-142. INTRODUCTION 19 compared jokes with epigrams from the eleventh book of the Greek Anthology.50 And the use of jokes from the collection in Arabic literature was presented by Ulrich Marzolph.51 It is also worth noting that an entry Philogelos is discussed in encyclopaedias52 of the ancient world and the history of humour. While considering Polish researchers, we should first mention Jerzy Łanowski, who prepared the translation of the majority of the jokes, providing it with a philological preface53. Adam Łukaszewicz,54 a papyrologist, made very interesting observations in his articles. We should also mention Hanna Zalewska-Jura’s55 brief remarks about Philogelos. However, as it has already been mentioned, Philogelos was rarely used in Romanist studies. In the monograph on the sources of Roman law by Leopold Wenger,56 the collection was not mentioned at all. A very interesting article on Philogelos’ nautical jokes was written by Jean Rouge.57 Alfons Bürge58 also wrote about jokes related to marine transport contracts. Several times the jokes from the collection were 50 L. Floridi, Greek Skoptic Epigram and ‘Popular’ Literature. Anth.Gr. XI and the ‘Philogelos’ «Greek, Roman and Byzantine Studies» 52/2012, pp. 632-660. 51 U. Marzolph, ‘Philogelos’ arabikos. Zum Nachleben der antiken Witzesammlung in der mittelalterlichen arabischen Literatur, «Der Islam» 64.2/1987, pp. 185-230; Idem, The Quoran and Jocular Literature, «Arabica» 47.3/2000, pp. 478-487. 52 Cf. A. Thierfelder, ‘Philogelos’, «RE» Suppl. 11/1968, col. 1062-1068; S. Fornaro, ‘Philogelos’, «Brill’s New Pauly» 11/2007, col. 73-74; P. Marciniak, ‘Philogelos’, [in:] Encyclopedia of Humor Studies, ed. S. Attardo, Los Angeles-London-New DelhiSingapore-Washington DC 2014, pp. 565-566. 53 Philogelos albo śmieszek. Z facecji Hieroklesai i Philagriosa, przeł. J. Łanowski, WrocławWarszawa-Kraków 1986. 54 A. Łukaszewicz, Sarapis and free man, «Eos» 77/1989, pp. 251-255; Idem, Txewvth on the move (glossa ad P Giss. 56), «JJP» 24/1994, pp. 105-107; Idem, [Onhsijpo;biblivwn..., pp. 97-103. 55 H. Zalewska-Jura, op. cit., pp. 105-112. 56 L. Wenger, Die Quellen des römischen Rechts, Wien 1953. 57 J. Rougé, Le Philogélôs et la navigation, «Journal des Savants» 1-2/1987, pp. 3-12. 58 A. Bürge, Der Witz im antiken Seefrachtvertrag. Beobachtungen zur Vertragspraxis im antiken Mittelmeerraum, «Index» 22/1994, pp. 389-407; Idem, Humor ist Glückssache oder Wie die Alten den Juristenwitz gebildet, [in:] Festschrift für Peter Nobel zum 50. Geburtstag, 1995, pp. 11-25, http://www.jura.uni-muenchen.de/personen/b/buerge_alfons/ publikationen/glueckssache.html#fn_3 (access 14.10.2016). 20 INTRODUCTION mentioned by Éva Jakab.59 What is more, some issues were already the subject of my earlier research.60 So far, neither world literature nor Polish literature has produced a complete elaboration of the legal aspects of Philogelos. The joke shows the reality in a distorting mirror but its interpretation allows this reality to be seen. The Roman society (which treated the law as a daily life) could not lack humorous references to institutions and norms that the citizen knew and used. The law often appears in life in difficult, or even drastic situations. To make it easier to deal with them, a man often resorts to the sense of humour. And this property of the human mind can be used in the research on Philogelos. Just skimming the collection allows us to state that many jokes placed there have legal institutions as their background. These are often obligations, mainly contractual but also coming from torts, issues of the law of succession as well as the law of persons and family law. Every now and then, the topic of jokes is based on public law. Philological works usually omit the legal aspects of Philogelos jokes, which often does not allow their in-depth understanding. The basic goal of the research is, therefore, to interpret the whole collection in the context of the law. Although Philogelos is a late compilation, its jokes often reach the roots of earlier periods. For example, it happened that an anecdote from the Republican era was deprived of personal details and turned into a short jest. It sometimes seems possible to follow the modifications taking place over the centuries, which may also allow us to observe changes in the legal awareness of the society. Additionally, many jokes give a picture of the practical application of legal institutions in everyday life, which may enable the examination of new aspects of well-known legal institutions. 59 Cf. É. Jakab, ‘Praedicere’ und ‘cavere’ beim Marktkauf – Sachmängel im griechischen und römischen Recht, München 1997, p. 1; Eadem, ‘Aversione venire’ – Verkauf in ‘Bausch und Boden’, [in:] ‘Usus Antiquus Juris Romani’. Antikes Recht in lebenspraktischer Anwendung, ed. W. Ernst, É. Jakab, Berlin-Heidelberg 2005, p. 295; Eadem, Risikomanagement beim Weinkauf. ‘Periculum’ und Praxis im Imperium, München 2009, p. 130; É. Jakab, U. Manthe, Recht in der römischen Antike, [in:] Die Rechtskulturen der Antike. Vom Alten Orient bis zum Römischen Reich, ed. U. Manthe, München 2003, pp. 295-303. 60 A. Tarwacka, “All You Can Eat” the Ancient Way, «Zeszyty Prawnicze» 13.3/2013, pp. 211-220; Eadem, Mędrek sprzedaje niewolnika, czyli wady towaru w antycznym dowcipie, «Zeszyty Prawnicze» 13.4/2013, pp. 43-51; Eadem, Obrócić prawo w żart. Instytucje prawne w zbiorze dowcipów ‘Philogelos’, Warszawa 2016; Eadem, Responsabilità del venditore per difetti della merce. Appunti a margine di ‘Philogelos’ 18, [in:] Scritti per Alessandro Corbino, ed. I. Piro, VII, Tricase 2016, pp. 155-163; Eadem, Przemoc a prawo w świetle zbioru ‘Philogelos’, [in:] Przemoc w świecie starożytnym. Źródła – struktura – interpretacje, ed. D. Słapek, I. Łuć, Lublin 2017, pp. 319-332. INTRODUCTION 21 The basic research problem is therefore to find and analyse legal references in the jokes of Philogelos, which should help in their correct interpretation. The subject matter may sometimes be the right source of humour. Another important issue is the attempt to determine whether the jokes contain information on so far unknown juridical issues, mainly related to the problems of legal practice. In connection with the above, firstly, it was necessary to outline the background of the issues under examination (chapter 1: Relation between humour and law in Antiquity). It seemed useful to present references to the law in humorous literary texts, jokes in the court context and in the activities of jurists, as well as those jokes from Philogelos where jurists are protagonists. Subsequently, issues related to the status of individuals in the light of law were discussed (chapter 2: Legal position of persons in public and private law in the light of Philogelos). In the field of public law, issues related to the administrative activity of the state, issues of the army, of various types of games and performances as well as citizenship were presented. In the area of private law, jokes related to marriage, paternal power and slaves were analysed. Then (chapter 3: Legal and economic issues in Philogelos), it seemed necessary to raise problems relating to property law, inheritance law as well as contracts (loan, commodate, sale, lease and mandate). Then (chapter 4: Philogelos protagonists conflicting the law) the subject of private law torts and public law offenses were analysed. It also seemed useful to discuss jokes related to criminal and civil trials. The adoption of the above concept of research seems to exhaustively cover the richness of the legal aspects of jokes contained in Philogelos, and provide the basis for drawing conclusions. I. Relation between humour and law in Antiquity The problem of researching the legal aspects of Philogelos should be considered in a broader perspective, reflecting on to what extent the law was a pretext to create jokes. While in ancient Greece the sense of jokes is often aimed at politicians, in Rome (apart from political humour, which of course is present in everyday life) there is no shortage of references to legal institutions. This is due to the fundamental difference in the mentality of these societies. For the Greeks, the law was one of the concepts that enabled to organize the life of the community. It was not until the Romans, however, that the study of jurisprudence was developed, brought to perfection with time. For the Romans, the law became an indispensable element of everyday life, and the knowledge of it was a necessity. Obviously, not everyone had to be an expert – it was a role reserved for iuris prudentes – but everyone61 had to know the basics. According to the principle ignorantia iuris nocet, ignorance of the law acted to the disadvantage of the person concerned, which could result in losing the case. That is why in Rome the law became an element of cultural code that allowed for communication between the author and the reader, the viewer or the listener. Philogelos as a text created in the Roman Empire should therefore be also ‘decoded’ according to the legal key. 1. Law in humorous literary texts The constant presence of allusions to the law in humorous literary texts at various stages of the history of Rome can be confirmed without a shadow of a doubt. First and foremost, I mean the comedies of Plautus and Terentius, mimes, which, however, survived only in residual form, as well as the 61 Exceptions cf. D. 22,6,9 (Paul. l.s. de iuris et facti ign.). Cf. H. Kupiszewski, ‘Ignorantia iuris nocet’, «PK» 25.1-2/1982, pp. 301-308; Idem, ‘Ignorantia iuris nocet’, [in:] ‘Sodalitas’. Scritti in onore di Antonio Guarino, III, Napoli 1984, pp. 1357-1367. 1. LAW IN HUMOROUS LITERARY TEXTS 23 poems of Martial and Juvenal. Amusing ‘fakes’ of legal acts were also often popular. It is worth devoting attention to them to show how the dialogue referring to the law between the artist and the recipient could take place. This will allow us to capture the method and think about its possible use in Philogelos. There are some examples of such tricks below. Very clear references to various legal institutions can be observed on the example of Plautus’62 comedies from the turn of the 2nd and 1st century BC. This comic writer repeatedly referred to the provisions of the Law of the Twelve Tables, the content of which was well known to the audience: they learned it by heart. Plaut., Amph. 928: valeas, tibi habeas res tuas, reddas meas. Good-bye. Keep your own things and return me mine. (transl. P. Nixon) This passage is a reference to the provision on the repudium,63 i.e. a unilateral divorce. In this case, the legal formula is used by a woman, Alcmena although the right was granted only to her husband. However, the protagonist does not utter the statutory words as they are but backwards. It is the husband who has to keep his things and give his wife hers. He will not leave the house, she will. Plautus therefore made a comical reversal of the roles: the wife pronounces words that seal the divorce for the husband, 62 Cf. E. Costa, Il diritto privato romano nelle commedie di Plauto, Torino 1890 (reprint Pamplona 2009), passim. In the scientific world, there has been a discussion on the usefulness of Plautus’ comedy in the research on Roman law. Cf. especially L. Labruna, Plauto Manilio Catone. Premesse allo studio dell’emptio consensuale, «Labeo» 14/1968, pp. 24-48 = [in:] ‘Adminicula’, Napoli 1991, spp 223-261; G. Rotelli, Ricercha di un criterio metodologico per l’uttilizzazione di Plauto, «BIDR» 75/1972, pp. 97-133; C. Venturini, Plauto come fonte giuridica. Osservazioni e problemi, [in:] Plauto testimone della società del suo tempo, Napoli 2002, pp. 114-127. 63 Tab. 4,3 (FIRA I): Illam suam suas res sibi habere iussit ex XII tabulis claves ademit, exegit. (To repudiate his wife her husband shall order her . . . to have her own property for herself, shall take the keys, shall expel her. Transl. Johnson, Coleman-Norton & Bourne). It should be noted that in the reconstruction, there appears the word illam instead of mimulam, as in the original text (Cic., Phil. 2,69). Cf. M. and J. Zabłoccy, Ustawa XII Tablic. Tekst – tłumaczenie – objaśnienia,3 Warszawa 2013, pp. 28-29; The exact text of the formula arises doubts. In edition M.H. Crawford, The Roman Statutes, II, London 1996, pp. 580 and 632-633, the reconstruction is <<<repudium mittito>>>. Cf. R. Yaron, Minutiae on Roman Divorce, «TR» 28/1960, pp. 1-12; A. Watson, The Divorce of Carvilius Ruga, «TR» 33/1965, p. 42; J. Urbanik, ‘Tuas res tibi habeto’: la funzione delle „parole approvate” nel divorzio, [in:] Dire le droit: normes, juges, jurisconsultes, ed. B. Anagnostou-Canas, Paris 2006, pp. 87–98. 24 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY putting them in his mouth. It looks as if he did a repudium so everything happens in accordance with the law. The spectators, who know the legal formula well, really enjoy the scene because they perfectly understand the merriment of the situation, and at the same time they like the mastery of this verbal tricks.64 In the comedy Asinaria, there is a reference to in ius vocatio. The first table of the lex duodecim tabularum began with the words Si in ius vocat ito,65 to which a dialogue led by the heroes of the comedy, the slave Leonida, impersonating Saurea, and the merchant, alludes to. Plaut., Asin. 480: ME. In ius voco te. LE. Non eo. ME. Non is? ME. I’m calling you to court. LE. I’m not going. ME. You’re not going? The first one acted out in ius vocatio,66 the other one refused to face the magistrate. A slave, however, could not appear in court. Perhaps the joke was about, among other things, the fact that the merchant, as a foreigner, knew that he needed to perform an in ius vocatio, but he had no idea that he had to sue the owner, not the slave. This scene must have provoked a roar of laughter in the audience. Many authors singled out the likely connections between Philogelos and the mimes.67 Unfortunately, there are so few fragments that it is difficult to draw any conclusions. The genre of the mime68 as a performance is also very controversial today. It is known that the mime was a combination of 64 Cf. more details in A. Tarwacka, ‘Vidua visas patrem’. Threats of Divorce in Plautus’ Comedies, «Diritto@Storia» 10/2011-2012, http://www.dirittoestoria.it/10/ D&Innovazione/Tarwacka-Plautus-divorce.htm (access 14.10.2016) along with the cited literature. On the subject of references to the divorce formula in poetry cf. A. Tarwacka, W krzywym zwierciadle: rozwód. Satyrycy okresu pryncypatu o ‘repudium’, [in:] ‘Contra leges et bonos mores’. Przestępstwa obyczajowe w starożytnej Grecji i Rzymie, ed. H. Kowalski, M. Kuryłowicz, Lublin 2005, pp. 355-362. 65 Tab.1,1 (FIRA I); cf. M. and J. Zabłoccy, op. cit., pp. 14-15. 66 Cf. U. E. Paoli, La ‘in ius vocatio’ dans les comédies de Plaute, «Studi Senesi» 63/1951, pp. 283-304 = [in:] Altri studi di diritto greco e romano, Milano 1976, pp. 113-127; A.C. Scafuro, The Forensic Stage. Settling Disputes in Graeco-Roman New Comedy, Cambridge 1997, p. 86 ff. 67 Cf. C. Panayotakis, ‘Theatrum Arbitri’. Theatrical Elements in the Satyrica of Petronius, Leiden-New York-Köln 1995, p. 6; J.J. Winkler, op. cit., pp. 163-164. 68 Cf. E. Fantham, Mime. The Missing Link in Roman Literary History, «The Classical World» 82.3/1989, pp. 153-163, along with the further literature of the subject. 25 1. LAW IN HUMOROUS LITERARY TEXTS speaking, singing and dancing, often with a great deal of improvisation, and that it was an exceptionally promiscuous theatre genre, where, for example, naked performances of women were allowed. The subject matter often concerned adultery, with a lot being shown on the stage. Performances took place both on private premises, in houses or in the streets, as well as during public holidays such as the Floralia. It is worth noting that allusions to legal institutions happened in mimes for sure. Laberius apud Gell. 16,7,13: quid est iusiurandum? emplastrum aeris alieni. What is an oath? A plaster for a debt. (transl. J. C. Rolfe) In a fragment of Laberius’ mime entitled Alexandrea and preserved by Gellius, we can find an entertaining definition of the oath iusiurandum: “a plaster to soothe the debts”.69 We do not know the context but probably it was about a contract, a loan perhaps, in which the debtor, or maybe the guarantor, took an additional oath. Among the epigrams of the poet Martial, whose work fell to the 1st century AD, we can give as an example of a reference to a legal institution in a poem relating to the marriage laws of Augustus. Mart., Ep. 2,92: Natorum mihi ius trium roganti Musarum pretium dedit mearum solus qui poterat. Valebis, uxor: non debet domini perire munus. He, who alone had the power, has granted to my prayer the rights of a father of three children, as a reward for the efforts of my Muse. Goodbye to you, madam wife. The munificence of our lord and master must not be rendered valueless. (transl. http://www.tertullian.org/fathers/martial_ epigrams_book02.htm accessed Sept. 16th 2018) 69 Cf. Decimus Laberius. The Fragments, ed. C. Panayotakis, Cambridge 2010, pp. 107-115. See also Plaut., Cist. 469-472. 26 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY Under the lex Iulia et Papia, people with numerous offspring (three children in case of free citizens, four in case of freedmen) enjoyed numerous privileges.70 The ius liberorum gave full capacity to legal actions to women, a possibility to evade guardianship to men; and a prospect of finishing a marriage without the need to conclude another relationship to all. The cited epigram relates to the last privilege. Martial received the ius liberorum artificially, that is, while actually having no children.71 It was a fairly common practice applied to members of the imperial family72 as well as to outsiders who the ruler wanted to reward. The poet, therefore, recognized that he could end his relationship and declared his will to divorce. Why waste an imperial gift? In the literature of different periods there also appear ‘counterfeit’ legal acts of various kinds on several occasions. And again, they had to refer to the well-known aspects of the law to make the audience laugh. In Plautus’ comedy Asinaria, there is, for example, a parody of a contract involving the exclusive rental of a prostitute to a client. It is written in the form of a syngraphus.73 Controversial political decisions sometimes caused a social reaction in the form of mocking ‘edicts.’74 For instance, when Caesar accepted the Gauls as senators, there appeared a pseudo-legal act: ‘Let no one show a new senator how to get to the curia,’75 while Vitellius’ edict against soothsayers was parodied as: ‘Let Vitellius be not.’76 There is also a preserved inscription with the text of the completely made 70 Cf. M. Zabłocka, ‘Ius trium liberorum’ w ustawodawstwie dynastii julijsko-klaudyjskiej, «PK» 29.1-2/1986, pp. 243-264; Eadem, Il ‘ius trium liberorum’ nel diritto romano, «BIDR» 30/1992, pp. 361-390. 71 Cf. also Plin. Min., Ep. 10,2; 10,94; 10,95. 72 Cf. e.g. Dio Cass. 55,2. 73 Plaut., Asin. 751-754. Cf. also Plaut., Asin. 792-795. Cf. E. Costa, op. cit., pp. 276-277; E. A. Meyer, Legitimacy and Law in the Roman World. ‘Tabulae’ in Roman Belief and Practice, Cambridge 2004, p. 66. 74 See also the parody of the edict in Plautus’ Pseudolus (143-228). Cf. E. A. Meyer, op. cit., p. 66. 75 Suet, Iul. 80,2: Peregrinis in senatum allectis libellus propositus est: ‘Bonum factum: ne quis senatori novo curiam monstrare velit!’. Cf. A. Corbeill, Controlling Laughter. Political Humor in the Late Roman Republic, Princeton 1996, p. 202; E. A. Meyer, op. cit., pp. 66-67. 76 Suet, Vit. 14,4: bonum factum, ne Vitellius Germanicus intra eundem Kalendarum diem usquam esset. Cf. E. A. Meyer, op. cit., 67. 2. HUMOUR IN COURT SPEECHES 27 up plebiscite lex Tappula,77 belonging to the so-called leges conviviales regulating the course of feasts.78 A late antique example is the Testamentum porcelli79– a parody of a testament in which the testator is a piglet. The examples discussed show that one of the techniques used by the authors of humorous texts was to refer to legal institutions. Such ‘winks’ at recipients clearly present the author expected them to know the law. Citizens themselves often used allusions to the law to ridicule politicians and rulers. Many of Philogelos jokes come from rather an early period, and thus natural references to the law should be natural there. Also in the time of the Empire, such tricks were used though certainly not everyone was able to understand them. 2. Humour in court speeches One of the tools available to the orator was wit. It was necessary to employ it carefully and sensitively so that it would not turn against you. Mary Beard very accurately noted80 that the Latin term ridiculus could be understood in two ways: as ‘funny,’ i.e. entertaining but also ‘funny’ in the sense of ‘ridiculed’. The issue of jokes occupies a lot of space in theoretical works on rhetoric: Cicero’s De oratore,81 Quintilian’s Institutio oratoria,82 or anonymous Rhetorica ad Herennium.83 77 ILS 8761. Cf. Fest. 550 L.; A. von Premerstein, ‘Lex Tappula’, «Hermes» 3/1903, pp. 327-347; E.S. Gruen, Culture and National Identity in Republican Rome, New York 1992, p. 306. 78 Cf. more in R. R. Nauta, Poetry for Patrons. Literary Communication in the Age of Domitian, Leiden-Boston-Köln 2002, pp. 172-173. 79 W. Kroll, ‘Testamentum porcelli’, «RE» II.9/1934, col. 1020-1021; N. A. Bott, ‘Testamentum Porcelli’. Text, Übersetzung und Kommentar, Zürich 1972; E. Champlin, The Testament of the Piglet, «Phoenix» 41.2/1987, pp. 174-183; M. Nowak, O tym, jak prosiak napisał testament, «Filomata» 439-440/1996, pp. 416-421; M. Jońca, Święty Hieronim krytykuje ‘Testamentum porcelli’, [in:] Apud patres. Prawo rzymskie w literaturze wczesnochrześcijańskiej, ed. A. Dębiński, M. Wójcik, Lublin 2011, pp. 29-51. 80 M. Beard, Laughter in Ancient Rome..., pp. 102-103. Cf. Quint., Inst. 6,3,7. 81 Cic., De or. 2,216-291. 82 Quint., Inst. 6,3. 83 Auct., Ad Her. 1,6,10. 28 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY A good joke could divert the attention of the judges and act in favour of the orator. If the audience or the judges were getting bored, it was a joke that could make them regain interest. Still, the limits of good taste were important: the courtroom was not a stage for a street farce scene.84 Cicero was considered a master of humour and sharp tongue, although he was accused of not being able to refrain from joking even if it was out of place. To illustrate this, the examples of both his good and inappropriate jokes will be presented. When Cicero was defending Milo accused of murdering Clodius in 52 BC, the prosecutor asked him when exactly the murder had occurred, to which he replied: sero,85 i.e. ‘late.’ It was a pun as on the one hand, the orator claimed that it had happened in the evening, but on the other hand, he emphasized that the infamous plebeian tribune, his obstinate political enemy, should have been murdered earlier. Indeed, it would have been more beneficial for the state if a politician striving to ruin it had parted with his life long before. Although Cicero lost the case,86 Quintilian considered this prank to be perfect. Another time, when his court opponent Curio was starting his speech by asking for forgiveness on account of his young age, Cicero scoffed saying this difficulty would diminish every day.87 84 The speaker had to be careful not to become similar to actors: his jokes could not be too vulgar, nor should he abuse body movements and gestures.Cf. Quint., Inst. 6,3,29; 6,3,47; E. Fantham, Orator and/et actor, [in:] Greek and Roman Actors. Aspects of an Ancient Profession, ed. P. Easterling, E. Hall, Cambridge 2002, p. 369 ff.; A. Corbeill, Controlling Laughter..., pp. 27 i 95; Idem, Nature Embodied. Gesture in Ancient Rome, Princeton 2004, p. 115 ff.; A. Duncan, Performance and Identity in the Classical World, Cambridge 2006, pp. 182-185; M. Beard, Laughter in Ancient Rome..., p. 112 ff. 85 Quint., Inst. 6,3,49: Sed illud ex eodem genere praeclarum: cum obiceret Miloni accusator, in argumentum factarum Clodio insidiarum, quod Bovillas ante horam nonam devertisset, ut exspectaret dum Clodius a villa sua exiret, et identidem interrogaret quo tempore Clodius occisus esset, respondit “sero”: quod vel solum sufficit ut hoc genus non totum repudietur. (On the other hand, the following instance of the same type of wit is quite admirable: when Milo’s accuser, by way of proving that he had lain in wait for Clodius, alleged that he had put up at Bovillae before the ninth hour in order to wait until Clodius left his villa, and kept repeating the question, “When was Clodius killed?”, Cicero replied, “Late!” a retort which in itself justifies us in refusing to exclude this type of wit altogether. Transl. H. E. Butler). Cf. M. Beard, Laughter in Ancient Rome..., p. 99 ff. 86 Cf. A.W. Lintott, Cicero and Milo, «JRS» 64/1974, pp. 62-78; K. Amielańczyk, Milo’s Criminal Trial, «OIR» 3/1997, pp. 5-17. 87 Quint., Inst. 6,3,76: Hoc genus dicti consequens vocant quidam, estque illi simile quod Cicero Curionem, semper ab excusatione aetatis incipientem, facilius cotidie prohoemium habere dixit, quia ista natura sequi et cohaerere videantur. (Some style this type of jest consequent and, 2. HUMOUR IN COURT SPEECHES 29 When one of the witnesses in the trial, Sextus Annalis, gave testimony against his client, Cicero asked by the prosecutor about his reply quoted a fragment of the sixth book of Ennius’ Annales.88 The joke was based on the ambiguity of the phrase de Sexto Annali, which may mean both ‘on the subject of Sextus Annalis’ and ‘from the sixth [book] of Annales.’ Another great joke was told at the expense of Hortensius at Verres’ trial. When Cicero interrogated witnesses, Hortensius was trying to argue that their testimonies were meaningless by saying: ‘I do not understand these riddles’. Cicero replied to that: ‘And you should since you have a sphinx at home’.89 It was an allusion to a ‘gift’ Verres had offered to his defender: a valuable statue of a bronze sphinx. In contrast, when Cicero said to a candidate for an office: ‘Ego quoque tibi favebo,’ making allusion to the rumour that the father of the man was a cook (coquus),90 the joke was considered inappropriate as it was constructed on the phonetic similarity of coque and quoque. Cicero said: on the ground that both jests seem to follow so naturally and inevitably, class it with the jest which Cicero levelled against Curio, who always began his speeches by asking indulgence for his youth: “You will find your exordium easier every day,” he said. Transl. H. E. Butler). 88 Quint., Inst. 6,3,86: Dissimulavit Cicero cum Sex. Annalis testis reum laesisset et instaret identidem accusator: “dic, M. Tulli, si quid potes de Sexto Annali”; versus enim dicere coepit de libro Enni annali sexto: “quis potis ingentis causas evolvere belli?” (Cicero on the other hand employed dissimulation when Sextus Annalis gave evidence damaging to the client whom he was defending, and the accuser kept pressing him with the question, “Tell me, Marcus Tullius, what have you to say about Sextus Annalis?” To which he replied by beginning to recite the Sixth book of the Annals of Ennius, which commences with the line, “Who may the causes of vast war unfold?”. Transl. H. E. Butler). 89 Quint., Inst. 6,3,98: Ex historia etiam ducere urbanitatem eruditum est, ut Cicero fecit cum ei testem in iudicio Verris roganti dixisset Hortensius: “non intellego haec aenigmata”; “atqui debes”, inquit, “cum Sphingem domi habeas”; acceperat autem ille a Verre Sphingem aeneam magnae pecuniae. (A neat application of proverbs may also be effective, as when one man replied to another, a worthless fellow, who had fallen down and asked to be helped to his feet, “Let someone pick you up who does not know you.” Or we may shew our culture by drawing on legend for a jest, as Cicero did in the trial of Verres, when Hortensius said to him as he was examining a witness, “I do not understand these riddles.” “You ought to, then,” said Cicero, “as you have got the Sphinx at home.” Hortensius had received a bronze Sphinx of great value as a present from Verres. Transl. H. E. Butler). 90 Quint., Inst. 6,3,47: ne illa quidem quae Ciceroni aliquando sed non in agendo exciderunt, ut dixit, cum is candidatus qui coci filius habebatur coram eo suffragium ab alio peteret: “ego quoque tibi favebo”. (I cannot even approve of a similar form of jest, that sometimes slipped out even from Cicero, though not when he was pleading in the courts: for example, once when a candidate, alleged to be the son of a cook, solicited someone else’s vote in his presence, he said, Ego quoque tibi favebo. Transl. H.E. Butler). 30 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY ‘I will also be favourable to you’ but it could also be understood as ‘I, my cook, will be kind to you’. It must be emphasized, however, that this pun was used outside the courtroom. Even later, in the time of the Empire, when the freedom of expression was very limited, orators allowed themselves to joke. Cassius Dio91 quoted an anecdote from the time of emperor Claudius. The ruler ordered Iulius Gallicus to be thrown into the Tiber when he irritated him during a court argument. When the client of the unfortunate orator came to Domitius Afer to take over his case, the latter excused himself by asking: ‘Who told you that I am a better swimmer than him?’. Humour was therefore one of the combat techniques in the arsenal of the orator. Not everyone could use it, you could not just learn it, you needed to have it in your blood. A skilful use of a joke could tip the scales at a trial, win the goodwill of the judges, as well as the audience’s. The error, however, could have adverse effects. The joke was therefore a double-edged weapon. 3. Humour in jurists’ work Roman jurists are perceived by succeeding generations as impeccable statues. It is amazing then to discover that, for instance, some of them were involved in politics, which, as in case of Papinian or Ulpian, could cost their lives. It is also hard to imagine that these extremely law-abiding people could possess a sense of humour. There are plenty of ‘legal’ jokes in the surviving letters of Cicero to the jurist Trebatius Testa.92 Unfortunately, we do not have the recipient’s replies but Cicero wrote that Testa was also a good wit himself.93 Aulus Cascellius,94 a jurist who lived in the 1st century BC, was considered to be extremely witty. His eloquence was praised by Pomponius 91 Dio Cass. 61,33,8. 92 It refers to letters 6-22 of the seventh book of Ad familiares. Cf. B. H. Stolte, Trebatius in Palimpsest. Notes on Cicero Ad Familiares VII, 18, [in:] ‘Ex Iusta Causa Traditum’. Essays in honour of Eric H. Pool, ed. R. van den Bergh, Pretoria 2005, pp. 316-320. 93 Cic., Ad fam. 7,11,2: video enim te iam iocari per litteras. (I see that you are joking in your letters. Transl. D.R. Shackleton-Bailey). 94 Cf. W. Kunkel, Herkunft und soziale Stellung der römischen Juristen, Weimar 1952, p. 25-27; R.A. Bauman, Lawyers in Roman Transitional Politics. A study of the Roman jur ists in their political setting in the Late Republic and Triumvirate, München 1985, p. 117-123. 3. HUMOUR IN JURISTS’ WORK 31 in his Enchiridion.95 Cascellius liked to give his clients jocular96 replies.97 Macrobius stated that he was asked by a merchant how to divide a vessel with a partner. Cascellius answered that in case of dividing it neither the merchant nor his partner would have anything.98 Quintilian also quoted this joke, showing a technique called dissimulation, which involves using the double meaning of a word.99 Here, for the client, the verb dividere related to the division of the company’s assets, probably by the use of actio communi dividundo, and Cascellius used it in the literal meaning, speaking of the physical partition of the ship. The author of Saturnalia also cited another anecdote.100 Vatinius organized gladiatorial games, during which people 95 D. 1,2,2,45 (Pomp. l.s. enchir.): Fuit eodem tempore et Trebatius, qui idem Cornelii Maximi auditor fuit: Aulus Cascellius, Quintus Mucius Volusii auditor, denique in illius honorem testamento Publium Mucium nepotem eius reliquit heredem. Fuit autem quaestorius nec ultra proficere voluit, cum illi etiam Augustus consulatum offerret. Ex his Trebatius peritior Cascellio, Cascellius Trebatio eloquentior fuisse dicitur, Ofilius utroque doctior. Cascellii scripta non exstant nisi unus liber bene dictorum, Trebatii complures, sed minus frequentantur. (Trebatius, a pupil of Cornelius Maximus, also lived at the same time; and Aulus Cascelius, a pupil of Quintus Mucius Volusius, as well, and, indeed, in honor of his teacher he left his property to Publius Mucius, the grandson of the latter. He was also of quaestorian rank but he declined promotion, although Augustus offered him the consulship. Among these, Trebatius is said to have been better informed than Cascellius, but Cascellius is claimed to have been more eloquent than Trebatius, but Ofilius was more learned than either. No works of Cascellius are extant, except one of “Good Sayings”, there are, however, several of Trebatius, but they are very little used. Transl. S.P. Scott). 96 A trait attributed to him was urbanitas, that is a sense of humour. 97 Cf. R. A. Bauman, op. cit., p. 119. More on Cascellius’ jokes cf. A. Tarwacka, Cascellius and the Aedilician Edict on Throwing Fruit into the Arena, «Diritto@Storia» 11/2013, http://www.dirittoestoria.it/11/tradizione/Tarwacka-Cascellius-Edilician-Edict-FruitArena.htm (access 14.10.2016). 98 Macrob., Sat. 2,6,2: Mercatori deinde, quemadmodum cum socio navim divideret, interroganti respondisse traditur; ‘Navim si dividis, nec tu nec socius habebis’. (When a merchant asked him how he should divide a ship with his partner, he is said to have replied, "If you divide the ship, neither you nor your partner will have it.” Transl. R. A. Kaster). 99 Quint., Inst. 6,3,87: cui sine dubio frequentissimam dat occasionem ambiguitas, ut Cascellio, qui consultatori dicenti “navem dividere volo” “perdes” inquit. (This kind of jest finds its most frequent opportunity in ambiguity, as for example, when Cascellius, on being consulted by a client who said “I wish to divide my ship,” replied, “You will lose it then.” Transl. H. E. Butler). 100 Macrob., Sat. 2,6,1: Cascellius iurisconsultus urbanitatis mirae libertatisque habebatur; praecipue tamen is iocus eius innotuit: Lapidatus a populo Vatinius, cum gladiatorium munus ederet, obtinuerat, ut aediles edicerent, ne quis in arenam nisi pomum misisse vellet. forte his diebus Cascellius consultus a quodam, an nux pinea pomum esset, respondit: ‘Si in Vatinium missurus es, pomum est’. (The legal expert Cascellius was generally considered 32 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY threw stones at him. That is why he made the aediles to issue an edict so that no one would throw anything on the arena but fruit. By sheer coincidence, somebody asked Cascellius for advice and wanted to know if a pine cone could be considered a fruit; the jurist replied that definitely it could if thrown at Vatinius. Papinian was the protagonist of an interesting anecdote though it was not him but his interlocutor that presented a great sense of humour and sharpness. Operating in the times of Septimius Severus, Bulla Felix101 was supposed to be one of the most famous bandits in the Roman Empire: the master of camouflage, the opponent of social inequalities, the defender of the oppressed. He was a thorn in the emperor’s flesh for two years. Then he got caught – he was turned in by his lover. When he stood before the praetorian prefect, Papinian, the prince of the jurists as it happened, he was asked: ‘Why did you become a bandit?’ Bulla replied: ‘Why are you a prefect?’102 Thus it seems that jokes were not the same tool for jurists as they were for orators. Jurists, however, were well-educated people, often insightful and intelligent. So the law could be an object of jokes for them as long as they were not deprived of a sense of humour. 4. Jurists in Philogelos In Philogelos, there are no jokes directly about the jurists. We still have to bear in mind however that the figure of the scholastikos was a well-educated person, possibly with legal studies behind him. There is one jest where a jurist may appear as a background character. It is a situation in which the smart alec learns probably from the person who gives him legal advice that the river took him a piece of land.103 a man of marvelous wit and candor, though this jest gained particular notoriety: when the people stoned Vatinius while he was giving a gladiatorial show, he got the aediles to issue a decree that only fruit was to be thrown in the arena; when someone happened to ask Cascellius at about the same time whether in his opinion a pine cone was a fruit, he said, ‘If a person is going to throw it at Vatinius, it’s a fruit.’ Transl. R. A. Kaster). 101 Cf. T. Grünewald, Räuber, Rebellen, Rivalen und Rächer. Studien zu ‘latrones’ im römischen Reich, Stuttgart 1999, p. 171; B.D. Shaw, Bandits in the Roman Empire, [in:] Studies in Ancient Greek and Roman Society, ed. R. Osborne, Cambridge2004, p. 366 ff. 102 Dio Cass. 77,10,7. 103 Philogelos 46, see below, pp. 87-89. 4. JURISTS IN PHILOGELOS 33 Yet the collection includes jokes about court orators who were educated in rhetoric but also had some knowledge about the legal issues. Philogelos 54: colstiko;grvfwnproto;nptevrjpo;twnqhnwn,ki; ejnbrunovmeno,o{tipepivdeuti,prosevqhken:Eu[comide;se eureinkeflikh;ne[contdivkhn,i{nsoideivxwto;nrhvtor. A student dunce writes to his father from Athens. His head is swollen with what he’s learned there, so he adds, ‘When I return I hope to find you on trial for a capital crime, Father. Then I can show you what a lawyer I’ve become!’ This joke is about a rhetoric student. Young people from rich families often went to study in Athens. The text suggests they were first and foremost trained in court speaking. Quite a number of preserved rhetorical exercises show that didactics was rather detached from reality: students had to make speeches on absurd topics,104 and in fact their subject quite often concerned cases in which the party was threatened with the death penalty. The young man was therefore convinced that only a matter of life and death would allow him to fully present the acquired skills.105 Another joke is about a dogged advocate who filed a complaint on his own behalf after being insulted in a bathhouse. When the representative of the opposing party questioned his decision to appoint bath workers as witnesses (giving their lack of credibility for the reason), he applied quite a sophisticated mythological analogy. Now, if he was insulted inside the Trojan horse, he could call Menelaos, Odysseus and Diomedes as witnesses, but since the incident happened in the bathhouse, no one else would be able to describe him better but bath workers.106 Yet not all advocates were so well educated and clever. Philogelos 68:  c o l  s t i k o ;  g r  v    d i v k h n u  p e v r t i n o  , d h m o s i v   pronegivvnwske.toude;;sunhgoroumevnoueijpovnto,o{ti[topon 104 Cf. Petr., Sat. 1; Quint., Inst. 2,10. Cf. M. Lentano, Retorica e diritto. Per una lettura giuridica della declamazione latina, Lecce 2014, pp. 25-27. 105 Cf. Ch. Laes, Children..., p. 136, who stressed that the effectiveness of a rhetoric teacher was testified by the case won by his students. 106 Philogelos 149 b, on which more below, pp. 173-176. 34 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY poieit;jpovrrhtthdivkhtoijntidivkoifner;poiwn: Kvqrm,ei\pe,mh;gvrtitwnsunektikwnlevgw_ A student dunce writes a legal brief on someone’s behalf. Then he reads it aloud in public. When his client objects that he’s acting inappropriately, giving away to his adversaries the special arguments in the brief, the dunce responds, ‘Idiot, do you want me to give away something convincing?’ The scholastikos was probably a representative of one of the parties in the trial. He wrote a speech to be delivered in court and was reading it out loud in a public place, revealing the details of his tactics. Quite unintentionally, he admitted that there were no good arguments allowing him to win the client’s case. This joke, however, makes us look at the problem of secret keeping by the court orators. Some tips can be provided by Cicero’s career. When the orator was on a case against the corrupt governor of Sicily, Verres, not only had he to face his powerful opponents but also time. Due to the threat of changing the tribunal’s chairman,107 whose term was coming to an end, Cicero was forced to limit his speech. He decided on an unusual tactic that completely surprised Verres’ defenders: instead of making a long accusatory speech, he spoke briefly and immediately proceeded to interrogating witnesses,108 whose testimonies knocked the accused down.109 The key issue was to keep the whole idea secret. The defence came completely unprepared for such a turn of events. It can therefore be assumed that the element of surprise was one of the orator’s skills. It is worth mentioning Quintilian’s views here. Writing about the course of a trial, the author recalled the old custom of orators based on concealing their rhetorical abilities, and cited Antonius’ view according to which it was possible to hide the advocate’s true aims.110 Furthermore, the author advised 107 Cic., In Verr. 1,21; 1,30. 108 Cic., In Verr. 1,54-55. 109 A list of appointed witnesses and subjects of their testimony was compiled in M. C. Alexander, The Case for the Prosecution in the Ciceronian Era, Ann Arbor 2002, pp. 255-262. 110 Quint., Inst. 12,9,5: Veteribus quidem etiam dissimulare eloquentiam fuit moris, idque M. Antonius praecipit, quo plus dicentibus fidei minusque suspectae advocatorum insidiae forent. (The old orators indeed used to conceal their eloquence, a method which is recommended by Marcus Antonius, as a means of securing that the speaker’s words should carry conviction and of masking the advocate’s real designs. Transl. H. E. Butler). 5. SUMMARY 35 not to write down a speech when there was a need to respond to a trial opponent who could use unexpected arguments, thus introducing confusion.111 An unskilled orator would stick to the text instead of improvising, and adapting to the situation.112 Quintilian’s advice clearly indicates that surprise was one of the techniques used by court orators. A good advocate’s characteristic was the ability to quickly adapt to new circumstances113 and to deliberately retort. However, the author of Rhetorica ad Herennium recommended that in case of the audience being bored by the preceding speaker, one should promise that he would not follow the material prepared earlier.114 It was to make the audience and the judges pay attention. He also advised to use colloquial language in a speech so that it would seem to be improvised.115 Coming back to the discussed joke, we can claim that the orator who revealed the secrets of his speech before the trial made a tactical error. Yet in order to be able to surprise opponents, it was necessary to have extraordinary arguments at hand, which the protagonist of the joke apparently lacked. 5. Summary As mentioned earlier, the law was an element of cultural code in ancient Rome. It is therefore necessary to understand legal references and allusions to be able to apprehend all the source texts. From the Republican times Quint., Inst. 12,9,16: at cum protinus respondendum est, omnia parari non possunt, adeo ut paulo minus promptis etiam noceat scripsisse, si alia ex diverso quam opinati fuerint occurrerint. (On the other hand, when we have to reply on the spot, it is impossible to prepare everything: in fact for the less ready type of speaker, it may, in the event of his opponents putting forward arguments quite other than those which they were expected to advance, be a positive drawback to have written anything. Transl. H. E. Butler). 111 112 Quint., Inst. 12,9,17. 113 Cf. also Philogelos 90 discussed below, pp. 162-163. 114 Auct., Ad Her. 1,6,10: <si promiserimus> aliter ac parati fuerimus, nos esse dicturos. (Or we shall promise to speak otherwise than as we have prepared, and not to talk as others usually do. Transl. H. Caplan). 115 Auct., Ad Her. 1,7,11: Exordienda causa servandum est, ut lenis sit sermo et usitata verborum consuetudo, ut non adparata videatur oratio esse. (In the Introduction of a cause we must make sure that our style is temperate and that the words are in current use, so that the discourse seems unprepared. Transl. H. Caplan). 36 I. RELATION BETWEEN HUMOUR AND LAW IN ANTIQUITY to the period of the Empire (including the late one) the dialogue between the author and the recipient also included elements related to legislation, imperial constitutions, edicts of magistrates or resolutions of the Senate. The texts discussed in the above chapter prove that legal humour was present in courtrooms too. Therefore, it should be assumed that every source text is equally worth examining in this aspect. Philogelos contains jokes from various historical periods; over the centuries, some of them underwent far-reaching transformations. Hence, the indication of their legal aspects may bring interesting results: affect the understanding of their vis comica, and – on the other hand – allow us to discover new aspects of legal reality of social life on the territories of the Empire. It is worth emphasizing that in the collection there are jokes relating to court speeches, where protagonists are advocates. From the jokes, we can conclude what was expected from the speaker, what education he had, as well as what rhetorical techniques he could use. Rhetoric studies were based on exercises which used fictional, often very exaggerated cases. This could give students a false image of reality. It is indicated by a joke (Philogelos 54) in which the son, wanting to show his abilities, dreams about his father becoming a defendant in a capital trial. The profession of the advocate required discretion. One of the jokes (Philogelos 68) proves that the disclosure of the content of court speech was a serious error. II. Legal position of persons in public and private law in the light of Philogelos Determining the place of a given person in Roman society needed first ascertaining their status. What mattered was whether someone was a slave or a free man (in this case, whether they were born free, or freed); then there was a question of citizenship; and finally, among Roman citizens, it was important whether they were under someone’s power (alieni iuris) or not (sui iuris). Apart from these elements, constituting the caput, gender was significant too: the legal position of women was inferior to the position of men.116 These factors came as essential in both public and private law. 1. Public law 1.1. The state and its apparatus The Roman state gradually expanded to the size of an empire, covering almost the entire known world. A characteristic feature of this huge machinery was multiculturalism and diversity. On conquered territories, the Romans barely interfered in customs, including legal ones, or cult matters. They subjugated the local administration, admitting only loyal people to power. A huge step towards unification came in the form of Constitutio Antoniniana. Still, the specificity of local communities was maintained. Philogelos enables a look at some aspects of the functioning of the state. There are numerous references to the Roman administration:117 116 D. 1,5,9 (Pap. 31 quaest.): In multis iuris nostri articulis deterior est condicio feminarum quam masculorum. (In many parts of our law the condition of women is worse than that of men. Transl. S. P. Scott). 117 In one of the jokes (Philogelos 202), a sort of a dream career path was presented. The astrologer told the boy that he would become: rhvtwr (an orator), e[prco(a prefect) and hgemwvn(a province governor), or even an emperor. Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 262. 38 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS provincial governors and auxiliary personnel, as well as local authorities in provincial cities. Philogelos 261: Limovxhrou{prcoto;bhmujtouejkevleuseprojrtokopeion genevsqi. A gluttonous magistrate gives the order for his court to hold its sessions next to a bakery. The term u{prco employed in the text was used to describe a proconsul or a legate. In both cases, it can be assumed that the official mentioned in the joke was the governor of a province: respectively a Senate one or an imperial one. While in office, he considered matters presented, sitting on a platform called in Latin tribunal118 and bhm119 in Greek. The official was entitled to use a curule chair, which was placed on the platform. A governor’s duties were quite tedious, so he tried to make their execution more pleasant. In this case, it was a gratifying view of the bakery, and – no less important – a tempting smell. The exercise of power was often associated with the need to travel. Philogelos 63: colstiko;sunekvqhtohgemovnidexiophvrw.eijejwvrnou\n ejxelqovntoujtou ki; ejpinountot;ejntoijristeroi mevresinjmpevlou:$Otnejpnercwvmeq,fhsiv,ki; t; [ll mevrhjrevseisoi. A student dunce is working as an assessor with an official who is blind in his right eye. Having set out on a survey one day, the official admires the grapevines he sees on his left side. ‘When we turn round and go the other way, you’ll like what you see on that side too,’ offers the dunce. The term hgemwvn used in the joke can have two meanings: it means either an emperor, or a provincial governor. It seems, however, that the first option should rather be rejected due to the fact that there was no emperor blind in one eye. In addition, such a joke against the current ruler could be treated as crimen maiestatis, and in case of any of the previous ones the 118 Cf. Vitruv. 5,8; Isid., Orig. 15,4; F. Lammert, Tribunal (1), «RE» 6A/1937, col. 2428-2430. 119 Cf. the trial of Christ: Mt. 27,19. 1. PUBLIC LAW 39 name would probably have been used. It can therefore be assumed that the joke concerns a governor. It should be mentioned that jokes about people blind in one eye (lusci) were rather ill-considered and perceived as vulgar.120 For instance, people contemporary to emperor Elagabalus thought it was inappropriate for him to invite invalid people (including lusci) to his culinary feasts to ridicule them.121 Jokes related to local administration were among those dedicated to Kymaeans. Kyme was a city located on the east coast of the Aegean Sea in Asia Minor, founded as a colony of Locris. In Roman times, it belonged to the province of Asia. Strabo stated122 that the Kymaeans did not realize they lived in a seaside place for a long time, and only after three hundred years they began charging customs fees at the port. This explains why their political organization was considered to be defective. Philogelos 181: Kumioi eij hfoforivn jpnthvsnte gnovnte pollou; ejk twn [llwn povlewn jpoleifqevnt, ijtiwmevnou th;n jtrpovn:Mh; mwroiv,e[fsn,ej;nki; hmeieijto; mevllon oujkejrcovmeq_ People of Kyme have gathered to vote. They noticed that quite a few from neighboring cities are absent, with the roughness of the road as their excuse. The Kymaeans’ unanimous conclusion: ‘Then we’ll be fools to show up ourselves next year, won’t we?’ There was a vote put up in Kyme, and not only the Kymaeans but also residents of other cities could take part in it. It can thus be assumed that this was a provincial assembly. Initially, the task of such gatherings was to organize the cult of the emperor, but they also dealt with the problems of the local community, referring even to the activities of the provincial 120 Cf. Cic., De or. 2,246; Plut., Mor. 633 c; M. Beard, Laughter in Ancient Rome..., p. 51. It should be added that – despite their inappropriateness – jokes at lusci appeared in literature, for instance in Martial’s works (Mart., Ep. 3,8; 3,11; 3,39; 4,65; 6,78; 8,9; 8,59; 11,73,6; 12,22); cf. P.A. Watson, Martial’s Fascination with ‘lusci,’ «Greece & Rome» 29.1/1982, pp. 71-76. 121 SHA, Heliog. 29,3. 122 Strab. 13,3,6. 40 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS governor and his subordinates.123 However, it should be noted that there is no evidence confirming the existence of such assemblies in Kyme.124 Yet it cannot be ruled out that the joke is about a more local gathering for the Kymaeans and people from neighbouring villages. This interpretation, however, is undermined by the use of the term povli, which rather signifies a city with its political organization rather than a village. The source of humour here is not only the fact that participation in the vote was in the interest of the Kymaeans, who, thanks to that, could determine the fate of their community. From the legal point of view, the reason for the absence of people from other cities who felt explained by the state of the roads is also important. It seems that the obstruction of the route should be considered force majeure if it actually prevented travelling. In Kyme, it was local officials who exercised power. Philogelos 180: Kumio[rcwntoiutkhruvgmtejkhvruxen:Oie[foroimet; th;n qusivn prcrhm t;eutwn buvrs jnferevtwsn pro;to;nierev.Oide;bouleutiv,e[lqeteeijto;bouleuthvrion ki; mh; bouleuvesqe. Oi de; mvgeiroi t; i[di ojstev upe;r to;teicobllevtwsn.Oide;skuteimikrou;klvpodmh; ejcevtwsn. A Kymean magistrate once made proclamations like these: 1. Let the officials, immediately after the sacrifice, offer up their own hides to the priest. 2. Councillors, come to the council-chamber and refrain from holding council. 3. Let the butchers throw their own bones over the city wall. 4. And let the cobblers not stick to their lasts. The protagonist of the joke is a local magistrate who issued an absurd ordinance. If it happened in Roman times, which is very likely,125 they would technically have taken the form of an edict, for the ius edicendi was entitled 123 Cf. F. F. Abbott, A.C. Johnson, Municipal Administration in the Roman Empire, Princeton 1926, p. 165 ff. 124 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 256. 125 In the Hellenistic period, Kyme had a political organization characteristic for a povli, a part of which was mentioned in the joke boulhv.However, in Roman times, this form of government was maintained because it did not contradict the principles of organization of local authorities by the Romans. 1. PUBLIC LAW 41 to municipal authorities, like duoviri or aediles. The term [rcwn(archon) denoted an official who was the head of a local community.126 The joke allows us to look at the political organization of a city. In addition to the archon, ephores were also elected, who seemed to be lower-level officials responsible for sacrifices. The city council consisted of the bouleutai, an equivalent of decuriones. Provincial cities had many duties. Collecting taxes was obviously the basic one, as well as recruiting the army. However, city authorities also had to ensure that high-level guests were adequately accommodated.127 Philogelos 163: Kumioiprosdokwnteejxjpodhmivfivlonujtwnjxiovtimon ki; boulovmenoi ujto;n ejntw blneivw di; kqrou u{dto timhsi,mivne[contekolumbhqrn,tuvthnu{dtoqermou kqrouplhvsnteejnmevswujthkvgkellontrhto;ne[blon, o{pw to; h{misu touu{dto kqro;n tw prosdokwmevnw thrhtifivlw. The people of Kyme, expecting the arrival from abroad of a popular and revered guest, wish to honor him with fresh water in the public bath. However, there’s only one pool in the bath. So they fill it with hot water and put a grate across it mid-way. Thus, they think, they’ll keep at least half the water fresh for their guest. It is not known whether the person mentioned in the text visited Kyme officially or privately. The text suggests that it could also be a citizen who left, perhaps, to run some office in Rome. In any case, he had to be hosted. The joke allows us to conclude that a significant guest could expect all the comfort. Obviously, they must have had access to the baths. It seems very probable that, for representative reasons, local officials could decide to change water in public facilities to make a good impression. One more rather difficult text is also worth considering. Philogelos 74: colstikwlepto;n i{ppon e[conti proselqwvn ti: @O i{ppo sou,e[fh,eij$idouor.ki;oscolstikov:Kjgw;blevpw. 126 On the local administration in Kyme cf. L. Bürchner, Kyme, «RE» XI.2/1922, col. 2475-2476. 127 Cf. P. Garnsey, R. Saller, The Roman Empire. Economy, Society and Culture, BerkeleyLos Angeles 1987, p. 32. 42 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS A student dunce is riding a very skinny horse. Someone comes up and says, ‘Your horse is at death’s door.’ ‘Good, that’s just where I was headed,’ responds the dunce. The scholastikos’ answer does not seem to make sense. Thierfelder did not find any humour128 in this joke but Baldwin decided that the rider feared to fall off the back of the animal which was too weak to hold him.129 The simplest explanation would be: the protagonist did not feed the horse because he felt that his own life was coming to an end and decided that there was no use taking care of the animal. However, we can try to interpret this joke differently. First of all, the context that evokes associations with the examined situation should be presented. Gell. 4,20,11: Item aliud refert Sabinus Masurius in septimo memoriali severe factum: “Censores” inquit “Publius Scipio Nasica et Marcus Popilius cum equitum censum agerent, equum nimis strigosum et male habitum, sed equitem eius uberrimum et habitissimum viderunt et “cur” inquiunt “ita est, ut tu sis quam equus curatior?” “Quoniam” inquit “ego me curo, equum Statius nihili servos.” Visum est parum esse reverens responsum, relatusque in aerarios, ut mos est”. Sabinus Masurius too in the seventh book of his Memoirs relates a third instance of severity. He says: “When the censors Publius Scipio Nasica and Marcus Popilius were holding a review of the knights, they saw a horse that was very thin and ill-kept, while its rider was plump and in the best of condition. ‘Why is it,’ said they, ‘that you are better cared for than your mount?’ ‘Because,’ he replied, ‘I take care of myself, but Statius, a worthless slave, takes care of the horse.’ This answer did not seem sufficiently respectful, and the man was reduced to a commoner, according to custom.” (transl. J. C. Rolfe) 128 A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 224. 129 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 73. 1. PUBLIC LAW 43 Writing about strict decisions of censors,130 Aulus Gellius quoted a fragment of Massurius Sabinus’ work entitled Libri memoralium,131 in which the jurist noted a case concerning the censorship of Scipio and Popilius of 159 BC.132 Seeing a well-groomed knight leading a scrawny horse, the censors asked why the rider looked better than the mount; they were answered that the gentleman cared for himself, while the horse was looked after by a bad slave Statius. The knight was not only removed from the centuria but also transferred to the aerarii. Such a severe sanction, however, was not caused only by the neglect of the horse, but also by a disrespectful remark directed at the censors. The whole situation probably occurred during the review of the knight centuries (recognitio equitum). Neglecting a horse received from the state and looked after with the state money was treated as a serious offence and called inpolitia.133 It is then worth risking a assumption that the origin of Philogelos joke was precisely this: the censor rebuked the knight that his horse was at death’s door, that is it was gazing towards Hades. However, we also need to explain this rather enigmatic answer. In Latin, the phrase eij$idouorwould be spectat Orcum, or spectat in Orcum. One of the favourite though not always praiseworthy ancient techniques of creating jokes was ridiculing surnames.134 Perhaps, therefore, the nickname of a censor made it possible to create a neat pun. The review of fasti censorii allows one hypothesis to be put forward. For in 55 BC, M. Valerius Messalla Niger135 was elected to be a censor. His cognomen 130 Cf. A. Tarwacka, Prawne aspekty urzędu cenzora w starożytnym Rzymie, Warszawa 2012, pp. 218-219. 131 Cf. J. Zabłocki, Kompetencje ‘patres familias’ i zgromadzeń ludowych w sprawach rodziny w świetle ‘Noctes Atticae’ Aulusa Gelliusa, Warszawa 1990, p. 11 ff. on quotations from jurists’ unpreserved works in Gellius. 132 Cf. C. De Boor, ‘Fasti censorii’, Berolini 1873, p. 19; T.R.S. Broughton, The Magistrates of the Roman Republic, I, Atlanta 1951 (reprint 1986), pp. 445-446; J. Suolahti, The Roman Censors. A Study on Social Structure, Helsinki 1963, pp. 382-387; E. Reigadas Lavandero, Censura y ‘res publica’: aportación constitucional y protagonismo político, Madrid 2000, pp. 348-354. 133 Cf. Gell. 4,12,2-3; Fest. (Paul.) 95 L., s.v. inpolitias. Cf. A. Tarwacka, Prawne aspekty..., pp. 217-218. 134 Cf. A. Corbeill, Controlling Laughter..., pp. 97-98. 135 His workmate in the office was P. Servilius Vatia Isauricus. Cf. T.R.S. Broughton, op. cit., II, New York 1952, p. 215; J. Suolahti, The Roman Censors..., pp. 477-483; E. Reigadas Lavandero, op. cit., pp. 471-477. 44 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS ‘Niger’ – ‘the Black’ – brings associations with the land of the dead. In Roman literature, there appears a fixed phrase Orcus niger.136 The joke would therefore have the following meaning: ‘Your horse looks at Orcus’/ ‘And I look at the black’ (Equus tuus Orcum spectat. Et ego nigrum). It can be assumed that the finale of such an exchange would be similar to that described by Gellius – a censorial note for the jester. The censorship of 55 BC was unusual137 because officials failed to complete all tasks and submit the lustratio sacrifice. That is why we do not know whether they reviewed the centuries of the knights. The sources appear to say they created the lists of senators but failed to deliver a census of all citizens. It is very likely that the recognitio was performed just after the lectio senatus, before they got stuck in census procedures for good. The Philogelos compiler put this joke in the collection even though the Greek text does not seem too funny. Perhaps, however, the Latin version was actually amusing but only for those who knew the context. The infrastructure of the Empire included the famous Roman roads creating the first ever world wide web. All these roads were thoroughly administered and provided with proper indications. The milestones (miliaria) were very important for travellers, allowing to determine the distance to the destination or intermediate points.138 Philogelos 60:139 colstiko; jpo; pollwn milivwn cwrivon e[cwn, i{n ujto; ejgguvteronpoihvsh,ept;mivliktevblen. A student dunce’s farm is many miles away. To bring it closer, he knocks down seven milestones. The scholastikos complained that his land estate was located too far from the city. The destruction of the milestones gave him a seeming solution to the problem. It’s as if today we changed ‘two’ into ‘one’ on the road-sign showing 200 km to the destination town... Of course, a question arises whether the protagonist was liable for the 136 Hor., Carm. 4,2,23-24: nigroque/ invidet Orco (he envies the black Orcus); Anth. Lat. 93,5: famulam nigri iam dixeris Orci (you already said she was a slave of the black Orcus). 137 More on that topic Cf. Th. Mommsen, Römisches Staatsrecht3, II.1, Graz 1952 (reprint), pp. 386-387; W. J. Tatum, The ‘lex Clodia de censoria notione’, «CQ» 85.1/1990, pp. 34-43; A. Tarwacka, Prawne aspekty..., pp. 250-258. 138 Cf. L. Casson, Travel in the Ancient World, Baltimore-London 1974 (reprint 1994), p. 173. 139 Cf. almost identical Philogelos 131. 1. PUBLIC LAW 45 destruction of the milestones. Since the archaic times destruction of boundary stones used to be a serious crime. Numa Pompilius ordered that the one who violated the stone was considered sacer.140 Caesar’s lex agraria included provisions for financial penalties for deliberate shifting of boundary stones,141 while Hadrian diversified the case of intentional actions, punished depending on the status of the perpetrator by relegation or the penalty of two years of work in the mines, from the situation where the perpetrator acted out of ignorance or accidentally: then he was subjected to flogging.142 Of course, the object of protection was the right of ownership, because the dislocation, taking away or destruction of a stone could result in shifting or blurring the boundary of the land. The scholastikos did not, however, destroy the boundary stones, but milestones. It can be assumed that such an action could be sanctioned because miliaria were public things. In addition, during the imperial period, they often documented the achievements of the ruler, which could have been an additional factor to sharpen the qualification of the act. This is just a hypothesis, but it should be expected that the magistrates responsible for cura viarum dealt with such matters. Preserved milestones143 are a treasure trove of inscriptions indicating which magistrate or emperor was overseeing the construction of the road. These are texts of a public nature, aimed not only at signalling the distance, but also honouring the benefactor.144 140 Cf. Fest. (Paul.) 505 L, s.v. termino; Dion. Hal. 2,74,3; J. Zabłocki, Kompetencje ‘patres familias’…, p. 105 fn. 45; Idem, Appunti sulla ‘sacrorum detestatio’, «BIDR» 92-93, 19891990 [ed.1993], p. 538 fn. 39; R. Fiori, ‘Homo sacer’. Dinamica politico-costituzionale di una sanzione giuridico-religiosa, Napoli 1996, pp. 204-208; L. Garofalo, Sulla condizione di ‘homo sacer’ in età arcaica, [in:] Studi sulla sacertà, Padova 2005, p. 19 ff. 141 D. 47,21,3, pr. (Call. 5 de cogn.). 142 D. 47,21,2 (Call. 3 de cogn.). Cf. K. Amielańczyk, Rzymskie prawo karne w reskryptach cesarza Hadriana, Lublin 2006, pp. 124-128. 143 Cf. H. E. Herzig, Probleme der römischen Strassenwesens. Untersuchungen zu Geschichte und Recht, «ANRW» 2.1/1974, p. 593 ff.; Idem, Rzymskie kamienie milowe z Italii. Rozważania historyczne, transl. L. Mrozewicz, Poznań 1996, passim. 144 These inscriptions were collected in the volume XVII of the Corpus Inscriptionum Latinarum. 46 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS Philogelos 132:145 idovnioprgmteuth;met;etevrouw{deue.thde;gstro; jngkzouvsh mikro;n jpeleifqhni prospevmeinen. o de; sunodoipovrojfhkenujtovngrve[ntinikivonitwnmilivwn: Tvcunon,fqvsonme.odevwjnevgnw,ejpevgrekvtwqenKi; ujto;meinovvnme. A salesman from Sidon undertakes a journey on foot with a companion. When he needs to relieve himself, he is left a bit behind and remains some distance back. His fellow traveller gets ahead of him and writes ‘Hurry and catch up with me!’ on a milestone. When he reads it, the Sidonian writes underneath, ‘No, you wait for me!’ In the situation described in the joke, the traveller left a message for the companion who had been left behind. This may be a clue about another use of milestones: they could be treated as a kind of advertising columns. The official inscriptions were durable, well-carved in stone. The travellers however would rather write in chalk or in other makeshift way. Today there is no trace of such graffiti, but Philogelos stands proof of the practice of using miliaria in this way. 1.2. The army The Roman army was admired for its efficiency, effectiveness and ability to overcome huge distances in a short time using (and sometimes also building along) the famous roads. Philogelos 134: idovnio ektovntrco toi strtiwvti e[legen: hvmeron poll;kqivste:u[riong;rpoll;mevlleteodoiporein. A Sidonian centurion addresses the troops: ‘Today I want you to sit a lot, because tomorrow you’re going to do a lot of marching.’ This joke146 undoubtedly features the Roman army because it speaks of a centurion,147 who actually came from Sidon. Even the best legionaries 145 Cf. almost identical Philogelos 42. 146 Philogelos 84 is very similar. 147 It is interesting that the term ektovntrco, and not kentourivwn was used, as in Philogelos 138. 1. PUBLIC LAW 47 needed rest during a march. Here, the commander decided to accumulate breaks in one day in order to march the next day without any stop. The army was a great power,148 comparing to which an individual meant absolutely nothing. Philogelos 96: Duvo scolstikoi; deiloiv, o me;n e[kruen eij frevr utovn, ode;eijklmwn.clsvntwnou\nkrvnotwnstrtiwtwn ejpi; to; u{dwr jruvssqi, nomivs strtiwvthn ktievni, iketeuvwn ejlhvfqh. w de; e[fsn oistrtiwti, o{ti, eij ejsiwvphse,prhlqonn ujtovn, o ejntwklmwnikrubovmen o:Oukoun,ei\pen,ejme;prevlqte:siwpwgvr. Two cowardly student dunces are being pursued by the enemy. One of them hides in a well, the other in a marsh. The soldiers let a helmet down into the well in order to draw water. The first dunce, thinking that a soldier has come down the well, gives himself away by surrendering. When the soldiers tell him that they’ll [they’d – AT] pass him by if he keeps [kept – AT] quiet, the dunce hidden in the marsh speaks out: ‘Please pass me by as well; I’m keeping quiet, too!’ This joke raises many doubts.149 It is not known why the enemies were chasing two cowardly smart alecs. Perhaps they served in the army. In such a situation, we would suppose that they had been running away after losing a battle, trying to avoid being captured or even killed. It is also possible, however, that they had left their unit and were deserters. Yet another interpretation is plausible too: the fugitives could have been civilians who found themselves in the way of the enemy army’s route. Still, the basic problem is that the scholastikoi and the soldiers talk to each other, so there is no language barrier between them. Such a situation evokes associations with a civil war, and specifically with the period of the Republic and the Principate when proscriptions were taking place. It can be assumed with much caution that the fugitives were proscribed citizens who hid themselves for fear of their lives. There are sources which appear to 148 That is why marching of the amry was treated as a force majeure event. Cf. D. 19,2,15,2 (Ulp. 32 ad ed.). 149 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 231; W. Hansen, Ariadne’s Thread. A Guide to International Tales Found in Classical Literature, Ithaca-London 2002, p. 137. 48 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS suggest that troops were seeking people from the proscription lists.150 A bit similar story to the one discussed here is that of L. Plotius of a senatorial line (a brother of L. Plancius, two-time consul and censor), who was found and killed during a proscription proclaimed by the triumvirs, because he was betrayed by the smell of exotic oils.151 If the presented hypothesis turned out to be right, then the joke about the proscribed wretches came a long way and certainly did not raise such associations among the recipients from the time when Philogelos was compiled. The civilian population was terrified by the prospect of being attacked by the enemies and living in a besieged city. That is why local communities were preparing for such a course of action. Philogelos 162: Kumivwnth;npovlinteicizovntwnei|twnpolitwnLollino; klouvmenoduvokortivnijdivoiejteivcisenjnlwvmsi.polemivwn de; ejpistvntwn ojrgisqevnte oi Kumioisunefwvnhsn, i{n to;Lollinouteicomhdei;fulvxhjllejkeinomovno. When the Kymaeans were walling up their city, one of the citizens, Lollianus by name, used his own money to build sections connecting three of the towers. This so offended the Kymaeans that they all agreed that no one but Lollianus himself should defend that part of the wall. In this case, one of the residents of the city acted as an euergetes,152 or a benefactor, donating a piece of the walls (the curtains mentioned in the text are sections of the walls connecting two towers), causing envy to their fellow citizens. One can wonder about the reason for this state of affairs. The 150 Cf. Val. Max. 6,8,6. 151 Plin. Mai. 13,5,25: L. Plotium, L. Planci bis consulis censorisque fratrem, proscriptum a triumviris in Salurnitana latebra unguenta odore proditum constat, quo dedecore tota absoluta proscriptio est; quis enim non merito iudicet perisse tales? (It is a well-known fact that Lucius Plotius, the brother of Lucius Plancus who was twice consul and censor, when proscribed by the Triumvirs was given away in his hiding-place at Salerno by the scent of the unguent he had been using—a disgrace that acquitted the entire proscription of guilt, for who would not consider that people of that sort deserved to die? Transl. H. Rackham). Cf. Solin. 46,3; A. Tarwacka, Prawne aspekty..., p. 143-144. O the topic of exotic oils and parfume see D. Słapek, O rzymskich wonnościach, czyli jak nad Tybrem przełamywano niechęć do „pachnących importów”?, [in:] Zbytek i ubóstwo w starożytności i średniowieczu, ed. L. Kostuch, K. Ryszewska, Kielce 2010, pp. 85-96. 152 Cf. P. Garnsey, R. Saller, op. cit., p. 33. 1. PUBLIC LAW 49 name Lollianos seems to be rather of Roman origin.153 Since it was recalled in the joke, although Philogelos protagonists are mostly unnamed, it may carry some meaning. Who knows, perhaps as a Roman, he might have experienced the hostility of the local community, even though – as indicated in the text of the joke – he was also a citizen of Kyme. In yet another joke,154 a different enemy army attacked the city unexpectedly; this time it was Abdera. The situation was more serious there, however, because the defence was apparently defective: the enemy was already passing through the gates. The fear of parents about war-fighting sons seems to be very characteristic and timeless, and it also becomes the subject of one of the jokes. 155 And a soldier serving in the army is the protagonist of yet another jest.156 Philogelos 82: colstikw jnbivnonti ejpi; teico ejn mvch cuvtrn ti mesth;n koprivwn ejpevblen. o de; bown: Ouj qevlei, ei\pe, kqrwpukteusi_ In the course of a battle, a student dunce scales a wall and gets a bucket of shit poured over him. ‘Would you mind,’ he shouts, ‘fighting clean?’ The scholastikos is a very well-educated man. The ancient canon also included sports training. The protagonist of the joke knew the rules of the fight and – when he found himself in an unknown situation, acting as a soldier charging at the city – he tried to translate the rules of ‘clean fight’ in the gymnasium into war rules. 153 Cf. F. Miltner, Lollianus, «RE» XIII.2/1959, col. 1367 ff. 154 Philogelos 110: Enbdhvroidihreitoh povlieijduvomevrh,oi tepro;jntol; oijkounte ki; oi pro; duvsin. polemivwn ou\n [fnw th;n povlin ejformhsvntwn ki; pvntwnqoruboumevnwnoipro;to;jntoliko;noijkountemevropro;jllhvloue[legon: @Hmeimh; qorubhqwmen:oi g;rpolevmioiejpi; t;dusik;eijsevrcontipuvl.(In Abdera the citizenry used to be divided into two parts – those living to the east, and those living to the west. When enemies suddenly descended on the city and everyone was terrified, the ones living on the east side kept telling each other, ‘Let’s not panic; after all, the enemy are coming in by the western gates.’) 155 Philogelos 65 a: colstikou uio;upo;tou ptro;eijto;npovlemonejkpempovmeno upevsceto keflh;n eno;twn ejcqrwn e[cwn ejleuvsesqi. o de; e[fh: Kn cwriv se keflhejlqovnti[dw,eujfrnqhvsomi. (A sudent dunce’s son is sent off to the war by his father. He promises to come back with the head of one of the enemy. ‘I’ll be glad,’ responds the dunce, ‘when I see you’ve come back, even with no head!’) 156 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 75. 50 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS 1.3. The Games The Games and spectacles were a very important element of public life; they were often organized by magistrates, sometimes by private parties, but always subjected to the state control. In Philogelos, we can find references to sports competitions,157 fights with wild animals in the arena, as well as theatrical performances. One joke158 is about the ludi saeculares which took place on the 1000th anniversary of founding Rome in 248 AD. These texts allow us to look at some aspects of the organization of spectacles. Philogelos 216: Fqonero; ijdw;n to;n geivton qhriomcount levgei twkubernhvth:#rko. A man become jealous when he sees his neighbor battling wild beasts in the theatre. ‘Bring on the bear!’ he tells the games director. This joke is considered incomprehensible.159 The term kubernhvt h appearing in the text was translated as ‘steersman’ and it was attempted to be linked to the bear as an allusion to the constellation Ursa Major.160 Gareth Morgan161 attempted to make the joke comprehensible and began with accepting another meaning of the word kubernhvt h – ‘governor’, which is fully justified. He decided that the joke takes place during the Games in which the jealous man’s neighbour acts as a venator162 and is doing very well. The envious protagonist then shouts to the governor of the ludi to release a bear, considered a very 157 In jokes about boxing, the source of humour lies in the dissonance between the profession and disposition. The term ‘cowardly boxer’ is internally contradictory, it’s an oxymoron. For example Philogelos 217: #llodi;deilivnejpevgrenejpi;toumetwvpou:@Otovpo twn kirivwn. piovmeno ou\n sunecw ei\pe pro tou; provnt: Mh; ti ou|to grvmmtoujkoi\denki;jnireime_(Onother coward writes on his forehead, CONTAINS VITAL ORGANS!’ Being incessantly pummeled by his opponent, he remarks to the referee, ‘I guess this guy can’t read; he’s killing me!’) Cf. also Philogelos 208, 209, 210, 218. 158 Philogelos 62; cf. M. Beard, Laughter in Ancient Rome..., p. 189. 159 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 267. 160 Cf. E. Kurtz, Zum ‘Philogelos’ des Hierocles (ed. Eberhardt 1869), «Blätter für das Bayerische Gymnasialschulwesen» 23/1887, p. 370. 161 Cf. G. Morgan, ‘Philogelos’ 216, «JHS» 101/1981, p. 141. 162 Cf. D. Słapek, Sport i widowiska w świecie antycznym. Kompendium, Kraków-Warszawa 2010, s.v. Venator, pp. 708-710. 1. PUBLIC LAW 51 dangerous animal. Morgan concluded the joke is still not funny but at least it makes sense. It seems that the giving back the vis comica to the text is possible with one assumption. What should be understood by the venator being the jealous man’s neighbour (geivtwn)? Beasts were fought by slaves and auctorati.163 It is hard to believe that they lived in the city and fought in the arena during the Games. They were rather barracked in a gladiatorial school. Perhaps, therefore, the envious protagonist of the joke also dealt with venatio. Both of them performed in the amphitheatre but the other one was doing much better, winning the crowd’s applause. The jealous one then shouted to the governor to let the bear out. Perhaps the venatores had been hunting animals like antelopes, deer, gazelles and ostriches from the distance so the bear would definitely increase the risk for hunters. The envious man did not just predict that he would have to face the beast himself, thus producing a threat to his own life. In Philogelos, there appear two actors: a comic one and a tragic one, and in both cases they cite fragments of theatrical plays.164 In one of the jokes,165 there appears jgwnoqevth – an exhibitor of the performance, who is most likely an organizer, having a public contract of a locatio with the local official responsible for the cura ludorum. The exhibitor, in turn, employed actors on the basis of a lease contract signed with themselves (if they were free), or with their owners (if they were slaves, unless they were simply his property). The other joke166 may indicate that actors were often an object of female 163 Cf. J. Urbanik, ‘Auctorati’ i ‘auctoratio’ w prawie rzymskim, «CPH» 47/1995, pp. 155-170; P. Kubiak, ‘Damnatio ad bestias’ i inne kary wykonywane na arenie w antycznym Rzymie, Łódź 2014, pp. 43-55. 164 M. Andreassi considered them not authentic, Citazioni teatrali nelle facezie del ‘Philogelos’, [in:] Memoria di testi teatrali antichi, ed. O. Vox, Lecce 2006, pp. 11-32. Differently A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 271 and 274-275. Philogelos 226: Limovxhrokwmwdivupokrith;to;njgwnoqevthnpro; tou eijselqein [riston h[tei. tou de; ejpizhtounto, di; ti proristhsi qevlei: $n, e[fh, mh; ejpiorkhvswlevgwn:  jegw;men;hjrivsthsnh;th;n#rtemin  mvlhdevw. (A gluttonous comic actor asks the manager for lunch before he goes on stage. The manager wonders why he would want to eat lunch first. ‘So I won’t swear falsely when I give the line, ‘Right sweetly have I dined, by Artemis!’ ) 165 166  Philogelos 239a: Nenivsko trgwdo; hjgphvqh upo; gunikwn duvw, ojzostovmou ki; ojzocrwvtou.ki; th;mivlegouvsh:Dovmoi,kuri,filhvmt-th;de; [llh:Dov moi,kuri,periplokv-ejkeinojnebovhsen: Oi[moi,tivdrvsw_dusi;kkoimerivzomi. 52 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS worship although the hero was unlucky: one of the admirers had bad breath, the other suffered from excessive sweating... 1.4. Roman citizenship Many rights were linked with having Roman citizenship, both in private and public law. In the Republican period, the latter included the right to fight in the legions (ius militandi), the right to vote at popular assemblies (ius suffragii), the right to stand for offices (ius honorum), the right to obtain plebeian tribune’s help (ius auxilii) and the right to appeal to the popular assembly against a magistrate’s decision imposing death penalty, flogging or a fine on the citizen (ius provocationis). These powers underwent significant modifications conditioned by systemic changes during the imperial period. Ius provocationis gradually became a privilege giving a Roman citizen personal inviolability in the event of confrontation with the competences of officials and other persons in power. D. 48,6,7 (Ulp. 8 de off. procons.): Lege Iulia de vi publica tenetur, qui, cum imperium potestatemve haberet, civem Romanum adversus provocationem necaverit verberaverit iusseritve quid fieri aut quid in collum iniecerit, ut torqueatur. Anyone who is invested with authority or power, and subjects a Roman citizen to death or scourging, or orders this to be done, or attaches anything to his neck for the purpose of torturing him, without permitting him to appeal, is liable under the Julian Law relating to Public Violence. This also applies to deputies and orators, and their attendants, where anyone is proved to have beaten them, or caused them any injury. (transl. S. P. Scott) According to Ulpian, the sanction resulting from the lex Iulia de vi publica, i.e. interdictio aquae et ignis,167 was imposed on a person having (A quick-witted young tragic actor is loved by two women, one with bad breath and one with body odor. When he hears, ‘Kiss me, dear, again and again!’ from the one, and ‘Give me some hugs!’ from the other, he declaims, ‘Als, what shall I do? For I am torn between two evils!’) 167 D. 48,6,10,2 (Ulp. 68 ad ed.). Cf. still PS. 5,26,1, where a sanction for honestiores is an exhile to an island, and for humiliores – death. 1. PUBLIC LAW 53 power who killed, or flogged a Roman citizen, or ordered to do so, or placed something around their neck to torture them against their appeal. These regulations are the background for one of Philogelos jokes.168 Philogelos 138: idovnio kentourivwn ijdw;n zeughlvthn di; th jgor {mxnfevrontejkevleusenujto;ntufqhni.tou;deeijpovnto o{ti@Rwmioveijmi,ki;oujcrh;tuvptesqivmedi;to;nnovmon- tou;bovejkevleusenokentourivwnmstigwqhni. A Sidonian centurion sees a teamster driving an ox-cart through the middle of the marketplace. He orders him to be beaten, but the teamster claims, ‘I am a Roman citizen; it’s against the law to beat me.’ So the centurion orders the oxen to be flogged. The source of humour here is the ius provocationis.169 In the Republican period, this right was based on appealing to the popular assembly against the decision of a magistrate who wanted to impose the death penalty, flogging or a high fine. Regarding the flogging, its application to citizens was excluded under the lex Porcia de tergo civium170 of 195 BC. In the 168 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 241; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., pp. 86-87. 169 On provocatio see J. Bleicken, Ursprung un Bedeutung der Provocation, «ZSS» 76/1959, pp. 324-377; G. Crifò, Alcune osservazioni in tema di ‘provocatio ad populum’, «SDHI» 29/1963, pp. 288-309; A.W. Lintott, ‘Provocatio’. From the Struggle of Orders to the Principate, «ANRW» 1.2/1972, pp. 226-267; Idem, ‘Provocatio’ e ‘iudicium populi’ dopo Kunkel, [in:] La repressione criminale nella Roma repubblicana fra norme e persuasione, red. B. Santalucia, Pavia 2009, pp. 15-24; L. Amirante, Sulla ‘provocatio ad populum’ fino al 300, «Iura» 34/1963, pp. 1-27; L. Garofalo, In tema di ‘provocatio ad populum’, «SDHI» 53/1987, pp. 355-371; Idem, Ancora sul processo comiziale ‘de capite civis’, «SDHI» 54/1988, pp. 285-332; B. Santalucia, Processo penale, [in:] Studi di diritto penale romano, Roma 1994, pp. 178-180; P.A Brunt, ‘Libertas’ in the Republic, [in:] The Fall of the Roman Republic and Related Essays, Oxford 1998, pp. 332-334; F. De Martino, Il modello della città-stato, [in:] Storia di Roma, ed. A. Giardina, Roma 1999, pp. 140-143; E. Loska, ‘Provocatio ad populum’, [in:] ‘Salus rei publicae suprema lex’. Ochrona interesów państwa w prawie karnym starożytnej Grecji i Rzymu, Lublin 2007, pp. 128-135; R. Pesaresi, ‘Improbe factum’. Riflessioni sulla ‘provocatio ad populum’, [in:] ‘Fides humanitas ius’. Studii in onore di Luigi Labruna, VI, Napoli 2006, pp. 4179-4205; E. Tassi Scandone, ‘Leges Valeriae de provocatione’. Repressione criminale e garanzie costituzionali nella Roma repubblicana, Napoli 2008 along with review P. Kołodko, «Zeszyty Prawnicze» 9.2/2009, pp. 377-391. 170 Cf. Cic., Rab. perd. 3,8; G. Rotondi, ‘Leges publicae populi Romani’. Elenco cronologico con una introduzione sull’ attività legislativa dei comizi romani, Milano 1912, p. 309; A. W. Lintott, ‘Provocatio’..., pp. 249-253; B. Santalucia, Processo penale..., p. 179; P. Kołodko, Prawne aspekty ograniczenia chłosty w prawie rzymskim, «Miscellanea 54 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS Principate, the provocatio underwent significant changes as the emperor became the appeal body, often replaced by high-ranking magistrates, primarily the praetorian prefect.171 There also appeared, as it was mentioned, penalties for officials who did not respect the rights of citizens. The centurion’s behaviour in this case clearly demonstrates his fear of sanction and that it was enough to rely on one’s Roman citizenship to avoid flogging. In the late Republic, a cry civis Romanus sum! (‘I am a Roman citizen!’) would stop flogging,172 and with time this rule was strengthened. This is clearly evident in case of Saint Paul: the apostle also announced to a centurion who wanted to whip him that he was a citizen, thus avoiding punishment.173 The author of Philogelos used two verbs to describe flogging: tuvptw and mstigovw. The first one is quite neutral and simply means ‘to beat / to hit.’ The Latin equivalent of the other term is flagello, meaning whipping with the help of a lash, a tool used mainly to punish slaves.174 Emphasizing his status of a citizen, the driver pointed out that flagellatio was in his case excluded. The joke in question contains yet another piece of information very important from the legal point of view, namely the reference of a ban on passing Historico-Iuridica» 4/2006, pp. 31-32; Idem, Ustawodawstwo rzymskie w sprawach karnych. Od Ustawy XII Tablic do dyktatury Sulli, Białystok 2012, pp. 48-52. 171 Cf. S. Ruciński, Le rôle du préfet des vigiles dans le maintien de l’ordre public dans la Rome impériale, «Eos» 90.2/2003, pp. 261-274. 172 Cf. Cic., In Verr. 2,5,161-162; Gell. 10,3,10-13; A. Tarwacka, ‘In conspectu legum libertatisque moriatur’. Sprawa Publiusa Gaviusa a kompetencje namiestnika do ochrony porządku publicznego w prowincji, [in:] Ochrona bezpieczeństwa i porządku publicznego w prawie rzymskim, Lublin 2010, pp. 293-306; Eadem, ‘Causae communi libertatis inimicus’. Verres and the right of ‘provocatio’ in the provinces, «RGDR» 17/2011. In this light, the behavior of the future emperor Galba, who, when someone to be crucified informed him of their Roman citizenship and asked for a lighter punishment, ordered to raise the cross and paint it white, seems scandalous (Suet., Galb. 9,1). 173 Cf. Act. 22,25-29; A. Tarwacka, @O [nqrwpo ou|to @Rwmiov ejstin. Św. Paweł a przywileje obywateli rzymskich, [in:] ‘Apud Patres’. Prawo rzymskie w literaturze wczesnochrześcijańskiej, ed. A. Dębiński, M. Wójcik, Lublin 2011, pp. 219-229. 174 Cf. P. Kołodko, Rzymska terminologia prawna stosowana na określenie chłosty, [in:] ‘Contra leges et bonos mores’. Przestępstwa obyczajowe w starożytnej Grecji i Rzymie, Lublin 2005, pp. 156-158. Cf. also P.Oxy. IX 1186; A. Łukaszewicz, Świat papirusów, Warszawa 2001, p. 309. 1. PUBLIC LAW 55 a cart across the main square. The traffic began to be restricted in Rome in the final period of the Republic.175 TH 56-58: quae uiae in u(rbem) R(omam) sunt erunt intra ea loca, ubi continenti hab<i>tab<i>tur, ne quis in ieis uieis post k(alendas) Ianuar(ias)/ primas plostrum inte<r>diu post solem ortum neue ante horam decimam diei ducito agito. After January 1 next no one shall drive a wagon along the streets of Rome or along those streets in the suburbs where there is continuous housing after sunrise or before the tenth hour of the day. (transl. M. H. Crawford) The relevant provisions were contained in the lex Iulia municipalis preserved in epigraphic form and known as Tabula Heracleensis.176 It introduced a ban on driving along roads in Rome, in places permanently inhabited, after sunrise and before the tenth hour of the day. Carts, therefore, could only move around the streets at night.177 Similar regulations were gradually introduced in Italian cities, and then also in the provinces. They were certainly valid in Sidon, which became a Roman colony during the rule of Elagabalus. Besides, even in the Code of Justinian, a constitution of Gratian, Valentinian and Theodosius178 of 386 AD was cited, under which military and civil notables could move along in carts through Constantinople, which a contrario suggests that other residents were not entitled to that privilege. This shows the continuity of legal regulations in this area. However, the presence of the joke discussed in Philogelos is quite surprising if we agree the set dates back to 4th-5th century AD. First of all, 175 Cf. O.F. Robinson, Ancient Rome. City Planning and Administration, London-New York 1992, p. 62 ff.; C. van Tilburg, Traffic and Congestion in the Roman Empire, London 2007, pp. 127-133. 176 On Tabula Heracleensis cf. C. Nicolet, M.H. Crawford, ‘Tabula Heracleensis’, [in:] The Roman Statutes, ed. M. H. Crawford, I, London 1996, pp. 355-391 along with cited literature; B. Sitek, ‘Tabula Heracleensis (lex Iulia municipalis)’. Tekst. Tłumaczenie. Komentarz, Olsztyn 2006, p. 15 ff. 177 Cf. Very telling image presented by Juvenal in his Satires. 3,232-238. 178 C. 11,20,1 (Imperatores Gratianus, Valentinianus, Theodosius): Omnes honorati seu civilium seu militarium vehiculis dignitatis suae, id est carrucis, intra urbem sacratissimi nominis semper utantur. (Persons who have been invested either with civil or military honors shall always be entitled to make use of vehicles suitable to their rank, that is to say, carriages, in this Imperial City. Transl. S.P. Scott). Cf. CTh. 14,12,1. 56 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS after the issuing the above-mentioned constitutio Antoniniana by emperor Caracalla, almost all the inhabitants of the empire received Roman citizenship. Therefore, it is difficult to assume that the civis Romanus sum declaration still had its logical grounds. Apart from that, civil rights underwent far-reaching modifications due to the deepening division of society into honestiores and humiliores.179 The latter could be subjected to flogging, like slaves, but the difference was that they were beaten with a ‘milder’ tool, a fustis, while slaves were punished with a flagellum.180 It seems that this joke comes from an earlier period and was incorporated into Philogelos more as a relic of the past rather than a reflection of the contemporary sense of humour. Perhaps, however, the stories of Saint Paul known from the Acts of the Apostles, with the saint using his Roman citizenship to avoid flogging, influenced the understanding of the comical air of the situation described. Flogging the oxen by a centurion was the result of his frustration. It can only be added that the owner of the animals could have a grievance about that. If something had happened to oxen, there would have been a basis for using the actio ex lege Aquilia.181 It also seems that the behaviour of the centurion can be interpreted as an action cum animo iniuriandi: he beat the oxen in order to humiliate the citizen.182 179 Cf. P. Garnsey, Why Penalties Become Harsher. The Roman Case, Late Republic to Fourth Century Empire, «Natural Law Forum» 13/1968, pp. 141-162; G. Pugliese, Linee generali dell’evoluzione del diritto penale pubblico durante il principato, «ANRW» 14.2/1982, p. 788 ff.; J.-J. Aubert, A Double Standard in Roman Criminal Law? The Death Penalty and Social Structure in Late Republican and Early imperial Rome, [in:] ‘Speculum iuris’. Roman Law as a reflection of Social and Economic Life in Antiquity, ed. J.-J. Aubert, B. Sirks, Ann Arbor 2002, p. 104. 180 D. 48,19,10 pr. (Macer 2 de publ. iudic.): In servorum persona ita observatur, ut exemplo humiliorum puniantur. et ex quibus causis liber fustibus caeditur, ex his servus flagellis caedi et domino reddi iubetur (...). (The rule is observed with reference to slaves, that they shall be punished as persons of the lowest rank, and in cases where a freeman is whipped, a slave should be scourged, and ordered to be restored to his master... Transl. S. P. Scott). Cf. P. Kołodko, Prawne ograniczenia chłosty..., pp. 27-28. 181 P. Kołodko, Prawne ograniczenia chłosty..., pp. 28-29; L. Desanti, La legge Aquilia. Tra ‘verba legis’ e interpretazione giurisprudenziale, Torino 2015, pp. 24-25. 182 Cf. D. 47,10,32 (Ulp. 52 ad Sab.). 2. PRIVATE LAW 57 2. Private law 2.1. Marriage The definitions of marriage given by Roman jurists sound very noble. Modestinus wrote that it is a union of a woman and a man, a community of the whole life, a combination of divine and human law,183 describing marriage as a consortium omnis vitae. For the Romans, the family had not only social or economic significance but also political one.184 The procreation of citizens was a key factor for the survival of the state. Therefore, being married and having offspring were a priority,185 with citizens’ awareness deliberately shaped to make them comply with these requirements. During the Republican period, the burden of representing the state in this regard was undertaken by censors,186 who clearly urged to conclude marriages and 183 D. 23,2,1 (Modest. 1 reg.): Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio. (Marriage is the union of a man and a woman, forming an association during their entire lives, and involving the common enjoyment of divine and human privileges. Transl. S.P. Scott). Cf. E. Albertario, La definizione del matrimonio secondo Modestino, [in:] Studi Albertoni, I, Padova 1933, pp. 241-256; C. Castello, La definizione di matrimonio secondo Modestino, [in:] Atti del colloquio romanistico-canonistico (febbraio 1978), Roma 1979, pp. 269-298; W. Rozwadowski, Nowe badania nad istotą małżeństwa rzymskiego, «Meander» 42.4-5/1987, pp. 237-247; Idem, Istota małżeństwa w starożytnym Rzymie, «Gdańskie Studia Prawnicze» 14/2005, pp. 773-784; B. Sitek, Koncepcja małżenstwa w rzymskim prawie klasycznym a kultura prawna Europy. Uwagi o małżeństwie w oparciu o tekst Modestyna D. 23, 2, 1, «CPH» 50.1/1998, pp. 11-29; M. Kuryłowicz, Wokół istoty małżeństwa rzymskiego, [in:] ‘Finis legis Christus’. Księga pamiątkowa dedykowana Księdzu Profesorowi Wojciechowi Góralskiemu z okazji siedemdziesiątej rocznicy urodzin, ed. J. Wroceński, J. Krajczyński, II, Warszawa 2009, pp. 1142-1153; J. Zabłocki, ‘Consortium vitae’, [in:] ‘Finis legis Christus’..., II, pp. 1327-1335. 184 Cf. J. Zabłocki, The Image of a Roman Family in ‘Noctes Atticae’ by Aulus Gellius, «Pomoerium» 2/1996, p. 36; Idem, Rodzina rzymska w świetle ‘Noctes Atticae’ Aulusa Gelliusa, [in:] Rodzina w społeczeństwach antycznych i wczesnym chrześcijaństwie. Literatura, Prawo, epigrafika, sztuka. Praca zbiorowa pod redakcją Juliusza Jundziłła, Bydgoszcz 1995, pp. 45-46. 185 Cf. O.M. Péter, ‘Liberorum quaerundorum causa’. L’image idéale du mariage et de la filiation à Rome, «RIDA» 38/1991, pp. 285-331; P. Niczyporuk, Zawarcie małżeństwa ‘liberorum procreandorum causa’ w prawie rzymskim, «Zeszyty Prawnicze» 14/3, 193-220. 186 Cic., De leg. 3,7; Gell. 1,6,2; Liv., Per. 59; Val. Max. 2,9,1-2; A. Berger, Note on Gellius, N.A.,I,6, «AJP» 67.4/1946, pp. 323-328; M. McDonnell, The Speech of Numidicus at Gellius, N.A.1.6, «AJP» 108.1/1987, pp. 81-94; L. Holford-Strevens, Aulus Gellius. An Antonine Scholar and his Achievement, Oxford 2003, p. 318; A. Tarwacka, ‘Censoria 58 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS have children in their speeches and edicts, and could even punish those who were resistant with a nota censoria or a fine. Since the time of the Principate, the emperor imposed some solutions, the flagship example being the so-called Augustus’ laws on marriage,187 later renewed by other emperors, for example Domitian.188 However, all this does not change the fact that many Romans were no enthusiasts in terms of marriages,189 and their misogyny, quite characteristic in also Greek societies, is clearly visible. This motif also reoccurs in Philogelos. It is worth recalling that the enemy of women, the misogynist (misoguvnio), is another protagonist, like the smart alec or the glutton, who a separate chapter was devoted to. Philogelos 247 a: Misoguvnio, th guniko; utou jpoqnouvsh, ejpi; tw qviejkhvdeue.tino;de;ejrwthvsnto:Tivjnepuvsto_e[fh: Egwvotuvthsterhqeiv. A wife-hater is attending to the burial of his wife, who has just died. When someone asks, ‘Who is this who rests in peace here?’, he answers, ‘Me, now that I’m rid of her!’ Naturally, the source of humour here is the double meaning of the verb jnpuvw, which can be used both in the sense of ‘rest after death’ and ‘to be relieved and rested’. The reference to the topic of mourning itself is potestas’ Oktawiana Augusta, «Zeszyty Prawnicze» 11.1/2011, p. 360 ff; Eadem, Prawne aspekty..., p. 314 ff.; Eadem, As Far as the Bedroom… The Censor’s Mark in Family Matters in Republican Rome, «Zeszyty Prawnicze» 13.2/2013, p. 192 ff.; Eadem, Urząd cenzora w świetle ‘Nocy attyckich’ Aulusa Gelliusa, «Zeszyty Prawnicze» 14.3/2014, p. 230 ff. 187 Cf. B. Biondi, La legislazione di Augusto, [in:] Scritti giuridici, II, Milano 1965, p. 78 ff.; L. Ferrero Raditsa, Augustus’Legislation Concerning Marriage, Procreation, Love Affairs and Adultery, «ANRW» II.13/1980, pp. 278-339; G. K. Galinsky, Augustus’ Legislation on Morals and Marriage, «Philologus» 125.1/1981, pp. 126-144; M. Zabłocka, Przemiany prawa osobowego i rodzinnego w ustawodawstwie dynastii julijsko - klaudyjskiej, Warszawa 1987, p. 34 ff. 188 Mart., Ep. 6,7,1; C. S. Razzini, Il diritto romano nelle satire di Giovenale, Torino 1913, pp. 67-68; F. Grelle, La ‘correctio morum’ nella legislazione flavia, «ANRW» II.13/1980, pp. 340-365; R. Stewart, Domitian and Roman Religion: Juvenal, Satires Two and Four, «TAPA» 124/1994, pp. 310-313; A. Tarwacka, W krzywym zwierciadle: rozwód..., pp. 358-359. 189 Cf. M. Kuryłowicz, Prawo i obyczaje w starożytnym Rzymie, Lublin 1994, p. 60 ff. 2. PRIVATE LAW 59 interesting.190 The husband, despite his dislike of his wife, properly did the funeral service and wept at it. From the legal point of view, yet another jest is more interesting. Philogelos 246: Misoguvnio st; ejn th jgor e[lege: wlw mou th;n gunikjtelwvnhton.tinwnde;eijpovntwn:Di;ti_ei\pen:$n sterevsimogevnhti. A wife-hater takes a spot in the market-place and announces, ‘Buy my wife! Tax-free!’ When people ask him why, he responds, ‘So the authorities can confiscate her.’ This joke requires an in-depth analysis. The situation is as follows: the husband sells his wife without paying the tax, so the woman can be taken away from him. At first glance, it is amusing that the wife is objectified and reduced to the role of commodity. First of all, it should be emphasized that since the archaic period, putting a wife on sale was prohibited. The authority of a pater familias included the possibility of mancipating (i.e. selling) children, and at the same time the husband’s authority did not include the right to sell his wife. It is clearly indicated in the fragment of Plutarch’s Life of Romulus, which is the basis for the reconstruction of the leges regiae: ‘he who sells his wife (is to be) dedicated to underworld deities’.191 Thus a husband selling his wife was threatened with a sanction in the form of declaring him sacer.192 The regulation did not change; it was only the sanction that was adapted to the requirements of the epoch. In this joke, the question of selling a wife is to have a purely humoristic effect and to entertain with its absurdity. However, the issue of payment and confiscation require consideration. Since Augustus’ time, there had been two indirect taxes related to the purchase contract: the tax on auction sales (centesima rerum venalium) and 190 Cf. P. Niczyporuk, Żałoba i powtórne małżeństwo wdowy w prawie rzymskim, Białystok 2002, p. 24 ff. See also Philogelos 227, where dark (red?) wine is a sign of mourning; Philogelos 39, where there are references to black as a mourning colour. Philogelos 40 speaks about inappropriateness of an impressive burial and mourining after a small child’s death. Cf. Ch. Laes, Children..., pp. 130-131. 191 Plut., Rom. 22; FIRA I, pp. 8-9. Cf. A. Tarwacka, ‘Leges regiae’. Tekst – tłumaczenie – komentarz, «Zeszyty Prawnicze» 4.1/2004, pp. 253-254. 192 Cf. J. Zabłocki, Kompetencje..., pp. 98-99; L. Garofalo, Sulla condizione di ‘homo sacer’…, pp. 11-50 (first published «SDHI» 56/1990, pp. 223-255); R. Fiori, ‘Homo sacer’..., p. 50 ff. 60 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS the tax on selling slaves (quinta et vicesima venalium mancipiorum).193 Both concerned the sale of goods at an auction, i.e. on the market: an agora or a forum. Since the object of the transaction here is a wife, it is rather the association with the sale of a slave. In this case, the tax, at least since Nero’s time, should be paid by the seller.194 However, the method of collecting it raises doubts. Perhaps it was dealt with by coactores argentarii.195 Still, the discussed joke is about taking the goods away from the seller. This information indicates that someone had the right to confiscate things in the event of paying no tax. It can be assumed that such competences were vested in officials supervising marketplaces, and therefore most often the aediles196 (or sometimes jgornovmoi), both in Rome herself, as well as in municipalities and provincial cities. However, in some cases, publicans could also take away some goods from non-payers. G. 4,28: item lege censoria data est pignoris capio publicanis vectigalium publicorum populi Romani adversus eos, qui aliqua lege vectigalia deberent. So too the law of the Censors gave the power of distress to the farmers of the public revenue of the Roman people (publicani) against those in default for taxes (vectigalia) due under any statute. (transl. E. Poste) 193 Recently on that subject E. Pendón Meléndez, Régimen Jurídico de la prestación de servicios públicos en Derecho Romano, Madrid 2002, pp. 180-181; M. García Morcillo, Las ventas por subasta en el mundo romano: la esfera privada, Barcelona 2005, p. 165 ff.; A. Pikulska-Radomska, ‘Centesima rerum venalium’ i ‘quinta et vicesima venalium mancipiorum’. Podatki od transakcji sprzedaży, [in:] O prawie i jego dziejach księgi dwie. Studia ofiarowane Profesorowi Adamowi Lityńskiemu w czterdziestopięciolecie pracy naukowej i siedemdziesięciolecie urodzin, I, Białystok-Katowice 2010, pp. 101-105; Eadem, ‘Fiscus non erubescit’. O niektórych italskich podatkach rzymskiego pryncypatu, Łódź 2013, pp. 81-85. 194 Tac., Ann. 13,31. Tacitus wrote only about the slave sales tax but perhaps with other goods the obligation was also a seller’s obligation. 195 P. Niczyporuk, Bankierzy i operacje bankierskie w starożytnym Rzymie, Białystok 2013, p. 126. 196 Cf. O.F. Robinson, Ancient Rome..., p. 116 ff. See also M. Kuryłowicz, Zur Marktpolizei der römischen Ädilen, [in:] Au-delà des frontières. Mélanges de droit romain offerts à Witold Wołodkiewicz, II, Warszawa 2000, pp. 439-456. 2. PRIVATE LAW 61 According to Gaius, tax collectors were granted the pignoris capio,197 the right to take things as collateral, in lex censoria, e.i. an edict, on the basis of which lease contracts of public revenues were signed with publicans on behalf of the state first by censors198, and later by imperial officials. We should also mention the regulations found in the lex portus Asiae preserved in epigraphic form in the Monumentum Ephesinum discovered in 1976199. In the absence of a declaration or other fraud, publicans collecting portoria were able to take possession of subjected items.200 Such things should be described as commissa vectigalium nomine.201 It seems that the commissum is the topic of the discussed joke. This interpretation is reinforced by a fragment of the papyrus of the 2nd3rd century AD found in Oxyrhynchus concerning customs regulations at the port,202 and therefore containing regulations from Roman times. P.Oxy. I 36, col. II, l. 10-12: ki;ej;nme;neureqht[i]e{teronho}jpegrvto,sterhvsimone[stw. …if anything be discovered other than what was declared, it shall be liable to confiscation. (transl. B. P. Grenfell, A. S. Hunt) A customs officer had the right to demand that a carrier unload a ship and if he found any goods that had not been declared, he could confiscate them. What is important is that the same term to describe confiscation was used in the joke: sterhvsimon. In case of a wife, however, the commissum might come somewhat problematic... According to Marcianus, confiscation-bound slaves should not be 197 Cf. B. Albanese, Una imprecisione di Gai 4,28?, «AUPA» 47/2002, pp. 86-87. 198 Cf. L. Maganzani, La ‘pignoris capio’ dei pubblicani dopo il declino delle ‘legis actiones’, [in:] ‘Cunabula iuris’. Studi storico giuridici per Gerardo Broggini, Milano 2002, pp. 175227; Eadem, Pubblicani e debitori d’imposta. Richerche sul titolo edittale ‘de publicanis’, Torino 2002, pp. 5-29; A. Tarwacka, Prawne aspekty..., p. 159 ff. 199 AE 1989, 681. Cf. G. Purpura, La provincia romana d’Asia, i publicani e l’epigrafe di Efeso (‘Monumentum Ephesinum’), «Iura» 53/2002 (publ. 2005), pp. 177-198, along with literature in fn. 1,3,4. 200 Cf. L. Maganzani, Pubblicani e debitori d’imposta..., pp. 47-55. 201 Cf. D. 39,4,14 (Ulp. 8 disp.). See also Pseudo-Quintil., Decl. min. 341. 202 Cf. B.P. Grenfell, A.S. Hunt, The Oxyrhynchus Papyri, I, London 1898, pp. 76-77. 62 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS sold but the owner should be allowed to pay their value.203 What a shame – the husband’s plot would fail… In Philogelos, references to philandering and adultery had to be included. One of the jokes is closely related to the above-mentioned issue of misogyny. Philogelos 263: Eujtrvpelovntiejloidovrei,o{tiouth;ngunikdwre;ne[scon. ode;ei\pen:Emoi;me;njnvgkhtosouvtoukkoujnevcesqi:soi; de;tivjnvgkh_ Someone tries to needle a quick-witted man by telling him, ‘I had your wife for free.’ But he just says, ‘Me, I’m forced to put up with such evil. What’s forcing you?’ This joke is the locus communis of conjugal humour. Plutarch quoted it twice: in reference to Sparta and Byzantion204. The other joke must have been repeated just as often. Philogelos 98: colstikw etirojpnthvs:ugcivrw soi, ei\pen, o{ti soipidivonejgennhvqh.ode;jpekrivnto:Toutoumeioifivloi poieite. A friend of his runs into a student dunce and congratulates him on the birth of his son. ‘With a little help from friends like you,’ returns the dunce. In this case, the source of humour is the reply to congratulations, unadjusted to the situation,205 suggesting the extramarital origin of the child.206 203 D. 39,4,16 pr. (Marc. l. s. de delator.): Interdum nec vendendus est is servus qui in commissum cecidit, sed pro eo aestimatio a domino danda est. Divi enim Severus et Antoninus rescripserunt, cum is servus, qui actum domini gessisse diceretur, in commissum cecidisset, venire non debuisse, sed pro eo viri boni arbitratu aestimationem oportuisse dari. (Sometimes a slave, who has been confiscated, should not be sold, but his appraised value should be paid by his owner, instead. For the Divine Severus and Antoninus stated in a Rescript that where a slave, who was said to have transacted the business of his master, is confiscated, he should not be sold; but his appraised value should be paid in accordance with the judgment of a good citizen. Transl. S. P. Scott). Cf. D. 39,4,16,3 (Marc. l. s. de delator.). 204 Cf. Plut., Mor., 235 e; 525 d; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 112. 205 Cf. M. Andreassi, Le facezie..., pp. 117-118. 206 Cf. Ch. Laes, Children..., p. 131. 2. PRIVATE LAW 63 A similar mechanism appeared in another joke where the scholastikos wished the groom that he would again have a chance to celebrate a wedding.207 From a legal point of view, a more complex problem of extramarital intercourse appears in another joke.208 Philogelos 251: Oijkodevspoin mwro;n oijkevthn e[cous ejmfnh ki; ijdous  ujto;n drokevflon, ejpiqumhvss ujtou, fimvrion eijj to; provswpon blous, i{n mh; ejpignwqh, sunevpizen ujtw. o de; ejn tw pivzein suneishlqen ujjth. ki; tw despovthsunhqwprosgelwnei\pe:Kuri,kuri,to;nojrchsth;n ejbivnhs,ki;hkurvh\ne[swqen. The lady of the house has a half-witted slave. Noticing that he’s possessed of an exceptionally large knob, she conceives a passion for him. Donning a mask so she won’t be recognized, she starts to play with him. He gets the point of that, and goes off with her… Later he greets his master with the usual smile: ‘Oh sir, sir, I got to fuck the dancer, and found the Mistress inside!’ In the jest, a housewife had an intercourse with her own slave, which she wanted to hide from her husband. The Greek term oijkodevspoin seems to be the equivalent of the Latin mater familias, which at that time meant a woman of good virtue.209 In this context, the term was probably used to 207 Cf. Philogelos 72; A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 22. 208 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 278-280; R. Webb, Demons and Dancers. Performance in Late Antiquity, London 2008, p. 165. 209 D. 50,16,46,1 (Ulp. 59 ad ed.): “matrem familias” accipere debemus eam, quae non inhoneste vixit: matrem enim familias a ceteris feminis mores discernunt atque separant. proinde nihil intererit, nupta sit an vidua, ingenua sit an libertina: nam neque nuptiae neque natales faciunt matrem familias, sed boni mores. (We should understand the expression, “mother of a family,” to signify one who does not live unchastely, for the morals of the mother of a family distinguish and separate her from other women. Hence, it makes no difference whether she is married or a widow, freeborn or emancipated, as neither marriage nor birth, but good morals constitute the mother of a family. Transl. S. P. Scott). Cf. W. Kunkel, ‘Mater familias’, «RE» 14.2/1930, col. 2183 ff.; A. Carcaterra, ‘Mater familias’, «AG» 123/1940, p. 113 ff.; W. Wołodkiewicz, ‘Materfamilias’, «CPH» 16.1/1964, p. 101 ff.; Idem, Attorno al significato della nozione di ‘mater familias’, [in:] Studi in onore di C. Sanfilippo, III, Milano 1983, p. 735 ff.; R. Fiori, ‘Materfamilias’, «BIDR» 96-97/1993-1994, p. 455 ff.; P. Giunti, ‘Mores’ e ‘interpretatio prudentium’ nella definizione di ‘materfamilias’ (una qualifica fra 64 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS underline the high social position of a woman who was married and who remained in iustum matrimonium alongside the pater familias. It is worth noting that not only female but also male slaves fell victim to sexual abuse.210 On the other hand, for a well-born woman, a relationship with a slave, or even a mere accusation of it, was shameful211. Naturally, the question is whether this situation should be qualified as adulterium. D. 48,2,5 (Ulp. 3 de adult.): Servos quoque adulterii posse accusari nulla dubitatio est: sed qui prohibentur adulterii liberos homines accusare, idem servos quoque prohibebuntur. Sed ex rescripto divi Marci etiam adversus proprium servum accusationem instituere dominus potest. Post hoc igitur rescriptum accusandi necessitas incumbet domino servum suum... There is no doubt that slaves can also be accused of adultery. Those, however, who are forbidden to accuse freemen of adultery are themselves forbidden to accuse slaves. A master, however, can, under a Rescript of the Divine Marcus, bring an accusation against his own slave for this offence. Therefore, since the promulgation of this rescript, the master is obliged to accuse his slave. (transl. S. P. Scott) ‘conventio in manum’ e status di ‘sui iuris’), [in:] Nozione formazione e interpretazione del diritto dall’età romana alle esperienze moderne. Ricerche dedicate al professor Filippo Gallo, Napoli 1997, pp. 301-337; Eadem, ‘Consors vitae’. Matrimonio e ripudio in Roma antica, Milano 2004, p. 304 ff.; C. Fayer, La familia romana. Aspetti giuridici ed antiquari. Sponsalia. Matrimonio. Dote. Parte seconda, Roma 2005, p. 285 ff.; C. F. Amunátegui Perelló, Origen de los poderes del ‘paterfamilias’. El ‘pater familias’ y la ‘patria potestas’, Madrid 2009, p. 272; M. V. Sanna, Matrimonio e altre situazioni matrimoniali nel diritto romano classico. ‘Matrimonium iustum- matrimonium iniustum’, Napoli 2012, p. 176 ff.; J. Zabłocki, Il concetto di ‘mater familias’ in caso di arrogazione, [in:] ‘Mater familias’. Scritti romanistici per Maria Zabłocka, ed. Z. Benincasa, J. Urbanik, Warszawa 2016, pp. 1199-1205. 210 Cf. J. Kolendo, L’esclavage et la vie sexuelle des hommes libres à Rome, «Index» 10/1981, pp. 288- 297; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 110. 211 Cf. Lucretia’s case – Liv. 1,58,4 as well as Octavia’s – Tac., Ann. 14,60; A. Tarwacka, Rozwód Oktawii i Nerona, czyli nowa Lukrecja, «Zeszyty Prawnicze» 9.1/2009, p. 7184; Eadem, Le vicende matrimoniali di Nerone, «Diritto@Storia» 9/2010, http://www. dirittoestoria.it/9/Note&Rassegne/Tarwacka-Vicende-matrimoniali-Nerone.htm (access 14.10.2016). Cf. also Cic., Pro Cael. 57; Petr., Sat. 75,11; Mart., Ep. 6,39; Iuv. 6,279; 6,331-332; J. Evans-Grubbs, “Marriage more shameful than adultery”. Slave-mistress relationships, “mixed marriages,” and late Roman law, «Phoenix» 47.2/1993, p. 125 ff. 2. PRIVATE LAW 65 Ulpian’s commentary to the lex Iulia de adulteriis seems to conclude that a slave could be accused of adultery. On the other hand, Marcus Aurelius’ rescript allowed accusations against one’s own slave212. In this situation, therefore, the husband should divorce his wife and then bring charges iure mariti. An additional complication in the discussed facts is that the slave was not mentally healthy as he was described as mwrov,213 which is equivalent of the Latin word stultus, or morio. The behaviour of the slave clearly indicates mental retardation so we can therefore wonder whether a slave should be considered mentally ill, i.e. a furiosus.214 It seems that his illness excluded the ability to recognize the meaning, and predict the effects of his actions. In the legal context, his intellectual underdevelopment influencing his value was certainly important.215 Although there is no source text that speaks directly about the mentally ill in the context of adulterium, it is possible to conclude indirectly on the exclusion of unlawfulness. Jurists, for example, considered that a furiosus was not liable under the lex Aquila for causing damage to someone else’s property,216 as well as under the lex Cornelia de sicariis et veneficis for murder.217 A more general formulation was included in the title of the Digest concerning the edict of the curule aediles. D. 21,1,23,2 (Ulp. 1 ad ed. aedil. curul.): capitalem fraudem admisisse accipiemus dolo malo et per nequitiam: ceterum si quis errore, si quis casu fecerit, cessabit edictum. unde Pomponius 212 Jurisdiction was in the hands of the prefect of a city. Cf. D. 1,12,1,5 (Ulp. l. s. de off. praef. urb.). 213 Mwrov is one of the protagonists in Philogelos. He is usually a ‘bonehead’ but in the case discussed it is suggested the slave was mentally disabled. 214 Cf. G. 3,106; E. Żak, Marnotrawca, chory umysłowo, niedojrzały – o wspólnych uregulowaniach w rzymskim prawie klasycznym i justyniańskim, [in:] ‘Quid leges sine moribus?’ Studia dedykowane Profesorowi Markowi Kuryłowiczowi w 65. rocznicę urodzin oraz 40-lecie pracy naukowej, ed. K. Amielańczyk, Lublin 2009, p. 170 ff. 215 Paradoxically, a morio could cost a lot as they were bought for entertainment purposes; cf. Mart., Ep. 8,13. See also D. 21,1,4,3 (Ulp. 1 ad ed. aed. curul.). 216 D. 9,2,5,2 (Ulp. 18 ad ed.); D. 6,1,60 (Pomp. 29 ad Sab.). Cf. P. Toohey, Madness in the ‘Digest’, [in:] Mental Disorders in the Classical World, ed. W Harris, New York 2013, p. 448 ff. 217 D. 48,8,12 (Mod. 8 reg.); D. 48,9,9,2 (Mod. 12 pand.). Cf. P. Toohey, op. cit., p. 449 ff. 66 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS ait neque impuberem neque furiosum capitalem fraudem videri admisisse. Where a slave has committed a capital crime, this also must be mentioned. To commit a capital crime is to be guilty of an offence which is punishable with death, for the ancients were accustomed to put the crime for the penalty. We understand a capital crime to be one perpetrated through fraud and malicious intent, but where anyone commits an offence by mistake or accident, the Edict does not apply. Wherefore, Pomponius says that a person who has not reached puberty, or one who is insane, cannot be held to have committed a capital crime. (transl. S. P. Scott) Now Ulpian said it was assumed that a crime punishable by death was committed with ill purpose and wickedly, that is, intentionally. If, however, someone acted mistakenly or accidentally, there was no reason for intentionality. Pomponius therefore concluded that neither an immature person nor a mentally ill one could commit a crime punishable by death. Additionally, the supporting fact is that mentally ill slaves were not punished for failing to help their owners in the event of a threat to life under the senatusconsultum Silanianum.218 Therefore, their limitations affecting the possibility of a proper reaction were considered predominant. Obviously, as already has been mentioned, recognizing a slave in a joke as a furiosus is very problematic but there is no doubt that he was not able to understand the meaning of his deeds. In this situation, it can be assumed that the responsibility for adulterium would fall only upon the woman, while the slave should be freed from it. However, it should be remembered that the owner had the right to punish him within his own powers even with death. Over time, relationships between women and slaves were penalized more and more severely. CTh. 9,9,1 pr. (Imp. Constantinus A. ad populum): si qua cum servo occulte rem habere detegitur, capitali sententiae subiugetur, tradendo ignibus verberone, sitque omnibus facultas crimen 218 D. 29,5,3,11 (Ulp. 50 ad ed.): Furiosos excipi nequaquam dubium est. (There is no doubt whatever that slaves who are insane should be excepted. Transl. S. P. Scott). Cf. J. Stahl, Physically Deformed and Disabled People, [in:] The Oxford Handbook of Social Relationships in the Roman World, ed. M. Peachin, Oxford 2011, pp. 729-730. 2. PRIVATE LAW 67 publicum arguendi, sit officio copia nuntiandi, sit etiam servo licentia deferendi, cui probato crimine libertas dabitur, quum falsae accusationi poena immineat. If any woman is discovered to have a clandestine love affair with her slave, she shall be subject to the capital sentence, and the rascally slave shall be delivered to the flames. All persons shall have the right to bring an accusation of this public crime; office staffs shall have the right to report it; even a slave shall have permission to lodge information, and freedom shall be granted to him if the crime is proved, although punishment threatens him if he makes a false accusation. (transl. G. Pharr) Under the constitution219 of Constantine the Great of 326 AD, a woman who had an intercourse with her own slave was punished with death, and the slave was burnt alive. It was a public law offence (one can say, a qualified form of adultery), which anyone could report, even the slave himself, for which he was rewarded with freedom. Such reinforcement of sanctions was probably related to blurring the boundaries between individual layers of society and the dissemination of relationships conflicting old customs. It can be assumed that the recipients of Philogelos were aware of harsh punishment imposed upon a woman for having a sexual intercourse with her own slave. In the joke, the slave reported the intercourse to his master, which is an additional factor modifying the facts. The constitution of Constantine stated that in such a case he could even count on being freed. However, it is not known how a mental illness would affect the credibility of his testimony. It should also be added that because the text of the joke is spoilt, it is impossible to determine whether the slave revealed the situation after the events, or whether the couple was caught in flagranti. What the Romans perceived as a very serious offence was incest (incestum), or a sexual relationship between relatives.220 It should be remembered 219 Cf. C. 9,11,1 pr.; J. Evans-Grubbs, op. cit., p. 143.ff.; K. Harper, Slavery in the Late Roman World, AD 275–425, Cambridge 2011, pp. 438 ff. 220 In the sight of the sources G. 1,58-64; Ulp. 5,6-7; PS. 2,19,3-5; D. 23,2,39,1 (Paul. 6 in. Plaut.), the term incestum refers to incestuous marriages, but because such a marriage could not exist every intercourse between the relatives was incestuous in character. Cf.; A. Guarino, Studi sul ‘incestum’, «ZSS» 63/1943, pp. 219-224; J. Misztal-Konecka, 68 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS that incestuous relations were seen differently in Egypt, where marriages between siblings within the family of pharaohs were customarily acknowledged. Philogelos 45: colstiko; nukto; ejpnevsth th mvmmh ujtou. plhg;  de; di; touto upo; tou ptro; lbwvn: uv, ei\pen, tosouto crovnoejsti;nejxou|th;nmhtevrmouojceuvei,mhde;nupemou pqwvn,ki;nunojrgivzhejpi;thmhtrivsou{pxmeeurwvn_ In the middle of the night, a student dunce gets into bed with his own grandmother. When his father gives him a beating for this, the dunce protests, ‘All this time you’ve been tupping my mother, and I never said a word! Now you’re angry at having caught me just once with your mother?’ In this joke,221 we are dealing with a relationship between the grandmother and her grandson, which is also adultery, and thus adulterium and incestum come together in here. In such a situation, since the time of Augustus’ marriage legislation, a perpetrators were subject to the punishment under the lex Iulia de adulteriis, facing a proper quaestio, while in the later period they were tried in a cognitio extra ordinem.222 D. 48,18,5 (Marcian. 2 inst.): Si quis viduam vel alii nuptam cognatam, cum qua nuptias contrahere non potest, corruperit, in insulam deportandus est, quia duplex crimen est et incestum, quia cognatam violavit contra fas, et adulterium vel stuprum adiungit. Where anyone debauches a widow or a woman married to another, with whom he could not legally have contracted matrimony, he should be deported to an island, as the crime is a double one; incest, ‘Incestum’ w prawie rzymskim, Lublin 2007, pp. 76-82; Eadem, Czy w starożytnym Rzymie ‘incestum’ było przestępstwem przeciwko państwu?, [in:] ‘Salus rei publicae suprema lex’. Ochrona interesów państwa w prawie karnym starożytnej Grecji i Rzymu, ed. A. Dębiński, H. Kowalski, M. Kuryłowicz, Lublin 2007, p. 141; S. Puliatti, ‘Incesti crimina’. Regime giuridico da Augusto a Giustiniano, Milano 2001, p. 7 ff. 221 Cf. M. Andreassi, Le facezie..., pp. 101-103 ; Ch. Laes, Children..., pp. 137-138; M. Beard, Laughter in Ancient Rome..., p. 198. 222 Cf. J. Misztal-Konecka, ‘Incestum’..., pp. 154-157; Eadem, Czy w starożytnym Rzymie..., p. 144. 2. PRIVATE LAW 69 because, contrary to Divine Law, he has violated a woman related to him, and has added adultery or fornication to this offence. (transl. S. P. Scott) According to Marcianus, when the conclusion of a marriage between the parties was excluded, the combination of incestum with adulterium or stuprum resulted in the guilty party being punished by deportation to an island223. The sanction was therefore tightened because deportatio was associated with the loss of citizenship (capitis deminutio media), and the act of expelling adjudicated in case of adultery was not. The sacred aspect of this crime (contra fas) also played a significant role.224 It should be noted that an incestuous relation in question was contrary to ius gentium, and therefore constituted the most serious form of crime .225 The source of humour in the quoted joke is the matter of kinship226 that exists between a grandson and a grandmother but not between a wife and a husband. It is worth mentioning, however, that for the Romans, the agnation bond was essential too. Even during the period of the Principate, it was likely for a wife to be in manu of her husband, thus being filiae loco in the agnatic family. Perhaps some readers or listeners of this joke were still aware of this subtlety. Dowry was obviosuly an important institution of the marital law, which was the contribution of a woman to bearing the burdens of marriage (onera matrimonii). Establishing a dowry could take place in the form of dotis datio, dictio or promissio.227 The husband was the owner of the dowry but he was obliged to return it if the marriage was dissolved. The institution of the dowry was a very important element of marriage, both from a legal and a social point of view. In classical law, the obligation 223 Cf. J.F. Gardner, Women in Roman Society and Law, London 1986 (reprint 1995), pp. 126-127. 224 Cf. Cic., De leg. 2,9,22. 225 D. 23,2,68 (Paul. l. s. ad sc Turpill.): Iure gentium incestum committit, qui ex gradu ascendentium vel descendentium uxorem duxerit. (Where any man marries a female relative, either in the ascending or descending line, he commits incest according to the Law of Nations. Transl. S. P. Scott). Cf. D. 48,5,39,2 (Pap. 36 quaest.); S. Puliatti, op. cit., pp. 35-47. 226 Cf. M. Beard, Laughter in Ancient Rome..., p. 198. 227 Ulp. 6,1. Cf. A. Stępkowska, Ustanowienie a ukonstytuowanie się posagu w rzymskim prawie klasycznym, «Zeszyty Prawnicze» 6.1/2006, pp. 195-218. 70 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS to establish a dowry for a daughter gradually developed.228 In Philogelos, there appeared one joke related to this legal institution. Philogelos 219: Limovxhrolimoxhvrw qugtevrejkdidou;ki; ejrwtwvmeno,tiv ujthdivdwsineijproik:Oijkivn,e[fh,divdwmi,h|iqurivde eijto;jrtokopeionblevpousin. A glutton is marrying his daughter off to another glutton. Asked what he’s giving her as her dowry, he responds, ‘She’s getting a house with windows that look out onto the bakery.’ . The protagonist of the joke is a father, probably a pater familias, who gives his daughter to a man. A dowry he decided on is therefore dos profecticia. Its object is the house, i.e. the property, a thing marked individually. It seems that this is the building where the spouses are to live. In such a case, with everyday use, the windows facing the bakery would actually be an asset due to tempting smells. Such a house was referred to as a dowry building, aedes dotales,229 and gave the wife a good financial position: aware of the need to make a return, the husband was rather cautious while considering a possible divorce. 2.2. Paternal authority One of the basic rights of Roman citizens in private law was the exercise of patria potestas, that is the power in the family over children born out of the matrimonium iustum, as well as adopted ones. Patria potestas had an unprecedented character in ancient Rome. Gai230 us emphasized that in no other community was it so broadly defined. 228 D. 23,2,19 (Marcian. 16 inst.); C. 5,12,14; C. 5,12,31. Cf. A. Stępkowska, op. cit., p. 198. 229 Cf. Plaut., Mil. 1276-1278. 230 G. 1,55. Cf. B. Łapicki, Władza ojcowska w starożytnym Rzymie, I: Czasy królewskie, II: Czasy republikańskie, Warszawa 1933; Idem, Władza ojcowska w starożytnym Rzymie. Okres klasyczny, Warszawa 1937; M. Kaser, Der Inhalt der ‘patria potestas’ «ZSS» 58/1938, p. 62 ff.; C. Westrup, Introduction to Early Roman Law. Comparative Sociological Studies, III: ‘Patria potestas’, Copenhagen-London 1939; B. Albanese, Note sull’evoluzione storica del ‘ius vitae ac necis’, [in:] Scritti in onore di C. Ferrini, III, Milano 1948, p. 362 ff.; R. Yaron, ‘Vitae necisque potestas’, «TR» 30/1962, p. 243 ff.; B. Wierzbowski, Treść władzy ojcowskiej w rzymskim prawie poklasycznym, Toruń 1977; A. M. Rabello, 2. PRIVATE LAW 71 A pater familias held the power of life and death (ius vitae ac necis), the right to sell his child (ius vendendi) and was the owner of all the property. In other communities living in the region of the Mediterranean Sea, the father’s power was not that strong. Philogelos jokes are an illustration of the relationship between the children and the father. Philogelos 86: colstiko;n o pth;r jpolevsnt dhnvrion ejbouvleto tupthsi.ode;:Mh;ojrgivzou,e[fh,kjgw;ejktwnejmwnjgorvzw to;dhnvrion. His father wants to beat a student dunce for losing a denarius (a four-drachma coin). ‘Don’t be angry,’ says the dunce, ‘I’m buying you another denarius with my own money.’ . The son lost his father’s denarius, for which the latter wanted to punish the former physically. The offspring tried to appease him, proposing that he would buy the lost coin for his money.231 The question then arises whether we are dealing here with the child under patria potestas. It is possible that he was a sui iuris son, perhaps an illegitimate child, and therefore he had his own money. However, this is not the only possible interpretation. Since the introduction of peculium castrense by Augustus, sons gradually began to gain financial independence. This process intensified over time.232 In Constantine’s time, a peculium quasi castrense233 appeared, along with bona materna,234 assets inherited from the mother the father could not dispose of. In this situation, it can also be assumed that the son was under the rule of the father, having some money for his own disposal at the same time. It cannot be ruled out that the scholastikos was an alieni iuris son and offered his father that he would give him the lost money although he did not Effetti personali della ‘patria potestas’, I: Dalle origini al periodo degli Antonini, Milano 1979; P. Voci, Storia della ‘patria potestas’ da Augusto a Diocleziano, [in:] Studi di diritto romano, II, Padova 1985, p. 397 ff.; W.V. Harris, The Roman Father’s Power of Life and Death, [in:] Studies in Roman Law in Memory of A. Schiller, Leiden 1986, p. 81 ff. 231 On the humorous issues concernig the inability to differentiate between fungible and nonfungible things see below, p. 96 ff. 232 Cf. M. Vial-Dumas, Parents, Children, and Law. Patria Potestas and Emancipation in the Christian Mediterranean during Late Antiquity and the Early Middle Ages, «Journal of Family History» 39.4/2014, pp. 307-329. 233 CTh. 6,35,15; C. 12,30,1. 234 CTh. 8,18,1; C. 6,60,1. 72 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS have it and would have to take it from the assets of a parent. This would add a bit more humour or rather situational absurdity to the joke. The father’s far-reaching power resulted in the children’s fear of his dissatisfaction. Philogelos 87: colstiko; ejpi; th oijkiv sekouvtoro schm lbw;n e[pizen.[fnwdevtinojpggeivlntoujtwprousivntou ptrov,rivto;o{plone[lueth;nknhmid.fqvsntode;tou ptro;ujtou ejpisthni, e[cwn th;n perikeflivn biblivon jnegivnwsken. Having acquired a gladiator’s costume, a student dunce is having fun with it in the house. Suddenly someone announces his father’s arrival. The dunce throws away the shield and unties the greaves. When his father finally appears before him, the dunce pretends to be reading a scroll – though still wearing the helmet. The prospect of the father’s anger meant that his son tried to cover up the traces of his improper behaviour.235 He was probably supposed to learn, and instead he was playing with the gladiator’s outfit.236 He took off most of the disguise, except the helmet, and was pretending to read. The humour of the situation is significantly increased by the fact that it was not just any helmet. The scholastikos was playing a secutor,237 or a gladiator who wore a characteristic, completely closed helmet, with only a gap or small holes in the area of the eyes. The lack of visibility was the price a gladiator paid for his safety: this type of warrior was exposed to fighting a retiarius (a netman), who could break in with the trident through a larger hole. Reading was out of the question in such a helmet! 235 Cf. R. Cribiore, Gymnastics of the Mind. Greek Education in Hellenistic and Roman Egypt, Princeton-Oxford 2001, p. 109 ff. See also Philogelos 44. 236 Cf. Tac., Dial. 29, where the historian deplored children’s and teenagers’ interest in gladiator and actors. See also B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 76; Ch. Laes, Children..., p. 132. 237 Cf. K. Nosov, Gladiators. Rome’s Bloody Spectacle, Oxford 2009, Polish translation Gladiatorzy. Krwawy spektakl z dziejów starożytnego Rzymu, Warszawa 2011, translated by M. Rabsztyn, pp. 67-68; D. Słapek, Sport i widowiska..., s.v. Kategorie gladiatorów, p. 352; R. Dunkle, Gladiators. Violence and Spectacle in Ancient Rome, London 2013, pp. 112-113. 2. PRIVATE LAW 73 Expectations of fathers associated with the education of their sons often contradicted the actions of the latter, especially when the parent lost control over his offspring by sending them to studies.238 Philogelos 55: colstiko; eujtrvpelo jporwn dpnhmvtwn t; bibliv ujjtou ejpivprske: ki; grvfwn pro; to;n ptevr e[lege: uvgcirehmin,pvter,h[dhg;rhmt;biblivtrevfei. A student dunce has run out of money. He resorts to selling out his books, telling his father in a letter, ‘Congratulate me, Father! I’m already earning a living through my books!’ For this joke, Adam Łukaszewicz239 found an excellent parallel in the form of a papyrus letter from the 2nd century AD. A father, one Cornelius instructed his son Hierak, who was somewhere studying, to take to books only and devote himself to science as they will bring him profit.240 Also, a father’s departure was often an opportunity for his son to enjoy freedom. Philogelos 168: Kumiotouptro;ujtoujpodhmhvsntoeijbru;e[gklhm pesw;n qnvtw ktedikvsqh. jpiw;n de; prekvlei pvnt, i{no pth;rmh; gnw,ejpei; mevlleiujjtw qnsivmouplhg; ejpifevrein. While his father is out of town, a Kymean commits a serious crime and is condemned to death. As he exits the courtroom, he begs everyone not to let his father know: ‘The old man will kill me if he finds out!’. This joke relates to the intersection of two spheres associated with lawful violence: the punishment inflicted on behalf of the state and the father’s power to use violence against his children within the limits of patria potestas. Looking at the content of the joke, it is impossible to deduce what crime 238 Cf. R. Cribiore, op. cit., p. 217 ff. 239 P.Oxy. III 531; A. Łukaszewicz, [Onhsijpo;biblivwn..., pp. 97-103. 240 P.Oxy. III 531, 10-12: jll;toibiblivoisouujto;movnonprovsecefilologwnki; jp()ujtwno[nhsine{xei.(... give your undivided attention to your books, devoting yourself to learning, and then they will bring you profit… Translation at http://papyri.info/ ddbdp/p.oxy;3;531 accessed 24 September 2018). 74 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS made the son sentenced to death or how the punishment was to be imposed. The first of the doubts might be dispelled by the joke241 which followed in the collection and undoubtedly constituted a sequence to the jest discussed here. Now, somebody shouted at the same young man that he robbed them (ejsuvlhsvmoi). It cannot be a simple robbery (rapina) because, as a rule, it was a tort. Everything points to a crime lined to public law. It can be deduced that the sentence concerned the use of force (crimen vis), or belonging to some criminal group. The condemned man acknowledged that his father would beat him to death while in anger. It is worth considering then how far ius vitae ac necis reached when Philogelos was being compiled.242 Certainly, after the Theodosian Code came to force, killing a child was treated as parricidium; previously, there had been no universally binding norms prohibiting child murdering. It should be noted, however, that the period of the Empire actually brought a significant reduction in the rights of the father, and vitae necisque postestas was gradually disappearing. Nevertheless, the society still recognised a father’s right to kill his offspring in case of committing considerable offences. In the case described in the joke, the father did not have the opportunity to exercise his right as he was absent. Perhaps, however, he would have liked to punish his son if he had been on the spot. 2.3. Slaves Slaves are quite common, though rather background protagonists of Philogelos jokes. They accompany their owners both in their hometown and while travelling,243 looking after their comfort.244 In one of the jokes, there is a property agent, oijkovnomo,who watches over the country estate of the owner.245 Without embarrassment, the slave makes fun of his master, who 241 Philogelos 169. 242 Cf. K. Amielańczyk, ‘Crimina legitima’ w rzymskim prawie publicznym, Lublin 2013, pp. 224-228; J. Wiewiorowski, Granice ojcowskiego ‘ius vitae et necis’ wobec dziecka w prawie rzymskim okresu późnego antyku, [in:] Zabójstwo dziecka w literaturze i kulturze europejskiej, red. K. Ilski, Poznań 2014, pp. 45-70. 243 Cf. Philogelos 7; 23; 30; 76; 130. 244 Cf. Philogelos 21. 245 Philogelos 47. Cf. Philogelos 108. 2. PRIVATE LAW 75 apparently has no idea about living in the countryside and about the habits of animals. On several occasions, there are also references to public slaves serving customers in bathhouses.246 These jokes allow us to look at slaves’ everyday life and their relationships with their owners. Philogelos 254: colstiko; minivn e[cwn ejsfrvgisen ujthvn. tou de; douvloukvtwqentrhvsntoki;to;noi\noni[rontoejquvmzen, o{titwnshmvntrwnswvwno[ntwnooi\noejlttouti.e{tero ei\pen:$Or,mh;kvtwqenjfhrevqh.ode;:mqevstte,ei\pen, oujto;kvtwqenleivpei,jll;to;[nwqenmevro. A student dunce acquires some expensive Italian wine and seals up the amphora. But his slave makes a hole in the bottom and steals wine that way. The dunce is amazed that the wine is getting low, even though the seals remain unbroken. His roommate suggests, ‘Check whether the wine was taken out from the bottom.’ The dunce responds, ‘Simpleton, it’s not the bottom part of the wine that’s missing; it’s the top!’ The slave committed a theft of wine, i.e. a tort. In such a situation, as a rule, it was possible to use an actio noxalis against the owner. In the case discussed, however, the thief was the property of the robbed, and Gaius247 clearly stated that if a slave committed a tort to the detriment of the owner,248 or a son to the detriment of the father, it did not result in any action. In such a situation, the owner could only punish the slave using his power. Provided, of course, he was able to solve the mystery of the disappearing wine... The problem of slaves robbing their owners was quite common. One of the scenes of Pautus’ Miles gloriosus shows the practice of drinking wine from the master’s cellar. 246 Philogelos 58; 149. 247 G. 4,78: Sed si filius patri aut servus domino noxam commiserit, nulla actio nascitur. (But no action lies for an offence by a son or slave committed against his father or master. Transl. E. Poste). 248 É. Jakab, ‘Aversione venire’..., p. 295, stated that this joke related to the risk of a period between concluding a contract and delivering its object. She then suggests that the slave did not steal form their owner but form the buyer. A trace showing that interpretational possibility is sealing an amphora. Still, the text of the joke does no allow us to assume in which moment the theft was carried out and if the sale contract was actually concluded. Cf. also É. Jakab, U. Manthe, Recht in der römischen Antike..., p. 295. 76 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS Plaut., Mil. 857-859: Pal.: Abi, abi intro iam. vos in cella vinaria bacchanal facitis. iam hercle ego erum adducam a foro. Lucr.: Perii, excruciabit me erus, domum si venerit. Pal.: Be off, be off inside with you now! It’s you chaps do the carousing in the wine room. I’ll bring master from the forum this instant, by Jove!. Lucr.: I’m done for! Master’ll… torture me, once he comes home. (transl. P. Nixon) Palestrio discovered that his fellow slaves had been getting to the wine for a long time and said he would summon the master from the forum. Terrified Lucrio replied to that he was already dead because the owner would perform a cruel punishment on him on his return home. In the late antique comedy Querolus dated back to the first half of the 5th century, the slave Pantomalus utters a long monologue249 about slave owners’ various flaws including, of course, his own master.250 He mentions that whenever there was a theft committed in the house, the owner cursed for it as if it were a crime.251 For Pantomalus, a theft committed by a slave was therefore more a common thing rather than anything unusual. Pseudo-Plaut., Querol. 40 (ed. Ranstrand): Vinum autem corruptum tenuatumque lymphis continuo intellegit. He instantly understands the wine has been corrupted and diluted with water. And later the slave states that the owner knows immediately if the wine has been contaminated or diluted. Probably it also had to do with watering the wine down: slaves poured water so that the loss of liquid could not be seen, and the opening of the amphora could also lead to liquid contamination. Slavery meant full submission towards the master. As owners often had sex with their female slaves, a child could be born out of such a relationship.252 249 Cf. K. Rzepkowski, Zrzęda (‘Querolus’). Sceniczność utworu na tle komedii Plauta, Warszawa 2006, p. 109. 250 Pseudo-Plaut., Querol. 38-42 (ed. Ranstrand); cf. K. Harper, op. cit., pp. 251-252. 251 Pseudo-Plaut., Querol. 38 (ed. Ranstrand): furtum si admissum domi fuerit, exsecratur tamquam aliquod scelus. (If theft was commited at home, it is cursed as if it was a crime). 252 Cf. also Philogelos 76, in which there might also be an allusion to the smart alec’s child produced with the slave . Cf. A. Łukaszewicz, Sarapis and free man..., pp. 251-255. 2. PRIVATE LAW 77 Philogelos 57: colstikw ejkdouvlhteknwvsntio pth;rsunebouvleueto; pidivon jpokteini. o de;: rwton, e[fh, su; t; tevkn sou ktovruxon,ki;ou{twejmoi;sumbouvleueto;nejmo;njnelein. A student dunce begets a child by a slave girl. His father advises him to kill the child. The dunce retorts, ‘Bury your own children first, and then tell me to do away with mine!’ In this situation, the child had the status of a slave under the ius gentium253 and remained the property of the same owner as the mother, who was its biological father but this did not matter in the light of the law. The scholastikos from the joke254 could therefore be the child’s owner. Still, there is no certainty about that since his father also appeared there and might have been a pater familias exercising power over his son. It seems, however, that since the father gave his son advice, not an order regarding the slave, the son was the owner of the latter. It can be assumed that the slave’s child had just been born, so it is about killing a new-born baby. In Greco-Roman antiquity, abandoning babies (expositio)255 was quite often and perhaps the smart alec’s father speaks about that practice. Still, the text rather indicates that it is about killing the 253 Cf. D. 1,5,5,1 (Marc. 1 inst.): Servi autem in dominium nostrum rediguntur aut iure civili aut gentium: iure civili, si quis se maior viginti annis ad pretium participandum venire passus est: iure gentium servi nostri sunt, qui ab hostibus capiuntur aut qui ex ancillis nostris nascuntur. (Slaves are brought under our ownership either by the Civil Law or by that of Nations. This is done by the Civil Law where anyone who is over twenty years of age permits himself to be sold for the sake of sharing in his own price. Slaves become our property by the Law of Nations when they are either taken from the enemy, or are born of our female slaves. Transl. S. P. Scott). 254 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., pp. 68-69; P. Gray, Abortion, Infanticide, and the Social Rhetoric of the Apocalypse of Peter, «Journal of Early Christian Studies» 9.3/2001, pp. 313-337; M. Beard, Laughter in Ancient Rome..., pp. 198. 255 Cf. H. Bennett, The Exposure of Infants in Ancient Rome, «CJ» 18/1922–23, pp. 341351; H. Kupiszewski, Porzucenie dziecka w prawach antycznych, «Meander» 11.1-2/1956, pp. 57-67; W.V. Harris, Child-Exposure in the Roman Empire, «JRS» 84/1994, pp. 1-22; J. Evans-Grubbs, Infant Exposure and Infanticcide, [in:] The Oxford Handbook of Childhood and Education in the Classical World, ed. J. Evans-Grubbs, T. Parkin, R. Bell, Oxford 2013, pp. 83-107; I. Żeber, ‘Expositio infantis’ (porzucenie dziecka) w antycznym Rzymie, [in:] Dziecko i jego pozycja prawna w dziejach, ed. A. Pasek, Wrocław 2014, pp. 29-67; J. Wiewiorowski, Deformed Child in the Twelve Tables, [in:] ‘Mater familias’. Scritti romanistici per Maria Zabłocka, ed. Z. Benincasa, J. Urbanik, Warszawa 2016, pp. 1157-1176. 78 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS child.256 It cannot be ruled out that the child was weak or crippled, or that its cost of living would be too high.257 The scholastikos’ reply about his father burying his own children first can be understood in two ways. He could have thought about himself: if he told his father to kill him and to bury him, he would ridicule himself (as usual) with a completely missed comment. But it could also mean that the father had also produced children with slaves and had not killed them at all; then the smart alec would not turn out to be that stupid... The prospect of manumission was hope for many slaves. The references of this institution are also present in Philogelos. Philogelos 25: colstiko;ejntwpleveinceimwnoo[ntosfodrouki;twn oijketwnkliovntwn:Mh; klivete,e[fh:pvntg;rumejn diqhvkiejleuqevroujfhk. A student dunce is voyaging on a very stormy sea. When his slaves start to wail, he tells them, ‘Don’t cry; in my will, I’ve set you all free!’ The scholastikos found himself with his slaves in common danger. He informed them that he had manumitted them in his will.258 This is, therefore, formal manumission,259 manumissio testamentaria directa ,260 a legal act performed mortis causa, the effects of which occurred after the death of 256 Cf. Sen. Mai., Contr. 10,4,16; Ch. Laes, Children..., p. 130. 257 Cf. J. Evans Grubbs, Infant Exposure and Infanticide…, p. 89. 258 Cf. J. Rougé, Le Philogélôs et la navigation..., pp. 7-8. 259 Cf. Cic., Top. 10; G. 1,17; FD 5; E. Weiss, ‘Manumissio’, «RE» 14.2/1930, col. 1366-1377; W.W. Buckland, The Roman Law of Slavery. The Condition of the Slave in Private Law from Augustus to Justinian, Cambridge 1908, pp. 437-597; A. M. Duff, Freedmen in the Early Roman Empire, Cambridge 1958, p. 23 ff. S. Treggiari, Roman Freedmen during the Late Republic, Oxford 1969 (reprint London 2000), p. 20 ff. O. Robleda, Il diritto degli schiavi nella Roma antica, Roma 1976, pp. 105-126; A Watson, The Law of Persons in the Later Roman Republic, Oxford 1967, p. 185 ff.; Idem, Roman Slave Law, Baltimore-London 1987, pp. 24-30; C. Masi Doria, ‘Civitas, operae, obsequium’. Tre studi sulla codizione giuridica dei liberti, Napoli 1999 (reprint), pp. 1-15; L. Schumacher, Sklaverei in der Antike. Alltag und Schicksal der Unfreien, München 2001, pp. 293-296; P. López Barja de Quiroga, Historia de la manumisión en Roma. De los orígenes a los Severos, Madrid 2007, pp. 16-37. 260 G. 2,267: At qui directo testamento liber esse iubetur, velut hoc modo: STICHVS SERVVS MEVS LIBER ESTO, vel hoc: STICHVM SERVVM MEVM LIBERVM ESSE IVBEO, is ipsius testatoris fit libertus. (A direct bequest of liberty, such as: ‘Be my slave Stichus free,’ or, ‘I order that my slave Stichus be free,’ makes the slave the freedman of the testator. Transl. E. Poste). 2. PRIVATE LAW 79 a testator: a slave received freedom when the heir took over the inheritance. However, the sinking of the ship would probably lead to the death of all the passengers, and therefore manumission would not bring any tangible effect. In the discussed case, all the victims of the shipwreck should be considered commorientes,261 unless one could prove the earlier death of one of them. Another joke has a similar overtone. Philogelos 30 b: colstiko;nugeinmevllwnpinkivdh[tei,i{ndiqhvk grvh. tou; de; oijkevt orwn jlgount di; to;n kivndunon e[fh:Mh;lupeisqe:ejleuqerwg;rum. Seeing that he’s about to be shipwrecked, a student dunce calls for wax tablets so that he can write his will. Noticing that his slaves are in great distress because of their impending doom, he tells them, ‘Don’t be upset; I’m setting you free.’ In this case, however, the smart alec was just about to make a will and include a manumission of his slaves there. This situation seems to be more in line with the ‘psychological portrayal’ of the scholastikos, who poorly reacted in everyday situations. The lack of the will would be consistent with this image. An approaching sea voyage was treated as a potentially risky262 situation by the Romans, so it was considered natural to take care of writing testamentary tablets and leaving them in a safe place.263 Perhaps one of the funny circumstances here was that the scholastikos really wanted to make a will while facing inevitable danger. Except that it was a sea trip itself that was considered risky, and not a sea storm, which resulted in the ship actually sinking. Then there was only time for praying, crying and panicking. 261 In the case of death in a common danger, jurists applied certain principles: it was assumed that an immature child died before the parent (D. 34,5,23 (Gai. 5 ad l. Iul. et Pap.); D. 23,4,26 pr. (Pap. 4 resp.)), a mature one after its parent (D. 34,5,22 (Iav. 5 ex Cass.); D. 34,5,9,4 (Tryphon. 21 disp.)). In other cases, it was assumed that the moment of death was simultaneous (D. 24,1,32,14 (Ulp. 33 ad Sab.); D. 34,5,9,3 (Tryphon. 21 disp.)), unless a different course of events was proven. Cf. R. Lambertini, La problematica della commorienza nell’elaborazione giuridica romana, Milano 1984, p. 44 ff.; C. Masi Doria, A proposito di commorienza, «Index» 16/1988, pp. 411-417; A.R. Jurewicz, Problem domniemania w rzymskim ‘ius quod ad personas pertinet’, Olsztyn 2009, pp. 149-188. 262 Cf. D. 39,6,3 (Paul. 7 ad Sab.); D. 39,6,6 (Paul. 7 ad Sab.). 263 On the subject of making a will in the face of possible death cf. E. Champlin, Final Judgments. Duty and Emotion in Roman Wills, 200 B.C.-A.D. 250, Oxford 1991, pp. 64-70. 80 II. LEGAL POSITION OF PERSONS IN PUBLIC AND PRIVATE LAW IN THE LIGHT OF PHILOGELOS 3. Summary In Philogelos, we can find much information about the status of people in public and private law. The administration performance – province governor and local offices – was lampooned here; there are a few jokes about soldiers, the Games were also presented. One of the jokes has a flagship privilege of Roman citizens – provocatio – as its topic. In the field of private law, the marriage institution, patria potestas, as well as the legal position of slaves were considered. The jokes discussed give a very interesting picture of the empire’s society. People actively participate in political life, like taking part in assemblies, they are interested in the functioning of the local community, they care about security. The horror of war meets entertainment events. The glimpses of private life shown in jokes allow us to look at legal practice but they also express common views. There is a clear misogynist tendency, and a rather reluctant attitude towards marriage, information about adultery and even incest. What is striking, however, is that fathers worry about raising their children (and children strive to break free from their parents). We can see the care of getting offspring educated, and the desire to provide a daughter with a good future by giving her a valuable dowry. Jokes related to slavery appear to be very interesting as they show household reality in which a slave could work honestly, but also rob their owner, as well as jokes illustrating the pursuit of freedom and the practice of testamentary manumission. Many jokes cannot be understood properly without referring to legal issues. An example of this is the whipping joke (Philogelos 138), the background of which is the issue of Roman citizenship and related privileges, as well as the joke about selling a wife at the market (Philogelos 246), which includes an allusion to selling slaves and associated tax issues. III. Legal and economic issues in Philogelos Philogelos jokes well illustrate the practical dimension of legal relations in the Empire. The protagonists of jokes often participate in the trade. They are the owners of things, using one of the best protected rights in ancient Rome. This protection was effective against anyone who violated the owner’s rights (erga omnes). The property right had a very broad scale although it was subject to certain restrictions,264 including those resulting from neighbourly rights or public law. Some jokes relate to inheritance law – to universal succession through testamentary, or non-testamentary process, and to singular succession in the form of legacies. Plenty of space in the collection is also occupied by jokes with various contracts as their background. 1. The law of things Philogelos 85: colstiko; eij oijkivn kinh;n metoikisqei; ki; t; pro; tou pulwnokqhvrejpevgren:}Onw|dekovpribvlh, jpovllusinujtv. A student dunce moves into his new house. After clearing up the area in front of the gate, he puts up a sign: ‘Don’t leave your shit here; it won’t be returned.’ The scholastikos described in the joke265 moved into a new house. Although the text does not show clearly whether he was its owner or, for example, rented it, but the phrase ‘new house’ rather indicates the first possibility. 264 Cf. W. Wołodkiewicz, “Święta własność prywatna”, [in:] Czy prawo rzymskie przestało istnieć?, Warszawa 2003, pp. 211-226. 265 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 228; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 76. Cf. also J. Meggitt, Paul, Poverty and Survival, Bodmin 1998, p. 71 fn. 173. 82 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Certainly, he was interested in its looks because he first cleaned up before the entrance. The inscription he wrote (in the form of a plate – libellus fixus,266 or a graffito made on the wall) was intended to keep the place clean. This joke fits perfectly into the group of inscriptions about impurities. Some of them were discovered on Roman tombstones and they forbid to answer the call of nature,267 for example: ‘He who urinates or defecates here, let him have the gods above and below angry’.268 In Petronius’ Satyricon, Trimalchio stated that in his last will he made sure that he would not be insulted as a dead man, namely he made one of his freedmen a guardian of the grave so that people would not go defecating there .269 Graffiti of similar content were found in Pompeii or Herculaneum. In many places, there are inscriptions like Cacator cave malum270 (‘Beware of misfortune, shitter’) or similar. They were to deter passers-by from urinating or defecating on the walls, on other people’s houses, or even in temples.271 There is of course a question about the legal significance of such inscriptions. They substantially differ from official regulations in the form of an edict preserved in epigraphical form, which are formulated ne quis fecisse 266 Cf. Petr., Sat. 28,7. 267 Cf. R.A. Lattimore, Themes in Greek and Latin Epitaphs, Illinois 1962, p. 120. 268 CIL IV, 13740: Qui hic mixerit aut cacarit, habeat deos superos et inferos iratos. Cf. CIL III, 1966; AE 1939, 162b. See also CIL VI, 2357 along with the Pompeian parody CIL IV, 8899; cf. K. Milnor, Graffiti & the Literary Landscape in Roman Pompeii, Oxford 2014, p. 64 ff. Cf. also M. Kuryłowicz, Horacy, Sermones 1,8. Poeta na cmentarnych ścieżkach, między prawem i obyczajami, «Studia Prawnicze KUL» 4/2013, pp. 25-35. 269 Petr., Sat. 71,8. 270 CIL IV, 7716; CIL IV, 3782; CIL IV, 5438; CIL IV, 4586; CIL IV, 3832. Cf. also more complex AE 1949, 48 ; CIL IV, 7038 ; CIL IV, 6641; CIL VI, 29848b. Cf. T. Petznek, Der Umgang mit Fäkalien in der römischen Antike, [in:] Aborte im Mittelalter und der Frühen Neuzeit, ed. O Wegener, Petersberg 2014, pp. 38-46; P. Keegan, Graffiti in Antiquity, New York 2014, pp. 136-137. A very interesting hypothesis on the inscription Cacator cave malum was draw by A. Di Porto, ‘Salubritas’ e forme di tutela in età romana. Il ruolo del ‘civis’, Torino 2014, pp. 107-108, who linked it to the practice of exposing barrels for urine in front of fulling houses: a graffito would therefore prevent contamination of urine with other excrements. It can also be added that this practice is a subject of one of the jokes. Philogelos 214: Fqonero; eij gnfeion eijselqw;n ki; mh; qevlwn oujrhsi jpevqnen. (A guy goes to the cloth-fuller’s shop to sell his urine. When he can’t piss like the others, he dies of envy.) 271 Cf. An inscription I.Kition 2012, where a person throwing away impurities (nti kovpri bvlh) was threatned by a goddess’ wreath. 1. THE LAW OF THINGS 83 velit.272 They are private and non-legal. They contain some form of threat, usually with a sacral context. It may be a warning against the anger of a deity or just some misfortune (malum). Rarely did a threat of punishment appear: poena(m) patiare necese est cave273 (‘bear in mind that you must experience a punishment’). However, it was rather a declaration of the self-help of the residents rather than of handing a perpetrator over to relevant authorities. How can you interpret Philogelos joke in this context? The inscription put up by the scholastikos would say in Latin: Quicumque hic stercora iniciat perdit illa. Its style is therefore more legal, or rather pseudo-legal as it contains a clear disposition and a sanction. Obviously, the humorous effect was achieved by the absurd assumption that someone might care about the dung he had thrown away and on the fact the scholastikos announced that he would keep it. Still, the motif of losing something on someone else’s premises is interesting. According to the principle of superficies solo cedit, only in case of combining a movable and an immovable thing, the owner of the immovable took over the building constructed on their land, a planted tree, or sown grain. On the other hand, if fruit fell down on the neighbour’s land, the owner of the tree had the right to pick them up. Therefore, leaving a moveable thing on someone else’s land did not result in losing ownership. In this case, however, we are rather dealing with derelictio – throwing away a thing with the intention of getting rid of it, which definitely made the thing belong to no-one (res nullius). It is very probable that the road in front of the smart alec’s estate, which was probably primarily the subject of the inscription, was public274 since everyone could walk there. In this situation, the principle of superficies solo cedit was also adequate, and – a contrario – so was the conclusion that a movable thing not connected to the land remained the property of the one who left it, unless they deliberately disposed of it. However, it should be emphasized that roads as loca publica were subject to public law regulations and official protection. That is why it is worth paying attention to one more aspect of the above-mentioned inscription. The Greek phrase kovpriejkbvlleinand the 272 Cf. generally D. Daube, Forms of Roman Legislation, Oxford 1956, pp. 37-49; Idem, ‘Ne quis fecisse velit’, «ZSS» 78/1961, pp. 390-391, but also very interesting reflections K. Milnor, op. cit., p. 53 ff. 273 CIL IV, 7038. 274 Cf. D. 43,8,2,22 (Ulp. 68 ad ed.); R. Kamińska, Ochrona dróg i rzek publicznych w prawie rzymskim w okresie republiki i pryncypatu, Warszawa 2010, pp. 29-42. 84 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Latin one stercus inicere appear in many legal source texts, both in jurists’ writings and in epigraphic sources275 in the context of magistrate duties. CIL VI 31614 (=ILS 8208): L. Sentius C. f. pr(aetor) de sen(atus) sent(entia) loca terminanda coer(avit). B(onum) f(actum). Nei quis intra terminos propius urbem ustrinam fecisse velit neive stercus cadaver iniecisse velit. L. Sentius, son of Gaius, praetor, in accordance with a motion of the senate supervised the marking off of this area with boundary-stones. A deed well done! Let no-one be minded to make a cremation-place or cast dung or a carcass within the boundarystones on the side nearer to the city. (transl. O. Salomies) The inscription found on a border stone (cippus) contains the edict of the praetor L. Sentius, dated back to ca. 80 AD276 in which the magistrate obliged by the Senate to set borders forbade putting funeral pyres in the city, as well as throwing away bodies and impurities, or stercus. The intervention of the praetor in this area is quite unusual because normally it was within the competences of the aediles and quattuorviri viis in Urbe purgandis277 supporting them. The city was also cleaned by professional stercorarii.278 In this context also a text found in the Digest is noteworthy. D. 43,10,1,5:279 (Ek tou jstunomikou monobivblou tou pininou) Mh; ejvtwsn de; mhde; mvcesqi ejn ti ojdoi mhde; kovpron ejkbvlleinmhde;nekr;mh;devrmtrivptein. 275 Cf. lex Lucerina 1; J. Bodel, Graveyards and Groves. A Study of the ‘lex Lucerina’, Cambridge 1994, pp. 2 and 30-32. 276 Cf. CIL VI 31615, where there was an additonal threat: Stercus longe aufer ne malum habeas. (Keep excrement far away, lest you take on some evil. Transl. A.O. Koloski-Ostrow). 277 Cf. Tab. Her. 50-52; Dio Cass. 54,26,6; D. 1,2,2,30 (Pap. l. s. enchir.); W. Kunkel, R. Wittmann, Staatsordnung..., p. 205; R. Kamińska, W trosce o Miasto..., pp. 140-143. 278 Cf. CIL IV 7038; A. Scobie, Slums, Sanitation and Mortality in the Roman World, «Klio» 68/1986, pp. 413-414. 279 In Mommsen’s translation: (Ex Papiniani de cura urbium libro): Ne sinunto autem neque pugnari in viis nec stercus proici nec cadavera nec pelles eo conici. Cf. V. Ponte, Régimen jurídico de las vías públicas en derecho romano, Madrid 2007, p. 240; R. Kamińska, W trosce o Miasto..., pp. 131-132. 1. THE LAW OF THINGS 85 The Aediles must not permit any quarrelling to take place in the streets, nor any filth, dead animals, or skins to be thrown into them. (transl. S. P. Scott) This passage comes from the tenth title of the 43th book of the Digest De via publica et si quid in ea factum esse dicatur. As it is clear from the inscritpio, the compilers placed there one text taken from Papinian’s work concerning cura urbis. Still, both the title and the authorship of the work raise researchers’ doubts.280 The discussion is, among other things, about officials who the fragment is devoted to: is it about one of the Roman magistracies, or rather about a local office?281 The emphasis was put on the concurrence of the text content with the regulations found in the Tabula Heracleensis282 as well as with an inscription of the 2nd century AD from Pergamon regarding jstunovmoi.283 The officials in question were supposed to prevent street brawls and to make sure that nobody threw dung – kovpron,dead bodies or skins out to the streets. It seems that hygiene in the cities of the Mediterranean Sea region was a constant logistical problem the city authorities had to face. In remote places, similar legal regulations, not necessarily modelled on one another, were introduced. In the Roman Empire, therefore, legal norms discussed here were valid both in Rome herself and locally. A common feature of the referenced sources is the obligation of officials (central, or local ones) to keep the streets clean. However, it was always residents living in buildings by the road that were directly obliged to make 280 Cf. Th. Mommsen, Römisches Staatsrecht3..., II.1, , p. 603 fn. 4; R. Martini, D. 43.10.1: Ex astunomikou monobiblou tou Papinianou, «AARC» 15/2005, p. 243 ff.; L. Migliardi Zingale, Ancora sugli ‘Astynomoi’ in D. 43.10.1, [in:] Studi in onore di R. Martini, II, Milano, 2009, p. 809 ff.; F. Vallocchia, Fulloniche e uso delle strade urbane: sul concetto di ‘incommodum publicum’ (a proposito di D. 43,10,1), «TSDP» 6/2013, p. 1-28. 281 Cf. M. Amelotti, L’epigrafe di Pergamo sugli Astynomoi e il problema della recezione di leggi straniere nell’ordinamento giuridico romano, «SDHI» 24/1958, p. 90 fn. 33; M. Talamanca, Gli ordinamenti provinciali nella prospettiva dei giuristi tardoclassici, [in:] Istituzioni giuridiche e realtà politiche nel tardo impero, Milano, 1976, p. 142 fn. 138; F. Vallocchia, op. cit., pp. 7-9. 282 Cf. R. Martini, op. cit., p. 250; F. Vallocchia, op. cit., pp. 20-25; C. López-Rendo Rodriguez, Servicios publicos en la ‘Tabula Heracleensis’, [in:] Homenaje al Profesor Armando Torrent, Madrid 2016, pp. 518-520. 283 SEG XIII, 521 = OGIS 483, col. I-II. Cf. L. Migliardi Zingale, op. cit., p. 814 ff.; F. Vallocchia, op. cit., p. 18. 86 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS repairs or clean up. Negligence resulted in imposing a fine on a citizen, or in the magistrate concluding a contract with a person who would carry out the necessary work at the expense of the residents.284 In this light, it is tempting to put forward a hypothesis regarding the inscription hung by the scholastikos. Perhaps he wanted not only to avoid the inconvenience of the hygienic and sanitary aspect of the dung left near his house, but he also feared responsibility before officials responsible for cura urbis. As a person occupying a property by the street, he was obliged to remove impurities himself or to cover the costs of cleaning up. A failure to comply with this obligation could mean exposing himself to sanctions. Local officials, such as the aediles appointed in municipalities, had the right to impose fines or the pignoris capio.285 According to sources, in this respect, Roman and Hellenistic solutions were alike which allows us to assume that Philogelos readers were aware of this aspect of the problem of impurities in the streets. There is also another joke related to property protection. Philogelos 166: Kumio o[nw ejpikqhvmeno pr; khpon w{deuen. ijdw;n ou\n klvdon sukh uperevcont suvkwn wrivmwn peplhrwmevnon ejpelvbeto tou klvdou. tou de; o[nou upekdrmovnto jpekremvsqe,ki; toukhpourou ejrwthvsnto,tiv ejkei poiei kremvmeno,e[legen:Ektouo[noue[pes. A Kymaean is riding alongside a garden on his ass. Noticing the overhanging branch of a fig-tree loaded with ripe figs, he takes hold of it. Just then, the ass runs out from under him, leaving him hanging from the branch. The gardener comes over and asks, ‘What do you think you’re doing, hanging like that from my tree?’ ‘I just fell of my ass,’ responds the Kymaean. The problem relates to stealing the fruit of the tree the branches of which went beyond the borders of the land: apparently they hung over the road. As it has already been mentioned, fruit is the property of the owner of the tree. As long as they were hanging on the tree, they were part of the plant, and at the moment of falling down or picking up they became a separate 284 Cf. OGIS 483 Col. I,29; Tab. Her. 32-48. Cf. V. Ponte, op. cit., pp. 243-244. 285 Cf. Lex Irnitana 19. Cf. B. Sitek, ‘Lex Coloniae Genetivae Iuliae seu Ursonensis’ i ‘lex Irnitana’. Ustawy municypalne antycznego Rzymu. Tekst, tłumaczenie, komentarz, Poznań 2008, pp. 93-95. 1. THE LAW OF THINGS 87 thing. In the presented case, by picking up the figs, the Kymaean committed a theft,286 and because he was caught red-handed, it was a furtum manifestum287 with the punishment of the quadruple value of things. The owners of properties located by rivers often struggled with serious problems. Philogelos 46 a: colstikwprgmteuth;jphvggeilen,o{tito;cwrivonujtou o potmo; e[lben. o de; jnkrgw;n jpekrivnto levgwn: Bivzetihm. A student dunce’s farm agent reports that the river has taken his entire property. ‘No fair!’ shouts the dunce. ‘I’ll sue!’ The scholastikos learned the river had taken a piece of his land. The source of humour here is the fact the protagonist treated the river (potmov) as a person. This joke has also a second version (b), in which the smart alec asks tiv levgw_ (‘What do I say?’). So in the first version, he accuses Potamos of using force, while in the second, he wonders what legal remedy applies here, which action to use. Andreas Thierfelder reconstructed this situation as a legal consultation288. He proposed a conjecture of replacing the term prgmteuthvwith prgmtikov, or iuris interpres. From the legal point of view, it is interesting to observe the question of the influence of the river on changing the land owner289. Such cases were of interest to jurists. Gaius wrote about it, dealing with the issue of appropriation. G. 2,70-71: Sed et id, quod per alluvionem nobis adicitur, eodem iure nostrum fit: per alluvionem autem id videtur adici, quod ita paulatim flumen agro nostro adicit, ut aestimare non possimus, 286 A tree was a part of the land, and many jurists stated that it was not possible to steal land (G. 2,51; D. 47,2,25 pr. (Ulp. 41 ad Sab.); cf. Gell. 11,18,13). Ulpian underlined that if a person took fruit, stones, trees or sand with the intention of selling them was responsible for a furtum – D. 47,2,25,2 (Ulp. 41 ad Sab.). Cf. J. Zabłocki, ‘Furtum’ w świetle ‘Nocy attyckich’, [in:] Przemoc w świecie starożytnym. Źródła, struktury, interpretacje, Lublin 2016, p. 311 ff. On jokes about theft see below, pp. 154-161. 287 Cf. G. 3,183; Gell. 11,18,11; D. 47,2,3 (Ulp. 41 ad Sab.). 288 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 47 and 215-216. 289 Cf. R. Świrgoń-Skok, Nieruchomość i zasady akcesji według prawa rzymskiego, Rzeszów 2007, pp. 74-96. 88 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS quantum quoquo momento temporis adiciatur: hoc est, quod volgo dicitur per adluvionem id adici videri, quod ita paulatim adicitur, ut oculos nostros fallat. Itaque si flumen partem aliquam ex tuo praedio resciderit et ad meum praedium pertulerit, haec pars tua manet. Alluvion is another natural mode of acquisition. Alluvion is an addition of soil to land by a river, so gradual that at a particular moment the amount of accretion cannot be determined; or, to use the common expression, an addition made by alluvion is so gradual as to elude our sight. Accordingly a parcel of your land swept away by a river, and carried down to mine, continues your property. (transl. E. Poste) Gaius stated that the alluvio changes ownership when the river gradually applies soil on someone’s land so that one-time growth cannot be estimated. Generally, it can be said that soil grows so slowly that it confuses our perception. However, he further emphasized that in the event of the river taking part of the land of one person and transferring it to someone else’s (avulsio), this part does not change the owner. Yet in Res cottidianae, Gaius added290 that a piece of land suddenly taken by the river would become the property of the person whose land it would be attached to if, after some time, trees would put down roots there. In this situation, it can be assumed that the scholastikos wanted to obtain legal advice regarding the problem of land ownership. He probably noticed that his property had decreased due to the slow operation of the river, or that part of it had become detached. The advocate stated that the alluvio had occurred, and therefore the river took his land, or he may have stated that there had been a case of the avulsio and the neighbour had already acquired ownership, because the trees had got rooted in his land. Then the protagonist (depending on the version of the joke) either shouted that it was violence, or asked what legal action he could apply. 290 D. 41,1,7,2 (Gai. 2 rer.cott.): Quod si vis fluminis partem aliquam ex tuo praedio detraxerit et meo praedio attulerit, palam est eam tuam permanere. plane si longiore tempore fundo meo haeserit arboresque, quas secum traxerit, in meum fundum radices egerint, ex eo tempore videtur meo fundo adquisita esse. (But if the force of a stream takes a portion of your land away from you, and brings it upon mine, it is evident that it will continue to be yours. If, however, it should remain on my land for a long time, so that the trees which it brought with it take root in my soil, it will be considered to form part of my land from that time. Transl. S.P. Scott.) 2. THE LAW OF SUCCESSION 89 The phrase Bivzetihmmakes an association with extensive Roman legislation aimed at suppressing the use of force291 in private and public life. Since the joke relates to the removal of the land by the use of force, the closest connotations are rapina,292 or the inderdictum unde vi,293 as well as the lex Iulia de vi.294 It seems, therefore, that the scholastikos intended to sue Potamos using one of the available means of protection. 2. The law of succession Succession was of enormous significance to the Romans, especially in the context of the death of a pater familias, which was related to the problem of the continuation of the familia in its financial, but also sacral meaning. One of the basic activities that a citizen should perform was to make a will. Cato, for instance, regretted that he survived even one day without his will.295 Efforts were made to ensure that the last will would not be contested, and therefore substitution was used and future sons to be born were disinherited. The aim of such procedure was to prevent intestacy.296 A will was a reflection of the wish of a testator. Aulus Gellius cited297 the opinion of the jurist Servius Sulpicius Rufus, who in the second book of the work De sacris detestandis298 stated that the term testamentum came 291 Cf. A.W. Lintott, Violence in Republican Rome, Oxford 1968, pp. 107-124; L. Labruna, ‘Vim fieri veto’. Alle radici di una ideologia, Napoli 1971, p. 10 ff.; Idem, ‘Iuri maxime… adversaria’. La violenza tra repressione privata e persecuzione pubblica nei conflitti politici della tarda repubblica, [in:] Nemici non piú cittadini e altri testi di storia costituzionale romana, Napoli 1995, pp. 115-142 = [in:] ‘Civitas quae est constitutio populi’ e altri studii di storia costituzionale romana, Napoli 1999, pp. 120-130. 292 Although the praetorian edict was about a robbery carried out with the participation of gathered people – hominibus coactis – ; D. 47,8,2 pr. (Ulp. 56 ad ed.), however, it was possible to use the legal action also in case of a robbery done by a single person; cf. D. 47,8,2,7 (Ulp. 56 ad ed.). See also S. Bieniek, Geneza interdyktu ‘de vi armata’, «Acta Universitatis Wratislaviensis» 63, Prawo 18/1967, pp. 9-25. 293 D. 43,16,1 pr.-4 (Ulp. 69 ad ed.). 294 D. 48,7,3,2 (Macer 1 publ.). 295 Plut., Cat. Mai. 9,6. 296 Cf. E. Champlin, Final Judgments..., p. 21. 297 Gell. 7,12,1-2. 298 Cf. O. Lenel, Palingenesia iuris civilis, Lipsiae 1889, II, col. 324; R.A. Bauman, Lawyers in Roman Transitional Politics..., pp. 6 and 47; J. Zabłocki, Kompetencje..., p. 14. 90 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS from mentis contestatio, i.e. it is a cluster derived from the ‘declaration of will’. The antiquarian considered the etymology to be false, proving that -mentum is a frequently used word-formation particle (as in calciamentum, paludamentum, pavimentum, vestimentum). However, this does not change the fact that Sulpicius’ words began to be treated with time not as an etymological argument but as a definition of a will .299 The conviction was that wills constituted a mirror of human customs.300 The essentiale negotii in this legal act was to establish an heir (heredis institutio), which, as it turns out, gave a good excuse to joke.301 Philogelos 104: Filvrgurodiqhvkgrvfwneuto;nklhronovmone[txen. A miser writes a will and names himself as the heir. A will was a mortis causa legal act, causing legal effects only after the death of the testator. The accumulation of wealth had that drawback that it was always given to someone else eventually. This joke, although absurd, reflects the deep-seated fear of death too. The motif of making oneself an heir appeared several times in ancient literature. It often happened that those who were spenders302 were ridiculed when they were alive as they had nothing to leave to their relatives in their will. Mart., Ep. 5,32: Quadrantem Crispus tabulis, Faustine, supremis non dedit uxori. “Cui dedit ergo?” Sibi. Crispus, by his last will, Faustinus, did not give a farthing to his wife. To whom then did he give it? To himself. (transl. http://www.tertullian.org/fathers/martial_ epigrams_book05.htm accessed 24 September 2018) 299 Cf. Ulp. 20,1; I. 2,10 pr.; J. Zabłocki, Kompetencje..., Warszawa 1990, pp. 113-115; Idem, Le più antiche forme del testamento romano, [in:] ‘Ius romanum’. ‘Schola sapientiae’. Pocta Petrovi Blahovi k 70. narodeninám, Trnava 2009, pp. 550-551; Idem, Najstarsze formy testamentu rzymskiego, [in:] O prawie i jego dziejach księgi dwie. Studia ofiarowane profesorowi Adamowi Lityńskiemu w czterdziestopięciolecie pracy naukowej i siedemdziesięciolecie urodzin, I, Białystok-Katowice 2010, p. 138 ff. 300 Cf. Plin., Ep. 8,18,1; E. Champlin, ‘Creditur vulgo testamenta hominum speculum esse morum’. Why the Romans Made Wills, «CP» 84/1989, pp. 201-202. 301 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 233-234. 302 Cf. Anth. Pal. 7,607. 2. THE LAW OF SUCCESSION 91 For instance, Martial mocked Crispus who did not leave his wife even a quarter of an as. So who did he give to? To himself, which means that he had squandered all his assets during his life. The protagonist of Lucillius' epigram,303 Hermocrates, made himself an heir. The author also added that after death, he was left with only an obol in his mouth, and his legal heirs threw themselves on this asset. It is interesting to observe the diversity of humour in this area. Once, people who had nothing to pass on, or spendthrifts, were the subject of mockery.304 The fact that they made themselves their heirs was only a metaphor because they were really wasting their wealth while still alive. Sometimes, however, mockery became aimed at a rich yet stingy man who collected material goods for himself and did not want to share them to such an extent that he even tried to deceive death by placing himself as an heir in his will. Both attitudes – excessive avarice and excessive profligacy were equally worth condemnation.305 303 Anth. Pal. 11,171. Cf. A. Schatzmann, Nikarchos II..., p. 241; L. Floridi, op. cit., p. 651. 304 On the subject of spendthrifts and public opinion about them cf. M. Kuryłowicz, Prawo i obyczaje..., pp. 121-129; E. Żak, Działania państwa rzymskiego wobec marnotrawstwa jako patologii społecznej, [in:] ‘Salus rei publicae suprema lex’. Ochrona interesów państwa w prawie karnym starożytnej Grecji i Rzymu, Lublin 2007, pp. 379-394. 305 Cf. Hor., Ser. 2,3,166-167: quid enim differt, barathrone/ dones quidquid habes an numquam utare paratis? (For what is the difference, whether you fling whatever you have into a gulf, or make no use of your acquisitions? Tansl. C. Smart. T. Buckley). On luxury and regulations limiting it cf. I. Sauerwein, Die ‘leges sumptuariae’ als römische Maßname gegen der Sittenverfall, Hamburg 1970; J. Sondel, Les ‘leges sumptuariae’ considérées comme l’expresion des conditiones sociales et économiques de la Rome antique, «Archivium Iuridicum Cracoviense» 6/1973, pp. 101-124; Idem, Ustawy przeciw luksusowi w starożytnym Rzymie, «Mówią Wieki» 18.3/1975, pp. 9-12; Idem, Ustawy przeciw luksusowi w starożytnym Rzymie, «Sprawozdania z Czynności i Posiedzeń PAU» 58/1994, pp. 25-29; M. Kuryłowicz, ‘Leges aleariae’ und ‘leges sumptuariae’ im antiken Rom, «Acta Universitatis Szegedensis. Acta Iuridica et Politica» 33/1985, Studia in honorem Velimiri Polay, pp. 271-279; Idem, Prawo i obyczaje..., pp. 43-53; Idem, ‘Leges sumptuariae’ w państwie i prawie rzymskim, [in:] Z historii państwa, prawa, miast i Polonii. Prace ofiarowane profesorowi Władysławowi Ćwikowi w czterdziestolecie Jego pracy naukowej, Rzeszów 1998, pp. 139-154; Idem, Prawo rzymskie wobec przejawów luksusu i marnotrawstwa, [in:] Zbytek i ubóstwo w starożytności i średniowieczu, ed. L. Kostuch, K. Ryszewska, Kielce 2010, pp. 131-133; G. Clemente, Le leggi sul lusso e la società romana tra III e II secolo a.C., [in:] Società romana e produzione schiavistica. III. Modelli etici, diritto e trasformazioni sociali, ed. A. Giardina, A. Schiavone, Roma 1981, pp. 1-14; A. Pikulska-Robaszkiewicz, Ustawowa regulacja obyczajów w prawie rzymskim, «Studia Iuridica» 37/1999, pp. 213-219; A. Bottiglieri, La legislazione sul lusso nella Roma repubblicana, Napoli 2002; C. Venturini, ‘Leges sumptuariae’, «Index» 32/2004, pp. 355-380; K. Chytła, ‘Sit modus in rebus’. Rzecz 92 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Inheriting on the basis of a will was a case of universal succession, but it did not fully meet the needs of testators who wanted to dispose not only their total rights and obligations but also of individual rights. Achieving this goal was possible thanks to testamentary bequests.306 Philogelos 139: idovnioijtro;legvtonupo;jrrwvstouujtoucilivdrcm; met;to;jpoqneinujto;nkomisvmeno,ejkferomevnoude;ujtou th khdeiv jkolouqwn  ejnekvlei, w ojlivgon ujjtw legvton ktevlipen.ejpei;ou\nki;ouio;touteleuthvsntoeijnovson ejmprei;prekvleiujto;nejpiskeptovmenonjntgwnivssqi th nosw, o ijtro; e[fh: E;n pentkisciliv drcm; eij legvtonktleivh,ejgwvseijtreuvswwto;nptevrsou. After his patient dies, a Sidonian doctor receives a bequest from him of a thousand drachmae. As the man is being carried out to burial, the doctor follows the funeral procession, all the while complaining of what a small bequest the man has left him. So when the deceased’s son falls ill, and begs the doctor to examine him and do something to combat the disease, the doctor answers, ‘If you leave me 5000 drachmae as a bequest, I’ll treat you just as I treated your father.’ Here legacies left to the family doctor are the subject of the joke.307 In the text, a Latinized term was used (legvton), which clearly shows that the author had a Roman institution in mind. It is worth noting that the currency in which the bequest was made was the Greek drachma, which of course coincides with the place of action, that is Sidon. o ‘leges sumptuariae’ w prawie rzymskim, «ZP TBSP UJ» 12/2004, pp. 131-138; A.R. Jurewicz, Czymże jest wolność, jeśli nie wolno temu, kto chce umrzeć w luksusie?, [in:] Człowiek pomiędzy prawem a ekonomią w procesie integracji europejskiej, ed. G. Dammaco, B. Sitek, O. Cabaj, Olsztyn-Bari 2008, pp. 336-348. 306 D. 30,116 pr. (Flor. 11 inst.): Legatum est delibatio hereditatis, qua testator ex eo, quod universum heredis foret, alicui quid collatum velit. (A legacy is a deduction from an estate whereby a testator desires that something should be given to a person which otherwise would have entirely belonged to the heir. Transl. S.P. Scott). For basic literature cf. M. Kaser, Das römische Privatrecht, I, München 1971, p. 619 ff. See also E. Loska, Legat w prawie rzymskim, «Zeszyty Prawnicze» 3.1/2003, p. 69 ff. 307 Cf. Anth. Pal. 11,382; A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 241-242; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 87. 2. THE LAW OF SUCCESSION 93 The object of the legacy was money, and therefore it was most likely a legatum per damnationem, when the heir was obliged to issue a written amount to the legatee. The text also shows that the will was opened shortly after the patient’s death, because the doctor complained that the legacy was too low already during the funeral. This is a reflection of the practice as testators very often wrote on tablets what the burial should look like or what tombstone they wished. Therefore, the will was opened as soon as possible. It is worth paying attention to the fact that the doctor has the characteristic traits of an inheritance hunter (captator); he was trying to extort a favourable legacy with threats.308 It seems the doctor wanted to set the minimum value of the legacy which he expected in exchange for the treatment. It would probably be more logical to say: ‘if you do not leave me at least five thousand drachmas, I will treat you like your father,’ which is the implication of ‘and you will die’… However, if the text of the joke is not spoilt, it should be understood that the doctor did not pay attention to the fact that his patient died. He announced to his son that for the services he offered to his father, he expected a legacy of five thousand. It would be risky for a patient to leave anything in their will for a doctor as, knowing the content of the testament, they could become impatient and accelerate the death of the testator. This is what Publilius Syrus suggested when he warned: ‘A sick person gives themselves a bad service when they make the doctor their heir.’309 The perspective of death was one of the incentives affecting making financial decisions. Philogelos 26: colstiko; ejreunwn, pou ojfeivlei ktivsi eutw oi[khm h[gounmnhm,eijpovntwnde; tinwn,o{tiklo;nei[hw|dev pou, e[fh:ll;noswvdhotovpo. 308 Cf. Sen., De ben. 4,20,3: Ingratum voco, qui aegro adsidit, quia testamentum facturus est, cui de hereditate aut de legato vacat cogitare. Faciat licet omnia, quae facere bonus amicus et memor officii debet: si animo eius obversatur spes lucri, captator est et hamum iacit. (I call him ungrateful who sits at the bedside of a sick man because he is about to make a will, when he is at leisure to think of inheritances and legacies. Though he may do everything which a good and dutiful friend ought to do, yet, if any hope of gain be floating in his mind, he is a mere legacy-hunter, and is angling for an inheritance. Transl. A. Stewart). Cf. E. Champlin, Final Judgments..., pp. 93-100. 309 Syr., Sent. 366 (ed. Bickford-Smith): Male secum agit aeger, medicum qui heredem facit. Cf. K.-H. Below, Der Arzt im römischen Recht, München 1953, pp. 98 ff. 94 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS A student dunce is looking for the best place to have his tomb. When people tell him that a certain location would be ideal, he objects that it’s not in a healthy area. Searching for a place for the grave310 could be related to the making of a will. Perhaps the scholastikos wanted to include the decisions regarding his burial in it. It seems that the protagonist of the joke was convinced of the existence of life after death and, as a consequence, of the necessity of securing all kinds of comforts on this occasion. In Philogelos, there is also a reference to the form of a will. In the above-cited311 joke about the manumission of slaves in the form of the manumissio testamentaria (Philogelos 30), the scholastikos asked for tablets on which he could write down his last will: pinkivd h[tei i{n diqhvk grvh. This may indicate that it was to be a mancipatory will, for which seven witnesses were needed: a familiae emptor, a libripens, and five witnesses of the mancipatio. It should also be remembered that the process of tying and sealing tablets had been quite complicated since Nero’s times of Nero (61 BC). 312 During a sea storm, on a ship threatened with sinking, it would simply be impossible to meet all formal requirements. It is worth mentioning, however, that the novel of the emperor Valentinian313 from 446 AD provided for a permissive form of a testament prepared at sea. It had to be written by hand but it did not require the signatures and the seals of witnesses, because, as the emperor noted, people sometimes travelled by sea only in the company of their slaves. Admittedly, Justinian did not accept this solution though perhaps some of Philogelos readers knew it. Intestate succession was also the subject of mockery. Philogelos 24: colstiko; mcovmenotw ptri; levgeipro;ujtovn:Kke; doule,oujcor,oi|meejzhmivws_eijg;rsu;mh;ejgennhvqh, ejgw;nto;npvpponmouejklhronovmhs. 310 Cf. Philogelos 73, in which the smart alec states that Scribonia’s grave is located in a pretty yet unhealthy place. On speculations about Scribonia’s identity cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 224. 311 Cf. above. 312 Cf. Suet., Ner. 17; E.A. Meyer, op. cit., pp. 165-166. 313 Nov. Val. 21,2. Cf. M. Kuryłowicz, ‘Testamentum holographum’, «Rejent» 10/2003, pp. 119-126; Idem, ‘Testamentum holographum’, «Krytyka Prawa» 7.1/2015, pp. 218-227. 2. THE LAW OF SUCCESSION 95 In a fight with his father, a student dunce goes so far as to say, ‘You lousy bugger, don’t you see how unfairly you’ve treated me? If you hadn’t been born, I would have inherited my grandfather’s property!’ Children inherited ab intestato from their father. In the discussed period, the iure civili succession was generally based on the rules laid down in the Law of Twelve Tables:314 in the sui heredes class by heads and by roots. A deceased son was replaced by his children, who divided his part of the inheritance among themselves. In the absence of agnatic ties, a son could apply for bonorum possessio in the unde liberi class. If, therefore, the father was dead, the scholastikos would in fact inherit his grandfather’s assets. But if his father had not been born, there would be no further heirs, including the protagonist himself. Inheritance could bring much joy to the heir yet not always... Philogelos 229 b: tuch; mevquso jmpelwn klhronomhvs ejn kirw tou trughtoujpevqnen. A drunk acquires a vineyard through an inheritance. But the poor guy dies exactly at harvest-time. The drunkard inherited315 a vineyard. From the content of the joke, however, it is impossible to deduce whether it was a testamentary or non-testamentary succession; the use of the verb klhronomevw indicates universal succession, and not a legacy. It can therefore be assumed that the drunkard became the heir or the joint heir of the estate. The joke is based not on how the protagonist acquired the vineyard but on the fact that he did not have time to enjoy the wine, which, if he could, he would have drunk with no limits. 314 Tab. 5,4. Cf. M. and J. Zabłoccy, op. cit., pp. 32-33. 315 In the second verion of the joke (229 a) the drunkard simply bought the vineyard: Mevquso jtuch;jmpelwnkthsvmenotwtrughtwjpevqnen. 96 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS 3. Contracts 3.1. Loan A loan was a very popular contract,316 giving rise to a unilateral obligation on the part of the borrower who received a certain number of the given type of goods to return the same amount or number of them (tantundem) within a specified period of time. In Philogelos, we can find jokes about this legal institution. One of them is quite sophisticated. Philogelos 127: bdhrivthojnvriovntinicrewstwnki; mh; e[cwnprekvlei, i{njntujtouduvohmiovnouprvsch. An Abderite owes someone an ass. Not having one, he asks the man to let him pay two half-asses instead. Now, as it has been mentioned, the subject of the mutuum were things of a given type that could be counted, weighed or measured (quae pondere numero mensurave constant), that is fungibles. The protagonist of the joke317 was to give someone a donkey, i.e. an item marked individually. So it was probably a contract that obliged him to return the same thing he had received from the creditor in a non-deteriorated condition, meaning a commodate, lease, a deposit or a pledge; being somewhat in opposition to a loan, a commodatum318 seems to be most probable. A debtor without a donkey (he must have lost it, for example, in the course of a theft) could not fulfil the obligation. And here is the reference to the loan. He offered to return two half-donkeys, that is mules. It would make the most sense in 316 Cf. M. Zabłocka, Realny charakter ‘mutuum’ w rzymskim prawie klasycznym, «CPH» 31.2/1979, pp. 1-30. 317 Cf. W. Hansen, Ariadne’s Thread..., pp. 265-266. 318 Cf. J. Słonina (Zabłocki), Korzystanie z rzeczy użyczonej w prawie rzymskim, «PK» 26.3-4/1983, pp. 181-212; Idem, ‘Actio commodati’ w prawie rzymskim, «PK» 27.3-4/1984, pp. 197-222; J. Zabłocki, ‘Ex bona fide’ nella formula del comodato, [in:] Il ruolo della buona fede oggettiva nell’esperienza giuridica storica e contemporanea. Atti del Convegno internazionale di studi in onore di Alberto Burdese, (Padova-Venezia-Treviso, 14-15-16 giugno 2001), ed. L. Garofalo, IV, Milano 2003, pp. 453-463; Idem, Klauzula ‘ex bona fide’ w fomułce komodatu, «Zeszyty Prawnicze» 3.2/2003, pp. 343-355. 3. CONTRACTS 97 case of money: while borrowing one as,319 a debtor could give back two half-asses.320 The difference between type-marked items and those marked individually seems to be intuitive, just as in case of the similar division into fungible and non-fungible goods. In the common understanding, however, there could be blurred discrepancies between contracts the subject of which was only one of these categories of things. In modern languages, a loan for use is rarely distinguished from a loan for consumption, as it was the case in the Roman Empire. The Greek equivalent of the mutuum was to; dvneion, while the commodatum – to;crhsvmenon.321 This precision was, however, the domain of jurists as these terms were generally not applied consequently. Such inconsistencies were perhaps the inspiration for Philogelos. In this joke, an interesting wordplay is also present. A word to describe the donkey, the subject of the contract, is to;ojnvrion, which is a diminutive form (diminutivum) of to; o[no. Here comes the association with another term to; dhnvrion, a denarius, a Latinized form often used in Philogelos. Denarius, a typical coin in the Empire, was the primary means of payment. This is an additional allusion to the loan contract, which after all could be given in coins. Then it would be possible to give back the borrowed amount in other coins, being the equivalent. Half a denarius is a quinarius, so here the wordplay breaks off. It seems, however, that this duet ojnvrion–dhnvrionevoked a humorous association in the minds of the inhabitants of the Empire. The joke with half-donkeys, or mules, is simply excellent! It clearly indicates the fact that the recipients of the jest should understand, at least intuitively, what the difference between type-marked and individually marked things is. It must be added that the idea of the scholastikos clearly testifies to his detachment from reality as the price of a donkey could be more than two or 319 Notice the perfection of Berg’s translation: ass as a donkey and as a a coin. 320 D. 12,1,2,1 (Paul. 28 ad ed.): Mutui datio consistit in his rebus, quae pondere numero mensura consistunt, quoniam eorum datione possumus in creditum ire, quia in genere suo functionem recipiunt per solutionem quam specie: nam in ceteris rebus ideo in creditum ire non possumus, quia aliud pro alio invito creditori solvi non potest. (A gift of mutuum has reference to articles which can be weighed, counted, or measured, since people by giving these can contract a credit; because by payment in kind they perform the contract instead of paying in specie. For we cannot contract a credit with respect to other articles, because the creditor cannot be paid by giving him one thing in exchange for another, where he does not give his consent. Transl. S. P. Scott). 321 Cf. Theophil., Paraphr. Inst. 14 pr. 98 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS even four times lower than the price of a mule.322 Therefore, by offering two mules, the smart alec exposed himself to a huge loss, which was certainly an additional comical element in this joke. The problem of distinguishing the two aforementioned types of things (genus and species) also appears in another joke concerning paternal authority,323 in which the son wanted to buy the lost denarius back to his father, not realizing that he could return its equivalent (tantundem). The denarius is the object of a loan agreement in yet another joke.324 Philogelos 213 a: Oknhro;ojknhrw dhnvrionejcrewvstei.upnthvsde; ujtw h[teito;dhnvrion.toude;eijpovnto:[Ekteinovnsouth;nceir ki; lusovnmouto; mvpoulonki; \ronto; dhnvrion-ejkeino e[fh:oreuvoue[nqen:oujdevnmoicrewstei. One indolent owes another a denarius. The other runs into him and asks for his money back. The first indolent says, ‘It’s tied up in my bandanna. Reach over here, undo the bandanna, and lift out the denarius.’ ‘Oh, never mind,’ says the second, ‘I’m writing it off.’ In this case, we are dealing with debt cancellation because the creditor resigned from accepting the payment. In the other version of the jest, the lender finally states: ejplhrwvqhn, which Thierfelder325 interpreted as acceptilatio. Still, it is difficult to agree with this concept because there is no characteristic question-answer sequence: habesne acceptum? – habeo.326 It seems that the joke is about a mutuum contract, not a stipulation, and therefore the debt cancellation could take place in an informal way. It can be assumed that in this situation, the de non petendo pactum was concluded, which would allow the debtor to use the exceptio pacti, if necessary. A mutuum was basically a friendly loan, a gratuitous legal act. However, calculating interests was a common practice, with the use of a stipulation contract: stipulatio usurarum. There is also a reference to interests in Philogelos. 322 This is clearly indicated by the chapter about prices of draft animals of Diocletian’s edict on maximum prices: Edictum de pretiis rerum venalium 32 (ed. Lauffer). 323 Philogelos 86 quoted and discussed above, pp. 71-72. 324 Cf. W. Hansen, Ariadne’s Thread..., p. 430. 325 A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 266-267. 326 Cf. G. 3,169. 3. CONTRACTS 99 Philogelos 50: colstiko;dneisth;nuklhvrwcrewvsthejnetevlletosoro;n ujtw komivsi ki; duvo pidik; toi ojktevtesi pidivoi ujtou,dikivoumevtrouweiju[xhsin. A student dunce who has lent money to a ship’s captain orders him to provide a large funerary urn for himself, and a additional two small urns for the dunce’s eight-year-old children – proportional in size to the interest on the debt. The scholastikos borrowed money from the captain of the ship, which may indicate that it is not about the ordinary mutuum but about the maritime loan.327 In such a case, the lender took on the risk of a sea voyage, and therefore could only request reimbursement if the ship had successfully reached a destination port. High interests were treated as a counterbalance to the risk taken. In the discussed case, the smart alec demanded that the captain provide sarcophagi for him and his eight-year-old children proportionally to their height. It seems, therefore, that the loan was granted in cash yet the smart alec wanted it to be returned in a different form. The capital equivalent was to be a large sarcophagus, while the interests – the sarcophagi for the two children. From the grammatical point of view,328 the text of the joke seems to indicate that the scholastikos expressed his request only after the ship had returned from the expedition. Therefore, the captain might have brought sarcophagi purchased in some port, which he intended to sell at a profit, 327 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 217-218. Unlike J. Rougé, op. cit., pp. 11-12. On the maritime loan cf. inter alia F. De Martino, Sul foenus nauticum, «Rivista del Diritto della Navigazione» 1.3/1935, pp. 219-247 = [in:] Diritto economia e società nel mondo romano, I, Napoli 1995, pp. 1-31; Idem, Ancora sul foenus nauticum, «Rivista del Diritto della Navigazione», 2.4/1936, pp. 433-445 = [in:] Diritto economia e società nel mondo romano, I, Napoli 1995, pp. 33-45; H. Kupiszewski, Sul prestito marittimo nel diritto romano classico: profili sostanziali e processuali, «Index» 3/1972, pp. 368-381; W. Litewski, Bemerkungen zum römischen Seedarlehen, [in:] Studi in onore di Cesare Sanfilippo, IV, Milano 1983, pp. 381-397; J. Dmowski, Odsetki w rzymskiej pożyczce morskiej, «Zeszyty Naukowe Wydziału Prawa i Administracji Uniwersytetu Gdańskiego. Prawo» 11/1983, pp. 53-65; Z. Benincasa, ‘Periculi pretium’. Prawne aspekty ryzyka związanego z podróżami morskimi w starożytnym Rzymie (II w. p.n.e. – II w. n.e.), Warszawa 2011, pp. 115-175 along with quoted literature. 328 This is indicated by the use of past times, as well as the fact that the captain of the ship was described as already owing. This may indicate that the ship returned and the payment date came. 100 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS but the protagonist did not want to wait for the money and preferred to get the dues right away. Well, it was rather a long-term investment... And yet the children’s sarcophagi would become too small in time.329 Apparently, the scholastikos was aware of this since he wanted the captain to take into account that the children would grow (weiju[xhsin). We can, however, assume that this black humour reflected quite real parents’ concerns about high mortality among children.330 The amount of interests in the discussed case cannot be precisely calculated. However, we can assume that they were quite significant. They were to be the equivalent of two children’s sarcophagi in relation to the price of an adult sarcophagus as the equal of the amount borrowed. 3.2. Commodate The object of a commodate were, unlike the loan, non-fungible things marked individually. The borrower was obliged to return the same thing in a non-deteriorated condition after the expiry of the time limit. A very important issue, the echoes of which are visible in Philogelos, related to the limits within which the borrower could use things being loaned. On the one hand, they were marked by the natural destiny of things, and on the other hand, by the agreement between the parties. The lender often conditioned what the item should be used for and where it could be taken. In the event of failing to meet the conditions of the contract, the borrower was liable even if they had lost the item as a result of force majeure. An example may be the case of silver tableware described by Gaius.331 If it was arbitrarily and against the will of the owner took on a trip and lost in a sea disaster, or in an attack of pirates or enemies, the debtor could be held accountable, as he used the thing in a manner contrary to the principles set out in the contract. The jurist used the word si culpa eius interveniat,332 noting the existence of fault on the side of the commodatary. 329 Cf. też Philogelos 97. 330 Cf. Ch. Laes, Children..., pp. 129-131. 331 G. 3,196; D. 13,6,18 pr. (Gai. 9 ad ed. prov.); D. 44,7,1,4 (Gai. 2 rer. cott.). Cf. J. Słonina (Zabłocki), Korzystanie z rzeczy użyczonej..., pp. 196-201. 332 Roman jurists did not develop a coherent theory regarding the impact of the party’s fault on extending the limits of contractual liability (currently: casus mixtus). They did not 3. CONTRACTS 101 Although the immediate cause of the loss of the thing was a force majeure event, it was the debtor who exceeded the limits of the contract and caused an increase in risk.333 A pirate attack or a sea storm would not have occurred during the feast where the loaned tableware was supposed to be used. The commodatary could not take away the loaned thing even a little further than they had agreed because it involved liability not only for lending but also for a theft.334 Commodates had to be rather detailed then.335 Philogelos 99: colstikw ti levgei: Crhsovn moi bivrron mevcri jgrou.  ode;:Mevcrisfurou,ei\pen,e[cw:mevcride;jgrououjke[cw. A student dunce is asked by someone, ‘Lend me a cloak to go down to the country.’ ‘I have a cloak to go down to your ankle,’ responds the dunce, ‘but I don’t have one that reaches as far as the country.’ In this case, someone asks the scholastikos to lend a cloak to the field, which should be understood in a way that the borrower wanted to put on a coat and go to some jgrov, meaning land that he owned. The protagonist, however, decided that it was the length of the coat that mattered. Similar wordplay was used in another joke. Philogelos 137: idonivw mgeivrw levgei ti: Dvneisovn moi mvcirn e{w muvrnh.ode;e[fh:Oujke[cwmvcirne{wejkeifqvzousn. A fellow says to a butcher from Sidon, ‘Lend me knife as far as Smyrna.’ ‘I don’t have a knife that reaches that far,’ answers the butcher. distinguish, first of all, the terms culpa interveniens and culpa praecedens, and therefore they did not precisely distinguish the situation where a debtor’s fault consisted of acting contrary to the obligation (culpa praecedens) from the case where a debtor’s fault occurred during the event, that is when they did not prevent or did not make use of the possibility of reducing the extent of damage resulting from a force majeure event (culpa interveniens). It should therefore be assumed that the event described by Gaius falls under the category of culpa praecedens. Cf. T. Giaro, ‘Excusatio necessitatis’ nel diritto romano, Warszawa 1982, pp. 169-172; F. Pastori, Commodato. Contratto. Responsabilità2, Milano 1984, pp. 333-339. 333 Cf. G. MacCormack, Custodia and culpa, «ZSS» 89/1972, pp. 208-209; J. Słonina (Zabłocki), Korzystanie z rzeczy użyczonej..., pp. 196-201; M. Sobczyk, Siła wyższa w rzymskim prawie prywatnym, Toruń 2005, p. 225. 334 Cf. G. 3,196; Gell. 6,15. 335 Cf. D. 13,6,23 (Pomp. 21 ad Q. Muc.). 102 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS This time, the object of a commodate was to be a knife, which the borrower wanted to take on a journey from Sidon to Smyrna.336 But the scholastikos thought that it was the length of the knife, not the distance. It is worth paying attention to the fact that the request for lending things was expressed differently in each of the jokes. In the first case, it is a verb crvw, which was used as a technical term in a commodatum in the other one – dneivzw, which rather means a mutuum. This confirms the earlier observation, according to which these contracts were not precisely distinguished in everyday language. In both jokes, the borrower informs the potential lender that he intends to take the thing on a trip. It was very important because a long way increased the risk of losing the loaned object as a result of force majeure. If the lender had not agreed, the commodatary would have been responsible for the items being lost or destroyed within the limits of the casus mixtus. Perhaps, therefore, in both quoted jests, the scholastikos showed not so much of typical absent-mindedness as of cleverness and the desire to avoid the risks. He had no intention of lending things, so he pretended he did not understand the request. In Philogelos, we can also find confirmation of how dangerous road trips could be. Philogelos 56 a: colstiko; ki; flkro; ki; koureu; sunodeuvonte ki; e[n tini ejrhmiv meivnnte sunevqento pro; tevssr w{r jgrupnhsiki;t;skeuvhe{kstothrhsi.wde;e[lcetw koureiprwvtwfulvxi,metewrisqhniqevlwnto;nscolstiko;n kqeuvdont e[xuren ki; twn wrwn plhrwqeiswn diuvpnisen.  ode;scolstiko;hvcwnwjpo;u{pnouth;nkeflh;nki;eurw;n euto;nivlon:Mevgkvqrm,fhsivn,o koureuv:plnhqei; g;rjntejmouto;nflkro;nejxuvpnisen. A student dunce, a bald man and a barber happen to be travelling together. Having to stay overnight in a remote area, they agree that each of them will stay awake in four-hour shifts to watch the baggage. The first watch falls by lot to the barber. Looking for a diversion, he settles for shaving the dunce’s head while he sleeps. 336 It may be assumed that the protagonists were travelling and the knife was supposed to be lent until they got to Smyrna. 3. CONTRACTS 103 When his own time is up, he wakes the dunce. The dunce wakes up, scratches his head, and, finding it smooth, remarks, ‘What an idiot that barber is! He got it wrong: he was supposed to wake me and instead he woke the bald man!’ This joke,337 quite well developed, shows the hardships of a long journey. The travellers were forced to stop in the wilderness, which increased their sense of danger so much that they decided to stand guard. They were probably afraid of robbers338 who were prowling in such places, as well as ordinary thieves who could follow travellers, wanting to take advantage of their being asleep and steal their luggage. Jokes related to the commodate contract also show other aspects of its everyday use. Firstly, it was applied in neighbourly relations. Philogelos 212 a: Oknhrw uiw ejkevleuseno pth;reijto;ngeivtonjpelqein ki; crhvssqijxivnhn.o de; e[fh:Ouj divdei:tou de; ptro; ejpimevnonto jpekrivnto: Egwv eijmi o geivtwn ki; jxivnhn oujke[cw. A father tells his do-nothing son to go to the neighbor and borrow an axe. ‘He won’t lend it,’ says the boy. When his father insists, the boy responds, ‘I’m your neighbor, am I not? And do I own an axe? No!’ In the country, it was considered natural to loan tools and equipment. However, Cato already warned that a property agent should have no more than two or three farms where he would lend and borrow things.339 It was, therefore, a trick to develop good practices and increase the sense of confidence that the terms of the agreement would be kept. The second aspect was the use of public baths, where a Roman living in the city went every day.340 337 Cf. W. Hansen, Ariadne’s Thread..., pp. 328-329. 338 Cf. B.D. Shaw, Bandits in the Roman Empire..., p. 332 ff. 339 Cato, De agr. 5,3: Duas aut tres familias habeat, unde utenda roget et quibus det, praeterea nemini. (He must have two or three households, no more, from whom he borrows and to whom he lends. Transl. W. D. Hooper, H. B. Ash). 340 Cf. Mart., Ep. 5,20,9; G.G. Fagan, Bathing in Public in the Roman World, Ann Arbor 2002, p. 189-; there are several jokes on baths in Philogelos: 23; 58; 130; 149 (discussed below, p. 173 ff.); 163. 104 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Philogelos 150: Eujtrvpelo, duvo xuvstrwn pr ujtou ejn blneivw ejpizhtoumevnwn, upo; ejno me;n jgnwrivstou, upo; de; etevrou gnwrivmou me;n jll; klevptou, o eujtrvpelo e[fh: e; me;n gnwrivzwnoujdwvsw:sede;mh;gnwrivzwnoujdwvsw. A quick study is in the public bath. Two guys ask to borrow one of his strigils for scraping the olive oil off their bodies. One of them is a stranger, the other he recognizes as a thief. To the one he says, ‘No deal; I don’t know you.’ To the other, ‘No deal; I know you.’ A strigil was the basic equipment that had to be used in a bathhouse. It is worth mentioning that to complete this ‘set’ a slave was needed to scrape the back of the owner, as illustrated by an excellent anecdote about emperor Hadrian341. In the bathhouse, the ruler saw a veteran who was brushing against a column, and when asked why he was doing it, he replied that he could not afford a slave. The emperor gave him a servant and funds to keep him. Another time, when many men were rubbing their backs against the columns, hoping for a similar donation, Hadrian advised them to help each other scrape. It is not known whether people in the joke who wanted to borrow scrapers did not have them at all, or whether they forgot to take them. It can be assumed, however, that the commodate as a gratuitous legal act was a contract concluded within the limits of friendly relations. It was usually only a person known to the lender and deemed trustworthy that could become a borrower. 3.3. Sale contracts The mere amount of jokes within the context of selling things testifies to the fact that this contract constituted everyday life for the inhabitants of the Roman Empire. It was mentioned in as many as 36 jokes342 in Philogelos. These texts illustrate the social reception of this legal institution. 341 SHA, Hadr. 17,5-7. 342 Some were even dreaming about selling things. Philogelos 124: bdhrivth kt o[nr coirivdion ejpwvlei ki; ejzhvtei dhnvri ektovn. didovnto  dev tino penthvkont mh; boulovmenolbeindiuvpnise.kmmuvsou\nki;th;nceirproteivnei\pe:Do;kn t;penthvkont.(A Abderite is dreaming that he’s selling a pig, and is asking 100 denarii for it. Someone is offering fifty, but he won’t take it. At that point, he wakes up. Then, keeping his eyes shut, he holds out his hand and says, ‘Oh well, O.K., give me the fifty.’) The joke indicatesthe practice of barganing. Cf. M. Andreassi, Le facezie..., pp. 119-120. 3. CONTRACTS 105 Firstly, we will discuss two jokes describing a rather untypical case of sale contract, which will allow to deal with the essentialia negotii of this contract.343 The protagonist of the jokes is one of the human types ridiculed in Philogelos, namely the glutton344 – limovxhro.345 Philogelos 224: Limovxhrojpelqw;neijkhpouro;ne[dwketevssrdhnvri,i{n suk,o{sqevlei,fvgh.toude;ktfronhvsntoki;eijpovnto: po;twnprkeimevnwndevndrwnfvge,o{sduvnsi–jpelqw;n eij megvl suk ki; jpo; korufh jrxvmeno pvnt kthvsqie. met; de; pollh;n w{rn jnmnhsqei; o khpouro; ejpezhvteiujtovn.wde;ei\deneiju{osleuvonttou;klvdou ki; ejsqivont,jgnkthvsei\pe:Kvtwestw;oujkhjduvnwejk twnejpikeimevnwnklvdwnfgein_ode;jpekrivnv to:Ekein,w ktbivnw,trwvgw. A glutton goes off to a gardener and gives him four denarii to let him eat as many figs as he likes. The gardener, unconcerned, tells him to eat whatever he wants from the trees close by. So the glutton climbs up the tallest trees and, starting at the top, eats all the figs on each one in turn. A long time later, the gardener remembers the gut and goes looking for him. He finds him still swinging from branch to branch, eating as he goes. Outraged, the gardener cries, ‘Couldn’t you have stayed on the ground and eaten from these overhanging branches?’ The answer: ‘Oh, I’ll get to those when I come down.’ In this joke,346 the glutton concludes a contract with the fruit-grower. For the price of four denarii, he can eat as many figs as he wants. Philogelos 225: Limovxhro jrtoprvth prospelqw;n h[tei douni dhnvri duvo, i{n [rton cortvsh. tou de; logismevnou e{n [rton touvtw jrkevseinki;lbovntot; dhnvrih[rxtotrwvgein. o de; tou kofivnoujrxvmenoestw;to; h{misue[fge.tou de; 343 These jokes were also a subject of this article A. Tarwacka, “All You Can Eat”..., pp. 211-220. 344 On gluttony in antiquity cf. S.E. Hill, Eating to Excess. The Meaning of Gluttony and the Fat Body in the Ancient World, Santa Barbara 2011, passim. 345 Cf. M. Andreassi, Il limovxhro nella ‘Vita Aesopi’ e nel ‘Philogelos’, «Zeitschrift für Papyrologie und Epigraphik», 158/2006, pp. 95-103. 346 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 270. 106 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS jrtoprvtouqmbhqevntoki;eijpovntoo{tiKvqisonki;ou{tw fvge – jpekrivnto: Tou; ejn tw kofivnw [rtou bouvlomi estw;fgein,tou;de;ejnthprobolhkqhvmeno. A glutton goes up to a baker and offers him two denarii to let him fill up with bread. The baker, figuring that one loaf should be enough for this guy, takes the denarii. The glutton stands there and starts eating the contents of a whole bread-basket. He’s finished off half the basket when the astounded baker says, ‘Why don’t you go ahead and sit down to eat?’ ‘I want to eat the ones in the basket standing up,’ responds the glutton. ‘I’ll sit down when I get to the ones in the larder.’ The second joke347 takes place in a bakery. The glutton pays two denarii for the opportunity to eat as much bread as he wants. It can be concluded from the context that two denarii are more or less the price of a loaf of bread.348 The Pompeian findings349 allow us to state that one bread was really big and eating the whole would in itself be an achievement... Both of these situations call to mind the ‘all you can eat’ type of restaurants popular nowadays. However, it should be examined whether such an agreement can be described according to the criteria used by jurists dealing with the emptio venditio. Establishing the price and the object of sale was a part of the essentialia negotii of this consensual contract. In the analysed texts, the price was set respectively to four or two denarii,350 while the goods were figs or bread, that is fungibles. D. 18,1,35,5 (Gai. 10 ad ed. provinc.): In his quae pondere numero mensurave constant, veluti frumento vino oleo argento, modo ea 347 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 270-271. 348 The Pompeian graffiti show that a daily cost of bread for one person was about 2 asses (1 denarius = 16 asses); cf. CIL IV, 5380; CIL IV, 8561; A.E. Cooley, M.G.L. Cooley, Pompeii. A Sourcebook, London 2004, p. 164. Cf. Petr., Sat. 44,11, where the price of one as for a bread loaf for two people is discussed. On the other hand, Diocletian’s edict about maximum prices does not give the price of bread, but only the price for a modius of grain – within 60-100 denarii – which was enough to make even 25-35 loaves (Plin. Mai 18.66-67), but we need to add other ingredients and labour. 349 It is about charred loaves of bread, as well as a fresco depicting a bakery found at the baker’s house, currently displayed at the Museo Archeologico Nazionale in Naples. 350 It should be emphasized that in both cases the price was determined in denarii, or typical Roman silver coins minted since the period of the Punic wars, which, for example, the maximum goods prices in Diocletian’s edict were also set. The term dhnvrion is one of the Latinisms found in Philogelos. Cf. M. Andreassi, Le facezie..., pp. 34-35. 3. CONTRACTS 107 servantur quae in ceteris, ut simul atque de pretio convenerit, videatur perfecta venditio, modo ut, etiamsi de pretio convenerit, non tamen aliter videatur perfecta venditio, quam si admensa adpensa adnumeratave sint. nam si omne vinum vel oleum vel frumentum vel argentum quantumcumque esset uno pretio venierit, idem iuris est quod in ceteris rebus. With reference to articles which are determined by weight, number, and measure (as, for instance, grain, wine, oil, and silver) the sale is held to be perfected in these instances as well as in others, only when an agreement has been made with reference to the price; and sometimes, even when an agreement has been made as to the price, the sale is not considered to have been perfected, unless the articles have been measured, weighed, or counted. (transl. S. P. Scott) In his commentary to the provincial edict Gaius wrote that type-marked things are sometimes treated similarly to those marked individually in a sales contract. Then, entering into an agreement about the price means that the contract is concluded (emptio perfecta). Sometimes however, the sale was not considered concluded before things were counted, weighed or measured. Therefore, two solutions were possible, depending on whether it was enough to determine the price, or whether it was vital to count, weigh or measure goods. Gaius said that when the price was established, the contract was concluded on all the purchased items, for example all wine, olive oil, grain or silver from some stock.351 In this case, we seem to deal with such a variant. The parties agreed on the price which was paid immediately and only then – after the conclusion of the contract and the fulfillment of the provision by the buyer – the purchaser was to collect the goods. However, the question arises whether determining the quantity of goods as ‘eat as much as you want’ was valid at all. Roman jurists conducted quite complicated deliberations about the ways of determining the price, which had to be a pretium certum, though this did not mean that a specific amount had to be determined at once.352 It may be possible to apply analogical reasoning here. 351 Further on, Gaius said that weighing, counting or measuring was necessary when the price was set for a unit of measurement: an amphora, a jar, a modius or a libra. 352 Cf. generally R. Zimmermann, The Law of Obligations. Roman Foundations of the Civilian Tradition, Oxford 1996, p. 253 ff. 108 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS D. 18,1,7,1 (Ulp. 28 ad Sab.): Huiusmodi emptio “quanti tu eum emisti”, “quantum pretii in arca habeo”, valet: nec enim incertum est pretium tam evidenti venditione: magis enim ignoratur, quanti emptus sit, quam in rei veritate incertum est. A purchase made in the following terms: “I will buy this of you at the same price you paid for it, or I will give the amount which I have in my chest,” is valid. For the price is not uncertain, as the amount paid at the sale can readily be ascertained, as more doubt exists as to the sum for which the article was purchased, than there does with reference to the property itself. (transl. S. P. Scott) For example, Ulpian decided that a sales contract for a price that the seller had previously paid, or for the amount kept at home is valid because the price was set, even if the amount itself was not known at a given moment.353 It is not known, however, for how much the item was bought, but there is no uncertainty as to the existence of the price. D. 18,1,35,1 (Gai. 10 ad ed. provinc.): Illud constat imperfectum esse negotium, cum emere volenti sic venditor dicit: “quanti velis, quanti aequum putaveris, quanti aestimaveris, habebis emptum”. It is settled that a transaction is imperfect when the vendor says to a party who wishes to buy: “You can purchase this for whatever price you wish to give, or for whatever you think just, or for whatever you consider the article to be worth.” (transl. S. P. Scott) It is worth to refer to Gaius’s considerations from the commentary on the provincial edict. The jurist stated that the contract is incomplete if the seller tells the buyer that they can buy goods for as much as they want, as they deem right, as they value goods. At first glance, this is a situation similar to those described in Philogelos as there also appeared the phrase ‘as much as you want’. Yet, there is a fundamental difference between these 353 This fragment is a subject of heated discussions, first and foremost connected with the problem related to the situation of the chest being empty. Thinking analogically to D. 18,1,37 (Ulp. 3 disp.), such a sale would be invalid for the lack of the price. Cf. D. Daube, Certainty of Price, [in:] Studies in the Roman Law of Sale Dedicated to the Memory of Francis de Zulueta,. D. Daube, Oxford 1959, pp. 9-45; J. A. C. Thomas, Marginalia on ‘certum pretium’, «TR» 35/1967, pp. 77-89. 3. CONTRACTS 109 cases. If we consider the price that the buyer would establish on the basis of their subjective belief, the seller’s interest is questioned.354 Besides, without a clearly defined price, essentialia negotii are missing from the contract. Gaius regarded such a contract as incomplete, and not invalid, so he moved the moment of concluding the contract until the buyer gave the price and the seller agreed on it. In the contracts discussed in the jokes, the seller knows the price but he does not know how many quae pondere numero mensurave constant things would have to be provided. This is the case similar to a situation where the object of the contract is a thing to be created in the future (emptio rei speratae). It should be noted that the protagonists of the jokes did not know exactly how many figs or bread would be sold, but it was a limited quantity to be determined to a certain degree.355 With figs, only the fruit in the orchard could be sold, and therefore it is the maximum amount of the product. An additional restriction is the ability of the buyer who can actually eat not as much as he wants, but as much as he can absorb and, it should be added, within one visit. The contract did not provide for the possibility of leaving the orchard and coming back to continue consumption. Even more specifically can we determine the amount of bread which is a commodity in the second joke. First of all, it was the bread in the bakery, secondly, as much of it as the buyer was able to eat; let us add it was to happen on the spot, at one time and within specified period, meaning until the shop was open. It seems, therefore, that due to the existence of essentialia negotii buying a fixed amount of food available at a certain place, and which someone could eat at once, was a valid emptio venditio contract. The question still remains to what extent the discussed situations were reflected in practice and other source texts. Since there were two different jokes containing the same motif in Philogelos, it must be assumed that the situation described in them must have been typical. A fragment of Polybius’ Histories might be a certain kind of parallel to Philogelos jokes. 354 Cf. R. Zimmermann, op. cit., p. 254. 355 It should be emphasized that we are not dealing here with a construction considered to be unknown to Roman law, namely the ‘purchase of a species’ – ‘Gattungskauf’ – when the goods are type-marked items but without a more detailed description, because it was about figs from a particular orchard and bread from a specific bakery. Cf. R. Zimmermann, op. cit., pp. 236-237 along with quoted literature in fn. 38. 110 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Polyb. 2,15,4-6: peri;de;thkt;mevroeujwnivki;dileivtwnpro;th;n trofh;njnhkovntwnou{tw[ntijkribevsttktnohvseien: poiountig;rt;ktluvseioidiodeuvonteth;ncwvrnejn toi pndokeivoi, ouj sumfwnounte peri; twn kt; mevro ejpithdeivwn, jll ejrwtwnte povsou to;n [ndr devceti. w me;nou\nejpi;to;polu;priventitou;ktluvtoipndokei, w ikn; pvnt e[cein t; pro; th;n creivn, hmissrivou: touto d e[sti tevtrton mevro ojbolou: spnivw de; touq uperbivnousi. The cheapness and abundance of all articles of food will be most clearly understood from the following fact. Travellers in this country who put up in inns, do not bargain for each separate article they require, but ask what is the charge per diem for one person. The innkeepers, as a rule, agree to receive guests, providing them with enough of all they require for half an as per diem, i.e. the fourth part of an obol, the charge being very seldom higher. (transl. W. R. Paton) The Greek historian was writing with amazement about the prosperity prevailing in Italy. The evidence was that in roadside inns travelers did not pay separately for each item or service but paid a fee per night, usually half an as. For this price, the innkeeper provided them with everything they needed.356 The contract described by Polybius was certainly not a sale but a lease, nevertheless it can be assumed that customers could use everything that was included in a certain standard for the payment made. They probably had a room and a place in the stable, as well as the chance to eat a meal from the menu, which was probably the same for everyone (possibly with a limited choice). The fact that some guests ate less and others more was rather not problematic for the owner as the total balance allowed him to make a profit. It is therefore a legal structure somewhat similar to the one discussed. Philogelos jokes relate to the food purchase contract concluded by the glutton. It can be assumed that, especially in rural conditions, it happened that travelers stopped at a random farm and paid the owner some price in return for being able to eat in his orchard. It could be the same case with the bakery. If the traveler did not have the possibility, or did not want to take 356 Cf. O. R. Constable, Housing the Stranger in the Mediterranean World: Lodging, Trade, and Travel in Late Antiquity and in the Middle Ages, Cambridge 2003, p. 17 ff. 3. CONTRACTS 111 supplies, and at the same time they were unable to calculate how much food was needed, they paid a lump sum and ate as much as they needed. The fruit grower or the baker were apparently convinced that the price paid should be sufficient to cover the value of the consumed product. This is certainly a case of taking certain risks, a situation that is quite opposite to one of emptio spei. In an aleatory contract, the buyer paid a certain price and was not sure whether he would receive anything, so he bought a chance.357 A seller, on the other hand, had to make sure that his diligent activity would bring the effect of supplying goods, e.g. catching fish. The buyer was aware of the probability of getting what he wanted to buy, for instance by knowing how much fish could usually be caught by a fisherman under given conditions. However, he took the risk: he could leave empty-handed, get as much as he had predicted, or even more if he was lucky. In the ‘all you can eat’ contract, the risk lies with the seller who follows his previous experience. He gets a certain amount of money and allows people to eat what he produces. The buyer can eat so little that the amount paid will be even too high; he can eat standard amount; but – as in the jokes – he can also absorb an extremely large amount, which exposes the seller to a loss. However, as it has been mentioned, the risk is limited by the conditions of the agreement, which provides for one-time consumption in a specific place, sometimes also within a limited time. Philogelos, therefore, turns out to be an interesting source of getting to know some aspects of even such thoroughly examined legal institutions as a sale contract. Jokes allow insight into the social perception of legal norms, and surprisingly – as in the case discussed – let us explore the practical application of the contract, undescribed by Roman jurists, at least in the preserved source material. A contract on selling a slave is one of the most commonly concluded contracts in the Roman Empire. This is evidenced by the huge number of legal, literary, epigraphic, papyrological as well as iconographic sources concerning this legal institution. 357 Cf. R. Zimmermann, op. cit., p. 246 ff.; M. Kuryłowicz, ‘Alea’ i kontrakty aleatoryjne, «CPH» 36/1984, pp. 75-90; B. Szarecka, Z problematyki umów aleatoryjnych w prawie rzymskim: ‘emptio rei speratae’ i ‘emptio spei’, «Studia Iuridica Lubliniensia» 2/2003, pp. 165–174; K. Chytła (Wyrwińska), Ekonomiczne i prawne podłoże zawierania kontraktów kupna rzeczy przyszłej oraz kupna nadziei w starożytnym Rzymie, «Zeszyty Prawnicze» 6.2/2006, pp. 73-84; K. Wyrwińska, Kazus złotego trójnoga a przedmiot sprzedaży w kontrakcie ‘emptio spei’, «Zeszyty Prawnicze» 11.1/2011, pp. 403-419. 112 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS And Philogelos, for that reason, could not lack in references to the sale of slaves. From a legal point of view, the following joke is very interesting: Philogelos 18: colstikw tijpnthvsei\pen:@Odoulo,o}nejpwvlhsv moi, jpevqne. – M; tou; qeouv, e[fh, pr ejmoi; o{te h\n, toioutonoujde;nejpoivhsen. A man goes up to a student dunce and says, ‘The slave you sold me died.’ By the gods,’ counters the dunce, ‘when he was with me, he never did any such thing!’. This joke358 probably stems from the roots359 of the Republican times as its genealogy can be derived from a fragment of a mime by an unknown author quoted by Cicero.360 Cic., De or. 2, 274: ‘quamdiu ad aquas fuit, numquam est emortuus’. As long as at the waters he remained, He never died. (transl. E. W. Sutton, H. Rackham) Cicero quoted this fragment of the play, writing about the forms of humour useful to the orator. He presented it as an example of a light joke classified in the subabsurda361 category (that is seemingly senseless), which can be used when one pretends to say something stupid but fills it with irony. We do not know the context though it seems that the the topic is a man who died, leaving a spa, which he had never done before. The version given in Philogelos, apart from the simplest layer of humour, additionally contains very interesting legal references. 358 Cf. A. Tarwacka, Mędrek sprzedaje niewolnika..., pp. 43-51; Eadem, Responsabilità del venditore per difetti della merce. Appunti a margine di ‘Philogelos’ 18, [in:] Scritti per Alessandro Corbino, ed. I. Piro, VII, Tricase 2016, pp. 155-163. 359 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 208; M. Andreassi, Le facezie..., p. 91. This joke has many later equivalents. The British enjoyed finding the prototype of Monty Python’s sketch about a dead parrot, cf. B. Baldwin, The ‘Philogelos’ or Laughterlover..., p. 58; Dead Parrot sketch ancestor found, http://news.bbc.co.uk/2/hi/7725079. stm (access 14.10.2016); B. Baldwin, The ‘Philogelos’: an Ancient Jokebook..., p. 635; M. Beard, What Made the Greeks Laugh?, [in:] Confronting the Classics. A provocative tour of what is happening now in Classics – learned, trenchant and witty, London 2013, pp. 56-57. 360 Perhaps it is about Decimus Laberius’ Aquae caldae. Cf. Decimus Laberius. The Fragments, ed. C. Panayotakis, Cambridge 2010, p. 125. 361 Cf. Quint., Inst. 6,3,23. 3. CONTRACTS 113 The interlocutors in the joke are here the parties of a sale contract. Informed of the death of the sold slave, the vendor takes a defensive position, trying to assure the buyer of his innocence. It seems, therefore, that the juridical context of this conversation is the question of the seller’s liability for physical defects of the goods. According to the ius civile, the vendor was responsible for any hidden physical defects of the goods, if he knew about them and stealthily concealed them. In addition to these general principles, there were specific norms introduced in the edict of the curule aediles, relating, among other things, to contracts involving a slave. These issues were regulated by the edict De mancipiis emundis vendundis.362 D. 21,1,1,1 (Ulp. 1 ad ed. aedil. curul.): Aiunt aediles: “qui mancipia vendunt certiores faciant emptores, quid morbi vitiive cuique sit, quis fugitivus errove sit noxave solutus non sit: eademque omnia, cum ea mancipia venibunt, palam recte pronuntianto. quodsi mancipium adversus ea venisset, sive adversus quod dictum promissumve fuerit cum veniret, fuisset, quod eius praestari oportere dicetur: emptori omnibusque ad quos ea res pertinet iudicium dabimus, ut id mancipium redhibeatur”. The Aediles say: “Those who sell slaves should notify the purchasers if they have any diseases or defects, if they have the habit of running away, or wandering, or have not been released from liability for damage which they have committed. All of these things must be publicly stated at the time that the slaves are sold. If a slave should be sold in violation of this provision, or contrary to what has been said and promised at the time the sale took place, on account of which it may be held that the purchaser and all the parties interested should be indemnified, we will grant an action to compel the vendor to take back the said slave.” (transl. S. P. Scott) Ulpian reported the content of the edict, according to which those selling slaves were to inform buyers about what diseases or defects slaves suffered from, whether they were fugitives or a vagrants, or were not freed from the noxal liability, and disclose all similar matters. If, on the other 362 Cf. first of all O. Lenel, Das Edictum Perpetuum, Lipsiae 1907, p. 529 ff., G. Impallomeni, L’editto degli edili curuli, Padova 1955, passim. See also Gell. 4,2. 114 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS hand, the slave was sold against these provisions, or contrary to what had been said or promised during the sale, and which could be covered by the guarantee, the aediles issued an actio redhibitoria in favor of the buyer and all who were involved so that the slave would be returned. The provisions of the edict served to protect the interests of the buyer, and therefore the vendor was responsible regardless of whether they intentionally concealed the slave’s defect, or were unaware of it.363 Similar provisions were used not only in Rome but in the entire Empire. TPSulp. 43: [solutum] esse fugit[i]vom [err]onem non esse [et] cetera ex edicto aed. cur. [q]uae huiusque an[n]i scripta conprehensaque sun[t] recte praestar[i et d]uplam [p]ecuniam ex form[ula] ita [u]ti [ad]s[o]let recte [dar]i stipul. [e]st T. Vestorius Arpocra mi[n]or [spo]pondit T. Vestorius Phoenix. Actum Puteol XII k. Se[p]t. Se[r. A]sin[io] Sex. Nonio cos. …that no noxal liability follows him, that he is no fugitive or vagrant, and all the other matters from the edict of the curule aediles, that were written and included this year, as well as rightly guarantee and pay the double amount from the formula as customary, it was stipulated by T. Vestorius Phoenix to T. Vestorius Arpocra. Done in Puteolis 12 days before the Kalends of September in the cosulate of Servius Asinius and Sextus Nonius. A wax tablet from the Sulpicii364 archive dated to August 18, 38 AD,365 found in Puteoli, can be an example of the application of the edict provisions in practice. The seller T. Vestorius Phoenix, gave a warranty by stipulation to T. Vestorius Arpocra, promising that the slave was not liable to any noxal action nor that he was a fugitive or a vagrant. In the text, the aediles’ edict was refered to, with a possible list of other physi363 D. 21,1,1,2 (Ulp. 1 ad ed. aedil. curul.). 364 On the Sulpicius archives cf. G. Camodeca, L’archivio puteolano dei Sulpicii, I, Napoli 1992, pp. 3-22; J. Urbanik, Tabliczki Sulpicjuszy i rzymska praktyka dokumentarna, «CPH» 51/1999, pp. 51-75. 365 Cf. G. Camodeca, L’archivio puteolano..., pp. 141-155; R. Ortu, ‘Aiunt aedlies...’. Dichiarazioni del venditore e vizi della cosa venduta nell’editto ‘de mancipiis emundis vendundis’, Torino 2008, pp. 90-92; G. Wolf (Hrg.), Neue Rechtsurkunden aus Pompeji. ‘Tabulae Pompeianae Novae’. Lateinisch un deutsch2, Düsseldorf 2012, pp. 122-123. 3. CONTRACTS 115 cal defects. The seller also promised to pay double366 price, which was presumably related to the occurrence of a legal defect. The tablet is not complete, so we should assume that in the earlier part of the text there was a fragment about illnesses and ailments of the slave (sanum esse).367 The requirement imposed by the aediles was therefore carried out in the form of a stipulation,368 where the seller gave a warranty regarding the state of the slave and promised to pay a penalty of the double price of damages in the event of eviction.369 Dissemination of the practice of giving a warranty concerning the defects of sold slaves is also confirmed by other numerous epigraphic sources from various places and periods:370 tablets from the area around Vesuvius371 and London372 from the 1st century AD, from Dacia373 of the 2nd century 366 Cf. still É. Jakab, ‘Praedicere’ und ‘cavere’ beim Marktkauf – Sachmängel im griechischen und römischen Recht, München 1997, p. 284. 367 Cf. G. Camodeca, L’archivio puteolano..., I, p. 150, reconstructed the text of the stipulation in the following way: mancipium, quo de agitur, sanum esse, furtis noxaque solutum esse, fugitivum erronem non esse et cetera quae in edicto aedilium curulium huius anni scripta conprehensaque sunt recte praestari et duplam pecuniam ex formula ita uti adsolet, si quis eum puerum partemve quam eius evicerit, recte dari spondes? (Do you promise to rightly guarantee that the slave concerned is healthy, free from liability for theft and noxal liability, that he is not a fugitive or a vagabond and other matters that are recorded and included in the edict of the curule aediles of this year, as well as correctly give a double sum of money from the formula as it is customary if anyone evicts this slave or a part of his?) 368 Cf. D. 21,2,31 (Ulp. 42 ad Sab.). 369 Cf. G. Camodeca, L’archivio puteolano..., I, pp. 145-146. 370 The juxtaposition of the sources was carried out by P. Arzt-Grabner, “Neither a Truant nor a Fugitive”: Some Remarks on the Sale of Slaves in Roman Egypt and Other Provinces, [in:] Proceedings of the Twenty-Fifth International Congress of Papyrology, Ann Arbor 2010, pp. 21-32, http://hdl.handle.net/2027/spo.7523866.0025.112 (access 14.10.2016). 371 Apart form the quoted TPSulp. 43 also TH 60 and 62. Cf. G. Camodeca, ‘Tabulae Herculanenses’: riedizione delle ‘emptiones’ di schiavi (TH 59-62), [in:] Quaestiones Iuris. Festschrift für J. G. Wolf zum 70. Geburtstag, red. U. Manthe, Ch. Krampe, Berlin 2000, pp. 53-76. 372 R.S.O. Tomlin, The Girl in Question. A New Text from Roman London, «Britannia» 34/2003, pp. 41-51; G. Camodeca, ‘Cura secunda’della ‘tabula cerata’londinese con la compravendita della ‘puella’ Fortunata, «ZPE» 157/2006, pp. 225-230; Ł. J. Korporowicz, Buying a Slave in Roman Britain. The Evidence from the Tabulae, «RIDA» 58/2011, pp. 211-224. 373 FIRA III no 87-89. Cf. E. Pólay, Verträge auf Wachstafeln aus dem römischen Dakien, «ANRW» II.14/1982, pp. 509–523; É. Jakab, op. cit., p. 166 ff.; T. Sambrian, La mancipatio nei trittici della Transilvania, «Diritto@Storia» 4/2005, http://www.dirittoestoria.it/4/ Tradizione-Romana/Sambrian-Mancipatio-trittici-Transilvania.htm (access 14.10.2016). 116 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS AD, as well as papyri from Pamphylia,374 Egypt375 and Phoenicia376 originating from 2nd to 4th century AD, or a document from Dioscoros’ archives from the 6th century AD377. It seems, therefore, that it was a well-known legal institution and that readers of Philogelos naturally bore it in mind. Information about the death of the slave suggests that the buyer possibly wanted to report some grievances to the seller; complaints were probably related to the disease which he had not been informed about and which ended fatally. D. 21,1,47,1 (Paul. 11 ad Sab.): Post mortem autem hominis aediliciae actiones manent. The actions arising from the Edict of the Aediles continue to exist even after the death of the slave. (transl. S. P. Scott) In the commentary ad Sabinum, Paulus reported that legal actions resulting from the edict of the curule aediles did not expire with the death of a slave.378 The only exception was when he died because of the buyer’s fault, of the fault of a person under his authority, or agent.379 That is why the buyer could usually use the actio redhibitoria, even though he was no longer able to return the object.380 In the presented case, the reason for suing an action would be the death of the slave, which had been caused by a defect covered by the seller’s warranty, that is a disease. This is a situation which definitely produced a possibility of the contract withdrawal.381 374 P.Turner 22; BGU III 887. 375 SB III 6016; SB V 8007; P.Abinn. 64. 376 BGU I 316. 377 Cf. J. Urbanik, P. Cairo Masp. I 67120 recto and the Liability for Latent Defects in the Late Antique Slave Sales: or Back to ‘Epaphe’, «JJP» 50/2012, pp. 219-247. 378 Cf. L. Garofalo, L’impossibilità della redibizione nella riflessione dei giuristi classici, [in:] Au-delà des frontierès. Mélanges de droit romain offers à Witold Wołodkiewicz, I, Varsovie 2000, pp. 257-268; Idem, Studi sull’azione redibitoria, Padova 2000, pp. 51-64. 379 D. 21,1,48 pr. (Pomp. 23 ad Sab.): Si tamen sine culpa actoris familiaeve eius vel procuratoris mortuus sit. (Provided the slave dies without the fault of the purchaser, or of his family, or of his agent. Transl. S.P. Scott). Cf. D. 21,1,31,11 (Ulp. 1 ad ed. aedil. curul.). 380 This situation is described as a fiction mortuus redhibetur. Cf. R. Zimmermann, op. cit., pp. 330-334; L. Garofalo, L’impossibilità..., pp. 261-263; Idem, Studi..., pp. 55-59. 381 Doubts of researchers are produced by a situation when a slave died in circumstances not attributable to a buyer who wanted to use actio redhibitoria for another reason. If the contract 3. CONTRACTS 117 On the other hand, the plaintiff was burdened with the obligation to prove that the slave he had bought was, despite the seller’s guarantee, ill and that this illness had led to death. The Philogelos vendor’s answer is absurd. However, we can attempt to deliver a more detailed interpretation. One of the defects covered by the seller’s warranty under the edict of the aediles was that the slave is fugitivus. Jurists were quite preoccupied by the definition of this term and they reported that a fugitive was a person who left the owner intentionally,382 or the one who intended to escape, staying out of the owner’s house to hide from him.383 Ensuring the slave was not fugitivus, the seller assured that he had never escaped from the owner. If an escape had happened, the vendor had to inform the buyer according to the edict of the curule aediles.384 D. 21,1,54 (Pap. 4 resp.): Actioni redhibitoriae non est locus, si mancipium bonis condicionibus emptum fugerit, quod ante non fugerat. There is no ground for an action for the return of a slave where one has been purchased for a good consideration, and runs away, if he had not done so previously. (transl. S. P. Scott) On the other hand, Papinianus reported the actio redhibitoria could not be used when a bought slave who had never ran away from the owner was withdrawn, a seller would lose both the object and the price, which in practice would mean that he bore the risk of accidental loss of thing, contrary to the principle of periculum est emptoris. 382 383 D. 21,1,17,2 (Ulp. 1 ad ed. aedil. curul.): Cassius quoque scribit fugitivum esse, qui certo proposito dominum relinquat. (Cassius, also, states that a fugitive slave is one who leaves his master with a deliberate intention not to return.. Transl. S. P. Scott). D. 21,1,17 pr. (Ulp. 1 ad ed. aedil. curul.): Quid sit fugitivus, definit Ofilius: fugitivus est, qui extra domini domum fugae causa, quo se a domino celaret, mansit. (Ofilius defines a fugitive slave to be one who remains outside the house of his master for the purpose of taking to flight, or to conceal himself. Transl. S. P. Scott). Cf. also D. 21,1,17,1-13 (Ulp. 1 ad ed. aedil. curul.); D. 50,16,225 (Tryph. 1 disp.). 384 A great example is a contract described by Horace (Ep. 2,2,14-18): ‘Semel hic cessavit et, ut fit,/ in scalis latuit metuens pendentis habenae’;/ des nummos, excepta nihil te si fuga laedit,/ ille ferat pretium poenae securus, opinor. (He’s only skipped once, as they do,/ And hid under the stairs fearing the strap on the wall./ Give me the cash, if that lapse of his don’t bother you’:/ Let’s suppose he secured full price: you’ll have bought/ Knowing the goods at fault. Transl. A. S. Kline). The seller did not conceal the slave had once escaped in fear of punishment, and thus he could feel safe if we consider the possible claims of the buyer. 118 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS before did escape. The term bonis condicionibus should be associated with the fact that the seller issued a warranty in the form of a stipulation, but also in compliance with the principles of good faith.385 It can therefore be assumed that the answer of the seller from Philogelos would make sense in other circumstances.386 If the buyer’s information was ‘the slave you had sold me, escaped’, then the answer ‘as long as he was with me, he never did any such thing’ would seem most in place.387 The buyer who the slave guaranteed not to be a fugitive escaped from was able to assert his claims using an actio redhibitoria or an actio quanti minoris. However, he had to prove that he had acquired a defective product. The vendor, arguing that the slave had not escaped before, could be freed from responsibility and hence the assurance of the seller from Philogelos. The humour of the joke in question therefore does not consist only of the conclusion that one dies only once. Its legal aspects are clear. A contract of selling a slave was a legal act of everyday life, well known to the readers of Philogelos. It was also common to provide a warranty for goods’ defects. It can therefore be supposed that the association with the seller’s responsibility was quite natural. It must have seemed humorous to hear a dissonance between the words of the buyer, clearly referring to the slave’s disease, and the word of the vendor who defended himself against the allegation of a tendency to escape. Other jokes are also related to product defects. It was often the case that a buyer was questioning a seller about the features of the thing they planned to buy, wanting to determine whether it met their expectations. A thorough inspection of the item was also aimed at detecting possible apparent defects, for which the vendor was not responsible.388 A few jokes are about selling a horse. 385 J. Urbanik, P. Cairo Masp. I 67120 recto..., pp 226-228. 386 Cicero was writing about such a construction of the joke (De or. 2,255): Sed scitis esse notissimum ridiculi genus, cum aliud exspectamus, aliud dicitur. (You know already, however, that the most familiar of these is exemplified when we are expecting to hear a particular phrase, and something different is uttered. Transl. E. W. Sutton, H. Rackham). The humour was based on the fact that one received a completely unexpected answer. Cf. W. Süss, Lachen, Komik und Witz in der Antike, Zürich-Stuttgart 1969, pp. 24-25. 387 É. Jakab, ‘Praedicere’ und ‘cavere’..., p. 1. recognized the discussed joke as an allusion to quoted above D. 21,1,54 388 Cf. D. 21,1,1,10 (Ulp. 1 ad ed. aedil. curul.). 3. CONTRACTS 119 Philogelos 37:389 colstiko; i{ppon ejpivprsken. ejlqovnto dev tino ki; ktmnqvnonto ujtou to;n bovlon ei\pen pro; ujtovn: Tiv tou;ojdovntujtou ktmnqvnei_ei[qewtrwvgei,ou{to ki;periepvtei. A student dunce is trying to sell a horse. Somebody comes and starts to check the horse’s teeth. So the dunce asks, ‘Why are you checking its teeth? I just wish it could trot as well as it eats!’ Obviously, the buyer wanted, lege artis, to view the horse’s teeth to assess its health. On this occasion, a defect came out, namely problems with moving, which the seller apparently wanted to hide. The horse was probably slow, not lame, as it would be visible. The buyer often asked the seller about the features of the item on sale that interested them. Philogelos 4:390 colstikoui{pponpiprvskontohjrwvthsevti,eijprwtobovlo ejstivn.toude;eijpovntodeuterobovlonei\ni,ei\pe:woi\d_ o de; jpekrivnto:$Oti{pxejme; e[blekvtwki; {pxto;n ptevrmou. A student dunce tries to sell a horse. Someone asks if it’s thrown its first set of teeth. ‘Two sets of teeth, actually,’ says the dunce. ‘How’s that?’ ‘Well,’ comes the answer, ‘he threw mine once and my father’s once.’ In this case, the seller also revealed the undesirable trait of a horse, which simply had a habit of kicking, and quite accurately, hence it can be described as equus calcitrosus.391 The buyer, on the other hand, wanted to obtain information about the condition of the animal’s teeth, asking if the horse had already permanently lost milk teeth.392 389 Very similar is also Philogelos 158. 390 Very similar is also Philogelos 155. 391 Cf. D. 9,1,1,4 (Ulp.18 ad ed.); I. 4,9. See also D. 21,1,4,3 (Ulp., 1 ad ed. aed. curul.), where Ulpian says that such a defect does not make a horse sick as it is related more to the mind than to the body. 392 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 203-204. 120 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Another joke is similarly constructed: Philogelos 10:393 colstiko;i{pponpiprvskwnhjrwthvqh,mh;deilo;ei[h.ode; ei\pen:Ouj m; th;ntou ptro;mouswthrivn:ejntw stuvlw g;rmovnoe[sthken. A student dunce is trying to sell his horse. Someone asks him if anything ever spooks him. ‘Upon my daddy’s soul, no!,’ he replies. ‘The horse always stays alone in its stall.’ The buyer was trying to determine whether the horse was not timid, and he was answered that the animal had been living in the stable alone. Probably, that also indicated a defect that would discourage the buyer. The horse could be aggressive and had to be isolated, or, on the contrary, it was separated because of its timidity. Apart from such popular sale objects as horses, other things also appear in jokes. Philogelos 173: Kumiomevliejpivprsken.ejlqovntodevtinoki;geusmevnou ki;eijpovnto,o{tipvnuklo;n,e[fh:Eijmh;g;rmuejnevpesen eijujtov,oujknejpwvloun. A guy from Kyme is selling honey. Someone comes along, gives it a taste, and exclaims, ‘Hey, that’s good honey!’ ‘Yeah,’ says the Kymaean, ‘and if that mouse hadn’t fallen into it, I wouldn’t be selling it now.’ This time the purchased commodity was to be honey. The potential buyer tried it, which proves that tasting was practiced in such cases. The joke mechanism is similar. Quite by accident, the seller reveals the defect of the goods, eliminating the chances of a successful transaction. All these jokes point to the fact that suppressing physical defects of goods was everyday life. Buyers tried to get as much information as possible but sellers were not at all willing to admit that the subject of the transaction had a defect. In the event of a subsequent detection of a defect hidden deliberately by the seller, the buyer could take advantage of the protection resulting from the ius civile (actio empti), or the ius honorarium (actio rehibitoria, actio quanti minoris). Some defects such as the fact of a mouse 393 Very similar is also Philogelos 157. 3. CONTRACTS 121 falling into honey would never have seen daylight if it were not for the seller’s garrulity. The object of the emptio venditio contract was not just movable goods. Philogelos 41:394 colstiko; oijkivn pwlwn livqon jp ujth eij deigm perievferen. A student dunce is selling a house. He carries around one of its building blocks to show people what it’s like. In this joke,395 the seller was trying to present the goods. In case of real estate, however, it was a potential buyer who should come and see the house as on the basis of a brick or a stone it was difficult to assess the whole. The building is a joint thing, and from the economic-legal point of view, it is treated as a unity although it consists of many individual things. 3.4. Lease contracts A lease contract was very widespread in the Roman Empire. It could have a different character, depending on its subject. Nowadays, at least in textbooks, there are three types of types of lease enumerated: locatio conductio rei, operis and operarum although case studies based on the sources indicate that in practice different forms of this contract were used and some of them did not fit into these three classic schemes, or they contained features of several of them.396 However, it undoubtedly has an orderly value. Contractors in the lease contract were often specialists in a given field, whose artistry was of individual kind. This group included contracts concluded with artists or craftsmen. In such cases, the conductor received payment for the work done and delivered. 394 Very similar is also Philogelos 156. 395 Cf. M. Andreassi, Le facezie..., p. 100. 396 Cf. R. Fiori, La definizione della ‘locatio conductio, ; A. Torrent, La polemica sobre la tricotomia ‘res’, ‘operae’, ‘opus’ y los origenes de la ‘locatio-conductio’, «Teoria e Storia del Diritto Privato» 4/2011, http://www.teoriaestoriadeldirittoprivato.com/index. php?com=statics&option=index&cID=198#_ftn77 (access 14.10.2016); P. J. du Plessis, Letting and Hiring in Roman Legal Thought: 27 BCE-284 CE, Leiden-Boston 2012, p. 54 ff. 122 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Philogelos 1: colstiko; jrgurokovpw ejpevtxe luvcnon poihsi. tou de; ejxetvsnto, phlivkon poihvsei, jpekrivnto: @W pro; ojktw; jntqrwvpou. A student dunce orders a lamp from a silversmith. ‘How big a lamp do you want me to make?’ asks the man. ‘Big enough for eight people to see by,’ responds the dunce. In the above mentioned joke, the scholastikos ordered a lamp. However, qualifying the contract as a lease one is not obvious, as indicated by a passage from Gaius’ Institutes. G. 3,147: Item quaeritur, si cum aurifice mihi convenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret et acciperet verbi gratia denarios CC, utrum emptio et venditio an locatio et conductio contrahatur. Cassius ait materiae quidem emptionem venditionemque contrahi, operarum autem locationem et conductionem; sed plerisque placuit emptionem et venditionem contrahi. atqui si meum aurum ei dedero mercede pro opera constituta, convenit locationem conductionem contrahi. Again, if a goldsmith agrees to make me rings of a certain weight and fashion out of his own gold for, say, two hundred denarii, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour is let and hired, but most writers hold that there is only a purchase and sale. But if I provide the gold and agree to pay him for his work, the contract is settled to be a letting and hiring. (transl. E. Poste) The jurist considered397 a case similar to the one described in a joke: ordering rings from the goldsmith, which were to be made of the artist’s gold for the price of two hundred denarii. Doubts arise as to whether it is 397 D. 19,2,2,1 (Gai. 2 rer. cott.): Adeo autem familiaritatem aliquam habere videntur emptio et venditio, item locatio et conductio, ut in quibusdam quaeri soleat, utrum emptio et venditio sit an locatio et conductio. ut ecce si cum aurifice mihi convenerit, ut is ex auro suo anulos mihi faceret certi ponderis certaeque formae et acceperit verbi gratia trecenta, utrum emptio et venditio sit an locatio et conductio? sed placet unum esse negotium et magis emptionem et venditionem esse. quod si ego aurum dedero mercede pro opera constituta, dubium non est, quin locatio et conductio sit. (Purchase and sale is held to bear such a resemblance to leasing and hiring that, in some instances, it is customary to make the 3. CONTRACTS 123 a purchase agreement or a lease contract. Cassius believed that an emptio venditio was concluded for the material, and a locatio conductio for the work done. Many jurists, however, considered this a sale contract. Still, if the customer provided gold, there was no doubt that a lease contract was concluded. The cited jest is an example of such vagueness. The customer ordered a silver lamp from a craftsman. The latter was asking about the size, and he received a rather peculiar answer.398 It is not known, however, whether he received the metal to complete the order, or if he used his own material. If he used his own silver, the contract would have to be qualified as an emptio venditio, but if it was provided by the customer, we would be dealing with a locatio conductio. Lease contracts were often related to maritime transport. In Antiquity, the sea aroused fear; it was perceived as a dangerous and unbridled element. However, sailing was a necessity: it was a chance for trade development, travelling, as well as territorial expansion. One of the methods of dealing with anxiety is, of course, a joke. That is why the sea was a fairly frequent background of jests. There are many such texts in Philogelos.399 As an example, let us use a joke attributed to several different figures, including the philosopher Anacharsis;400 here, however, it is stripped of personal details. inquiry as to whether the transaction is one of purchase and sale, or one of leasing and hiring; for example, if I have a contract with a goldsmith to make me some rings of a certain weight, and of a designated form, and he agrees to make them for three hundred aurei; is this a purchase and sale, or a leasing and hiring? It is held that it is only a single transaction, and is rather a purchase and sale than a leasing and hiring. If, however, I furnish him the gold, and compensation for his work is agreed upon, there is no doubt that this is a leasing and hiring. Transl. S. P. Scott). Similarly I. 3,24,4. Cf. R. Fiori, La definizione della ‘locatio conductio’. Giurisprudenza romana e tradizione romanistica, Napoli 1999, pp. 206-214; B. Cochis, Una presunta disputa di scuola in Gai., inst. 3.147, «Rivista di Diritto Romano» 3/2003, pp. 1-16; A. Plisecka, ‘Tabula picta’. Aspetti giuridici del lavoro pittorico in Roma antica, Padova 2011, p. 123 ff. 398 E. M. Felice, Putting the gevlo back in ‘Philogelos’ 1, «CP» 108.2/2013, pp. 155-158, very convicingly claimed that the joke here is related to the fact that the term luvcnomight also mean fish. Ordering the fish for eight people would be natural but…not at the silversmith's. 399 Cf. J. Rougé, Le Philogélôs et la navigation..., pp. 3-12; A. Bürge, Der Witz im antiken Seefrachtvertrag..., pp. 389-407. 400 Cf. Athen. 8,350 b; A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 263-264; J. Rougé, Le Philogélôs et la navigation..., p. 7. Cf. Apophthegmata Vindobonensia 131. Cf. S. Fornaro, ‘Philogelos’, «Brill’s New Pauly» 11/2007, col. 73-74. 124 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Philogelos 206: Deilo;ejrwthqeiv:oitwnploivwnjsflevster,t;mkr; h[t;strogguvl_e[fh:T;nenewlkhmevn. A coward is asked which are safer, warships or merchant-ships. ‘Dry-docked ships.’ He answers. Many jokes refer to contracts related to the transport of goods and persons by sea. These are variously formulated lease contracts: a carrier may be either in the position of a conductor, when his task is to bring things to a specific place, or that of a locator if he rents a place to someone on the ship. In Philogelos, the impulse to jokes is often given by dangerous situations, such as a sea storm. This was also the case for the jokes discussed above concerning testamentary manumission of slaves. It should be mentioned that in ancient literature the storm had been a topos since Homer’s time. Authors used it as an excuse to put their heroes in difficult situations. Philogelos 80: colstikouplevontoejkinduvneuenupo;ceimwnoto;ploion. twn de; sumpleovntwn jporriptouvntwn ejk twn skeuwn, i{n koufisqh to; ploion,kjkeivnw to; ujto; poieinprinouvntwn, o de; e[cwn ceirovgrfon ekto;n penthvkont murivdwn, t; penthvkont jpleiv: [de, fhsivn, o{soi crhvmsin ejpekouvfisth;nnun. A student dunce is sailing on a ship that’s in grave danger because of a storm. To make the ship lighter the passengers are throwing articles from their baggage overboard; they urge him to do the same. Now, the dunce happens to be holding a cheque for a million, five hundred thousand drachmae.401 Erasing five hundred thousand from the cheque, he boasts, ‘See there, I’ve made the ship lighter by that much money!’ The cited joke402 is very interesting from the legal point of view as it raises a number of different issues: firstly, there is the issue of a sea 401 Such high amounts prove a deep economic recession and huge inflation which indicates the turn of the 4th and the 5th century. Cf. C. Wessely, op. cit., pp. 1-47; A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 226. 402 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 226-227; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., pp. 74-75. 3. CONTRACTS 125 journey and passenger status; secondly, the problem of sea jettison; and thirdly, a chirograph. The ship described in the joke is probably a passenger unit. It should be assumed that the basis for transport was a lease agreement in which the captain of the ship undertook to provide space on the ship (as a locator) or bring people and luggage to a specific place (as a conductor). A jettison, or a iactus, is a situation in which the goods transported on the ship are thrown overboard in order to relieve it in case of danger. In Roman law, this issue was governed by the lex Rhodia de iactu,403 an act that raises considerable doubts of the researchers. Among other things, the discussion concerns the origin of the norms regulating the right of discharge. The problem is related to whether they were codified from the law of the island of Rhodes, or whether they constitute an original creation of Roman jurisprudence.404 Paulus provided a legal definition of jettison. D. 14,2,1 (Paul. 2 sen.): Lege Rhodia cavetur, ut, si levandae navis gratia iactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est.405 It is provided by the Rhodian Law that where merchandise is thrown overboard for the purpose of lightening a ship, what has been lost for the benefit of all must be made up by the contribution of all. (transl. S. P. Scott) The law allowed a merchant who lost his goods as a result of throwing them overboard to relieve the ship to demand the return of part of their value from other people transporting their belongings on it. An actio locati or conducti (depending on the type of lease) served the purpose, and it was brought against the captain (magister navis), who had a recourse claim (respectively in the form of actio conducti or locati) 403 On the lex Rhodia cf. W. Osuchowski, Appunti sul problema del ‘iactus’ in diritto romano, «Iura» 1/1950, pp. 292-300; S. Płodzień, ‘Lex Rhodia de iactu’. Studium historycznoprawne z zakresu rzymskiego prawa handlowo-morskiego, Lublin 1961 (reprint 2011), p. 27 ff.; F. De Martino, ‘Lex Rhodia’. Note di diritto romano marittimo, [in:] Diritto economia e società nel mondo romano, I, Napoli 1995, pp. 285-299. 404 Cf. K .M. T. Atkinson, Rome and the Rhodian Sea-Law, «Iura» 25/1974, pp. 46-95. 405 Cf. PS. 2,7,1. 126 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS in relation to other passengers,406 but also could retain their goods (ius retentionis) until settlement time. According to Paulus, the reason for jettison was the need to relieve the ship (levandae navis gratia). A storm could definitely be a situation forcing such an action, which was mentioned by the commentators of the lex Rhodia: Paulus,407 Callistratus408 and Julian.409 In the discussed joke, the jettison took place at the initiative of passengers. The fact that they asked the scholastikos to throw something overboard too may indicate that everyone could make a decision regarding their goods. If someone did not want to lose what they transported, they had to reckon the fact that they would be obliged to participate in other people’s loss. It seems, however, that the decision to carry out the jettison should rather be made by the captain. That is why it can be assumed that passengers’ actions resulted from the captain’s order. Literal contracts became widespread in the Roman Empire under the influence of the Greek world, where they had been very popular for a long time. In the text of the joke, the written contract was defined as ceirovgrfon, that is – in a Latinized form – a chirographum,410 which literally means ‘handwritten.’ The debtor wrote in the first person that they had received a certain amount of money: scripsi me accepisse. Numerous epigraphic documents indicate that chirographa were used for evidence purposes.411 However, this was not a typical form of contract for the Romans. During the Empire, the practice of adding a stipulation clause to them became popular.412 406 D. 14,2,2 pr. (Paul. 34 ad edict.). Cf. J.-J. Aubert, Dealing with the Abyss: the Nature and Purpose of the Rhodian Sea-Law on Jettison (‘Lex Rhodia de Iactu’, D 14.2) and the Making of Justinian’s ‘Digest’, [in:] Beyond Dogmatics. Law and Society in the Roman World, ed. J. W. Cairns, P. du Plessis, Edinburgh 2007, pp. 161-163. 407 D. 14,2,2,2 (Paul. 34 ad edict.): tempestate gravi orta. 408 D. 14,2,4,1 (Call. 2 quaest.): in tempestate. 409 D. 14,2,6 (Iul. 86 dig.): adversa tempestate. 410 Cf. G. 3,134; M. Kuryłowicz, ‘Chirographa’ i ‘syngrapha’. Z historii antycznych zobowiazan pisemnych, «Rejent» 10/1994, p. 14. 411 TPSulp. 51; 52; 70; 71; 72; 77; 78. Cf. G. Camodeca, L’archivio puteolano dei Sulpicii..., I, p. 181 ff.; E .A. Meyer, op. cit., p. 149 ff. 412 Cf. U. E. Paoli, Chirographum (diritto greco e diritto romano), «NNDI» 3/1959, p. 211 ff.; A. Castresana Herrero, El chirographo y la syngrapha: significación jurídica desde la República hasta Justiniano, [in:] Estudios de derecho de derech romano en honor de Alvaro d’Ors, I, Pamplona 1987, p. 362 ff.; M. Kuryłowicz, ‘Chirographa’ i ‘syngrapha’..., p. 23. 3. CONTRACTS 127 The first thing to consider is what type of a chirographum the smart alec had with him. It was possibly a document stating the existence of a debt of one and a half million. It is difficult to say whether this was evidence of a real contract, for example a loan, or a verbal contract, such as a stipulation, or a sensu stricto literal contract. Jean Rougé suggested413 it was a loan, most probably a maritime loan. The researcher stated that the scholastikos had a document confirming the conclusion of the fenus nauticum with him, and that after reaching the port it was necessary for him to repay the debt. He wanted to reduce the value of the debt by crossing out a part of the amount. However, it does not seem certain that the protagonist was a debtor as in such a situation we should rather expect at least one copy of the chirographum to be in the hands of the creditor.414 There is an obvious doubt about the consequences of crossing out415 a part of the debt amount on the document. If the scholastikos was in fact a debtor, his interference could not have any effect, but he could be responsible for forgery416. If, on the other hand, he was a creditor, we should consider whether we can talk about the remission of a part of the debt. As mentioned previously, the chirographum was written down by (or on behalf of) the debtor in the first person and contained his signature. It seems that the interference of a third party in such a document could be treated as a falsum. However, in this case, if it was the creditor who made a change to his disadvantage, there was no in fraudem alicuius417 action. The deletion 413 J. Rougé, op. cit., pp. 10-11. 414 Cf. P. Vindob. G 19792, recto l. 9; L. Casson, New Light on Maritime Loans: P. Vindob. G 19792 (= SB VI 9571), [in:] Studies in Roman Law in Memory of A. Schiller, Leiden 1986, pp. 11-15. 415 The verb used in the joke jpleivfomi could be, and it is worth noting, indicating that chirographum was writtne down on papyrus, and the smart alec did not cross a part of the amount out but removed it with a sponge. The amount of 1500000 had probably a short form: over the letter M meaning 10000, there were the letters rn meaning 150 (the whole amount was a result of multiplying these two numbers). To substract 500000 it was enough to erase n. 416 Cf. PS. 5,25,1; S. Schiavo, Il falso documentale tra prevenzione e repressione. ‘Impositio fidei, criminaliter agere, civiliter agere’, Milano 2007, p. 126 ff. 417 PS. 5,25,5: Qui rationes acta libellos album propositum testationes cautiones chirographa epistulas sciens dolo malo in fraudem alicuius deleverit mutaverit subiecerit subscripserit, quive aes inauraverit argentaverit, quive, cum argentum aurum poneret, aes stannumve subiecerit, falsi poena coërcetur. (Anyone who knowingly and maliciously, and for the purpose of defrauding another, erases, changes, substitutes, or signs any register, decree, petition, public record, attestation, bond, note, or letter; or anyone who covers brass with 128 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS of a part of the debt was also not enough for remission to take place. The creditor would have to confirm his decision. We can suppose, however, that the evidential value of the document interfered with would be minimal. For example, the debtor could challenge it418 and refuse to pay back the debt. Another way of interpreting this factual situation could result from the acceptance that the chirographum was not a document confirming the conclusion of a loan, but a lease contract. In this case, one and a half million could concern the value of the goods transported on the ship. By crossing out a part of the sum, the smart alec would get rid of some of the load without the need to make any physical effort associated with the actual discharge of heavy items overboard. The locatio conductio was also the background of another sea-related joke. Philogelos 81: colstiko; ejn ploivw ceimzomevnwn ki; kliovntwn twn sumpleovntwn: Tiv gvr, e[fh, mikrolovgoi ejstev_ ejgw; de; devk ttik;pleivondou;kinduvnwtoukubernhvtouplevw. A student dunce on a storm-tossed ship hears the wailing of his fellow passengers. ‘Why are you all so stingy?’ he asks. ‘Me, I paid an extra ten silver drachmae, and I’m sailing at the captain’s own risk!’ The joke is very difficult to analyse as the phrase kinduvnwtoukubernhvtou is very problematic for researchers. Trying to find its vis comica in the text, Jerzy Łanowski419 translated it as ‘in the same danger as the steersman’. He concluded, therefore, that although the smart alec paid more, he was at risk of death to the same extent as his travelling companions, including the ship’s crew. It should be noted, however, that there is no word anywhere in the text that could introduce the comparison (‘the same danger as…’), so the version of the Polish philologist is largely an interpretation. Further considerations should start with the fact that the term kivnduno could be used in a technical sense, as a ‘risk’, a Latin periculum.420 In most gold or silver, or while melting silver or gold, substitutes brass or tin for it, shall be punished with the penalty for forgery. Transl. S. P. Scott). Cf. S. Schiavo, op. cit., pp. 126 ff. 418 Cf. CTh. 9,19,4; S. Schiavo, op. cit., p. 241 ff. 419 Philogelos albo śmieszek. Z facecji Hieroklesai i Philagriosa, transl. J. Łanowski, WrocławWarszawa-Kraków 1986, p. 37. 420 On the meaning of this term cf. G. MacCormack, ‘Periculum’, «ZSS» 96/1979, pp. 129-172; Idem, Further on ‘periculum’, «BIDR» 82/1979, pp. 11-40. 3. CONTRACTS 129 translations, the questionable fragment is translated as ‘at the steersman’s risk’ (‘auf Gefahr des Steuermannes’). We just need to mention that kubernhvth is not so much the steersman as the ship’s captain, gubernator, and therefore the person who the transport contract was concluded with. Jean Rougé421 considered several possible hypotheses. He decided that the contract in the joke was not a prototype of insurance.422 He also did not accept the concept of the receptum nautarum, acknowledging that it related to goods only, and not people. For the same reason, he rejected the comparison with Nile transport contracts. He stated that it was not a maritime loan but a transport fee. This conclusion seems quite likely. It should be assumed that the scholastikos concluded a lease contract in which the captain as a conductor was obliged to bring him to the agreed place. Alfons Bürge423 noticed two elements creating situational humour in this joke. The passenger required the carrier to accept the risk and paid a higher price for it. Unfortunately, however, he would never be able to enjoy the fruits of his foresight because when the risk is materialized, he would die. The benefit would go therefore to his heirs at the most. The German romanist also added that this joke can be explained on the example of a contract to transport slaves, which states that during the journey the carrier must replace a slave who dies with another one. It seems, therefore, that the scholastikos paid the ship’s captain a higher price than other passengers so that the latter took the risk – periculum. It should be assumed that the contract ought to therefore include the meo periculo clause. The basic problem seems to be its admissibility in the law of the Empire period. Putting one of the parties of the contract at risk was a naturale negotii. The general rule was: res perit domino. Therefore, if the object of the contract consisted of fungible items, the handing over of which resulted in the transfer of ownership, the debtor took over the risk of losing them. It was different in case of non-fungible things. However, like the scope of the parties’ liability, these rules were subject to contractual modifications within the limits of the ius dispositivum. One of the options was pricing things – aestimatum424 – 421 J. Rougé, Le Philogélôs et la navigation..., pp. 8-9. 422 Such an opinion was voiced by P. Veyne, Le dossier des esclaves-colons romains, «RH» 265/1981, p. 8 fn. 19. 423 A. Bürge, Der Witz im antiken Seefrachtvertrag..., pp. 396-397. 424 D. 19,3,1,1 (Ulp. 28 ad ed.). 130 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS which resulted in the obligation to pay a certain amount in the event of inability to hand over the subject of the contract. Yet this is not the only possibility. D. 19,2,9,2 (Ulp. 32 ad ed.): Iulianus libro quinto decimo digestorum dicit, si quis fundum locaverit, ut etiam si quid vi maiori accidisset, hoc ei praestaretur, pacto standum esse. Julianus says in the Fifteenth Book of the Digest, that, where anyone leases land on the condition that if anything should happen to it through the exertion of irresistible force, he will be responsible for the same; he must abide by the contract. (transl. S. P. Scott) Ulpian cited Julian’s opinion, according to which if the land lease contract provided that a landlord should be given a rent even in the event of force majeure, it must be recognized. The takeover of the risk took place in the form of pactum (de periculo suscipiendo). Although the text refers to the lease of land, there is no reason to believe that in other locatio cases it could not be similar. This thesis is supported by the fact of jurists writing about such a possibility in the context of a deposit and a mandate.425 The studied issue can also be also highlighted by the documents of practise. The term meo periculo appears on Pompeian tablets in the context of a pledge,426 the object of which is grain. A pledgee stressed that he assumed the risk, because wheat, which is usually treated as fungible, here was marked individually. When it comes to papyri, there are several types of clauses to transfer the risks to the debtor, which was discussed in detail by José Luis Alonso.427 In lease contracts, with animals or slaves being a subject, it was claimed that in the event of their death, they had be replaced by others, which was expressed by the word jqvnto – ‘immortal’.428 The phrase jkivnduno pnto; 425 Cf. D. 2,14,7,15 (Ulp. 4 ad ed.); D. 17,1,39 (Nerv. 7 membr.). 426 TPSulp. 79: ...omni periculo esset meo heredisve mei... (niech całe ryzyko obciąża mnie lub mojego dziedzica). Cf. TPSulp. 51; Camodeca; G. Wolf (Hrg.), Neue Rechtsurkunden aus Pompeji..., pp. 126-128. 427 J. L. Alonso, Fault, strict liability, and risk in the law of the papyri, [in:] ‘Culpa’. Facets of Liability in Ancient Legal Theory and Practice. Proceedings of the Seminar Held in Warsaw 17-19 February 2011,ed. J. Urbanik, Warsaw 2012, pp. 36-81. 428 E.g. SB V 8086; P. Princ. III 151; BGU IV 1058. 3. CONTRACTS 131 kinduvnou – ‘free from any risk’ – was used while leasing land and related to the payment of rent.429 However, in transport contracts,430 the clause tw ejmutoukinduvnw431was used, meaning ‘at my risk”, meo periculo.432 It can be assumed that in this joke the scholastikos concluded a transport contract, i.e. a lease contract, and he agreed to pay a higher payment than his fellow passengers because the risk was transferred to the captain of the ship. The protagonist himself was certainly convinced that it was a periculum in a technical sense, covering the situation of a vis maior, since he so calmly reacted to the sea storm. He therefore believed that he would be able to claim compensation if he did not arrive at a destined port as a result of force majeure. In fact, the sea storm was a threat to his life, and financial security could not change that. For the sake of vis comica, we should also assume the contract really provided for the captain’s responsibility for all events. It is worth paying attention to the fact how typical of the smart alec was the scheme of events accepted in this joke. The protagonist was apparently well educated in contract law and he was familiar with the contractual clauses. He had, as we might expect, a legal education, or at least a rhetorical one. He used the pactum related to the transfer of the periculum but he did not take purely practical issues and the context into account. However, it should firstly be emphasized that the clause twemjutou kinduvnw that is meo periculo in the agreement concluded by the scholastikos with the captain of the ship is present in practice documents as well as in jurists’ commentaries. It could appear in lease contracts, but in such a shape as in the discussed joke, it did not really make sense in the agreement of passenger transport if, of course, the ship was peopled by freemen, not by slaves. 429 E.g. P.Oxy. XIV 1628; SB X 10573; P.Oxy. XLIX 3488. 430 J. L. Alonso, op. cit., p. 43 ff., convincingly undermined the classification of these contracts as recepta nautarum. 431 E.g. P. Lond. II 301. Cf. P. Amph. II 138; P.Oxy. X 1259. 432 However, it should be remembered that, according to some scholars, the term periculum or kivndunodid not necessarily mean the risk of force majeure. Cf J. L. Alonso, op. cit., pp. 45 ff. However, it should be taken into account that the parties to the contract had to be sure what they were contracting. The term periculum therefore had to have a specific meaning in practice. Since in some contracts the liability was clearly excluded in case of force majeure, perhaps the periculum included such events. 132 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS It can be assumed that legal practice forced jurists to become interested in the issue of transferring the risk. The contractual clause present in contracts had to arouse controversy that jurists had to take a position on. Finally, they came to the conclusion that it was acceptable and should be considered valid. A lease agreement very often referred to the transport of goods which a customer wanted to bring from distant provinces to Rome. Philogelos 78: colstiko;eijkovnjrcizwgrfhvmtejcouvsjpo;Korivnqoulbw;nki; eijnuejmblw;ntoinuklhvroiei\pen: E;ntuvtjpolevshte,kin;umjpithvsw. A student dunce acquires some paintings from Corinth by ancient artists. As he loads them onto ships, he warns the sailors, ‘If you loose these, you’ll have to get me new ones!’ The scholastikos433 signed a lease contract in order to transport paintings434 taken from Corinth. The carriers (conductores) should have therefore been paid after the work was done, that is after having delivered the cargo. It is necessary to consider the scope of their responsibility. D. 19,2,25,7 (Gai. 10 ad ed. provinc.): 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 diligentissimus quisque observaturus fuisset. Where anyone takes charge of the transportation of a column, and it is broken when it is raised, or while it is being carried, or when it is unloaded, he will be responsible for the damage, where this happened through his fault, or that of any of the workmen whom he employs. He will not be to blame, however, if all precautions are taken which a very diligent and careful man should take. (transl. S. P. Scott) 433 Cf. A. Thierfelder, ‘Philogelos’der Lachfreund..., pp. 225-226; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 74; J. Rougé, Le Philogélôs et la navigation..., pp. 6-7; A. Bürge, Der Witz im antiken Seefrachtvertrag..., pp. 394-396; Idem, Humor ist Glückssache... 434 Cf. A. Plisecka, ‘Tabula picta’..., p. 23 ff. On terminology related to artists and their works. 3. CONTRACTS 133 Writing about the contract for transporting a column, Gaius explained that if it was broken during lifting, transporting or putting up, then the conductor would bear the risk, as long as one could see his guilt, or the guilt of those that worked for him; there is no fault if everything has been supervised just as it would have been by someone extremely diligent. Likewise, in case of the contract in question, the carriers would be responsible for their own actions as well as those of the people hired by them within all the degrees of guilt on the basis of culpa in eligendo. However, liability for force majeure was excluded. Gaius’s view is an expression of the development of the terms culpa and diligentia.435 The object of the contract were works of art, and therefore items marked individually and non-fungible. The protagonist, however, demanded that the conductores return new items in case of their destruction, that is treated them as fungible things and ignored their artistic value. To interpret this aspect, a fragment of the Institutes of Gaius seems to be helpful at first glance. G. 3,168: Tollitur autem obligatio praecipue solutione eius, quod debeatur. unde quaeritur, si quis consentiente creditore aliud pro alio solverit, utrum ipso iure liberetur, quod nostris praeceptoribus placuit, an ipso iure maneat obligatus, sed adversus petentem per exceptionem doli mali defendi debeat, quod diversae scholae auctoribus visum est. Extinction of an obligation is effected chiefly by actual performance of that which is owed. Hence it is disputed, whether when a person with the consent of his creditor makes a different performance in the place of the one contracted for, he is directly discharged by law of his obligation, as my school consider him to be, or whether he nevertheless continues to be bound by direct law, but against a plaintiff trying to enforce his claim, may defend himself by the exception of fraud, as the other school maintain. (transl. E. Poste) Having stated that the obligation expired first of all in case of providing a consideration, the jurist wondered whether the one who made a different performance than contracted with the consent of the creditor is discharged 435 Cf. L. Yarrow, Lucius Mummius and the spoils of Corinth, «Scripta Classica Israelica» 25/2006, pp. 57-70. 134 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS by law, as the Sabinians believed, or he was only entitled to protection in the form of an exceptio doli, as the Proculians claimed.436 It seems, however, that this problem was considered in the context of the consent expressed by the creditor after the debtor met another performance than the one that was the subject of the contract (datio in solutum). In the aforementioned situation the scholastikos assumed this possibility a priori. It should be presupposed that only if he actually accepted any substitutes for works of art being the subject of the contract, the carriers would obtain legal protection. It should be emphasized that the reservation of the protagonist concerns the situation of the destruction of works of art (jpovllumi), and therefore the faulty conduct of the conductores, which they were responsible for.437 Accepting the substitutes for the masterpieces would cause a huge financial loss for the smart alec, who – instead of compensation – would accept much less valuable objects no longer having any artistic value. More light on the discussed case may be shed by the fact that this is not a completely made-up joke. The text is an example of depersonification and simplification of an anecdote, which – after having been stripped of all details – began to be repeated as a mere jest. Vell. 1,13,4: Mummius tam rudis fuit, ut capta Corintho cum maximorum artificum perfectas manibus tabulas ac statuas in Italiam portandas locaret, iuberet praedici conducentibus, si eas perdidissent, novas eos reddituros. Mummius was so uncultivated that when, after the capture of Corinth, he was contracting for the transportation to Italy of pictures and statues by the hands of greatest artists, he gave instructions that the contractors should be warned that if they lost them, they would have to replace them by new ones. (transl. F. W. Shipley) Velleius Paterculus quoted a story that served as the source of the joke in question. Now, having conquered Corinth438, Lucius Mummius Acha436 Cf. P.J. du Plessis, Letting and Hiring…, p. 33 ff. 437 It is difficult to accept an interpretation which was proposed by A. Thierfelder, ‘Philogelos’ der Lachfreund..., s. 226, a in his commentary, that is with the fact that the juridical basis of the joke is the damnum iniuria datum and the question of the evaluation of the destroyed thing (G. 3,217). The author suggests that the aspect here is not so much legal but moral, and gives an example of the evaluation of damage in case of used clothing or shoes. 438 Cf. L. Yarrow, op. cit., pp. 57-70. 3. CONTRACTS 135 icus439 concluded lease contracts to transfer plundered works of art to Italy.440 He also obliged the carriers to replace lost items with the new ones. Obviosuly, we should not treat this story as completely authentic.441 Malicious people wanted to deprecate442 the politician, who was probably a topic of more or less nasty stories, especially that as a homo novus he was perhaps not as well educated as the inborn representatives of the nobilitas.443 In any case, Mummius, the famous conqueror of Corinth, was a prototype of the scholastikos; he biesieged the city in 146 BC, destroyed it to the ground and took away priceless works of art. The source of humour is, of course, the fact that the great leader and politician had no idea about art and even despised it.444 From the legal point of view, however, it is important that he was unable to distinguish between fungible and non-fungible things. Mummius probably wanted to transfer the transport-related risks to the carriers, which would be better served by the aestimatio agreement mentioned above.445 Legal interpretation of the story requires taking historical circumstances into account. The works of art taken from Corinth were loots (praeda). Mummius did not keep them for himself but only embellished Rome as well as Italian and provincial cities with them.446 It can be assumed that the locatio agreement with the carriers was public,447 and Mummius acted on 439 Cf. F. Münzer, Mummius (7), «RE» XVI.1/1933, col. 1200-1206. He presents H. Kreller’s hypothesis that si eas perdidissent, novas eos reddituros is a standard contractual clause which the latter related to receptum nautarum. But if so, would it be a topic to laught at? 440 Among the looted objects, there was the statue of Poseidon, which Mummius recognized as depicting Zeus, and it was recognized as ignorance by the author of the Corinthian speech attributed to Dio Chrysostomos, probably Favorinus (Dio Chrys., Or. 37.42). On the other hand, Strabo (8,6,23) mentioned a painting depicting Dionysus by Aristides, as well as a scene depicting the suffering Heracles in a garment from Deianira. 441 Cf. E.S. Gruen, Culture and National Identity..., pp. 123-129. 442 It is worth noticing that such an attitude would also mean reluctance towards surrendering to Greek influence. Cf. C. Steel, The End of the Roman Republic 146 to 44 BC. Conquest and Crisis, Edinburgh 2013, pp. 62-64. 443 Cf. still Plut., Mor. 737 a. 444 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 74. 445 Cf. É. Jakab, U. Manthe, Recht in der römischen Antike..., pp. 302-303. 446 Cf. Cic., De off. 2,76; Front., Strat. 4,3,14; Liv., Per. 52; Plin. Mai. 34,36; L. Yarrow, op. cit., p. 61. 447 Cf. A. Bürge, Der Witz im antiken Seefrachtvertrag..., pp. 394-396. 136 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS behalf of the state as a consul. This would put the carriers in a much weaker position, because even if in a private locatio conductio contract the parties enjoyed the same legal protection, the state was a stronger party in a public one. In the event of a conflict, the counterparty could only count on the intercessio of a magistrate, or possibly on the intervention of the senate.448 Perhaps, then, Mummius’s words were not the result of his ignorance. The commander may have wanted to show the carriers that he required more from them than it would be in the nature of the lease agreement. The verb perdere used in the Latin text means ‘to lose’ and therefore does not assume any carelessness of the party. It seems rather to indicate that it is about losing the subject of the contract as a result of force majeure. Mummius would therefore threaten that he would not consider any exonerative circumstances and would demand the fulfilling the obligation even if it was impossible. Unknowingly, however, he equipped his scoffers with power. The joke in Philogelos clearly shows that the unnamed smart alec, and earlier also Mummius himself, was considered so stupid that he was unable to predict the loss associated with the acceptance of copies in exchange for the original works of art. The difference between the texts – where the earlier one by Velleius contained a reference to the loss of the cargo, that is the effect of force majeure, and the later one, Philogelos, referred to destruction, or culpable action of the debtor – proves that the source of humour was just ignorance and inability to see the value of a work of art. A lease contract could also apply to other types of services that were part of everyday life in the Roman Empire. City streets throughout the country were full of shops, bakeries, thermopolia, hotels, tanneries, laundries as well as brothels. Philogelos 151 a: Eujtrvpeloijdw;npornobosko;nmisqountmevlinnetirivd ei\pe:ovsouth;nnuvktmisqoi_ A sharp wit sees a brothel-keeper pimping a black prostitute. ‘How much for a night with Lady Night?’ he inquires. In this joke – racist from today’s perspective – the object of the lease contract is the service of the dark-skinned prostitute, with the rent apparent- 448 Cf. A. Tarwacka, Prawne aspekty..., pp. 277-280. 3. CONTRACTS 137 ly being charged for a night.449 The term ‘night’ takes on double meaning here: except for the time of the day, it also refers to the girl’s skin colour. The same issue probably applies to another joke, causing considerable interpretation problems. Philogelos 145: Eujtrvpelokvphloeurw;ntxewvthnejpi; th guniki; ujtou ei\pen:Eu|rono}oujkejzhvtoun. A sharper who’s trading at a commissary comes a sergeant on top of his wife. ‘Hey,’ he exclaims, ‘here’s an item I wasn’t shopping for!’ The owner of the inn caught his wife in adultery. The joke suggest that the adulterer was a low-ranking official. Perhaps the source of humour is the fact that he had some competences related to the supervision of taverns. In Rome, the aediles were able to control places that were a potential threat to public order.450 If in the jest there is a reference to a roadside inn, it can be assumed that inspections were carried out by a subordinate clerk, to whom the hardships of the journey were passed over by his supervisor. A very interesting analysis of this joke was carried out by Adam Łukaszewicz.451 The protagonists of the whole story are, as it has been mentioned, a lower official (txewvth, that is apparitor, or officialis) and the owner of the tavern. The key view of the researcher is to link the terms appearing in the text with their technical meaning in trade: zhtein means ‘to demand the money,’ and eurivskein ‘to get a price.’ The innkeeper then says that he obtained what he did not demand. Łukaszewicz very aptly stated that prostitution452 was also included in services offered in taverns. So the owner viciously noticed that although he did not offer his wife’s 449 The visual aspect of the joke was commented by J.R. Clarke, op. cit., p. 15. 450 W. Nippel, Public Order in Ancient Rome, Cambridge 1995, pp. 16-19; M. Kuryłowicz, ‘Tresviri capitales’ oraz edylowie rzymscy jako magistratury policyjne, «Annales UMCS», Sec. G Ius, 40/1993, pp. 76-77; Idem, Zur Marktpolizei der römischen Ädilen..., pp. 439-456; Idem, Zur Tätigkeit der römischen Ädilen. I. ‘Loca aedilem metuentia’, «OIR» 7/2002, pp. 42-58; Idem, Nadzór magistratur rzymskich nad porządkiem publicznym, [in:] Bezpieczeństwo i porządek publiczny - historia, teoria, praktyka: Konferencja naukowa. Hadle Szklarskie, 26 września 2003 r., ed. E. Ura, Rzeszów 2003, p. 43 ff. 451 A. Łukaszewicz, Txewvthon the move (glossa ad P Giss. 56)..., pp. 105-107. 452 Cf. P. Schulten, Ancient Humor..., p. 222. 138 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS services, the official had taken advantage of them. It is also valuable to note about the nature of the functions performed by txewvti, who travelled a lot, and therefore they quite naturally uses various services offered by roadside taverns. Rich Romans entrusted performing care activities such as shaving to their slaves. Others used barber shops called tonstrinae, whose employees453 could be free men or slaves. The most famous joke about a hairdresser concerns a customer who, when asked how he wants to be cut, answers: ‘In silence.’454 The source of this joke is an anecdote about the Macedonian king Archelaos.455 The qualifications of the hairdressers could vary.456 Philogelos 198: fuh; koureu; toi up ujjtou plhttomevnoi e[mplstr prosetivqei. eno; de; ijtismevnou ujto;n e[fh: cvriste, mvthnjgnktei:eno;g;rdhnrivouxurvmenotessvrwn dhnrivwne[mplstre[lbe. An incompetent barber is treating with salve the customers whose faces he’s cut. When one of them complains about him, he retorts, ‘How ungrateful! You’ve no grounds for complaint. You’ve received a one-denarius shave plus a four-denarius treatment with salve!’ In the quoted joke,457 the barber cut the customer, causing his understandable dissatisfaction. He was trying to make the bad impression go away by applying some medicine. The customer, however, was not satisfied. The verb ijtivomiused in the text means ‘to make a complaint, to sue’. It seems, therefore, that the barber tried to stop the unsatisfied customer from filing a court complaint, which would probably be the actio locati when the conductor was responsible for all the degrees of guilt.458 In 453 Cf. F.W. Nicolson, Greek and Roman Barbers, «HSCP» 2/1891, pp. 41-56; D.B. Kaufman, Roman Barbers, «Classical Weekly» 25.19/1932, pp. 145-148. 454 Philogelos 148. 455 Plut., Mor. 177 a; 509 a. Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 245; W. Hansen, Ariadne’s Thread..., p. 16. 456 Cf. M. Andreassi, Barbieri..., pp. 66-67. 457 Cf. A commentary by A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 261. 458 At this point, it is worth remembering that the barber was responsible, even if he caused damage, for example, when hit by a ball, in case of placing his stall where 3. CONTRACTS 139 this case, the barber was described as jfuh;, which is the Latin equivalent of the adjective imperitus. The damage caused by the lack of skills of an employee who should know his profession was treated as a culpable act.459 At the hairdresser’s, also apprentices preparing for the profession could be found. Both slaves and free people were sent away to be apprenticed, still they were usually children who did not reach their adulthood. Between the master and the owner of the slave, or the father of the child (or sometimes another guardian), a lease contract was concluded, where the duration of the apprenticeship and other conditions like payment, days off, boarding, lodging and absences during illness were established.460 Philogelos 199: fuh;mqhth;kkwtinkeivrki;prwnucivdpoihvs ki; di; touto upo; tou ojnucizomevnou jpwsqei; jnebovhsen: Epistvt,tivoujkjfivhsivmemqein_ A clueless apprentice has given someone a bad haircut. Now, doing the manicure, he cuts into the quick of his nails. When the customer pushes him away for this, the apprentice shouts, ‘Boss, why won’t he let me learn?’ The above joke is probably related to the common problem of services rendered poorly by apprentices. The dilemma lay in the fact that an apprentice had to practice on customers in order to learn, but until he learned, he made many mistakes. It was not so severe when learning weaving or people would play, or where there was a lot of traffic. Cf. D. 9,2,11 pr. (Ulp. 18 ad ed.); R. Zimmermann, op.cit., p. 1011 ff. 459 D. 19,2,9,5 (Ulp. 32 ad ed.): 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 also states in the Eighth Book of the Digest that want of skill should be classed with negligence. Where a party rents calves to be fed, or cloth to be repaired, or an article to be polished, he must be responsible for negligence, and whatever fault he commits through want of skill is negligence, because he rents the property in the character of an artisan. Transl. S.P. Scott). Cf. D. 50,17,132 (Gai. 7 ad ed. prov.); P. J. du Plessis, Letting and Hiring…, pp. 72-74. 460 Many such contract are preserved in epigraphic form on papyrus, e.g. P.Oxy. XIV 1647. Cf. W. L. Westermann, Apprentice Contracts and the Apprentice System in Roman Egypt, «CP» 9/1914, pp. 295-315; Ch. Laes, Masters and Apprentices, [in:] A Companion to Ancient Education, ed. W. M. Bloomer, London 2015, pp. 475-476. Cf. also P.Oxy. IV 725; A. Łukaszewicz, Świat papirusów..., pp. 258-259. 140 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS shoemaking, where the core of the profession was tooling things. It was a completely different case at the hairdresser’s, where the disciple exercised on people: it would be hard to count on them quietly giving in to inept attempts. The master was responsible for the damage caused by an employee or even an apprentice on the principle of culpa in eligendo. Philogelos 200: fuh; mqhth; upo; tou ejpistvtou keleusqei; ojnucivsi oijkodespovthn ejdvkruse. tou de; th;n ijtivn ejrwthvsnto e[fh: Foboumi ki; klivw: mevllw g;r trumtivsi se, ki; prwnucivdpoihvsei,ki;tuveimeoejpistvth. A clueless apprentice is ordered by his boss to give the owner of the barber shop a manicure. So he bursts into tears. When the owner asks him why, he responds, ‘I’m crying out of fear. See, I’m about to cut you and your nail will bleed and the boss will beat me.’ In this case, the problem of the apprentice who has not mastered a new profession has also been addressed. The master told him to cut the place owner’s nails. It is not known whether the teacher himself was a slave (institor) or a free man renting a place. The use of the term oijkodespovth indicates rather the first possibility. The text clearly shows that punishing apprentices physically was very common461 and that they were therefore terrified. This issue was of interest to the jurists. D. 19,2,13,4 (Ulp. 32 ad ed.): Item Iulianus libro octagensimo sexto digestorum scripsit, si sutor puero parum bene facienti forma calcei tam vehementer cervicem percusserit, ut ei oculus effunderetur, ex locato esse actionem patri eius: quamvis enim magistris levis castigatio concessa sit, tamen hunc modum non tenuisse: sed et de Aquilia supra diximus. iniuriarum autem actionem competere Iulianus negat, quia non iniuriae faciendae causa hoc fecerit, sed praecipiendi. Julianus also says in the Eighty-sixth Book of the Digest that if a shoemaker, being dissatisfied with a boy employed by him should strike him on the neck with a last so hard as to destroy his eye, an 461 Cf. J. Toner, Popular Culture in Ancient Rome, Cambridge 2009, p. 69. 3. CONTRACTS 141 action on hiring can be brought by his father; for although masters are permitted to inflict light punishment, still, this is immoderate. We have stated above that an action under the Lex Aquilia will also lie. Julianus denies that an action on injury can be brought, because the party did not commit the act for the purpose of causing injury, but in the course of instruction. (transl. S. P. Scott) 462 Ulpian quoted Julian’s opinion according to which if a shoemaker hit an incompetent apprentice with a last on the head so badly that he knocked his eye out, the boy’s father could bring an actio locati as although the teacher was entitled to a slight punishment, he exceeded the measure. It was also possible to use the lex Aquilia, but not the actio iniuriarum, because the teacher hit in order to reproach, not insult. A master could therefore beat the disciple regardless of whether he was a free man or a slave. It was only in case of crossing the limits of the permitted penalization and causing damage that a father or an owner could file a complaint resulting from either a lease contract, or from the lex Aquilia. Many doubts of researchers are raised by the question of the legal form of provision of services by doctors. According to Pliny,463 doctors employed 462 Cf. D. 9,2,5,3 (Ulp. 18 ad ed.): Si magister in disciplina vulneraverit servum vel occiderit, an Aquilia teneatur, quasi damnum iniuria dederit? et Iulianus scribit Aquilia teneri eum, qui eluscaverat discipulum in disciplina: multo magis igitur in occiso idem erit dicendum. proponitur autem apud eum species talis: sutor, inquit, puero discenti ingenuo filio familias, parum bene facienti quod demonstraverit, forma calcei cervicem percussit, ut oculus puero perfunderetur. dicit igitur Iulianus iniuriarum quidem actionem non competere, quia non faciendae iniuriae causa percusserit, sed monendi et docendi causa: an ex locato, dubitat, quia levis dumtaxat castigatio concessa est docenti: sed lege Aquilia posse agi non dubito. (Where a teacher wounds or kills a slave while instructing him, will he be liable under the Lex Aquilia on the ground that he committed unlawful damage? Julianus says that a person was held liable under the Lex Aquilia, who blinded a pupil in one eye while instructing him; and much more would he have been liable, if he had killed him. He supposes the following case. A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boy’s eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him. Still, he is in doubt as to whether an action on a contract will lie, because only moderate punishment is conceded to a person who imparts instruction. I do not doubt, however, that an action can be brought under the Lex Aquilia. Transl. S. P. Scott) ; D. 9,2,6 (Paul. 22 ad ed.): Praeceptoris enim nimia saevitia culpae adsignatur. (As extreme severity on the part of an instructor is attributed to negligence. Transl. S.P. Scott). Cf. P. J. du Plessis, Letting and Hiring..., pp. 67-70. 463 Plin. Mai. 29,7. 142 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS by emperors received annual salaries for permanent care. However, they were public doctors. In case of clients seeking advice or deciding for a treatment, it appears that a single service contract was signed with a private one. There is no consensus among scholars464 as to whether it was a lease or a mandate. There are several jokes in Philogelos that can shed some light on these issues. Philogelos 27: colstiko; noswn sunetvxto tw ijtrw, eij qerpeuqeih, misqo;n dwvsein. w ou\n oi\non ejn tw purevttein pivponti ujtw ejpetivm h gunh: u; de; bouvlei me ugivnnt, e[fh, jngksqhnitwijtrwto;nmisqo;nejktisi_ A student dunce, falling ill, has agreed to pay his doctor’s fee if the treatment works. When his wife scolds him for drinking wine during a fever attack, he retorts, ‘You want me to get well and be forced to pay the doctor bill?’ The scholastikos concluded a contract with the doctor when he fell ill. The text indicates that the payment was dependent on the outcome of the treatment. The doctor would receive his remuneration for effective treatment only. However, the patient had to cover the costs of medication. The Greek term used to determine wages is misqov. It does not allow to qualify the contract because it was used both as the equivalent of merces while leasing and as the honorarium of a mandate. Philogelos 175: Kumio ijtro; [rrwston triti?zont eij hmitrition peristhvsto;h{misutoumisqoujphvtei. A doctor from Kyme manages to turn the patient’s full-blown malarial fever into semi-malarial fever. So he only asks for half his fee. 464 Firstly, it is doubtful whether a freeborn doctor could perform his profession by concluding a lease contract. Cf. D. 9,2,7,8 (Ulp. 82 ad ed.). Recently more on that K. Tadajczyk, Status społeczno-prawny i odpowiedzialność lekarza w prawie rzymskim, Łódź 2014, pp. 110-114. Cf. also K.-H. Below, op. cit., pp. 81-98; K. Visky, La qualifica della medicina e dell’architettura nelle fonti del diritto romano, «Iura» 10/1959, pp. 24-66; M. Kaser, Das römische Privatrecht, I, München 1971, pp. 569 ff.; A. Wacke, Die Anerkennung der Medizin als ‘ars liberalis’ und der Honoraranspruch des Arztes, «ZSS» 113/1996, pp. 382421; P. J. du Plessis, Letting and Hiring..., pp. 96-98. 3. CONTRACTS 143 A joke about the doctor from Kyme confirms that the payment (misqov) was due after the treatment ended. In this case, however, it seems much more likely that the agreement concluded by the parties is a locatio conductio. The doctor was a conductor, and the patient – a locator – was to pay him the whole amount agreed upon after healing. The half-payment demand for half of the provision was in this case unfounded not only because the doctor de facto led to deterioration, not the improvement of health of his patient, which is a source of humour here, but also because the performance was indivisible and dependent on the conductor’s fulfilment of his obligations in full. Doctors’ demand to be paid indicates that in case of curing the patient he was entitled to it. This shows that there existed a contractual obligation based on a lease contract. On the basis of the jokes discussed, it is not, however, possible to state what the social status of the protagonists was. There is no reason to believe that they were slaves as they demanded payment. We can only hypothetically assume they were free people, or perhaps freedmen. On the pages of the Philogelos, we can also find fortune tellers (obviously false ones), who should be described as vaticinatores in Latin. They were asked about one’s own, or their children’s465 future, or about the health of the family. Their answers were structured to please the client and often turned out to be wrong. Philogelos 187 a: Duvskolo jstrolovgo pido; noserou gevnesin levgwn, polucrovnionujto;nth mhtri; wejpggeilvmenoh[teito;n mivsqon.thde; eijpouvsh:Elqovtntisoiu[riondwvsw-e[fh: Tivou\n,ej;nth;nnuvktjpoqvnhki;ejgw;to;nmisqo;njpovllw_ A hotheaded astrologer reads the horoscope of a sick child. Having promised the mother that the boy will have a long life, he demands his fee. When the mother says, ‘Come tomorrow, I’ll have it for you then,’ he retorts, ‘Hey, what if he dies during the night; I’m supposed to lose my fee?’ It is clear from the joke that the fortune teller received remuneration for the services provided. He received them after telling the future. It seems, however, that the client who suspected the divination to be evidently false could refuse to pay. Therefore, the astrologer (apparently, a self-aware 465 Philogelos 202. 144 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS charlatan) wanted to receive the money immediately so that there was no time for verification. Sometimes, however, a fraud was disclosed immediately. Philogelos 201: fuei mvntei proselqwvn ti ejx jpodhmiv jniw;n hjrwvt peri twn oijkeivwn. o de; ei\pen: @Ugiivnousi pvnte, ki;  opthvrsou.toude;eipovntoo{tiOpthvrmoudevktone[to e[cei jf ou| jpevqnen - jpekrivnto: Oujde;n g;r oi\d to;n kt;jlhvqeivnsouptevr. A man comes back from abroad and approaches a stupid prophet. Asking about his family, he receives the answer, ‘All are healthy, including your father.’ ‘But it’s ten years now that my father’s been dead,’ the guy objects. ‘Obviously you have no idea who your real father is,’ counters the prophet. In this case, the fortune teller tried to cover up the lie466 by telling the client that his previous belief about his father’s identity was wrong. In this way, he tried to secure the payment. This joke is based on a fundamental legal issue of paternity. It was not necessary to prove maternity, but finding out who the child’s father was could cause problems. Accepting the presumption of a mother’s husband being a father led to the adoption of comfortable fiction. The humour of this joke is based on the fact that the presumption could be challenged. It should be emphasized that divination was barely legal. Predicting the future was considered dangerous in Rome. Mathematicians, the Chaldeans, astrologers and magi467 were regularly removed from Italy. Pauli sententiae contain information about various aspects of the magical profession:468 466 A wonderful parallel for this joke was found by W. Hansen, The Seer and the Computer: On ‘Philogelos’ and Modern Jokes, «CB» 77.1/2001, pp. 87-102. A skeptic asked a computer a question about his father’s whereabouts. The machine replied that he was fishing by Lake Tahoe. When the skeptic triumphantly announced that his father had been dead for twenty years, the computer said that true, his mother’s husband had died, but his father was fishing. The main difference is in the source of humour. The fortune teller was a cheater but the computer did not make a mistake... 467 Cf. Val. Max. 1,3,3 (ex epit. Par.; ex epit. Nepot.); Suet, Vit. 14,4; Tac., Ann. 2,32; Dio Cass. 57,15,8. Cf. A. Wypustek, op. cit., p. 333 ff. 468 PS. 5,21; cf. CTh. 9,16,4; C. 9,18,5. Cf. A. Wypustek, Magia antyczna, WrocławWarszawa-Kraków 2001, p. 342. 3. CONTRACTS 145 fortune tellers were thrown out of cities so that they would not threaten469 people, preying on their credulity; if they were obtrusive, they were imprisoned, deported or relegated to an island. Both a person asking and the diviner were punished with death in case of any attempts to ask the latter about the fate of an emperor or the state. Slaves inquiring about the health of their owners were crucified, and fortune tellers consulted on such matters were sent to the mines or to an island. Despite these restrictions, divination, horoscopes and prophecies were very popular as they gave hope. People believed that such knowledge would help them avoid adversity. What is more, they were hungry for a sense of security even if it was fleeting and illusory. It can be assumed that no fortune teller who was refused the payment could go to court. His claim would have been rejected, for instance due to the incompatibility of the service with morality. A locatio conductio contract could be applied to the rental of a flat. Philogelos 194 a: Duvskolo skvln ktbivnwn sflei; ktevpese. tou de; oijkokuroueijpovnto: Tiv e[ni ejkei_ jpekrivnto: Egw; tou ejnoikivoumouejlvkhs.tivpro;sev_ A hothead trips and falls down the stairs. When the landlord calls out, ‘Who fell down out there?,’ the hothead says, ‘I did, in my rent payment. What’s it to you?’ The tenant of the flat fell off the stairs, making a lot of noise. The owner of the tenement house was asking what had happened, to which the tenant replied that he had stumbled… over the rent. This witty answer was probably to suggest that the rent was simply too high. However, it also happened that tenants were fully satisfied with the conditions of the lease. Philogelos 215: Fqonero;oijkodespovthtou;ejnoivkouijdw;neujtucountejk touoi[kouujtouejxedivwxen. An envious landlord sees how happy his tenants are. So he evicts them all. In this joke, the owner of the tenement house could not stand the fact that his tenants were satisfied so he threw them out. It should be noted that 469 Cf. też P.Coll. Youtie I 30; A. Łukaszewicz, Świat papirusów..., pp. 264-265. 146 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS he broke the terms of the contract here. Throughout the duration of the contract, he was obliged to maintain the flats in usable condition. He received his rent for that. His behaviour should be treated as intentional (dolus). Obviously, the owner could decide when to terminate the contract and expel his residents, yet jurists identified situations where he did have and did not have reasons to do so.470 In both cases, expelled tenants were entitled to an actio conducti. However, in the event of an unjustified eviction, the conductor had more rights. D. 19,2,28,2 (Lab. 4 post. epit. a Iav.): ...sed si locator conductori potestatem conducendae domus non fecisset et is in qua habitaret conduxisset, tantum ei praestandum putat, quantum sine dolo malo praestitisset. ceterum si gratuitam habitationem habuisset, pro portione temporis ex locatione domus deducendum esse. The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease. (transl. S. P. Scott) If a tenant was not able to use the flat and was forced to find another accommodation, he could claim a rent refund for the substitute premises, obviously within the limits of good faith, with the exception of insidious actions. However, if he found a free flat, he was entitled to a refund of the rent in proportion to the time. The settlement between the parties was therefore as much as it was owed, that is id quod interest.471 470 The reasons for eviction were named in Emperor Caracalla’s rescript of 214 AD C. 4,65,3: Diaetae, quam te conductam habere dicis, si pensionem domino insulae solvis, invitum te expelli non oportet, nisi propriis usibus dominus esse necessariam eam probaverit aut corrigere domum maluerit aut tu male in re locata versatus es. (If you have paid to the owner the entire amount of the rent of a house, which you say that you have leased, you cannot be ejected against your consent, unless the owner can prove that the building is required for his own use, or he desires to repair it, or you have not acted as you should have done with reference to the property leased. Transl. S. P. Scott). Cf. B. W. Frier, Landlords and Tenants in Imperial Rome, Princeton 1980, pp. 70-78; P. J. du Plessis, Letting and Hiring..., pp. 151-152. 471 Cf. B.W. Frier, op. cit., p. 77 ff. 3. CONTRACTS 147 In the discussed case, the tenants were expelled without giving any reason, that is the contract was violated by the locator. The evicted residents could, therefore, demand the return of what they had lost, including the costs of renting a new flat. The actio conducti would allow them to reclaim as much as they deserved after balancing mutual claims. 3.5. Mandates With the contract of mandate, a mandatary performed gratuitously a legal or factual action for a mandator. Philogelos 12: colstikw jpodhmounti fivlo ujtou e[legen: xiw se duvo pidjgorvsimoi,ekvteronpentekivdekejtj wn.ode;ei\pen: E;ntoiouvtoumh;eu{rw,jgorvswsoie{ntrivkontejtj wn. A student dunce is going to the city. His friend says, ‘Do me a favor and buy me a couple of fifteen-year-old slaves.’ ‘No problem,’ respond the dunce. ‘If I don’t find fifteen-year-olds, I’ll get you one thirty-year-old.’ In the joke,472 the scholastikos received an commission to buy two slaves, while the buyer specified exactly what he needed, stating their age and sex. The humour here is basically based on the fact that although everything seems to be right (15 + 15 = 30), two fifteen-year-olds do not equal one thirty-year-old. In addition, the joke probably had sexual underpinning: young slaves often satisfied the owners’ desires,473 while an older ones would not do the job. This joke, however, has a legal context too. D. 17,1,5 pr.-1 (Paul. 32 ad ed.): Diligenter igitur fines mandati custodiendi sunt: nam qui excessit, aliud quid facere videtur et, si susceptum non impleverit, tenetur. Therefore, the limits of the mandate must be diligently observed, for a party who exceeds them is held to have done something else than what he was directed to do. And if he does not execute what he undertook, he will be liable. (transl. S. P. Scott) 472 Cf. W. Hansen, Ariadne’s Thread..., p. 266; M. Beard, Laughter in Ancient Rome..., p. 199. 473 Cf. Athen. 6,275 a. 148 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS Paulus stated474 that the limits of the mandate should be strictly followed. Their violation resulted in the recognition that the mandatary did not fulfil the undertaken task, because he de facto did a completely different thing from what he had been supposed to. In the discussed situation, the scholastikos simply announced his intention of violating the limits of mandate. He decided that if he could not get what he had been asked for, he would buy something else instead. Indeed, it would be a completely different service than the one to which he was obliged to perform. In such a situation, it should be considered that the contractor did not fulfil the obligation and could not use the actio mandati contraria. Moreover, the principal could sue him for non-performance of the order: a judge would then have to assess whether his action was intentional (dolus).475 A consensus between the parties could be reached in various ways. Philogelos 17 b: colstikw fivlo e[gren eij @Ellvd o[nti, bibiliv ujtw jgorvsi. tou de; jmelhvsnto, w met; crovnon tw filw sunwivqh, ei\pen: Th;n ejpistolhvn, h}n peri; twn biblivwn jpevsteilvmoi,oujkejkomisvmen. A friend back home writes to a student dunce in Greece to buy some books for him. The dunce neglects the request, and when after some time he again runs into his friend, he says, ‘You know that letter you sent me about the books I never got it.’ In a situation described in a joke,476 a friend sent a letter to the scholastikos asking him to buy books. D. 17,1,1,1 (Paul. 32 ad ed.): Ideo per nuntium quoque vel per epistulam mandatum suscipi potest. 474 Cf. G. 3,161: Cum autem is, cui recte mandaverim, egressus fuerit mandatum, ego quidem eatenus cum eo habeo mandati actionem, quatenus mea interest inplesse eum mandatum, si modo implere potuerit; at ille mecum agere non potest. (If a mandatary goes beyond his mandate, he may be sued for the amount which the person giving the mandate loses by its non-execution, if the execution was possible; and he will have no right of action against the person giving the mandate. Transl. E. Poste). 475 A mandatarius was also held repsonsible in case of gross negligence. Cf. R. Zimmermann, The Law of Obligations..., p. 426. 476 This joke has another version. Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 207-208; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 199. 3. CONTRACTS 149 Hence a mandate can be received by means of a messenger, as well as by a letter. (transl. S. P. Scott) According to Paulus, a mandate could also be concluded by a messenger or in the form of a letter.477 Therefore, we may ask whether in this case the contract was concluded. The jurist wrote that the mandatary could accept the commission in a letter, but was the reverse situation also possible? Mandate was a consensual contract, and therefore it was necessary to reach agreement between the parties. The potential contractor expressed their will by sending a letter. However, did the recipient accept the mandate? It can be assumed that since he was looking for an excuse feverishly, he did feel obliged. At first he was going to buy books but then he lacked determination, he forgot or ignored the issue. It means that in his opinion he took on the role of the mandatary, and then, intentionally or negligently, he did not render a performance. It should be remembered that, in the event of a legal action, a mandatary who did not fulfil the mandate consciously and intentionally was also subject to infamy. The smart alec therefore had every reason to look for a good excuse. From the legal point of view, however, it can be questioned whether the mandate was actually accepted. It seems that in case of buying books the protagonist would be able to claim reimbursement because he had a letter that would provide evidence. However, in the situation described in the joke, his contractor would probably have big problems with proving that there was an agreement between the parties as the smart alec did not answer the letter. Still, his premature confession could be treated as evidence of agreeing to buy books. There is obviously a doubt, why the protagonist would accept a commission when its fulfilment would be problematic for him and would not bring any remuneration. But it must be remembered that interpersonal relations in Antiquity were quite complicated. Roman amicitia478 is not an emotion but actually a network of connections that sometimes made it impossible 477 Cf. G. 3,136; I. 3,22,1. 478 Cf. K. Verboven, Friendship among the Romans, [in:] The Oxford Handbook of Social Relationships in the Roman World, ed. M. Peachin, Oxford 2011, pp. 404-421; D. Nörr, ‘Mandatum, fides, amicitia’, [in:] ‘Mandatum’ und Verwandtes. Beiträge zum römischen und modernen Recht, ed. D. Nörr, Sh. Nishimura, Berlin-Heidelberg-New York-LondonParis-Tokyo-Hong Kong-Barcelona-Budapest 1993, pp. 13-37. 150 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS to simply refuse a person. The term fivlo used in the text may indicate that the protagonists were connected by strong ties: they might have been brought up together, or been in the army, or studied. D. 17,1,1,4 (Paul. 32 ad ed.): Mandatum nisi gratuitum nullum est: nam originem ex officio atque amicitia trahit, contrarium ergo est officio merces. A mandate is void unless it is gratuitous, as it derives its origin from duty and friendship, hence compensation is opposed to duty. (transl. S. P. Scott) Paulus explained why a mandatum is a gratuitous legal act, having its roots in duty (officium) and friendship (amicitia). Mutual favours resulted in a bond related to gratitude - gratia, which was an incentive to reciprocate courtesy. The discussed joke also concerns the problem of the delivery of letters. If the scholastikos was sure that he could justify himself, claiming that the letter had not come, it must have been a common situation. Jurists dealt with cases of taking over correspondence. Ulpian pondered479 who, in the event of intercepting a letter, was entitled to an actio furti, reflecting on the question of the ownership of the letter being on its way to the addressee. The mail was sent as far as it was possible: using kind friends, entering into a contract with a person going to a given place, passing it with merchants, soldiers or carriers, as well as slaves. They were not forms that provided confidence and security. Only imperial post services were reliable, but the use of them required a special permit.480 4. Summary The jokes discussed in this chapter were related to property law, inheritance law as well as contractual obligations. Although it was the broadest right to things, ownership was subject to certain restrictions. One of them was the obligations imposed on the owner 479 D. 47,2,14,17 (Ulp. 29 ad Sab.). 480 Cf. Plin., Ep. 10,45; 10,120; L. Casson, Travel in the Ancient World, Baltimore 1994, pp. 183-189; A. Kolb, Transport und Nachrichtentransfer im Römischen Reich, Berlin 2000, pp. 82-83. 4. SUMMARY 151 of real estate in the city related to the maintenance and cleaning of the road running in front of their property. Magistrates responsible for the cura urbis could make a citizen who did not fulfil his duties in this area pay the costs of hiring an external entity, and even punish him with a fine. The inscription placed by the owner on the prohibition of leaving impurities (Philogelos 85) should be interpreted not only as an expression of the fight for hygiene on strictly aesthetic grounds, but also as an attempt to protect oneself against sanctions imposed by magistrates. Philogelos also allows us to observe two threats faced by real estate owners: overhanging branches of fruit trees provoked thieves (Philogelos 166), while a flowing river could tear off a piece of land or gradually wash it away, thus reducing the propriety of one person, and enlarging the land of the other (Philogelos 46a). Death is a frequent motif of jokes that allow to ‘tame’ it a bit. Plenty of space is also occupied by the problems of succession. Jokes touch very serious problems related to an inheritance that a person leaves behind. The joke about the miser who established himself his own heir (Philogelos 104) seems to be an expression of rebellion against passing away and parting with accumulated fortune. At the same time there is a contrary tendency to secure a good place for the grave (Philogelos 26). The issue of the doctor’s solicitation for establishing a bequest in his patient’s will appears to be interesting (Philogelos 139). Emotions went high with intestate succession where the main role was played by the degree of relatedness between the heir and the testator. One of the jokes indicates that those involved were not always eager to accept it (Philogelos 24). In Philogelos, much space is occupied by jokes which are concentrated around a contract. In case of loans and commodates, their humour is based on the difference in the subject matter: fungible and non-fungible things. While lending a donkey, the debtor was obliged to give the same animal back in a non-deteriorated condition, and not, as in the joke (Philogelos 127), two mules, that is two half-donkeys, which in turn would be quite natural with the loan for consumption (two half-asses for one as). It seems that the names of these contracts were not used consistently in the colloquial language, just like in many contemporary languages. In the jokes related to commodate, it is also characteristic that the parties determine how far a debtor could take the object of the contract on their trip (Philogelos 99 and 137). In the event of failing the set conditions, the furtum usus occurred. 152 III. LEGAL AND ECONOMIC ISSUES IN PHILOGELOS As far as sale is concerned, the contract in which the buyer was able to eat as much as they wanted from the bakery, or from the orchard (Philogelos 224 and 225) should be regarded as particularly interesting. In this case, there is no doubt about the contract’s essentialia negotii: the price was specified, and the object was not a completely unlimited amount of food, but only as much as the buyer was able to eat at one time in a certain place without the possibility to move away and return. This ‘all you can eat’ contract was not described in legal sources, yet it had to apply in everyday life, for example when travelling when the wanderer did not want to carry large supplies and preferred to eat in a roadside orchard, or a bakery located on their route. Many jokes are also related to the seller’s liability for defects of the goods. In the joke (Philogelos 18) about the scholastikos being informed by the buyer that the slave that he had sold him died, the former replies that while he was with him, he never did something like that. This dialogue actually concerns two typical defects: illness and slaves’ tendency to escape. These were frequent issues being the subject of the seller’s warranty, whose liability was independent of whether he knew about their occurrence or not. Many jokes related to lease touch the subject of maritime transport and the associated risks. A situation was described in which during a violent storm it was necessary to make a jettison (Philogelos 80). The joke about the smart alec art taking away pieces of art from Corinth (Philogelos 78) is very interesting example of the evolution of the anecdote. The scholastikos threatened the carriers that if they destroyed the cargo, they would have to give back new things. Comparing this text with its prototype – the story of the conqueror of Corinth, Mummius – suggests interesting conclusions. The famous commander threatened that in the event of losing works of art as a result of force majeure, he would order the carriers to provide new ones, that is, he announced that no factors would relieve them of responsibility. In Philogelos, however, a different verb was used, meaning not a loss, but the destruction of the works. Mummius, as a magistrate of the Roman people, tried to tighten the terms of the contract, which exposed him to the attacks of his political opponents claiming that he could not recognize the value of the objects he had plundered from the conquered city. In a simplified version, the smart alec wants the carriers to give back the new items in exchange for those that will be destroyed, which in fact means that he was unable to appreciate the value of the originals. It was different with Mummius: in the event of vis maior, his 4. SUMMARY 153 contractors would not have to perform anything, the risk was borne by the locator. The commander wanted to broaden their responsibility. Jokes about leasing also apply to services: prostitutes, hairdressers, fortune tellers and doctors appear in them. There are interesting jokes about apprentices learning with the master at the hairdresser’s (Philogelos 199 and 200), for whose mistakes the teacher had to bear the contractual responsibility. On the other hand, he could also punish them. Jokes on doctors (Philogelos 27 and 175) seem to indicate that the contract concluded with them was lease and not a mandate. In turn, in jokes concerning the rental of a flat (Philogelos 194 and 215), there is the problem of too high a rent and expelling tenants before the date for which the contract was concluded. As for the mandate, a very interesting issue, which is the subject of one of the texts (Philogelos 12), can be found in violating the contractual limits by the mandatary, which is, moreover, declared just after the conclusion of the contract. A contractor who would buy something other than the contract tells him (in this case, one thirty-year-old slave instead of two fifteen-yearolds), would not only risk losing the possibility to settle costs, but also liability with the actio mandati directa, entailing infamy. It is also interesting how the mandatum agreement was concluded in a letter (Philogelos 17), in which the mandator presented his request and at the same time his will to create a contract. It should be assumed that the contractor accepted the obligation to perform the service at the time of the execution of the commission, without the need to reply to the letter, otherwise the entire procedure would be unusually long and cumbersome. IV. Philogelos protagonists conflicting the law Everyday life of the inhabitants of the Empire was also abundant in situations related to breaking the law. Philogelos protagonists are confronted with torts, mainly thefts as well as public law crimes like adultery, or already discussed incest. The background of jokes were also civil and criminal proceedings. They provide us with information on procedural parties, judges, attorneys representing parties as well as procedures, for example appointing witnesses. 1. Torts One of the most common torts in ancient Rome was theft. Thieves harassed the inhabitants of the Roman Empire, and the detectability of perpetrators was far from one hundred percent as evidenced by numerous examples of inscriptions describing missing items and containing a request for return and information about the thief (promising a reward),481 as well as magical spells that were supposed to bring unhappiness on thieves – defixiones in fures.482 The commonness of the phenomenon naturally led to the formation of anecdotes and jokes associated with it. A few of them have survived in Philogelos. Philogelos 211 a: Oknhrwn duvo omou koimwmevnwn eijselqwvn ti klevpth to;n svgon uposuvr e[klee. tou de; eno; ijsqomevnou ki; pro; to;n e{teron eijpovnto: nst; fqvson to;n klevnt to;n svgon – ei\pen: #fe: o{tn e[lqh ejpri th;n sthvlhn, krtoumenujtovn. 481 Cf. CIL IV 64. 482 Cf. A. Wypustek, op. cit., pp. 161-173. 1. TORTS 155 Two lazy-bones are fast asleep. A thief comes in, pulls a blanket from the bed, and makes off with it. One of them is aware of what happened, and says to the other, ‘Get up! Go after the guy who stole our blanket!’ The other responds, ‘Forget it. When he comes back to take the matress, let’s grab him then.’ This joke relates to a very interesting issue of furtum manifestum. Among other things, such theft occurred when the perpetrator was caught redhanded.483 It was not enough for someone to see him. For instance, when an inhabitant hid away out of fear, a theft was treated as nec manifestum.484 It was considered manifest485 only when there was a chase after a thief, even if it was ineffective. In the discussed case, the protagonists did not want to chase the robber, out of laziness, or perhaps fear. So if the thief had been caught later on, he would have only been taking responsibility for the double value of stolen things, that is furtum nec manifestum. If however when another theft happened the lazy-bones were able to overcome their laziness or fear, they would be able to catch the perpetrator. Still, their conversation shows that it was a flash in the pan... Another joke presents an impudent theft carried out in the presence of the victim. Philogelos 142: Eujtrvpelonojfqlmiwntijtro;klevpthdneivsluvcnon e[klee. mi ou\n tut hjrwvt ujtwvn: w e[cei eij tou; ojfqlmouv_ki;oeujtrvpelovfhsin:fou|moiejdvneis, to;nluvcnonoujblevpwujtovn. 483 D. 47,2,3 pr. (Ulp. 41 ad Sab.). 484 D. 47,2,7,1 (Ulp. 41 ad Sab.): Ibidem Pomponius eleganter scripsit deprehensione fieri manifestum furem: ceterum si, cum tibi furtum facerem de domo tua, abscondisti te, ne te occidam, etiamsi vidisti furtum fieri, attamen non est manifestum. (Pomponius very properly says, in the same place, that the thief does not become a manifest one unless he is caught. Moreover, if I commit a theft by taking something from your house, and you have concealed yourself to prevent me from killing you, even if you saw me commit the theft, still, it is not a manifest one. Transl. S. P. Scott). 485 D. 47,2,7,2 (Ulp. 41 ad Sab.): Sed Celsus deprehensioni hoc etiam adicit, si, cum vidisses eum subripientem et ad comprehendendum eum accurrisses, abiecto furto effugit, furem manifestum esse. (Celsus, however, adds to the result of detection, that if you have seen the thief in the act of stealing, and you run forward to arrest him, and he takes to flight, he is a manifest thief. Transl. S. P. Scott). 156 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW A sharp wit is suffering from conjunctivitis. The doctor comes in, anoints his eyes, and steals his lamp. A day later, the doctor asks him, ‘So how are the eyes?’ ‘From the time you anointed me, I can’t even see my lamp,’ responds the sharper. This joke,486 containing a brilliant wordplay, depicts a piece of everyday life. Thieves did not have to be strangers to those robbed. Hired specialists did not always have a crystal character. Using the weakness of the patient, who could not see after the treatment, the doctor stole a lamp. Martial’s epigram is an excellent parallel to this joke: Mart., Ep. 9,96: Clinicus Herodes trullam subduxerat aegro: deprensus dixit ‘Stulte, quid ergo bibis?’ The doctor Herodes had filched a cup belonging to his patients. Being detected, he exclaimed, “Fool! what need have you of drink?” (transl. http://www.tertullian.org/fathers/martial_ epigrams_book09.htm, accessed 2.10.2018) In this case, the doctor also robbed the patient, taking his cup or a water bucket. When the latter caught him red-handed, the former defended himself, citing his own recommendations: the patient probably had to limit drinking. A burglary could also take place in the absence of the owner, or at night. Philogelos 161: Kumiodneistouoijkivejpibouleuvwnki;qevlwnt;meivzon dvneiklevit;bruvtercvrtiejpelevgeto. A thief from Kyme, targeting the house of a loan shark, and hoping to steal the biggest sums, picks up the heaviest sheets of paper. In the cited joke, documents identified as cvrtiwere the object of the theft. The term could mean papyri although it was also used to designate tablets. Probably, the thief stole some heavier scrolls of papyrus or tablets combined into codices, completely unguided by the value of the loans they referred to. 486 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 242-243. 1. TORTS 157 D. 47,2,27 pr. (Ulp. 41 ad Sab.): Qui tabulas vel cautiones amovet, furti tenetur non tantum pretii ipsarum tabularum, verum eius quod interfuit: quod ad aestimationem refertur eius summae, quae in his tabulis continetur, scilicet si tanti interfuit, ut puta si chirographa aureorum decem tabulae fuerint, dicimus hoc duplicari. quod si iam erant inanes, quia solutum proponebatur, numquid ipsarum tantum tabularum pretii videatur esse aestimatio facienda? quid enim interfuit huius? sed potest dici, quia nonnumquam debitores tabulas sibi restitui petant, quia nonnumquam calumniantur debitores quasi indebito soluto, ab his interesse creditoris tabulas habere, ne forte controversiam super ea re patiatur. et generaliter dicendum est in id quod interest duplari. Anyone who appropriates account-books, or written instruments, is liable for theft, not only for the value of the account-books, but also for the interest which the owner had in them, which has reference to the estimate of the sums included in the accounts, that is to say, if they amounted to that much money; for instance, if they contained an account of ten aurei, we say that this sum should be doubled. If, however, no claims were entered in the accounts because they had been paid, should not the estimate of the value of the account-books themselves only be considered? For what other interest could the owner have in them? It may be held that, because sometimes debtors desire the accounts to be returned to them, as they say that they have paid sums which are not due, it is to the interest of the creditor to hold the accounts, in order that no controversy may arise respecting them. And, generally speaking, it should be said that double the value of the interest involved is asked in cases of this kind. (transl. S. P. Scott) Ulpian was dealing with the problem of stealing tablets and cautiones in the commentary ad Sabinum.487 He stated that the perpetrator was responsible for furtum not only regarding the value of the tablets themselves but also of the obligations written on them. If, therefore, a chirographum of ten aurei was stolen, the amount had to be doubled to calculate the value of the penalty 487 Cf. D. 47,2,83,3 (Paul. 1 opin.); PS. 2,31,32; F. Wieacker, ‘Furtum tabularum’, [in:] Synteleia Aragio-Ruiz, Napoli 1964, pp. 562-576. E.A. Meyer, op. cit., p. 109. 158 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW (in duplum). The jurist also considered the case of tablets with the obligation that had already been fulfilled. He decided that the above-mentioned rule should be applied in such a situation, explaining that debtors often demanded the return of tablets when trying to show that they had made a mistaken payment. It was therefore in the interest of the creditor to have debt documentation as evidence. In the discussed case, therefore, the thief would pay a penalty that would be a multiple of the value of the papyri or tablets, and – above all – the value of the obligations that they documented. This punishment would be in duplum unless the perpetrator was caught. In such a situation that is in case of a manifest theft, responsibility increased in quadruplum. It should be emphasized that it did not matter whether documents concerned existing or paid off debts. Since there was such a joke in Philogelos, it is worth considering how essential the problem was, and why the thief would crave for documents? It does not seem that he could collect debts they referred to. Their destruction, on the other hand, could benefit debtors so perhaps the thief was looking for people whose names appeared on stolen papyri or tablets and offered them some arrangements, for example, exchanging the documents for a certain amount of money (lower than the value of the debt, of course). Ulpian's comment also suggests that, having the debt documentation at their disposal, a dishonest debtor could demand a refund of the rendered performance as undue. There are also jokes dealing with stolen things. Philogelos 35: colstiko;kleimijmfwtprivmeno,i{nmh;gnwsqwsin, ejpivsswsenujtv. A student dunce buys stolen vestments. To make them unrecognizable, he smears them with pitch. In the above-mentioned joke, the object of a sale contract were stolen items (res furtivae). Certainly, acquisition of ownership by the scholastikos was impossible. Handing over the vestments (traditio) did not cause ownership transfer because the vendor was not the owner. The principle of nemo plus iuris ad alium transferre potest quam ipse haberet488 operated here. It 488 D. 50,15,54 (Ulp. 46 ad ed.). Cf. K. Amielańczyk, O rzymskim pochodzeniu zasady ‘nemo plus iuris...’ i jej aktualności we współczesnym prawie polskim, [in:] Księga jubileuszowa dedykowana Prof. Arturowi Korobowiczowi, ed. W. Witkowski, Lublin 2008, pp. 503-517; F. Longchamps de Bérier, Z uwag do metodologii nauki prawa prywatnego: powoływanie łacińskich reguł i maksym na przykładzie ‘nemo plus iuris’, «Krakowskie Studia z Historii Państwa i Prawa» 7.1/2014, pp. 39-57. 1. TORTS 159 was also impossible to accept usucaption because one of the premises was not met: the stolen item was not res habilis, and therefore it was unfit to be usucapted. However, there is a question about the validity of the sale contract concluded in this way.489 D. 18,1,34,3 (Paul. 33 ad ed.): Item si et emptor et venditor scit furtivum esse quod venit, a neutra parte obligatio contrahitur. Si emptor solus scit, non obligabitur venditor, nec tamen ex vendito quiquam consequitur, nisi ultro quod convenerit praestet: quod si venditor scit emptor ignoravit, utrinque obligatio contrahitur, et ita Pomponius quoque scribit. Moreover, if the purchaser and the vendor both know that the property sold has been stolen, no obligation will be contracted on either side. If the purchaser alone is aware of the fact, the vendor will not be liable; still, he cannot recover anything on the ground of the sale, unless he voluntarily furnishes what he agreed to do. Where, however, the vendor was aware that the property had been stolen, but the purchaser was ignorant of the fact, an obligation is contracted on both sides; and this also was stated by Pomponius. (transl. S. P. Scott) According to Paulus, if both sides knew that the object of a sale contract was a stolen thing, no obligation arose from either side. If the buyer was the only person to know that, the vendor neither concluded a contract nor could make use of the actio venditi if he did not mutually perform his obligation arising from the contract concerned. If, however, only the seller knew, the obligation arose on both sides to protect the buyer. In the described situation, we can deal with both the first case when the origin of the object of the contract was known to both sides, as well as the second one when only the buyer knew about the item being stolen. The vestments being the object of the obligation had already been handed in and it must be assumed that the price had been paid. Therefore, if the seller was not aware that he was selling stolen property, he would be protected by the actio venditi. Such situations, however, were probably quite rare. A seller usually knew that he was selling stolen items, and he was aware that he wasn’t legally protected. Whereas the buyer from the joke agreed to purchase res furtivae. Covering the vestments with pitch would make them 489 Cf. A. Kacprzak, Sprzedaż rzeczy kradzionej, «Zeszyty Prawnicze» 2.1/2002, pp. 93-102. 160 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW hard to recognize by the owner or other people (for example, household members, both free ones and slaves). The transaction might have occurred between the thief and the black marketeer, who wanted to re-sell things by depriving them of their characteristic features. It may also have been someone who had bought stolen vestments cheaply and wanted to use them peacefully. Stealing things that were not characteristic gave a better chance of impunity. Martial,490 for example, ironically said that it was better to steal a regular toga than a Tyrian cloak, which only few people could wear and which would soon reveal the thief. Attempts to cover up a theft also appear in other jokes. A Kymaean sitting on a donkey was eating figs from a tree and – when the animal left – he found himself in a rather embarrassing position, hanging on a branch.491 Caught red-handed, he said he had fallen off the donkey… But that’s not all. Philogelos 146 b: Eujtrvpelocoironkleve[feugen.ejpei;de;ktelmbvneto, qei;ujto;ne[tuptelevgwn:#llwno[rugeki;mh;t;ejmv. A sharper steals a pig and starts running with it. When he’s caught, he sets the pig on the ground and thrashes it, declaring, ‘Do your digging here, not on my property!’ The caught thief was defending himself, trying to pretend that the pig had been damaging his land. So not only did he try to give the impression of being innocent but he also made an accusation. The owner was liable for any damage caused by their animal. It is not known what the intention of the thief was: if he implied that it had been grazed on his land, or that it had caused damage itself. The legal measures that can be taken into account in this situation are an actio de pastu, an actio de pauperie, as well as an actio ex lege Aquilia. The general principles of responsibility are set out in Pauli sententiae. PS. 1,15,1: Si quadrupes pauperiem fecerit damnumve dederit quidve depasta sit, in dominum actio datur, ut aut damni aestimationem subeat aut quadrupedem dedat. 490 Mart., Ep. 8,48. 491 Philogelos166 discussed above, pp. 86-87. 1. TORTS 161 Where a quadruped causes any loss or commits any damage, or consumes anything; an action is granted against its owner to compel him to either pay the estimated amount of the damage, or surrender the quadruped. (transl. S. P. Scott) If a four-legged animal caused damage or was grazing on someone else’s land, the victim could sue the owner who had to cover the value of the damage, or hand in the animal. The principle was, therefore, as with noxal liability. The quoted passage does not, however, give an answer to what type of a legal action it was and what its conditions were. An actio de pastu was already regulated in the Law of the XII Tables.492 Still, there is no certainty to whether it could be used whenever alien animals were grazing on someone’s land, or only when an owner intentionally brought them there. An actio de pauperie was also subject to a decemviral regulation.493 An owner was responsible for the damage caused by a four-legged494 animal: they could cover the value of the damage, or hand in the animal.495 Responsibility was born only when the animal itself caused damage496 and not, for example, as a result of the action of a human being or other animal.497 If a person was guilty, however, actio legis Aquiliae could be used. From the aforementioned passage from Pauli sententiae, it can be deduced that every case of causing damage by a four-legged animal was the 492 Tab. 8,7. Cf. D. 19,5,14,3 (Ulp., 41 ad Sab.); M. and J. Zabłoccy, op. cit., pp. 52-53. 493 Tab. 8,6. Cf. D. 9,1,1 pr. (Ulp. 18 ad ed.); M. and J. Zabłoccy, op. cit., pp. 52-53. 494 A pig is a four-leg animal. Cf. D. 9,1,1,2 (Ulp. 18 ad ed.): Quae actio ad omnes quadrupedes pertinet. (This action has reference to every kind of quadruped. Transl. S. P. Scott). 495 Cf. D. 9,1,1 pr. (Ulp. 18 ad ed.): Si quadrupes pauperiem fecisse dicetur, actio ex lege duodecim tabularum descendit: quae lex voluit aut dari id quod nocuit, id est id animal quod noxiam commisit, aut aestimationem noxiae offerre. (Where a quadruped is said to have committed damage, an action which has come down from a Law of the Twelve Tables may be brought; which Law prescribes that either whatever caused the damage must be given up, that is, that the animal that committed it shall be surrendered, or an amount of money equivalent to the damage shall be paid. Transl. S. P. Scott). 496 It is problematic to say whether an animal had to act in a way thatw as unusual for its species (contra naturam). Cf. M. V. Giangrieco Pessi, Ricerche sull’‘actio de pauperie’ dalle XII tavole ad Ulpiano, Napoli 1995, p. 30 and ff.; M. Polojac, L’‘actio de pauperie’ ed altri mezzi processuali nel caso di danneggiamento provocato dall’animale nel diritto romano, «Ius Antiquum» 8/2001, pp. 81-87. 497 Cf. D. 9,1,4 (Ulp. 18 ad ed.); D. 9,1,7 (Ulp. 18 ad ed.); D. 9,1,8 (Ulp. 18 ad ed.). 162 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW responsibility of its owner. It seems, therefore, that the thief from the discussed joke, wanting to take the suspicion away, suggested that he had suffered damage and that he should be compensated. As he was trying to steal the pig, he might have counted on a favourable turn of events, hoping that the owner, while held responsible for the damage, would give him the animal himself. An interesting parallel to this story is Aurelius Sarapion’s complaint to the centurion Aurelius Marcianus of 248 AD preserved on a papyrus.498 An eighty-year-old plaintiff accused the soldier Iulius of assault in the following circumstances: a pig escaped from Sarapion’s daughter’s farm, and the plaintiff went to Iulius, with whom the animal was supposed to be, to take the oath on this case. The soldier beat Sarapion in the presence of two witnesses. It can be assumed that just like in Philogelos the defendant stole the pig and got scared of the consequences. Another situation shown in Philogelos seems to be very interesting though difficult to interpret. Philogelos 90: colstiko; sofisth; jxiouvmeno twn jpoqnhskovntwn ejpitfivoulevgeineno;e[tizwntoe[grenejpitvfion:o} ejnekvlei ujtw ejpi; touvtw. o de:; #n ou\n umei, fhsiv, mh; prolevghte,o{tnjpoqnhvskhte,ejgw; ejxujtoscedivoulevgwn bouvlesqei{njschmonhvsw_ A professorial dunce is often asked to give eulogies for the dead. He writes one for someone who’s still alive, and the guy objects. Retorts the dunce, ‘If you pass up the chance to try it out now, do you want me to give extemporaneous eulogy and say the wrong thing after you’re dead?’ The scholastikos gave (having written them in the first place) funeral speeches. When he made such a speech for a living person, he was sued for that. A question arises as to what it might have been about, and what charges were brought. Since the time of the Law of the XII Tables, it had been punishable to give mala carmina and write libelli famosi.499 The provision dealt with 498 P.Graux 4; cf. A.S. Hunt, Select Papyri, II, Cambridge 1977, pp. 288-291. 499 Tab. 8,1 a-b; M. and J. Zabłoccy, op. cit., p. Cf. A. Koch, Ewolucja deliktu ‘iniuria’ w prawie rzymskim epoki republikańskiej, «CPH» 19/1967, p. 51 ff. 2. CRIMINAL LAW 163 magical songs that would hurt the addressee, and about verses that had an offensive character ad infamiam alicuius. Later, such behaviour was subject to edict regulations regarding the tort of insult - iniuria. A praetor acknowledged a complaint in case of writing or delivering a piece that violated someone’s good name.500 A question then arises whether the situation described in the joke can be regarded as an example of iniuria. It seems that the act of the scholastikos might be categorized as carmen conscribere, while doubts appear from the effect of violating a good name or decency. Since the person interested learned that the funeral speech had been written for him, the author certainly had not kept it for himself. He might have rehearsed it to practice his performance. Of course, the eulogy was praiseworthy so it was unlikely for the recipient to be hurt, but it is possible that the speech caused someone’s conviction of his death. Some actions could have resulted from that such as opening his last will. In that case, there would be a real detriment on the part of the testator, whose mortis causa provisions would cease to be a secret. Obviously, we cannot overlook the moral damage to the person concerned: if he was superstitious, he could feel uncomfortable, treating the premature eulogy as a bad omen. 2. Criminal law There are also numerous references to criminal sanctions in Philogelos. There are references to penalties used, most often different ways of executing the death penalty.501 500 D. 47,10,15,27 (Ulp. 77 ad ed.): Generaliter vetuit praetor quid ad infamiam alicuius fieri. proinde quodcumque quis fecerit vel dixerit, ut alium infamet, erit actio iniuriarum. haec autem fere sunt, quae ad infamiam alicuius fiunt: (...) aut si carmen conscribat vel proponat vel cantet aliquod, quod pudorem alicuius laedat. (Generally speaking, the Praetor forbade anything to be done which would render anyone infamous; hence, whatever a person does or says, which has a tendency to bring another into disrepute, will afford ground for an action for injury sustained. Such are almost all those things which cause disgrace; as, for instance, (…) or the publication or singing of anything which may injure anyone’s modesty. Transl. S. P. Scott). Cf. Auct., Ad Her. 4,25,35; D. Nowicka, Zniesławienie w prawie rzymskim, Wrocław 2013, p. 137 ff. 501 Cf. E. Żak, Prawnicy rzymscy o sposobach wykonywania kary śmierci, [in:] Kara śmierci w starożytnym Rzymie, ed. H. Kowalski, M. Kuryłowicz, Lublin 1996, p. 110 ff.; J.-J. Aubert, A Double Standard..., pp. 109-110. 164 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW Philogelos 121: bdhrivthijdw;ndrovmeejsturwmevnonei\pe:M;tou;qeou; ou|tooujkevtitrevcei,jll;pevteti. An Abderite observes a runner who’s been crucified. ‘By the gods,’ he exclaims, ‘he’s no longer running -he’s flying!’ A runner or a messenger was crucified.502 It can be assumed that he was a slave as this punishment was considered shameful.503 It is worth noting that this is one of the jokes created before the period of Constantine the Great’s rule,504 when the cross was replaced by a furca.505 Such black humour, or even better – gallows humour – was not uncommon at all. In the Greek Anthology, there is an epigram describing jealous Diophon, who died of despair, seeing someone crucified on a cross higher than his.506 Most severe punishments were expected for monstrous crimes contrary to nature, such as parricide. Philogelos 69: colstiko; jpoqnovnto sumfoithtou ejpeskevpteto tou; gonev. tou de; ptro; ujtou ojduromevnou ki; levgonto: Tevknon, hjpovrwsv me – th de; mhtro; legouvsh: Tevknon, ejtuvflwsvme–o scolstiko;pro;tou;etivrouei\pen: Eijtutujtwpevprkti,ejcrhnujto;nki;zwntkuqhni. A student dunce pays a visit to the parents of a dead classmate. The father raises a lament and says, ‘My child, you have torn me to pieces!’ The mother keeps saying, ‘My child, you have taken the light from my eyes!’ The dunce tells his companions, ‘If he really committed those crimes, he ought to have been cremated alive!’ 502 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 237; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 83; L. L. Welborn, op. cit., pp. 136-137; L. Floridi, op. cit., pp. 652-653; J. Granger Cook, Crucifixion in the Mediterranean World, Tübingen 2014, p. 259. 503 Cf. E. Cantarella, I supplizi capitali. Origine e funzioni delle pene di morte in Grecia e a Roma, Rizzoli 2007, p. 156 ff.; J.-J. Aubert, A Double Standard..., pp. 110-128. 504 Cf. J. Meggitt, Paul, Poverty and Survival..., p. 98 fn. 116; J. Granger Cook, op. cit., p. 387 ff. 505 Cf. P. Franchi de’ Cavalieri, Della ‘furca’ e della sua sostituzione alla croce nel diritto penale romano, «NBAC» 13/1907, pp. 63-113; V. Giuffrè, La repressione criminale nell’ esperienza giuridica, Napoli 1998, p. 158. 506 Anth. Gr. 11,192. 2. CRIMINAL LAW 165 The punishment of burning a person alive (crematio) had been used since the archaic times towards arsonists, then for slaves wanting to kill their masters,507 sometimes for free people who committed serious crimes. PS. 5,24,1: Lege Pompeia de parricidiis tenentur qui patrem matrem avum aviam fratrem sororem patronum patronam occiderint, etsi antea insuti culleo in mare praecipitabantur, hodie tamen vivi exuruntur vel ad bestias dantur. He who kills his father, his mother, his grandfather, his grandmother, his brother, his sister, his paternal or maternal uncle or aunt, his male or female cousin, a wife, a husband, a son-in-law, a mother-in-law, a stepfather, a step-son, a step-daughter, a patron or a patroness, is liable under the Lex Pompeia having reference to parricides. Anyone who kills his or her father or mother, grandfather or grandmother, brother or sister, patron or patroness, although they were formerly sewed up in a sack and thrown into the sea, are at present burned alive, or abandoned to wild beasts. (transl. S. P. Scott) In Pauli sententiae, however, a very interesting fragment about parricidium, or a murder of a father, a mother, a grandfather, a grandmother, siblings or a patron can be found. The penalty of the sack508 was replaced with time by burning a culprit alive or leaving him to be devoured by wild beasts.509 The discussed joke510 seems to reflect this practice. The scholastikos understood the lamentations511 of the orphaned parents literally and he was convinced that their son had mutilated and blinded them, and so he should have been punished. Obviously, this was not the case of killing the parents, but common opinions said mutilation was not significantly different from murdering, and what is more, it could lead to death. Or that’s what the protagonist of the joke thought. 507 Cf. D. 48,19,28,11 (Call. 6 de cogn.). 508 Cf. A. Dębiński, ‘Poena cullei’ w rzymskim prawie karnym, «PK» 3.4/1991, pp. 133-146; M. Jońca, ‘Poena cullei’. Kara czy rytuał?, «Zeszyty Prawnicze» 5.1/2005, pp. 83-100. 509 Cf. M. Jońca, ‘Parricidium’ w prawie rzymskim, Lublin 2008, pp. 294-297. 510 Cf. commentary A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 223. 511 Cf. commentary B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 72, which mentions Lucian‘s On funerals (13). 166 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW There is one more joke concerning parricidium.512 Philogelos 13:513 colstikoi; duvoptrloiiejdusfovrounpro;jllhvlouejpi; twtou;ptevrujtwnzhn.tou;de;eno;eijpovnto:Qevlei ou\njpopnivxeie{kstohmwnto;ni[dion_Mh;gevnoito,ei\peno [llo,i{nmh;ptrloiijkouswmen.jlleijbouvlei,su;to;n ejmo;nsfvxon,kjgw;to;sovn. A couple of student dunces are complaining to each other about the fact that their fathers are still alive. One of them says, ‘Why don’t we each strangle our old men?’ ‘No way!’ objects the other. ‘You want people to call us parricides? But if you like, you kill mine, and I’ll kill yours.’ Parricide was considered an extremely serious crime. The Greeks were said to remember the names of the first matricides and parricides.514 In Rome, parricidium had been punished since the times of the kings with the already mentioned sanction of poena cullei515. The protagonists of the joke wanted to evade this cruel punishment by an ingenious role reversal. Interestingly, however, the idea of conversion would not have achieved the desired effect: it was the son who planned the murder and let his father be killed even if he did not kill him with his own hands. What mattered was the intention, dolus malus.516 What might be interesting for a Roman reader were the motifs of the two young future parricides. One of the problems arising from the strong paternal power was the lack of financial independence of children even when they reached puberty. The famous case of Macedo shows that the youngsters longed for their fathers’ property so much that they were ready to accelerate their death. That was the reason for the emation of the senatusconsultum Macedonianum.517 512 Cf. also Philogelos 38. Cf. Ch. Laes, Children..., p. 137. 513 The same joke was repeated in Philogelos 152. Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 56; M. Andreassi, Le facezie..., pp. 87-89. 514 Plut., Comp. Thes. Rom. 35,4. 515 Cf. E. Cantarella, I supplizi capitali..., p. 215 and ff.; M. Jońca, ‘Parricidium’...,p. 43 ff. 516 Cf. D. 48,9,1 (Marc. 14 inst.); D. 48,9,6 (Ulp. 8 de off. procons.); I. 4, 18, 6. Cf. K. Amielańczyk, ‘Crimina legitima’..., pp. 231-233. 517 D. 14,6,1 pr. (Ulp. 29 ad ed.). 2. CRIMINAL LAW 167 A similar motif can also be found in one of the declamations attributed to Quintilian.518 There, two young men agreed that each of them would hit the other’s father. The sanction set for them is fictitious: it is cutting off the hand, that is retaliatory punishment. Its harshness, however, shows that the raising one’s hand to a parent was treated as severely in the imperial as in archaic times when the guilty one became sacer.519 Both in Greek and Roman philosophical writings, reflections were made on the function of punishment.520 In the Attic Nights, Gellius described three reasons for punishing crimes521 mentioned by Plato:522 when the punishment is used to scold and rectify the offender (special prevention); when the punishment is to keep the victim’s dignity; and when the punishment is necessary to set an example so others will not commit crimes (that is, for general prevention).523 Philogelos 111: En bdhvroi o[no lqw;n eij to; gumnvsion eijshlqe ki; to; e[lionejxevceen.oide;suneqlovnteki;metpemvmenoipvnt tou;o[nouejnth povleiki;eije{nsunggovntetovponpro; to;jsflivssqiejnwvpionujtwnto;no[nonejmstivgwsn. In Abdera a donkey goes missing and manages to get into the gymnasium and spill the contents of the ointment jar. The Abderites get together and send for all the donkeys in town. Gathering them into one place, they whip the guilty party in front of the others – just to make sure it won’t happen again. 518 Pseudo Quint., Decl. min. 362. 519 Leges regiae: Servius Tullius 6 = Fest. s.v. plorare 260 L.; FIRA I; A. Tarwacka, ‘Leges regiae’. Tekst – tłumaczenie – komentarz, «Zeszyty Prawnicze » 4.1/2004, pp. 248-249 and 254. 520 Cf. F. Lucrezi, ‘Ne peccetur’, ‘quia peccatum est’: sulle ragioni della pena nel mondo antico, [in:] ‘Inter cives nec non peregrinos’. Essays in honour of Boudewijn Sirks, ed. J. Hallebeek, R. Fiori, M. Schermaier, J.-P. Coriat, E. Metzger, Göttingen 2014, pp. 459-467. 521 Cf. O Diliberto, La pena tra filosofia e diritto nelle ‘Noctes Atticae’ di Aulo Gellio, [in:] Il problema della pena criminale fra filosofia greca e diritto romano, Napoli 1993, pp. 121-172. 522 Plat., Gorg. 535 b. Cf. also Arist., Rhet. 1369 b. Cf. J. Hillner, Prison, Punishment and Penance in Late Antiquity, Cambridge 2015, pp. 38-39. 523 Gell. 7,14. Cf. Ps.-Quint., Decl. Min. 274. See also M. Ducos, Les Romains et la loi. Recherches sur les rapports de la philosophie grecque et de la tradition romaine à la fin de la République, Paris 1984, p. 355 ; A. Tarwacka, Ofiara przestępstwa w myśli starożytnej, [in:] Z problematyki wiktymologii. Księga dedykowana Profesor Ewie Bieńkowskiej, ed. L. Mazowiecka, W. Klaus, A. Tarwacka, Warszawa 2017, pp. 42 ff. 168 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW Punishing the donkey in the presence of other representatives of its species is undoubtedly a reference to the preventive function of punishment. In this case, it is supposed to be general prevention.524 The donkey was punished for escaping, entering the gymnasium and spilling olive oil.525 It is a technique based on the anthropomorphization of an animal, assuming that it is able to understand its actions.526 Punishing animals to deter others was not an unknown practice for the Romans. Pliny said that lions were crucified in Africa so as to prevent other conspecifics from attacking villages,527 and castrated field mice were released to cause the escape of others.528 It is impossible, however, to resist the impression that the joke in question is an allusion to punishing escaped slaves. A spectacular sanction was to deter others and discourage them from running away. Another object of black humour was suicide.529 Quite a light attitude towards the problem situates these jokes rather in the pre-Christian era. Philogelos 112: bdhrivth jpvgxsqi boulovmeno ki; tou scoinivou  dirrgevnto th;n keflh;n ejplhvgh. lbw;n ou\n e[mplstron pr; tou ijtrou ki; qei; kt; tou truvmto, jpelqw;n pvlinjphvgxto. An Abderite wants to hang himself, but the rope breaks and he gets a bad bump on the head. He goes to the doctor, gets some salve, rubs it on the wound, and then goes ahead and hangs himself again. In this joke,530 the hero hanged himself, doing it even twice (gallows hu524 Cf. D. 48,19,28,15 (Call. 6 de cogn.): Famosos latrones in his locis, ubi grassati sunt, furca figendos compluribus placuit, ut et conspectu deterreantur alii ab isdem facinoribus... (It has been held by many authorities that notorious robbers should be hanged in those very places which they had subjected to pillage, in order that others might be deterred by their example from perpetrating the same crimes... Transl. S. P. Scott). 525 Cf. commentary B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 72, who accurately noticed that poring olive oil was a costful incident. 526 Cf. R. Düll, Zum Anthropomorphismus im antiken Recht, «ZSS» 64/1944, p. 346 and ff.; R. Zimmermann, The Law of Obligations..., p. 1097 and ff. 527 Plin. Mai. 8,47. Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 235. 528 Plin. Mai. 30,148. Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 235. 529 Cf. also Philogelos 109 disscused below, and also Philogelos 248. 530 Cf. Anth. Pal. 11,169; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 81; 2. CRIMINAL LAW 169 mour, indeed). There is no convincing evidence that suicide was banned in the classical law period.531 However, this was not a glorious type of death. Censors, for example, punished with a note those who (unsuccessfully) threatened their own lives.532 Hanging oneself was considered a hideous, worst possible way to commit a suicide.533 D. 3,2,11,3 (Ulp. 6 ad ed.): Non solent autem lugeri, ut Neratius ait, hostes vel perduellionis damnati nec suspendiosi nec qui manus sibi intulerunt non taedio vitae, sed mala conscientia. It is not customary, as Neratius says, to mourn for enemies, or for persons condemned for treason, or for those who hang, or otherwise lay violent hands upon themselves, not from being tired of life, but on account of bad consciences. (transl. S. P. Scott) According to Ulpian, there was no mourning over hangmen. In the further part of the text, the jurist wrote that this also concerned people who took their own lives not because of weariness but because of guilty conscience. The term suspendiosus should be understood as ‘the one that hanged himself’. Hence, hanging oneself was a type of suicide that caused no mourning in any case, whereas in the event of taking one’s own life in other ways mourning was excluded only with mala conscientia.534 Besides, pontifical law also obliged to deliver no burial of a hangman.535 M. Andreassi, Le facezie..., p. 118. 531 Cf. A. Wacke, Der Selbstmord im römischen Recht und in der Rechtsentwicklung, «ZSS» 97/1980, pp. 26-77; J. Rominkiewicz, Samobójstwo w prawie rzymskim, «Acta UWr. » 2616/2004, Prawo 288, pp. 49-79; M. Kuryłowicz, ‘Libera mortis facultas’ w państwie i prawie rzymskim, [in:] ‘Iudicium et scientia’. Księga jubileuszowa Prof. Romualda Kmiecika, ed. A. Taracha, Warszawa 2011, pp. 715-725; Idem, Ausgewählte Selbstmordaspekte im römischen Staat und Recht, [in:] Scripta minora selecta. Ausgewählte Schriften zum römischen Recht, Lublin 2014, pp. 174-184. 532 It is indirectly proven by: Plin. Mai. 36,107-108; Suet., Claud. 16; Serv., In Verg. Aen. 12,603. Cf. Th. Mommsen, Römisches Staatsrecht..., II.1, pp. 377-382. 533 Cf. Verg., Aen 12,603; J. Rominkiewicz, op. cit., pp. 59-60. 534 Cf. A. Wacke, op. cit., p. 43; J. Rominkiewicz, op. cit., p. 60; A. D. Manfredini, Il suicidio. Studi di diritto romano, Torino 2008, pp. 180-182. 535 Serv. Ad Verg. Aen. 12,603; cf. CIL I 1418 (= XI 6528); A. Wacke, op. cit., p. 44; J. Rominkiewicz, op. cit., p. 60. See also M. Kuryłowicz, ‘Taedium vitae’ w rzymskim prawie karnym, [in:] ‘Contra leges et bonos mores’. Przestępstwa obyczajowe w starożytnej Grecji i Rzymie, ed. H. Kowalski, M. Kuryłowicz, Lublin 2005, p. 188 ff., on suicides 170 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW 3. Lawsuits and trials A few jokes in Philogelos deal with procedural issues, both criminal and civil proceedings. In one case, we are dealing with a locus communis. Philogelos 264: Eujtrvpelo ejpi; hgemovno ejdikvzeto. tou de; nustvzonto ejbovhsen:Ekkloumi.ode;e[fh:Epi;tivn_kjkeino:Epi;se; grhgorount. A sharp lawyer is pleading a case before a judge. When the judge nodds off, the lawyer shouts, ‘I appeal!’ ‘To whom?’, asks the judge. ‘To you, to wake up!’ This anecdote536 repeated multiple times concerns Philip of Macedon, who wrongly sentenced a person and was dozing off when adjudicating.537 The accused appealed to him as soon as he would wake up. It seems that generalizing and stripping the text off the personal details may indicate that the joke may have been adapted to the realities of the Roman Empire, as it suited any type of a trial. The term hgemwvn indicates that the judge was probably a provincial governor538 although, as mentioned before, he could even be the emperor himself. It is worth noting that the protagonist of the joke is the only positive character appearing in Philogelos, eujtrvpelo, who is smart enough to find a way to draw the bored judge’s attention to his problem. There is no information about the final outcome of the trial but from anecdotal versions it is known that the embarrassed king reconsidered the case in favour of the person involved. The problem of the rightness of decisions made in courts was of great concern to the parties. Philogelos 109: Mwro;jkouvso{tiejn$idoudivkikrithvri,prgme[cwn committed to avoid responsibility for a crime. 536 Cf. Plut., Mor. 178 f; Val. Max. 6.2 ext. 1; Stob. 3,13,49; S. West, Not at Home. Nasica’s Witticism and Other Stories, «CQ» 42.1/1992, pp. 287-288; M. Andreassi, Le facezie..., pp. 77-78. 537 In Valerius Maximus’ version, the king was not sober. 538 Cf. D. 1,16,9,2 (Ulp. 1 de off. procons.); D. 1,18,19 (Call. 1 de cogn.). 3. LAWSUITS AND TRIALS 171 jphvgxto. A dunce hears that fair judgements are made in Hades. Since he has a case in court, he hangs himself. The problem of unfair sentences from the joke539 cannot be attributed to one legal order, one epoch or one kind of court proceedings. It appeared rather commonly in various areas of the ancient Mediterranean region. The mythological allusion in this jest concerns the legendary justice of three underworld judges: Minos, Rhadamanthus and Aeacus. Also the jurist Sextus Caecilius lamented on corruption in Roman courts in his discussion about the Law of the XII Tables with the philosopher Favorinus quoted by Gellius, fondly recollecting the provision of punishing a bribed judge with death.540 Political processes were a part of public life. Philogelos 179: En Kuvmh dhmgwgo; ejn ejkklhsiv kthgorhqeiv: #ndre, e[fh,politi,eijme;nkteeusmevnoimout;dibol;eijsin ou|toi, gevnoito ujtoi pr umwn ktgnwsqhni: eij dev ti ejgw;touvtwnpepoivhk,pvntwnumwnkqhmevnwnejmoi;movnwto; qevtronejpipevsoi. In Kyme, before the general assembly, a politician has been accused of criminal behavior. ‘Fellow citizens,’ he declaims, ‘if it turns out that these people have laid false charges against me, let them be condemned by you; but if I have committed any of those crimes, let this auditorium fall upon me while all of you are sitting here before me.’ This joke541 relates to the politician’s trial before the local assembly in Kyme, defined as ejkklhsiv, which took place in the theatre. It is not known what the allegations were about. However, it seems likely that after the end of his term in the office the dhmgwgov was indicted in connection with his performance in a local office. 539 Cf. B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 80. 540 Tab. 9,3 (FIRA I); Gell. 20,1,7-8; M. and J. Zabłoccy, op. cit., pp. 64-65; J. Zabłocki, Rozważania o procesie rzymskim w ‘Noctes Atticae’ Aulusa Gelliusa, Warszawa 1999, p. 54. 541 Cf. A. Thierfelder, ‘Philogelos’ der Lachfreund..., pp. 254-255; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 95. 172 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW When the magistrate mentions the possible condemnation of those who accused him, he means calumny542 or bringing false accusations. Another joke takes place in Kyme, and this time it is one related to a civil trial. Philogelos 178: Kumioiduvoijscvdwnkervmiduvoejprivnto.touvtwnde;oe{tero to;n e{teron lnqvnwn oujk ejk tou ijdivou, jll; ejk tou etevrou kthvsqien.wde;toijllhvlwnktecrhvsnto,e{kstoejpi;to; i[dionejpistreveu|renujto;kenovn.jllhvlwnou\nejpilbovmenoi h[gonto ejpi; to;n [rcont. dignou; de; o [rcwn ejkevleuse t; kenwvmtjllvxiki;t;tim;jllhvloijpodouni. Two Kymaeans buy two jugs full of dried figs. On the sly, each of them eats from the other’s jug rather than from his own. When they’ve consumed all of each other’s figs, each one turns back to his own jug, only to find it empty. So they arrest each other and bring themselves before the magistrate. His verdict: they must exchange their empty jugs and refund to each other the price of the figs. Two Kymaeans apparently decided to sue each other reciprocally for theft. One brought the other to an official who, after hearing the parties, made a decision. The archon mentioned in the text, that is the main local official, had jurisdictional rights. However, there is a doubt about the interpretation of the magistrate’s action. It can be assumed that he issued a judgment. Then we would deal with a one-step procedure characteristic of the cognitio extra ordinem. Yet, the term ejkevleuse may also indicate a decision of an administrative nature, which would suggest that the archon preferred to end the dispute in an extrajudicial way.543 It should be emphasized that the Kymaeans brought each other to the magistrate. This points to the fact that we are dealing with a private activity that seems to be a typical Roman in ius vocatio, not a public call. The source of humour in this joke is the archon’s absurd decision. We can, however, consider what the recipients really laughed at here. There are references in the sources about how judges coped in cases when they faced issues difficult to resolve. Their judgments sometimes seem ridiculous but they usually have a deep meaning, leading to ‘hushing a dispute’ and get542 D. 48,16,1,1 (Marcian. l. s. ad sc. Turpill.). 543 Cf. e.g. P.Cair. Isid. 63; J. Harries, Law and Empire in Late Antiquity, Cambridge 1999, p. 186. 3. LAWSUITS AND TRIALS 173 ting a fair result. As an example, we should take a look at the case described by Gellius of a woman from Smyrna, who poisoned her husband and son, justifying her act with the fact that they had previously murdered her son from the first marriage.544 The proconsul Dolabella could not settle the matter, nor could his consilium. When the trial was carried out before the Athenian Areopagus, the judges adjourned the case… for a hundred years. Another example is a trial about the return of the dowry, in which Marius545 was the judge. There was a dispute between Titinius and Fannia, whom the former divorced because of her indecency and he wanted to keep the dowry for himself. The judge tried to dissuade Titinius from that knowing that he had deliberately married a dissolute woman in order to be able to get rich at her expense. Forced to issue a sentence, Marius punished Fannia with one sestertius for indignity, and ordered Titinius to return the whole amount of the dowry, allowing him to keep (retentio) only the one sestertius. In the case in question, the judge met with the facts in which one of the parties ate the figs of the other and vice versa. Thus, he had two twin cases in which the plaintiff and the defendant changed places, and the object of the dispute was identical. The decision confirms this because both Kymaeans had to give the same amount as they got back. The official had a sense of humour: he perceived situational absurdity and made the decision in the same convention. The jokes in the collection also refer to the issue of appointing witnesses in a trial. Philogelos 149 b: $Ubrew ejn blneivw genomevnh eujtrvpelo rhvtwr kthgovrei ki; mvrtur ejkvlei tou; pericuvt. twn de; jpobllomevnwnwmh;o[ntwn...e[fh:Eijme;nejntwDourivw i{ppw h\n, prevscon [n mvrtur Menevlon ki; Odussev ki; Diomhvdhn:eij de; enblneivw,jnvgkhtou;pericuvt to;prcqe;nmlloneijdevni. A sharp lawyer, having been insulted by someone in a public bath, goes to court and calls the bath attendants witnesses. The 544 Gell. 12,7. Cf. Val. Max. 8,1 amb. 2; J. Zabłocki, Rozważania..., s. 103 i n; Idem, ‘Iudicis et amici officium salvare’. Na marginesie Gell. 1,3, [in:] Prawo karne i polityka w państwie rzymskim, ed. K. Amielańczyk, A. Dębiński, D. Słapek, Lublin 2015, p. 226. 545 Val. Max. 8,2,3; Plut., Mar. 38, 3-4. 174 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW defendant rejects the witnesses as not being credible. The lawyer counters, ‘If I had been insulted inside the wooden horse of Troy, I would have called the attendants of Menelaos and Odysseus and Diomedes as witnesses. But since the insult occurred in the bath house, the bath attendants must be the ones most likely to know what happened.’ The joke546 refers to the trial initiated in connection with u{bri, which in Latin can be translated as an iniuria,547 that is an insult. The tort was committed in a bathhouse, or a public place. It is difficult to say what kind of insult was committed: it could have had a verbal character, but it could also have been physical violence, including a sexual assault. It cannot be ruled out however that u{bri only means that the customer was badly served. The jokes concerns a trial that seems to be private and based on the actio iniuriarum aestimatoria. The plaintiff, who was also an advocate, called on as witnesses the bathhouse workers, mediastini, probably slaves doing various types of work there.548 D. 22,5,3 pr. (Call. 4 de cogn.): Testium fides diligenter examinanda est. ideoque in persona eorum exploranda erunt in primis condicio cuiusque, utrum quis decurio an plebeius sit: et an honestae et inculpatae vitae an vero notatus quis et reprehensibilis: an locuples vel egens sit, ut lucri causa quid facile admittat: vel an inimicus ei sit, adversus quem testimonium fert, vel amicus ei sit, pro quo testimonium dat. nam si careat suspicione testimonium vel propter personam a qua fertur (quod honesta sit) vel propter causam (quod neque lucri neque gratiae neque inimicitiae causa fit), admittendus est. The integrity of witnesses should be carefully investigated, and in consideration of their personal characteristics, attention should 546 The first version of the story was probably connected with the Athenian orator Demas. Cf. Gnomologicum Vaticanum 241 (ed. Sternbach); A. Thierfelder, ‘Philogelos’ der Lachfreund..., p. 245; B. Baldwin, The ‘Philogelos’ or Laughter-lover..., p. 90. 547 Cf. I. 4,4,1. The term u{bri is more capacious in meaning.. 548 Cf. M. Wissemann, Das Personal des antiken römischen Bades, «Glotta» 62.1-2/1984, pp. 85-86, who actually said that the terms prcuvthand pericuvthused in Philogelos are equivalents to the Latin word mediastinus, or a staff member who was at the lowest level of the hierarchy. See also Philogelos 58, where the bathhouse worker – prcuvth – pours water on the entering client’s legs. 3. LAWSUITS AND TRIALS 175 be, in the first place, paid to their rank; as to whether the witness is a Decurion or a plebeian; whether his life is honorable and without blame, or whether he has been branded with infamy and is liable to censure; whether he is rich or poor, lest he may readily swear falsely for the purpose of gain; whether he is an enemy to him against whom he testifies, or whether he is a friend to him in whose favor he gives his evidence. For if the witness is free from suspicion, either because his personal character is beyond reproach, for the reason that he is neither influenced by the expectation of gain, nor by any inducements of favor or enmity, he will be competent. (transl. S. P. Scott) Witnesses’ testimonies549 were very important to the Romans. Callistratus stated that it was necessary to carefully examine the credibility (fides) of appointed witnesses: their social status, honesty, prosperity, as well as bonds of friendship connecting them with the parties to the dispute. Testimonies could be admitted if they were free from suspicion: either because of the person when the witness was considered honest, or because of the case, when it was accepted that they did work profit in the context of gratitude or hostility. Apparently, therefore, the bathhouse employees were not seen as credible witnesses. There were many thefts in the baths.550 It was believed that the cloakroom attendants (capsarii) guarding clothes often made it easier for thieves to work with them in collusion. They could be free, but they were often slaves, who – usually for a fee – kept an eye on the clothes left by the clients of the bath house in the apodyterium. D. 1,15,3,5 (Paul. de off. praef. vigil.): Adversus capsarios quoque, qui mercede servanda in balineis vestimenta suscipiunt, iudex est constitutus, ut, si quid in servandis vestimentis fraudulenter admiserint, ipse cognoscat. He also has supervision over those who, for a compensation, take 549 Cf. PS. 5,15,1. 550 Cf. Plaut., Rud. 382-385; Cat., Carm. 33,1; Petr., Sat. 30. A client of the bathhouse who left the money in the cloakroom should have declared it, because otherwise he himself would bear the risk of theft; cf. the inscription found in the Hadrian baths in Aphrodisias (Turkey) IAph2007 5,4, http://insaph.kcl.ac.uk/iaph2007/iAph050004.html. 176 IV. PHILOGELOS PROTAGONISTS CONFLICTING THE LAW charge of clothing in the baths; and if while performing this duty they are guilty of any illegal acts he must take cognizance of them. (transl. S. P. Scott) Paulus wrote that the Prefect of the Watch was appointed a judge to decide against cloakroom attendants who looked after clothes for a fee if they would act dishonestly while guarding clothing. This regulation indicates that the problem was not trivial since it was decided to introduce the jurisdiction of praefectus vigilum.551 It seems that it is criminal jurisdiction, which occurred alongside civil liability for a lease contract based on the obligation of custodia.552 Some customers came to a bathhouse with their own slave, whose task was to look after the master’s things.553 In the post-classical textbook for learning Latin, Colloquia Monacensia, there is a significant warning for such a slave: ne addormias propter fures!, that is ‘do not fall asleep because of thieves!’ 554 It appears that the bad reputation of capsarii reached out to mediastini, who were also seen as unreliable. Anyway, the opponent of the insulted referred to it. Perhaps, however, being a lawyer, the protagonist of the joke would be able to repel such a charge, claiming that the slave status itself did not have to indicate a lack of credibility. It must be remembered that the testimonies of mediastini would have to be obtained by torture. 4. Summary The jests discussed in this chapter referred to obligations arising from torts, mainly thefts, as well as to criminal law and trials. Problems related to situations of conflicting the law had to be quite lively since it is the topic of many a joke. Texts concerning thefts indicate high impudence of perpetrators; more551 Cf. G.G. Fagan, op. cit., p. 36 ff.; P. Kołodko, The Powers and Significance of the Prefect of the ‘vigiles’ (‘praefectus vigilum’) in Ancient Rome, «Zeszyty Prawnicze» 12.4/2012, pp. 209-210. 552 Cf. D. 16,3,1,8 (Ulp. 30 ad ed.). Recently on that subject M. Serrano-Vicente, ‘Custodiam praestare’: la prestación de custodia en el derecho romano, Madrid 2006, pp. 137-139. 553 Cf. G.G. Fagan, op. cit., pp. 199-200. 554 CGL 3,651,10. 3. SUMMARY 177 over, they prove the fact that a thief could be a person known to a victim, sometimes even connected to them with contractual ties (Philogelos 142). The objects of furtum were everyday items but also documents (Philogelos 161) made on tablets or papyri, as well as animals and fruits. In jokes related to criminal law, we can see elements of the philosophy of punishment. They also show the cross-section of applicable sanctions and crimes committed. When considering a trial, Philogelos gives a picture of problems faced by individuals in the face of justice. Judges were not always interested in the parties’ problems; judgments happened to be unfair. The text relating to appointing trial witnesses (Philogelos 149 b), which confirms the need to prove their credibility, seems very interesting. It should be noted that undermining it by one party did not exclude the admission of testimony when the other one proved their usefulness. Conclusions Laughter is a unique feature of the human race, probably having no equivalent in the animal world. A man is zwongelwon. Laughter can express a lot, it also allows us to relieve emotions. Jokes play a big social role, being a part of mass culture and cultural code. A given epoch can be examined on the basis of many types of archaeological, historical and literary evidence. Jokes can also be the source for conducting such research as they usually give a good, though distorted, image of everyday life, fears, joys, as well as phobias of a given community. In the culture of ancient Rome, the law played a unique role because it was an integral element of collective consciousness on an unprecedented scale. Citizens of the Republic lived the law and knew it perfectly. Later, with the growth of the state, the issue was not so obvious. However, it can be said that many residents of the Empire felt the importance of legal issues in their lives. The huge number of references to various legal institutions in Philogelos seems to confirm this regularity. Allusions to the law and even parodies of legal acts had occurred since the archaic times in Roman literature. These references were appreciated and met understanding, being a part of the author’s dialogue with the recipient. Humour was also present in the courtroom, being one of the rhetorical tools that the orator had. Roman jurists sometimes joked too although there are only few references in the sources about that. In Philogelos, however, court orators appear as the heroes of the jokes which makes it possible to see the basic disadvantages of those practicing this profession. Especially since the Principate, orators had been trained with the use of exercises that deviated from reality, which is confirmed by the joke about a rhetoric student who indeed wanted to demonstrate his artistry and argued that the best opportunity would be a life-and-death trial in which his father would be accused (Philogelos 54) . The lack of professionalism is also demonstrated by the speaker’s failure to keep the secret and reveal the details of the prepared speech (Philogelos 68). CONCLUSIONS 179 Many jokes point to various aspects of the status of people in public and private law, and it should be remembered that they illustrate the reality of the Empire after the Constitutio Antoniniana, in which free people had Roman citizenship (although some jokes were made in the earlier period). In Philogelos, you can find much information about the administration and everyday life of officials. Provincial governors were often tired of their duties, and putting the tribunal in an attractive place could cheer them up a bit. They also had to travel a lot around a subordinate province. Local officials were burdened with jurisdictional duties, and they had to see to munera a community was supposed to fulfil, like welcoming a significant guest with due honours. Residents of provincial cities participated in assemblies. Perhaps one of the jokes (Philogelos 74) was originally an anecdote referring to censorial care over good morals, specifically to punishing an eques with a note because of the neglect of a horse entrusted to him by the state. However, this is just a hypothesis. The various kinds of anxieties troubling the borders of the Empire resulted in the fear of the population, so one of the themes of the collection is the army: its marching, sieges of cities, battles, assaults. The joke about the two smart alecs hiding from the enemy in the well (Philogelos 96) seems very interesting to joke about, and here we can hypothesize about its connection with the proscriptions of the so-called ‘Second Triumvirate’. Proscribed citizens often sought shelter for fear of their own lives, and the army was looking for them. The elements of public life that can be followed in the discussed text are the Games, theatrical performances or sports competitions. A difficult joke about venationes (Philogelos 216), in which the jealous man asks the governor to release a bear into the arena, can be explained if we assume that the protagonist fought wild animals himself and was envious of a more agile and effective companion. Regarding Roman citizenship and related privileges, we should pay attention to the joke on the prohibition of flogging (Philogelos 138). Its background is the provocatio ad populum, which has Republican roots. During the Principate, the status of a citizen provided personal inviolability, and an official violating that was exposed to sanctions from the lex Iulia de vi publica. With time, however, there were significant changes that caused humiliores to be flogged and even tortured. Nevertheless, the discussed joke was included in the set, which means that it had to be understandable at 180 CONCLUSIONS least for some. It may be related to the fact that the story described in it is similar to the story of Saint Paul whose Roman citizenship also saved him from flogging. In the area of private law, Philogelos allows us to trace legal practice associated with the institution of marriage, paternal authority and slavery. Many jokes indicate misogynist tendencies of the male part of the society. Women are objectified although the joke about selling and confiscating a wife (Philogelos 246) is a clear satire at such behaviour. The object of mockery is also adultery, incest as well as dowry matters. Relationship between fathers and sons described in the collection do not necessarily result from executing patria potestas by the former. It seems, however, that the enormous influence of the parent on the upbringing of their offspring, the possibility of punishing, as well as financing their education precisely indicate to the existence of such power. Slaves very often appear in jokes but usually they are only a background for events taking place. On the other hand, the texts describing the actual relationship between a master and a child delivered by his female slave, where there is no legal bond, apart from property rights, still show an an emotional affiliation. In jokes, there is also the topic of manumission through a testament (manumissio testamentaria). Philogelos protagonists also face problems related to ownership, accepting an inheritance, and are parties to various contracts too. An exceptionally interesting case of action aimed at protecting property is the joke in which on his gate the smart alec posted a notice on leaving impurities, announcing that he would not return them (Philogelos 85). It seems that the text may indicate the fear of possible sanctions imposed by officials responsible for keeping the streets clean, for example the aediles, or their local counterparts. Magistrates could charge a property owner for cleaning an adjoining road, or impose a fine. The legal problems mentioned in jokes were caused by the activity of rivers on the shores of properties, as well as the question of branches of fruit trees hanging over the neighbouring land. An inheritance is what links the deceased to the world of the living, and what they left behind. It is therefore an aspect of the law that always arouses interest in the broad circles of the public. In Philogelos, there are both jokes about inheriting on the basis of a will as well as intestacy. There is a visible reluctance to part with goods accumulated during life, which results in establishing oneself as an heir (Philogelos 104). However, even CONCLUSIONS 181 a person reconciled with the inevitable wants to provide themselves at least a good place for the grave. The joke about the legate indicates a tendency to rebuke the testator’s liking in order to get a lucrative increment, which can be interpreted as a characteristic of inheritance hunters. In turn, intestacy caused emotions mainly due to the circle of people admitted to it. A living father pushed his son away from the possibility of inheriting from the latter’s grandfather. It is a natural turn of things but the son’s reaction accurately illustrates the conflict of generations. Contracts concluded by the protagonists of the jokes are loans, commodates, sale contracts, lease contracts and mandates. The joke about the smart alec who is supposed to return a donkey to someone and proposes to give two mules, or half-donkeys, instead seems exceptionally observant (Philogelos 127). The source of humour here is the problem of the difference between fungibles, which are replaceable and can be the object of a loan, and non-fungibles, which are irreplaceable and can be a part of a commodate. These two contracts must quite often have been confused in everyday language, as it happens nowadays. It should be noted that if a borrower had to return the same number of the same type of things, for example a certain amount of money, a commodatarius had to return the same thing in a non-deteriorated condition. In this case, the smart alec – if the commodans agreed to accept the proposed service – would suffer a significant loss resulting from the difference in price between a mule and a donkey. Two other jokes seem extremely intriguing: they illustrate the sale contract concluded in such a way that the buyer can eat as much bread or figs as he wants in the bakery or in the orchard for a given price (Philogelos 224 and 225). The agreement arranged like this fulfilled the essentialia negotii of sale. Although the parties did not know exactly how much food was the subject of the contract, still it was a closed quantity that could be determined to a certain degree: these were things in a given place (an orchard, a bakery) that the buyer was supposed to eat at once. A contract of this type could be concluded for example by travellers who were staying with random hosts. Its common nature can explain the lack of interest among Roman jurists. A seller took a certain risk, assuming, however, that the established price was enough to cover the consumed goods. Therefore, it is possible to recognize the contract might be taken with a pinch of salt as an ancient prototype of the ‘all you can eat’ offer. 182 CONCLUSIONS In Philogelos, we can also find plenty of information about a seller’s liability for defective goods. The joke that seems to be most interesting is about the smart alec who when informed by the buyer that the sold slave had died replied that while he had been with him he had never done anything like that (Philogelos 18). In this jest, we are dealing with a comic cluster of two physical defects that are subject to the edict of the curule aediles: the slave’s tendency to escape and their illness. The buyer, giving information about death, suggests that the slave was sick, but the smart alec replies as if the allegation concerned a servus fugitivus. A lease contract was very often associated with maritime transport. One of the jokes is about a jettison carried out during the storm (Philogelos 80). This is a very interesting reference to the regulations contained in the lex Rhodia de iactu, used in the whole Mediterranean area, aimed at, on the one hand, providing travellers with safety by relieving the ship, on the other hand, at giving the possibility to get compensation for goods thrown into the sea using the actio locati and the actio conducti. Particular attention should be paid to the joke about the smart alec deporting works of art from Corinth; he threatened the carriers that if they destroyed them, they would have to replace them with the new ones (Philogelos 78). Although it is a simplified version of the Republican anecdote, the differences between the texts are significant. In the earlier version, Mummius was to tell the carriers that they would have replace the works of art lost in transport, while the smart alec was speaking about their destruction. The commander wanted to emphasize that he would not take any exonerative circumstances into account, even force majeure, and he would demand obligation fulfilment also when it was impossible. However, it turned against him. The joke in Philogelos clearly shows that the unnamed smart alec, and earlier also Mummius himself, was considered so silly that he was unable to predict the loss associated with the acceptance of copies in exchange for the original works of art. A lease agreement was also concluded on the service market, for example concerning prostitution. A few jokes talk about hairdressers, but it is worth paying attention to the problem of apprentices working for them in course of their education. The master could punish them but he was also responsible if they caused damage. Jokes on doctors indicate that the basis of their profession were lease contracts concluded in such a way that they received the payment after healing a patient. There are also frequent references to services provided by fortune tellers but these acted on the fringes CONCLUSIONS 183 of the law, and therefore it is difficult to suppose that contracts agreed with them had any legal protection. A few jokes talk about renting a flat. Customers were sometimes dissatisfied with the amount of the rent, but sometimes there were instances of unlawful eviction, in which case the landlord was obliged to provide compensation in id quod interest. Jokes regarding the mandate address two main issues. The first of these is the problem of exceeding the mandate limits. It can be seen in the jest about the smart alec who when asked to buy two fifteen-year-old slaves for a friend, says that if he does not have such a possibility, he will buy one thirty-year-old one (Philogelos 12). In such a situation, the contractor could not expect the return of incurred expenses, and it was also possible to sue him for failing to perform the mandate. The other problem relates to the conclusion of a contract in a letter, which is a form of expressing the will by the principal (Philogelos 17). The creation of an obligation in such a situation depends on the will of the potential mandatary. A liability arose if there was a person willing to carry out the mandate and undertook its performance. Philogelos protagonist sometimes commit torts or public law offenses, or they are participants in court proceedings. Many texts concern thefts, which leads to the conclusion about the universality of the phenomenon. Thieves were very bold, they were sometimes connected to those robbed, for instance through contracts. The object of the theft could be everyday objects but also documents. In the latter case, a penalty for stealing did not only cover the value of tablets or papyri but also the value of the debts recorded on them, even if they were paid off. Perpetrators sometimes tried to cover up their deed, as in the joke about the pig thief, who, when caught red-handed, claimed that the animal had acted to his detriment (Philogelos 146). Also, buyers of stolen goods tried to cover up their origin so that they would not be recognized, because in this case the acquisition of property, even through usucaption, was excluded. As far as criminal law is concerned, in jokes there are several references to various crimes: adultery, incest or parricide, as well as punishments, mainly different ways of executing the death penalty: crucifixion, burning alive and flogging. There are also allusions to committing suicide by hanging oneself, considered the most hideous and disgraceful way of taking one’s own life. Jokes related to procedural law point to several important features of private and criminal proceedings. Above all, judges did not always get 184 CONCLUSIONS involved in the case, often neglecting their duties. The opinion on courts was rather poor, since judgments given in Hades were considered most just. It also happened that judges received absurd cases to settle. In one of the jokes, there was raised the problem of the credibility of witnesses (Philogelos 149 b). The advocate claimed that the baths workers could not be allowed to testify, while the opponent argued that as they had been present at the scene, they knew the truth best. It was up to a judge to make a decision about who to appoint as a witness. From the jurist’s point of view, Philogelos, therefore, turns out to be a surprisingly interesting source text. It gives much information that might be selective, but helps to complement the image that we know from typically legal and non-legal sources, usually used in Romanist studies. A ‘eat as much as you want’ contract seems to be a complete novelty. In addition, the collection of the jokes shows many elements of the practice and reality of the Roman Empire, pointing to the fact that a certain scope of knowledge about the law was an important element of collective consciousness and cultural code. Philogelos jokes have a different origin, they were created in various periods and conditions. Many of them, however, cannot be fully understood and appreciated without recognizing the legal context. The examined legal institutions do not always have to be Roman. Many solutions, such as those relating to maintaining order in the city, had common features in various regions, which does not necessarily indicate their mutual influence. However, it should be remembered that the legal humour was popular with the Romans and had a wide range, whereas the Greeks, for instance, preferred political humour. The law in the Empire was not uniform, not even after the Constitutio Antoniniana. It seems, however, that many residents preferred to resort to Roman legal institutions in order to be sure that the performing of legal actions was important and effective. Also in the criminal law, there is a strong influence of Rome. The fact that Philogelos was ultimately compiled in the eastern part of the country does not speak for its ‘non-Roman’ character; quite the contrary. It was probably written down by a member of the intellectual elite for those who were able to understand the jokes. Even so, many jests were of the kind that could be heard at the hairdresser’s, then their final selection was determined by the taste of an educated man, one who knew how a loan differed from a commodate. CONCLUSIONS 185 Members of the Roman elite were not necessarily native Romans in the ethnic sense. They could come from even the outermost borders of the country; the mobility among the higher social strata was large even before the Edict of Caracalla. However, in order to make a career as a clerk, even on a local scale, one had to know a bit about the law and its nuances. All this confirms the observation that Philogelos has rather a Roman spirit, and the law has quite a prominent though not a leading place there. The times of the Roman Empire are the first moment in history when Europe (though not only because it came with a large piece of Africa and Asia) was united under one rule. Interestingly, the Romans were united by the common legal awareness and that’s why they managed to create norms that have formed the foundation of modern legal systems. Research on Roman law is therefore not only a historical issue, interesting for a narrow group of specialists, but a fundamental issue in the face of unification of the law in the European Union, as well as changes taking place in individual countries. The cultural identity of the Europeans will never be full without acknowledging the awareness of the role of Roman law. Taking a look at Antiquity through a distorting mirror can give us a unique opportunity to glance at the everyday life of ancient people, but also at our own. Source index Philogelos (ed. Thierfelder) 1 122 4 119 7 74243 10 120 12 147, 153, 183 13 166 17 b 148, 153, 183 18 112, 152, 182 21 74244 23 74243, 103340 24 94, 151 25 78 26 93, 151 27 142, 153 30 b 74243, 79, 94 35 158 37 119 38 166512 39 59190 40 59190 41 121 42 46145 45 68 46 32103 46 a 87, 151 47 74245 50 99 54 33, 36, 178 55 73 56 a 57 58 60 62 63 65 a 68 69 72 73 74 76 78 80 81 82 84 85 86 87 90 96 97 98 99 104 108 109 110 102 77 75246, 103340, 174548 44 50158 38 49155 33,36, 178 164 63207 94310 41, 179 74243 , 76252 132, 152, 182 124, 152, 182 128 49 46146 81, 151, 180 71, 98323 72 35113, 162 47, 179 100329 62 101, 151 90, 151, 180 74245 168529, 171 49154 187 SOURCE INDEX 111 112 121 124 127 130 131 132 134 137 138 139 142 145 146 b 148 149 149 b 150 151a 152 155 156 157 158 161 162 163 166 168 169 173 175 178 179 180 181 167 168 164 104342 96, 151, 181 74243, 103340 44139 46 46 101, 151 46147, 53, 80, 179 92, 151 155, 177 137 33106 , 160, 183 138454 75246, 103340 33106, 173, 177, 184 104 136 166513 119390 121394 120393 119389 156, 177 48 41, 103340 86, 151, 160491 73 74241 120 142, 153 172 171 40 39 187 a 194 a 198 199 200 201 202 206 208 209 210 211 a 212 a 213 a 214 215 216 217 218 219 224 225 226 227 229 a 229 b 239 a 246 247 a 248 251 254 261 263 264 143 145, 153 138 139, 153 140, 153 144 37117, 143465 124 50157 50157 50157 154 103 98 82270 145, 153 50, 179 50157 50157 70 105, 152, 181 105, 152, 181 51165 59190 95315 95 51166 59, 80, 180 58 168529 63 75 38 62 138, 138, 170 188 SOURCE INDEX Legal sources Codex Iustinianus 4,65,3 146470 5,12,14 70228 5,12,31 70228 6,60,1 71234 9,11,1 pr. 67219 9,18,5 144468 11,20,1 55178 12,30,1 71223 Codex Theodosianus 6,35,15 71233 8,18,1 71234 9,9,1 pr. 66 9,16,4 144468 9,19,4 128418 14,12,1 55178 Digesta Iustiniani 1,2,2,30 1,2,2,45 1,5,5,1 1,5,9 1,5,17 1,12,1,5 1,15,3,5 1,16,9,2 1,18,19 2,14,7,15 3,2,11,3 6,1,60 9,1,1 pr. 9,1,1,2 9,1,1,4 9,1,4 84277 3195 77253 37116 1310 65212 175 170538 170538 130425 169 65216 161493 161494 119391 161497 9,1,7 9,1,8 9,2,5,2 9,2,5,3 9,2,6 9,2,7,8 12,1,2,1 13,6,18 pr. 13,6,23 14,2,1 14,2,2 pr. 14,2,2,2 14,2,6 14,2,4,1 14,6,1 pr. 16,3,1,8 17,1,1,1 17,1,1,4 17,1,5 pr.-1 17,1,39 18,1,7,1 18,1,34,3 18,1,35,1 18,1,35,5 18,1,37 19,2,2,1 19,2,9,2 19,2,9,5 19,2,13,4 19,2,15,2 19,2,25,7 19,2,28,2 19,3,1,1 19,5,14,3 21,1,1,1 21,1,1,2 21,1,1,10 161497 161497 65216 141462 141462 142464 97320 100331 101335 125 126406 126407 126409 126408 166517 176552 148 150 147 130425 108 159 108 106 108353 122397 130 139459 140 47148 132 146 129424 161492 113 114363 118388 189 SOURCE INDEX 21,1,4,3 21,1,17 pr. 21,1,17,1-13 21,1,17,2 21,1,23,2 21,1,31,11 21,1,47,1 21,1,48 pr. 21,1,54 21,2,31 22,5,3 pr. 22,6,9 23,2,1 23,2,19 23,2,39,1 23,2,68 23,4,26 pr. 24,1,32,14 29,5,3,11 30,116 pr. 34,5,9,3 34,5,9,4 34,5,22 34,5,23 39,4, 14 39,4,16 pr. 39,4,16,3 39,6,3 39,6,6 41,1,7,2 43,8,2,22 43,10,1,5 43,16,1 pr.-4 44,7,1,4 47,2,3 47,2,3 pr. 47,2,7,1 65215, 119391 117383 117383 117382 65 116379 116 116379 117 114368 174 2261 57183 70228 67220 69225 79261 79261 66218 92306 79261 79261 79261 79261 61201 62203 62203 79262 79262 88290 83274 84 89293 100331 87287 155483 155484 47,2,7,2 47,2,14,17 47,2,25 pr. 47,2,25,2 47,2,27 pr. 47,2,83,3 47,8,2 pr. 47,8,2,7 47,10,15,27 47,10,32 47,21,2 47,21,3 48,2,5 48,5,39,2 48,6,7 48,6,10,2 48,7,3,2 48,8,12 48,9,1 48,9,6 48,9,9,2 48,16,1,1 48,18,5 48,19,10 pr. 48,19,28,11 48,19,28,15 50,15,54 50,16,46,1 50,16,213,2 50,16,223 pr. 50,16,225 50,17,132 155485 150479 87286 87286 157 157487 89292 89292 163500 56182 45142 45141 64 69225 52 52167 89294 65217 166516 166516 65217 172542 68 56180 165507 168524 158488 63209 1514 1514 117383 139459 Edictum Diocletiani de pretiis rerum venalium (ed. Lauffer) 32 98322 190 SOURCE INDEX Fragmentum Dositheanum 5 78259 8,7 9,3 Gai Institutiones 1,17 1,55 1,58-64 2,51 2,70-71 2,267 3,106 3,134 3,136 3,147 3,161 3,168 3,169 3,183 3,196 4,28 4,78 Novellae Valentiniani 21,2 94313 78259 70230 67220 87286 87 78260 65214 126410 149477 122 148474 133 98326 87287 100331, 101334 68 75247 Instituiones Iustiniani 2,10 pr. 90299 3,22,1 149477 3,24,4 122397 4,4,1 174547 4,9 119391 4,18,6 166516 Lex duodecim tabularum 1,1 2465 4,3 2363 5,4 95314 8,1 a-b 162499 8,6 161493 161492 171540 Pauli Sententiae 1,15,1 2,7,1 2,19,3-5 2,31,32 5,15,1 5,21 5,24,1 5,25,1 5,25,5 5,26,1 160 125405 67220 157487 175549 144486 165 127416 127417 52167 Regulae Ulpiani 5,6-7 6,1 20,1 67220 69227 90299 Theophilus Paraphrasis Institutionum (ed. J.H.A. Lokin, R. Meijering, B. H. Stolte, N. van der Wal) 14 pr. 97321 Non-legal sources Acta Apostolorum 22,25-29 54173 Anthologia Graeca 11,192 164506 191 SOURCE INDEX Anthologia Latina 93,5 44136 Anthologia Palatina 7,607 90302 11,169 169530 11,171 91303 11,382 92307 Apophthegmata Vindobonensia 131 123400 Aristoteles Rhetorica 1369 b 167522 Athenaeus Deipnosophistai 6,275 a 8,350 b 147473 123400 Aurelius Augustinus Hipponensis De civitate Dei 5,17 1310 Marcus Cato Maior De agricultura 5,3 103339 Marcus Tullius Cicero Epistulae Ad Atticum 4,17,3 1519 7,7,4 1519 Ad familiares 7,11,2 3093 Philosophica De legibus 2,9,22 69224 3,7 57186 De officiis 2,76 135446 De oratore 2,216-291 2781 2,217-218 12 2,246 39120 2,255 118386 2, 274 112 Topica 10 78259 Orationes In Verrem 1,21 34107 1,30 34107 1,54-55 34108 2,5,161-162 54172 Philippicae 2,69 2363 Pro Caelio 57 64211 Pro Rabirio perduellionis reo 3,8 53170 Cassius Dio Cocceianus Historia Romana 54,26,6 84277 55,2 2672 57,15,8 144467 61,33,8 3091 77,10,7 32102 192 SOURCE INDEX Gaius Valerius Catullus Carmina 33,1 175550 Gnomologicum Vaticanum (ed. Sternbach) 241 174546 Dio Chrysostomos Orationes 37,42 135440 Quintus Horatius Flaccus Carmina 4,2,23-24 44136 Epistulae 2,2,14-18 117384 Sermones 2,3,166-167 91305 Corpus Glossariorum Latinorum CGL 3,651,10 176554 Sextus Pompeius Festus De verborum significatu 95 L., s.v. inpolitias 260 L., s.v. plorare 550 L., s.v. Tappulam legem 550 L., s.v. Termino Sextus Iulius Frontinus Strategemata 4,3,14 135446 Aulus Gellius Noctes Atticae 1,6,2 4,12,2-3 4,20,11 6,15 7,12,1-2 7,14 10,3,10-13 11,18,11 11,18,13 12,7 16,7,13 20,1,7-8 57186 43133 42 101334 89297 167523 54172 87287 87286 173544 25 171540 Isidorus Hispalensis Origines 15,4 38118 43 167519 2777 45140 Decimus Iunius Iuvenalis Saturae 3,232-238 55177 6,279 64211 6,331-332 64211 133 Titus Livius Ab Urbe condita 1,58,4 Periochae 52 59 64211 135446 57186 Ambrosius Theodosius Macrobius Saturnalia 2,6,1 31100 2,6,2 3198 193 SOURCE INDEX Marcus Valerius Martialis Epigrammata 2,92 25 3,8 39120 3,11 39120 3,39 39120 4,65 39120 5,32 90 5,20,9 103340 6,7,1 58188 6,39 64211 6,78 39120 8,9 39120 8,13 65215 8,48 160490 8,59 39120 9,96 156 10,25 1519 11,73,6 39120 12,22 39120 Gaius Petronius Arbiter Saturnalia 1 33104 28,7 82266 30 175550 44,11 106348 71,8 82269 75,11 64211 Plato Gorgias 535 b 167522 Titus Maccius Plautus Amphitruo 928 23 Asinaria 480 751-754 792-795 Captivi 472 482 Cistellaria 469-472 Miles gloriosus 857-859 1276-1278 Pseudolus 143-228 Rudens 382-385 Stichus 400 24 2673 2673 111 111 2569 76 70229 2674 175550 111 Pseudo-Plautus Querolus (ed. Ranstrand) 38 76251 38-42 76250 40 76 Gaius Plinius Secundus (Maior) Historia naturalis 8,47 168527 10,2 2671 10,94 2671 10,95 2671 13,5,25 48151 18,66-67 106348 29,7 142463 30,148 168528 34,36 135446 36,107-108 169532 194 SOURCE INDEX Gaius Plinius Caecilius Secundus (Minor) Epistulae 8,18,1 90300 10,2 2671 10,45 150480 10,94 2671 10,95 2671 10,120 150480 Plutarch Vitae parallelae Cato Maior 9,6 89295 Comparatio Thesei et Romuli 35,4 166514 Marcellus 38,3-4 173545 Romulus 22 59191 Moralia 177 a 178 f 235 e 509 a 525 d 633 c 737 a 138455 138, 170536 62204 138455 62204 39120 135443 Polybios Historiae 2,15,4-6 110 Marcus Fabius Quintilianus Institutio oratoria 2,10 33104 6,3 6,3,7 6,3,23 6,3,29 6,3,47 6,3,49 6,3,65 6,3,76 6,3,86 6,3,87 6,3,98 12,9,5 12,9,16 12,9,17 2782 2780 112361 2884 2884, 2990 2885 111 2887 2988 3199 2989 34110 35111 35112 Pseudo-Quintilianus Declamationes minores 274 167523 341 61201 362 167518 Rhetorica ad Herennium 1,6,10 2783, 35114 1,7,11 35115 4,25,35 169500 Scriptores Historiae Augustae Hadrianus 17,5-7 104341 Heliogabalus 29,3 39121 Lucius Annaeus Seneca Philosophus De beneficiis 4,20,3 93308 195 SOURCE INDEX Lucius Annaeus Seneca Rhetor Controversiae 10,4,16 78256 Syrus (ed. Bickford-Smith) Sententiae 366 93309 Maurus Servius Honoratus In Vergilii Aeneidon 12,603 169535 Publius Cornelius Tacitus Annales 2,32 144467 13,31 60194 14,60 64211 Dialogus 29 72236 Gaius Iulius Solinus De mirabilibus mundi 46,3 48151 Strabo Geographica 8,6,23 13,3,6 135440 1518, 39122 Stobaeus Florilegium 3,13,49 138, 170536 Gaius Suetonius Tranquillus Vitae Caesarum Divus Claudius 16 169532 Divus Iulius 80,2 2675 Galba 9,1 54172 Nero 17 94312 Vitellius 14,4 2676, 144467 Suidas s.v. Filivstiwn (f 364) 113,5 Valerius Maximus Facta et dicta memorabilia 1,3,3 144467 2,9,1-2 57186 6.2 ext. 1 138, 170536 6,8,6 48150 8,1 amb. 2 173544 8,2,3 173545 Ioannes Tzetzes Chiliades (ed. Leone) 8,963-973 1736 Epistulae (ed. Leone) 50 1736 Velleius Paterculus Historiae 1,13,4 134 Publius Vergilius Maro Aeneis 12,603 169533 196 SOURCE INDEX Marcus Vitruvius Pollio De architectura 5,8 38118 Epigraphic sources AE 1939, 162 AE 1949, 48 AE 1989, 681 82268 82270 61199 CIL I, 1418 CIL IV, 64 CIL IV, 3782 CIL IV, 3832 CIL IV, 4586 CIL IV, 5380 CIL IV, 5438 CIL IV, 6641 CIL IV, 7038 CIL IV, 7716 CIL IV, 8561 CIL IV, 8899 CIL IV, 13740 CIL VI, 2357 CIL VI, 29848b CIL VI, 31614 CIL VI, 31615 CIL XI, 6528 169535 154481 82270 82270 82270 106348 82270 82270 82270, 83273 82270 106348 82268 82268 82268 82270 84 84276 169535 IAph2007 5,4 175550 I.Kition 2012 82271 ILS 8208 84 ILS 8761 2777 OGI 693 1516 SEG XIII, 521 = OGIS 483, col. I-II 85283 Lex Irnitana 19 86285 lex Lucerina 1 84275 Tabula Heracleensis (ed. Crawford) 32-48 86284 50-52 84277 56-58 55 TH 60 TH 62 TPSulp. 43 TPSulp. 51 TPSulp. 52 TPSulp. 70 TPSulp. 71 TPSulp. 72 TPSulp. 77 TPSulp. 78 TPSulp. 79 115371 115371 114 126411, 130426 126411 126411 126411 126411 126411 126411 130426 Papyri BGU I 316 BGU III 887 BGU IV 1058 P.Abinn. 64 P. Amph. II 138 P.Cair. Isid. 63 P. Cairo Masp. I 67120 P.Coll. Youtie I 30 P. Giss. 40 I P.Graux 4 P. Lond. II 301 P.Oxy. I 36, col. II, l. 10-12 P.Oxy. III 531 P.Oxy. III 531, 10-12 P.Oxy. IV 725 116376 116374 130428 116375 131431 172543 116377 145469 1310 162498 131431 61 73239 73240 139460 197 SOURCE INDEX P.Oxy. IX 1186 P.Oxy. X 1259 P.Oxy. XIV 1628 P.Oxy. XIV 1647 P.Oxy. XLIX 3488 P. Princ. III 151 54174 131431 131429 139460 131431 130428 P.Turner 22 P. Vindob. G 19792, recto l. 9 SB III 6016 SB V 8007 SB V 8086 SB X 10573 116374 127414 116375 116375 130428 131429 Bibliography Abbott F. 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