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COMMERCE; TRIALS OF CHRISTIANS
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a.
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no specialized commercial law, but a few contracts: emptio venditio, locatio
conductio, and stipulatio
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b.
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a law of business organization that must be regarded as rudimentary
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c.
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an almost total absence of public law until the Dominate
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2.
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Are we looking in the right place?
What kind of K is this? ““For sixty denarii to
be given on the day requested (for repayment) in good coin: promise called
for in good faith by Julius Alexander, duly given in good faith by
Alexander, son of Cariccius, who declares that he has received the sixty denarii in cash as a loan and owes them. And for the interest upon them from this
day per thirty days one per cent to be given to Julius Alexander or to
whomsoever it may concern, promise called for in good faith by Julius
Alexander, duly given in good faith by Alexander, son of Cariccius. Surety
for payment of aforesaid principal and interest, properly and in good coin:
Titius Primitivus. <Id fide sua esse iussit; this is fideiussio)
Titius Primitius. Transacted at Alburnus Maior, 20 October, consulship of
Rusticus for the second time and Aquilinus [162 AD, Transylvanian wax
tablet, FIRA no. 122, Mats. p. 445].”
What kind of K is this? “C. Valerius Longus, trooper of the Aprian
Squadron, has bought one horse, Cappadocian, black, for two thousand seven
hundred Augustan drachmas from C. Julius Rufus, centurion of legion XXII.
That said horse eats and drinks as veterinary animals customarily do
<uti bestiam veterinam adsolet, i.e., draught animals from veho>,
apart from [...] described openly visible on its body, and if anyone makes
eviction of him, that double [? single] the value shall be properly paid in
good coin as is customary, promise was called for by C. Valerius, duly
given by C. Julius Rufus. And C. Julius Rufus, centurion, declares that he
has received and holds from C. Valerius Longus, purchaser, said two
thousand seven hundred Augustan drachmas, and [has transferred said horse
to him]. Transacted at [... some place in Egypt], 7 June [or 9 July,
i.e., 7 Idus Ju…], consulship of the Emperor Vespasian, eighth time, and
Domitian, son of the Emperor, fifth time. [77 AD, FIRA no. 136, Mats. pp.
446–7].”
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1.
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C.8.37.10: The emperor Leo to
Erythrius pretorian prefect [A.D. 472].
All stipulations even those that are not expressed in solemn or
direct words but in whatever words express the consent of the contracting
parties -- and they are in conformity with the laws -- have their firmity.
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2.
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D.45.1.1: Ulpian, Sabinus, book 48: A stipulation can only be effected when both parties can speak, and
therefore neither a mute nor a deaf person nor an infans can contract a
stipulation; nor, indeed, can someone who is not present, since they should
both be able to hear. If, therefore
such a person wishes to take a stipulation, he does so through a slave who
is present and acquires an action on a stipulation. Also if someone wishes to be bound by an
obligation, let him order it, and he will be bound in respect of his order
(quod iussu). 1. When someone who is present
asks a question but leaves before a reply is made to him, he makes an
ineffective stipulation; if, however, he is present and asks, then leaves,
and the reply is made to him on his return, he creates an obligation; for
the interval between does not vitiate the obligation. 2. If a man asks “will you give,”
and the other replies “why not,” he will certainly be in the position of
being bound, but not if nodded assent without speaking. For it is a matter not only of civil but
also of natural law that a man who nods assent in this way is not bound;
and for that reason it is right to say that a guarantor on his behalf is
equally not bound. 3. If
someone who is asked without qualification replies, “if such and such
happens, I shall give,” it is clear that he is not bound; or if he is
asked, “within five days of the Kalends,” and replies, “I shall give on the
Ides,” it is equally clear that he is not bound; for he did not reply in
the same terms as the question. And
contrariwise, if he was asked conditionally and replied unconditionally, it
must be said that he is not bound.
When he adds anything to the obligation or subtracts from it, it is
always agreed that the obligation is vitiated, unless the stipulator immediately
approves the variation in the reply; for in that case another stipulation
seems to have been contracted. 4.
If, when I stipulate, “ten,” you reply, “twenty,” it is clear that no
obligation has been made [except for ten].
Conversely, also, if I ask for “twenty” and you reply, “ten,” an obligation
will not have been made [except for ten].
[For granted that the sum ought to be consistent, yet it is
absolutely obvious that ten is part of twenty.] (Si stipulanti mihi “decem” tu “viginti”
respondeas, non esse contractam obligationem nisi in decem constat. ex
contrario quoque si me “viginti” interrogante tu “decem” respondeas,
obligatio nisi in decem non erit contracta: licet enim oportet congruere
summam, attamen manifestissimum est viginti et decem inesse.) 5. But
if, when I stipulate Pamphilus, you promise Pamphilus and Stichus, I think
that the addition of Stichus should be regarded as superfluous. For if there are as many stipulations as
there are objects stipulated, there are, in a manner of speaking, two
stipulations: one effective and the other ineffective: and the effective
one is not vitiated by this ineffective stipulation. 6. It makes no difference whether
the reply is made in the same language or in another. For instance, if a man asks in Latin but
receives a reply in Greek, as long as the reply is consistent, the
obligation is settled. Whether we
extend this rule to the Greek language only or even to another, such as
Punic or Assyrian or some other tongue, is a
matter for doubt. The writings of
Sabinus, however, allow it to be true that all tongues can produce a verbal
obligation, provided that both parties understand each other’s language,
either of their own accord or by means of a truthful interpreter.
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3.
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D.45.1.137pr: Venuleius, Stipulations, book 1:
The acts of the stipulator and promisor must be continuous, [though
a moment or two may intervene]. The
reply must be made when the stipulator is at hand. [If, after the question, something else
is begun, the proceeding is invalid, even if the reply is given on the same
day.]
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4.
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D.45.1.65pr–1. Florentinus, Institutes, book 8:
Whatever you add to a stipulation which is impertinent and
irrelevant to the issue is taken to be superfluous and will not vitiate the
obligation, for example, if one says, “I tell of arms and the man; I promise,”
it is nonetheless valid. 1. And
[even] if there is variation in the matter promised or in the names of the
parties, this is <not> fatal.
You will [not] be bound by a promise of a quantity of gold coins to
one stipulating for bronze coins and you will [not] be bound by a promise
to Titius given to his slave stipulating on behalf of his master Lucius who
is the same man.
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5.
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GI.3.103. Further, if we stipulate for conveyance to a person to whose
power we are not subject, the stipulation is void. Hence a question has
arisen how far a stipulation for conveyance to oneself and to one to whose
power one is not subject is valid.
Our teachers hold it to be completely valid, and that the whole of
what is promised is due to him alone who put the stipulation, just as if he
had not added the stranger’s name.
But the authorities of the other school consider that half is due to
the stipulator, but that the stipulation is void as to the other half.
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6.
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C.4.32.1: The emperor [Antoninus] Pius to A. Aurelius, defendant. If it is proven that a
promise of interest was properly made with a preceding question, even
though it is not written in an instrument, nonetheless it is owed by the
best law.
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7.
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Paul, Sentences 5.7.2: The
obligation of words is contracted among those who are present and not among
those who are absent. But if it
should be written in an instrument that someone has promised something, it
shall be considered the same as if it were an answer to a preceding
question.
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8.
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C.4.2.14: The same emperors [Diocletian and Maximianus] and the Ceasars to Hadrian [A.D. 293].The creditor
does not have (you) bound for money lent which he gave to others beyond the
solemnity of words subscribed in an instrument. (Scott suggests “did not render you
liable unless you signed a written contract evidencing the loan.”)
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24 1 Five days later the high
priest Ananias came down with some elders and an attorney, a certain
Tertullus, and they reported their case against Paul to the governor. 2
When Paul had been summoned, Tertullus began to accuse him, saying:
“Your Excellency, because of
you we have long enjoyed peace, and reforms have been made for this people
because of your foresight. 3 We welcome this in every way and
everywhere with utmost gratitude. 4 But, to detain you no
further, I beg you to hear us briefly with your customary graciousness. 5
We have, in fact, found this man a pestilent fellow, an agitator among all
the Jews throughout the world, and a ringleader of the sect of the
Nazarenes. 6 He even tried to profane the temple, and so we
seized him. 7
8 By examining him yourself you will be able to
learn from him concerning everything of which we accuse him.” 9
The Jews also joined in the charge by asserting that all this was true. 10
When the governor motioned to him to speak, Paul replied:
“I cheerfully make my
defense, knowing that for many years you have been a judge over this
nation. 11 As you can find out, it is not more than twelve
days since I went up to worship in Jerusalem.
12
They did not find me disputing with anyone in the temple or stirring up a
crowd either in the synagogues or throughout the city. 13
Neither can they prove to you the charge that they now bring against me. 14
But this I admit to you, that according to the Way, which they call a sect,
I worship the God of our ancestors, believing everything laid down
according to the law or written in the prophets. 15
I have a hope in God—a hope that they themselves also accept—that there will be a resurrection of both
the righteous and the unrighteous. 16 Therefore I do my best
always to have a clear conscience toward God and all people. 17
Now after some years I came to bring alms to my nation and to offer
sacrifices. 18 While I was doing this, they found me in the
temple, completing the rite of purification, without any crowd or
disturbance. 19 But there were some Jews from Asia—they ought to be here before you to make
an accusation, if they have anything against me. 20
Or let these men here tell what crime they had found when I stood before
the council, 21 unless it was this one sentence that I called out
while standing before them, “It is about the resurrection of the dead that
I am on trial before you today.’”
22
But Felix, … adjourned the hearing … .” 23
Then he ordered the centurion to keep him in custody, but to let him have
some liberty and not to prevent any of his friends from taking care of his
needs. 24 Some days later when Felix came with his wife
Drusilla, who was Jewish, he sent for Paul and heard him speak concerning
faith in Christ Jesus. 25 … At the same time he hoped
that money would be given him by Paul … . 27
After two years had passed, Felix was succeeded by Porcius Festus; and
since he wanted to grant the Jews a favor, Felix left Paul in prison.
25 1 Three days
after Festus had arrived in the province, he went up from Caesarea to Jerusalem 2
where the chief priests and the leaders of the Jews gave him a report
against Paul. They appealed to him 3 and requested, as a favor
to them against Paul, to have him transferred to Jerusalem. They were, in fact, planning
an ambush to kill him along the way. 4 Festus replied that Paul
was being kept at Caesarea, and that he
himself intended to go there shortly. 5 “So,” he said, “let those
of you who have the authority come down with me, and if there is anything
wrong about the man, let them accuse him.” 6 … [H]e went down to Caesarea; the next day he took his seat on the
tribunal and ordered Paul to be brought. 7 When he arrived, the Jews
who had gone down from Jerusalem
surrounded him, bringing many serious charges against him, which they could
not prove. 8 Paul said in his defense, “I have in no way
committed an offense against the law of the Jews, or against the temple, or
against the emperor.” 9 But Festus, wishing to do the
Jews a favor, asked Paul, “Do you wish to go up to Jerusalem and be tried there before me on
these charges?” 10 Paul said, “I am appealing to the emperor’s
tribunal; this is where I should be tried. I have done no wrong to the
Jews, as you very well know. 11 Now if I am in the wrong and
have committed something for which I deserve to die, I am not trying to
escape death; but if there is nothing to their charges against me, no one
can turn me over to them. I appeal to the emperor.” 12
Then Festus, after he had conferred with his council, replied, “You have
appealed to the emperor; to the emperor you will go.”
13 After several days had passed, King Agrippa and Bernice arrived at
Caesarea to welcome Festus. 14
… Festus laid Paul’s case before the king, saying, “There is a man here who
was left in prison by Felix. 15 When I was in Jerusalem, the chief priests and the
elders of the Jews informed me about him and asked for a sentence against
him. 16
I told them that it was not the custom of the Romans to hand over anyone
before the accused had met the accusers face to face and had been given an
opportunity to make a defense against the charge. 17
So when they met here, I lost no time, but on the next day took my seat on
the tribunal and ordered the man to be brought. 18
ns, I asked whether
he wished to go to Jerusalem
and be tried there on these charges. 21 But when Paul had appealed
to be kept in custody for the decision of his Imperial Majesty, I ordered
him to be held until I could send him to the emperor.” 22
… On the next day Agrippa and Bernice came with great pomp, and … Festus
gave the order and Paul was brought in. 24 And Festus said, “King
Agrippa and all here present with us, you see this man about whom the whole
Jewish community petitioned me, both in Jerusalem and here, shouting that
he ought not to live any longer. 25 But I found that he had
done nothing deserving death; and when he appealed to his Imperial Majesty,
I decided to send him. 26 But I have nothing definite to
write to our sovereign about him. Therefore I have brought him before all
of you, and especially before you, King Agrippa, so that, after we have
examined him, I may have something to write— 27 for it seems to me
unreasonable to send a prisoner without indicating the charges against
him.”
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Ch. 6: 1 And when the searching for him [Polycarp] persisted he went
to another farm; and those who were searching for him came up at once, and
when they did not find him, they arrested young slaves, and one of them
confessed under torture. 2 For it was indeed impossible for him to remain
hid, since those who betrayed him were of his own house, and the police
captain who had been allotted the very name, being called Herod, hastened
to bring him to the arena that he might fulfil his appointed lot by
becoming a partaker of Christ, while they who betrayed him should undergo
the same punishment as Judas.
Ch. 9: 1 Now when Polycarp entered into the arena there came a voice from heaven: “Be strong, Polycarp, and play
the man.” … And next he was brought forward, and there was a great uproar
of those who heard that Polycarp had been arrested. 2 Therefore when he was
brought forward the Pro-Consul asked him if he were Polycarp, and when he
admitted it he tried to persuade him to deny, saying: “Respect your age,”
and so forth, as they are accustomed to say: “Swear by the genius of
Caesar, repent, say: ‘Away with the Atheists’”; but Polycarp, with a stern
countenance looked on all the crowd of lawless heathen in the arena, and
waving his hand at them, he groaned and looked up to heaven and said: “Away
with the Atheists.” 3 But when the Pro-Consul pressed him and said: “Take
the oath and I let you go, revile Christ,” Polycarp said: “For eighty and
six years have I been his servant, and he has done me no wrong, and how can
I blaspheme my King who saved me?”
Ch. 10: 1 But when he persisted again, and said: “Swear by the genius
of Caesar,” he answered him: “If you vainly suppose that I will swear by
the genius of Caesar, as you say, and pretend that you are ignorant who I
am, listen plainly: I am a Christian. And if you wish to learn the doctrine
of Christianity fix a day and listen.” 2 The Pro-Consul said: “Persuade the
people.” And Polycarp said: “You I should have held worthy of discussion,
for we have been taught to render honour, as is meet, if it hurt us not, to
princes and authorities appointed by God. But as for those, I do not count
them worthy that a defence should be made to them.”
Ch. 11: 1 And the Pro-Consul said: “I have wild beasts. I will
deliver you to them, unless you repent.” And he said: “Call for them, for
repentance from better to worse is not allowed us; but it is good to change
from evil to righteousness.” 2 And he said again to him: “I will cause you
to be consumed by fire, if you despise the beasts, unless you repent.” But
Polycarp said: “You threaten with the fire that burns for a time, and is
quickly quenched, for you do not know the fire which awaits the wicked in
the judgment to come and in everlasting punishment. But why are you
waiting? Come, do what you will.”
Ch. 12: 1 And with these and many other words he was filled with
courage and joy, and his face was full of grace so that it not only did not
fall with trouble at the things said to him, but that the Pro-Consul, on
the other hand, was astounded and sent his herald into the midst of the
arena to announce three times: “Polycarp has confessed that he is a
Christian.” 2 When this had been said by the herald, all the multitude of
heathen and Jews living in Smyrna cried out
with uncontrollable wrath and a loud shout: “This is the teacher of Asia, the father of the Christians, the destroyer of
our Gods, who teaches many neither to offer sacrifice nor to worship.” And
when they said this, they cried out and asked Philip the Asiarch to let
loose a lion on Polycarp. But he said he could not legally do this, since
he had closed the Sports. 3 Then they found it good to cry out with one
mind that he should burn Polycarp alive, for the vision which had appeared
to him on his pillow must be fulfilled, when he saw it burning, while he
was praying, and he turned and said prophetically to those of the faithful
who were with him, “I must be burnt alive.”
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Sec. 4: The greatness of the tribulation in this region, and the fury
of the heathen against the saints, and the sufferings of the blessed
witnesses, we cannot recount accurately, nor indeed could they possibly be
recorded.
Sec. 7: First of all, they endured nobly the injuries heaped upon
them by the populace; clamors and blows and draggings and robberies and
stonings and imprisonments, and all things which an
infuriated mob delight in inflicting on enemies and adversaries.
Sec. 8: Then, being taken to the forum by the chiliarch and the
authorities of the city, they were examined in the presence of the whole
multitude, and having confessed, they were imprisoned until the arrival of
the governor.
Sec. 9: When, afterwards, they were brought before him, and he
treated us with the utmost cruelty, Vettius Epagathus, one of the brethren,
and a man filled with love for God and his neighbor, interfered. His life
was so consistent that, although young, he had attained a reputation equal
to that of the elder Zacharias: for he ‘walked in all the commandments and
ordinances of the Lord blameless,’ and was untiring in every good work for
his neighbor, zealous for God and fervent in spirit. Such being his
character, he could not endure the unreasonable judgment against us, but
was filled with indignation, and asked to be permitted to testify in behalf
of his brethren, that there is among us nothing ungodly or impious.
Sec. 10: But those about the judgment seat cried out against him, for
he was a man of distinction; and the governor refused to grant his just
request, and merely asked if he also were a Christian. And he, confessing
this with a loud voice, was himself taken into the order of the witnesses,
being called the Advocate of the Christians, but having the Advocate in himself, the Spirit more abundantly than Zacharias. He
showed this by the fullness of his love, being well pleased even to lay
down his life in defense of the brethren. For he was and is a true disciple
of Christ, ‘following the Lamb whithersoever he goeth.’
Sec. 11: Then the others were divided and the proto-witnesses were
manifestly ready, and finished their confession with all eagerness. But
some appeared unprepared and untrained, weak as yet, and unable to endure
so great a conflict. About ten of these proved abortions, causing us great
grief and sorrow beyond measure, and impairing the zeal of the others who
had not yet been seized, but who, though suffering all kinds of affliction,
continued constantly with the witnesses and did not forsake them.
Sec. 14: And some of our heathen servants also were seized, as the
governor had commanded that all of us should be examined publicly. These,
being ensnared by Satan, and fearing for themselves the tortures which they
beheld the saints endure, and being also urged on by the soldiers, accused
us falsely of Thyestean banquets and Œdipodean intercourse, and of deeds
which are not only unlawful for us to speak of or to think, but which we
cannot believe were ever done by men.
Sec. 15: When these accusations were reported, all the people raged
like wild beasts against us, so that even if any had before been moderate
on account of friendship, they were now exceedingly furious and gnashed
their teeth against us. And that which was spoken by our Lord was
fulfilled: ‘The time will come when whosoever killeth you will think that
he doeth God service.’
Sec. 16: Then finally the holy witnesses endured sufferings beyond
description, Satan striving earnestly that some of the slanders might be
uttered by them also.
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