Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

his or her obligation, and in the latter case was liable for the full value of the agreement. In some respects, a “literal” read ing might seem like a good thing. It is a relatively objective standard, which might make it the most fair, and in theory it limits the intervention of the state in what is meant to be a private matter. Unfortunately, there were problems as well. Such literal reading increased the opportunity for trickery (if not outright fraud), especially in a complicated agreement. Recall that there may well have been an elaborate pair of promises, each refer ring to actions the other party might or might not take; these could become quite involved. And even if both parties were acting in good faith, something could simply go wrong, which was again especially likely in a complex agreement. Putting conditional penalties on both parties, for instance, could be tricky. If you weren’t careful, you could get into a situation in which nothing in the contract was binding until one party made the first move or in which one party’s performance was required despite the total failure of the other. And even if the agreement was well thought out, there was a greater chance that such a document could be spoiled by what amounts to a typo [7] . Literal reading could also cause problems if the agree ment itself was clear enough, but an unforeseen situation arose in the real world. Suppose someone stipulated to deliver 500 head of cattle, but in fact produced only 499. We might agree that he has not fulfilled his contract, but should he really be in the same position as someone who made the same agree ment and then delivered no cattle at all? Toward the end of the

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