Roman Law and the Legal World of the Romans

Law in the Provinces

ensure that any posthumous child of her late husband was in fact his. Yet at the end of a long discussion of the rules, the jurist Ulpian says that in the interests of fairness to the child, his or her legitimacy should not be compromised if alternative local procedures are used. Again, Roman law sets the big ques tion, but allows local law to provide the answer. For a somewhat different relationship between Roman and foreign (in this case Greek) law, we can look to the role of some thing called arra (or arrabo ) in the law of sale. The term refers to a kind of deposit or earnest money; the buyer put down some of the price up front at the making of the contract, and the rest later (say, at delivery of the merchandise). Roman law never required such a deposit. A sale became binding on the mere agreement of the parties (Chapter 12). Even if the buyer did offer it, its only legal function was to serve as evidence of a seriously intended contract (and perhaps of the price). The clos est thing in Roman law would perhaps be a forfeiture clause, requiring a buyer to pay a penalty if the deal were not con cluded in a specified time. Yet there is considerable evidence of the long-term popularity of the device in Rome. The Digest speaks of it as common. A number of plays of Plautus (late third to early second century bc) include the use of arra . And the same deposits show up again in actual contracts from the first-century ad archives from Pompeii. But in many of these transactions, both real and fictional, the so-called arra is also called a “pledge,” is an item rather than a sum of money, and is occasionally part of a deal other than a sale. For instance, a loan is backed up with a store of grain [9] . A pledge (Chapter

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