Roman Law and the Legal World of the Romans

Sources of Roman Law

of sale. The rule, for instance, that sale must involve a cash price (i.e., trades do not count) might make sense as a defini tion, but the idea that certain warranties are also part of the meaning of the term “sale” seems very forced. Even stranger, perhaps, are cases such as the rule on how to free children from their parents’ control. There was a clear statutory rule that sons could be freed by being sold off three times (how they would come back after the first two times is not relevant here). The interpreters could have decided that “son” stood for “son or daughter” and left well enough alone, or they could have said that daughters were not included at all, since they weren’t liter ally mentioned. Either would clearly be “interpretation” in the usual modern sense. Instead, they asserted that “three times” was a special case for male children and that the unwritten “normal” rule for everyone else (i.e., only daughters) involved being sold only once. This kind of “interpretation” is used to generate an entirely novel rule.

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