Even as turning to the social sciences for insight into the law remains all the rage among the legal academy, there are those who turn not to the present for those insights but to the past. One such individual is Professor James Gordley of Tulane Law School, who was in town last week to present his new paper, The Origins of Sale: Some Lessons from the Romans, at the first meeting of the Public Law and Legal Theory Workshop of the new year.
As early as the second century BC, the Romans are thought to have recognized a contract of sale—likely the first civilization to have done so. In both his paper and at the workshop, Professor Gordley focused on two mysteries that surround this great achievement: how did they do it, and why did they stop at sales? The first has puzzled historians for years: what is the link between the previous legal devices that existed prior to the recognition of a sales contract and the contract of sale as it was first formulated by the Romans? Some historians have posited a transitional stage in which partial performances were enforced, while others have suggested that early Romans accomplished sales through conditional one-way binding promises (known as stipulationes). Professor Gordley, however, thinks differently: instead of
inventing the contract of sale, Roman jurists simply adopted and incorporated practices already in place into the law.
But if the Romans had the insight to formulate a law of sale from existing practices, why did they not go further and make all contracts binding? Why stop at sales—and only nongeneric sales at that? Most historians see this as a failure of the Romans to see the similarities between sales and other transactions such as barter. Professor Gordley, however, disagrees. According to him, since barter transactions and the like do not serve the same function of locking in a favorable price at a particular time, there is less reason to enforce such contracts than those involving sales.
That last point was heavily disputed during the workshop by the faculty members in attendance.
Why are barter contracts not attempts to lock in a favorable price as much as sales contracts are, only with goods rather than currency? asked one faculty member.
Couldn't barters replace sales in the event of cash-flow problems? wondered another. At a conceptual level, there doesn't seem to be much difference between the two, at least to this correspondent, but assuming there is a distinction, it would indicate that the Romans may have had it right all along. More research will tell.