Obligations in Roman Law: Past, Present, and Future

Chapter 7. Public Building Contracts in the Roman Republic

174 Chapter 7 Public Building Contracts in the Roman Republic J. Michael Rainer The Interest of the State The subject suggested to me by the host of the conference serving as the basis for this volume is of enormous dimensions, making it necessary to limit my contribution to topics already investigated by me relating to private as well as to constitutional law.1 There can be no doubt that the state intervened and interfered closely in the field of obligations, encouraging a complex pattern to develop over time. As so often in Roman law, we are able to discern some systematic aspects, some order even without concluding that such aspects were intended from the start. It is rather difficult to discover and set forth a history of the state’s interest in obligations. The oldest legal sources, the Twelve Tables, do not mention any direct activity or participation of the state in this area, but they do show the interest of the state in enabling a peaceful cohabitation of all the citizens. So the state was keen to guarantee through the law of contracts and the law of torts—­ both relating to the term obligation—­ the functioning of society as a whole. It had created decision-­ making procedures and imposed these on the citizens through the political power exercised by the praetores. But when was the state directly involved as a party and even as a partner in an obligation? Was it in the form of contracts or delicts, and did it participate on a level of equality, or was it always an unequal partner in the sense that it played a predominant role? It can 1. The best introduction to Roman constitutional law in the English language is Lintott, Constitution of the Roman Republic (1999). See also Rainer, Römisches Staatsrecht (2006). Public Building Contracts in the Roman Republic 175 categorically be emphasized that contrary to the private law, the sources that are able to shed light on our topic are the historians (above all Livy); middle or late republican authors like Cato, Varro, and Cicero (mainly the speeches against Verres); and the municipal leges of the municipia attested by inscriptions. Before starting a more detailed review, I would like to give a survey regarding those aspects where we can find a direct interest and direct involvement of the state. First of all, the Roman state was interested in the construction, the restoration, and the maintenance of public buildings. In remoter times, these buildings were, above all, temples, but as the Servian Wall shows, they were also fortifications, streets, aqueducts, and sewage facilities. Illuminating in this context is a list of works hired out during the famous censorship of M. Porcius Cato in the year 184 BCE.2 Together with his colleague L. Valerius Flaccus, he let out contracts for important works regarding sewage. But the censors did not necessarily act together; they could also hold auctions for public contracts as individuals. Cato’s contracting activities concerned two atria (halls), four tabernae (shops), and one basilica, which bore his name for many years. The conquest of large parts of Italy made it necessary to find a use for the conquered land. This necessity grew stronger as the Romans started crossing the borders of Italy and accumulating one province after the other. The Role of the Censors We do not know when the state began conceptualizing in a legal sense the problems that arose in the fields just mentioned, though this is attested in our sources from the second century onward. It can be assumed that the state began very early to develop rules involving private citizens as partners and not as subjects obliged to compulsory labor, as we find happened so often in the European Middle Ages. A very old-­ fashioned terminology still in use during the first century CE supports this assumption. The state was normally represented by the censor, a fact that raises a fair number of questions, the most important concerning the limitation of the censors ’ magistracy to one and a half years within a lustrum of five years. It has 2. Livy 39.44.4–­ 8. Cato’s colleague as censor was L. Valerius Flaccus. See Milazzo, La realizzazione delle opere pubbliche (1993) 76–­ 83; Gast, “Bauberichte” (1965) 17–­ 18; Richter, “Zum censorischen Baubericht von 184 v. Chr” (1964) 181–­ 85; Bodei Giglioni, Lavori pubblici ed occupazione nell’antichità classica (1974) 74. 176...