American Experience in Roman Law

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A. AR THUR SCHILLER

An American Experience in Roman Law Writings from Publications in the United States

VANDENHOECK & RUPRECHT IN GbTTINGEN

(t) Vandenhoeck & Ruprecht in Gottingen 1971. - Printed in Germany. Ohne ausdriickliche Genehmigung des Verlages ist es niche gestattet, das Buch oder Teile daraus auf foto- oder akustomechanischem Wege zu vervielfiiltigen. Herstellung: Hubert & Co., Gottingen.

Preface The opportunity of making available in one volume a selection of articles published in the United States was most graciously offered by Herr Hellmut Ruprecht of the well-known firm of Vandenhoeck & Ruprecht. It is a fact that American law reviews and other legal periodicals are not very widely held in the libraries of Europe. Consequently, it was with great pleasure that I have taken advantage of the offer. During the past decades I have attempted to send reprints to my colleagues abroad, but now I am unable to supply earlier articles to the younger Romanists who so kindly desire to establish exchanges with me. The articles which I have included "in this volume were written in the years from 1930 to 1967, and thus present my first efforts in Roman law study through to my present writings. No attempt has been made to bring these studies up to date; only a few glaring misprints have been corrected. The reader will form his own deci­ sion regarding the value of articles written in the early years of my research as well as of those I have penned yesterday. All of the studies save one were printed in American publications. That one stemmed from a lecture delivered in the United States, destined for an American law review, but instead was submitted to the number of Acta ]uridica dedicated to the memory of Robert Warden Lee. Together, these studies constitute an American experience with Roman law before an American audience and directed to American readers, lay as well as legal. I trust that they may, at least in part, dispel the type of folk-lore which has come into vogue in Europe respecting the interest in Roman law in the United States. Acknowledgement is made of the generosity of the following legal periodicals in permitting publication in this volume of articles originally appearing in their issues: The ]ttrist, Catholic University of America, pub­ lisher of Seminar, Annual Extraordinary Number of The ]ttrist; Virginia Law Review, by permission of Fred B. Rothman & Co.; Columbia Law Review, Columbia University; Boston University Law Review, Boston University; Acta ]ttridica, University of Cape Town; The Yale Law Journal, by permission of The Yale Law Journal Company and Fred B. Rothman & Co.; Tttlane Law Review, Tulane Law Review Association; and The Georgetown Law ]oumal, Georgetown University Law Center. For permission to reprint an article originally appearing in Legal Essays in Tribute to Orrin Kip McMttrray, thanks are extended to University of California Press, by permission of the Regents of the University of Cali­ fornia; and to reprint an article originally appearing in The Classical Tradition: Literary and Historical Stttdies in Honor of Harry Capla11, thanks arc extended to Cornell University Press. New York City February 12, 1970

A. A r t h u r S c h i l l e r

Table of Contents Trade Secrets and the Roman Law; the Actio Servi Corrupti . . .

1

Columbia Law Review, 30 (1929/1930), 837-845

Sources and Influences of the Roman Law, III-VI Centuries A. D.

10

[Paper read before the Riccobono Seminar of Roman Law, October 1932], Georgetown Law Journal, 21 (1932/1933), 147-160

The Business Relations of Patron and Freedman in Classical Roman Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24

Legal Essays in Tribute to Orrin Kip McMttrray (1935), 623-639

Custom in Classical Roman Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41

[Paper read before the Riccobono Seminar of Roman Law, October 1937], Virginia Law Review, 24 (1937/1938), 268-282

Roman lnterpretatio and Anglo-American Interpretation and Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

56

Virginia Law Review, 27 (1940/1941), 733-768

Bureaucracy and the Roman Law Seminar, 7 (1949), 26-48

Factors in the Development of the Late Classical Law

92 115

[Magisterial address before the Riccobono Seminar of Roman Law, May 1953], Seminar, 11 (1953), 1-11

Provincial Cases in Papinian [Paper read before the Classics Club, New York University, January 1957], Acta }ttridica, 1958, 221-242

126

Jurists' La\v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 [Address delivered at All Souls College, University of Oxford, May 1957], Colttmbia Law Review, 58 (1958), 1226-1238

Senatus Consulta in the Principate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

161

Tulane Law Review, 33 (1958/1959), 491-508

The First Edict of BGU II 628 Recto . . . . . . . . . . . . . . . . . . . . . . . . . . .

179

The Classical Tradition: Literary and Historical Studies in Honor of Harry Caplan (1966), 293-312

The Nature and Significance of Jurists Law . . . . . . . . . . . . . . . . . . . . . 199 [The Charles P. Sherman Lecture in Roman and Comparative Law at the Boston University School of Law, October 1966], Boston University Law Review 47 (1967/1968), 20-39.

Review of Fritz Schulz, History of Roman Legal Science

219

Yale Law Journal, 57 (1947/48), 324-330

Review of Ernst Levy, Gesammelte Schriften

226

Columbia Law Review, 65 (1965), 1311-1315

Review of Leopold Wenger, Die Quellen des Romischen Rechts . . . . 231 Seminar, 12 (1954), 75-85

Salvatore Riccobono - In Memoriam

242

Seminar, 18 (1958), 373-385

Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

255

Trade Secrets and the Roman Law; the Actio Servi 1 Corrupti The law of unfair competition, that heterogeneous concept of mod­ ern law, is relatively recent in origin.2 It is only the last century that has seen any great development of legal principles regarding simulation of goods, communication of trade secrets, disparagement of competitors, etc., that now· play such an important factor in legal and business life. Economic and legal historians allege that prior to the Middle Ages the world had known no unfair competition. 3 It is denied by scholars, for example, that the Roman state interfered with the competitive practices of private business men.4 As a partial negation of this view, this article 1

The most common abbreviations employed are: D. = DIGESTA, In. = INSTITUTIONES, C. CODEX lusTINIANUS, three parts of the CORPUS IURIS Cmus of Justinian. Other legal sources are G. = GAIUS, INSTITUTIONES; P. = PAULUS, SENTENTIAE; C.Th. = CODEX THEODOSIANUS. [ ] = interpolation, an addition to the classical text by the compilators of the Digest; = omission, a passage of the classical text omitted by the compila­ tors; ,-, = cumulation, one action concurrently available with another; a0 = actio, action. BESELER, BEITRAGE BESELER, BEITRAGE ZUR KRITIK DER ROMISCHEN RECHTS­ QUELLEN, 4 parts (1910-20); BUCKLAND, SLAVERY= BUCKLAND, THE ROMAN LAW OF SLAVERY (1908); BULL. = BULLETTINO DELL'ISTITUTO DI DIRITTO ROMANO; GUMMERUS, PW = Gummerus, lndustrie mui Handel (1916) 9 PAULY-WissowA­ KROLL, REAL ENCYCLOPADIE DER CLAssrscHEN ALTERTUMSWISSENSCHAFT 1439 et seq.; INDEX INTERP. = INDEX INTERPOLATIONUM QUAE IN lusTINIANI DrGESTIS DICUNTUR, Vol. 1 and Supp. 1 (1929); LENEL, PALINGEN. = LENEL, PALINGENESIA IURIS CIVILIS, 2 vols. (1889); LEVY, KoNK. = LEVY, Drn KoNKURRENZ DER AKTIONEN UND PERSONEN IM KLASSISCHEN ROMISCHEN RECHT, 2 vols. (1918-22). 2 Trade-mark law, the most significant portion of the law of unfair compe­ tition, dates from Bartolus de Saxoferrato's tractate De insigniis et armis. SCHECHTER, THE HISTORICAL FOUNDATIONS OF THE LAW RELATING TO TRADE­ MARKS (1925), treats of Anglo-American development; KOHLER, WARENZEICHEN­ RECHT (2d ed. 1910) 30 et seq., of continental development. The remainder of the law of unfair competition dates, in the Anglo-American system, from the 18th century, NIMS, THE LAW OF UNFAIR COMPETITION AND TRADE-MARKS (3d ed. 1929) § 2; and on the continent from the 16th-17th centuries, KOHLER, DER UNLAUTERE \VETTBEWERB (1914) 21 et seq.; Elster, Unlauterer Wettbewerb (1928) 8 HANDWORTERBUCH DER STAATSWISSENSCHAFTEN 463 et seq. 1 Granted that no ancient legal system knew the concept "unfair competi­ tion"; as NIMS, op. cit. supra note 2, at 14, points out, even in Anglo-American law, the name, but not the theory, is new. I doubt the necessity of the existence of the concept in modern law. The German statute against unfair competition (UWG) includes elements, such as sale of goods as bankrupt stock (§ 6), regu­ lations on sales-selling-out-(§§ 7, 9), and the prohibition of bribery (§ 12), that would hardly be considered part of the Anglo-American law of unfair competition. Might not the ancients have handled the factual situations in the realm of private law, e.g., personal injury, etc.? • So RosTOVTSEV, THE SOCIAL AND EC ONOMIC HISTORY OF THE ROMAN EM­ PIRE (1926) 54, 159, 163 et seq.; FRANK, AN EcoNOMIC HISTORY OF ROME (2d ed. 1927) 219 et seq., 273 et seq.; GuMMERUs, PW 1481 et seq. HuvELIN, ETUDES D'HISTOIRE DU DROIT COMMERCIAL ROMAIN (1929) 50 et seq., tends to the opposite view. Some writers believe that Greco-Hellenistic law did protect business men to some extent, Francotte, lndustrie und Handel (1916) 9 PAULY-WisSOWA­ KRoLL, REAL ENCYC LOPADIE DER CLASSISCHEN ALTERTUMSWISSENSCHAFT 1434 et seq.; RoSTOVTSEV, op. cit., at 303 et seq.

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Trade Secrets and the Roman Law; the Actio Servi Corrupti

deals with one phase of unfair competition, the communication of trade secrets by an employee at the instigation of a competitor, in classical Roman law. 5 If ever unfair business practices were frowned upon, it should have been in the time of the late Republic and early Empire, 6 and before the decadence of industry and commerce, and Rome itself, whatever the cause may have been. 7 In modern law an employer is granted a cause of action, for in­ junction, damages or punitive damages as the case may be, 8 when he suffers or will suffer an injury because of the instigation or inducement of a competitor to the farmer's employee to divulge a trade secret. The remedy is seen to be the significant factor. Roman law possessed a cause of action that could be applied to this case, and it is the contention of the writer that it was. Therefore the Roman law did, in this one instance at least, protect against unfair competition. Before the legal question is discussed, a few points on the Roman employer-employee relationship are necessary. Employees were either free persons, slaves, or freedmen. In the classical period, the period with which the legal material herein contained deals, slaves formed the largest group of employees. 9 The slave-employee is alone concerned in this article; 10 future studies will deal with the freedman and free employee. The problem, then, can be stated as follows. The employee (slave) of a business man (master) is maliciously enticed by a competitor (third person) to divulge business secrets.11 The employee thereupon steals secret formulae, plans, lists of customers, and the like, and turns them over to the competitor; or, as a corollary, he destroys them at the in5 That secret processes existed in Rome is evidenced by literary and epi­ graphical sources, e.g., dyeing (PLINY, NATURALIS HISTORIA, lib. XXXV, c. 150) and pottery (references in FRANK, op. cit. supra note 4, at 223, 226). • This period may be termed the apex of industrial and commercial activity, RoSTOVTSEV, op. cit. supra note 4, at 19 et seq., 65 et seq.; GuMMERUS, PW 1454 et seq.; 1 FRIEDLANDF..R, DARSTELLUNGEN AUS DER SITTENGESCHICHTE RoMs (9 th10th ed. 1920-22) 161 et seq., 366 et seq.; NEURATH, ANTIKE WIRTSCHAITS­ GESCHICHTE (3d ed. 1926) 71 et seq. 'For various views see RosTOVTSEV, op. cit. supra note 4, at 302 et seq., 477 et seq.; SALVIOLI, LE CAPITALISME DANS LE MONDE ANTIQUE (1908) 153 et seq.; BARROW, SLAVERY IN THE ROMAN EMPIRE (1928) 111 et seq., 117 et seq. • In Anglo-American L aw, NIMS, op. cit. supra note 2, at 433, 913 et seq., 1047 et seq.; in German law (as representative of continental legal systems), ROSENTHAL, WETTBEWERBSGESETZ NEBST DEN MATERIELLEN VORSCHRIFTEN DES WARENZEICHENGESETZES (7th ed. 1928) 432 et seq. and §§ 17 and 18 UWG. • See GuMMERUS, PW 1506; WEBER, \ViRTSCHAITSGESCHICHTE (2d ed. 1924) 118 et ��q.; BLiiMNER, DrE ROMISCHEN PRIVATALTERTUMER (3d ed. 1911) 599 et seq.; Bucher, Gewerbe (1925) 4 HANDWORTERBUCH DER STAATSWISSENSCHAFTEN 966 et seq. 0 ' The private property of the slave, pernlium, and his liability in the so­ 0 called adjecticial actions, particularly the a institoria, are outside the scope of this article. The third person's liability to the master is primarily concerned. 11 Anglo-American cases: NIMS, op. cit. supra note 2, §§ 141 et seq. German cases: ROSENTHAL, op. cit. supra note 8, at 415 et seq.

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Trade Secrets and the Roman Law; the Actio Servi Corrupti

839

stigation of the competitor; or he divulges accounts, evidence of the status of the business, or the amount of liabilities and assets; or he falsifies accounts, r·eports, or other records. \Vhat remedy did the master have against the third person-enticer at Roman law? The an­ swer is, I believe, the actio servi corrupti, the action for corrupting a slave. 12 It is perhaps well to outline the general characteristics of this ac­ tion before applying it to the case proposed. 13 Though extant in Cicero's time, 14 the proceeding was a praetorian actio in factum and therefore provided for in the edict of the praetor.15 By the actio servi corrupti, generally speaking, the owner of a slave was given an action for double damages against the harborer of a slave16 or against a third person maliciously17 enticing a slave to commit a wrong and so lessen his value. The particular cases mentioned by the classical jurists 18 are by no means meant to be exhaustive, 19 but an analysis of them will be valuable for the purposes of this study. There are two classes of cases, those in which the third person is an active party and those in which he is merely the instigator. In the first class are found the liability of a usufructuary for torturing a slave, 20 a cause of action arising from kidnapping and beating an ancilla, female slave, 2 1 a liability if he leads another's slave 12 The a 0 serv. corr. (or a 0 de servo corrupto) is, in the main, D. 11.3. Other legal source materials in the notes infra. " Selected bibliography: BUCKLAND, THE RoMAN LAw OF SLAVERY (1908) 33 et seq.; BUCKLAND, A TEXT-BOOK OF ROMAN LAW (1921) 590 et seq,; EISEN­ BERGER, UEBER DIE AcTI0 SERVI CORRUPT! DIRECTA ET UTILIS (Dissertation Erlangen 1889); 2 KARLOWA, RoMISCHE REJCHTSGES CHICHTE (1901) 1345 et seq.,• KELLER, INSTITUTIONEN (1861) 151 et seq.; 1 LEVY, KoNK. 311 et seq., 466 et seq.; 2 LEVY, KoNK. 32 et seq., 222 et seq.; 2 ROBY, ROMAN PRIVATE LAW (1902) 218 et seq.; Thiel, foiuria 1md Beleidigung (1905) 62 STRAFRECHTLICHE ABHAND­ LUNGEN 175 ef seq. 1' D. 11.3.16 is an extract from the digesta of Alfenus Varus, a contemporary jurist; cf. 2 CuQ, LES INSTITUTIONS JURIDIQUES DES ROMAINS (1st ed. 1891) 478. "RuDORff, £DICTUM PERPETUUM (1869) 96; LENEL, £DICTUM PERPETUUM (3d ed. 1927) 175. Edictal are D. 11.3.1 pr. and 11.3.5.3. '"This portion of the edict has little interest for the present study; discussed in D. 11.3.1.2 and 11.3.5 pr. 11 See D. 11.3.1.3 and 11.3.3 pr. In one case he grants the action 18 Justinian, In. 4.6.23, mentions but a few. where classical law denied it: a slave, enticed to steal, informs his master who orders him to do the act in order to have an action against the enticer, C. 6.2.20 and In. 4.1.8, both contra to G. 3.198. Logically Gaius is correct, there is no theft nor any lessening in the value of the slave; cf. BucKLAND, SLAVERY 35, and BucKLAND, A MANUAL OF ROMAN LAW (1925) 328, in the latter of which he sug­ gests that Justinian is trying to fill up the gap of liability for tortious attempt in the Roman law. " Indicated, perhaps, by q11oq1te in D. 11.3.1.5, and D. 11.3.2 beginning in the middle of a sentence with vel, cf. 1 LE!- adulteraret; l MOMMSEN, DIGESTA IusTINIANI AUGUST! ( 1870) 341, n. 3 : ad11lteraret . P. 5.25.1 seems no basis for Beseler's view. •• D. 1 1 .3.1.5 : rationem turbaret ; D. 1 1.3. 1 1 .1 : chirografa debitorum cor­ 18

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rumpat.

42 D. 47.2.52.24. The a0 de dolo against the inducer who does the copying, [si q11ide111-sit.] . . . [si ipse-danda m] i s interpolated, 2 LENEL, PALINGEN. 677, n.

1 and 2. 43 The formula is framed by LENEL, EDICTUM PERPETUUM (3d ed. 1927 ) 1 75 ; generally on a 0 in factmn see BUCKLAND, A TEXT-BOOK OF ROMAN LAW ( 1 921 ) 679 et seq.; \VENGER, IN STITUTIONEN DES ROMISCHEN ZIVILPROZESSRECHTS ( 1925 ) 151 et seq. " BUCKLAND, SLAVERY 35. •5 D. 1 1 .3.8 ; 1 1 .3.13 pr. Generally on penal actions see BucKLAND, op. cit. supra note 43, at 684 et seq. ; WENGER, op. cit, supra note 43, at 1 57 et seq . .. D. 1 1 .3.5.2 : even i f the defendant confesses ; D. 1 1 .3.9.2 : q!l,(1.nti ea res erit eius dupli; D. 1 1.3.1 0 : all damage doubled ; D. 1 1.3.1 4.5. The simplum of D. 1 1 .3. 1 7 in the suit between husband and wife is interpolated, INDEX INTERP. 148. 41 The writer suggests that this element is interpolated. Certainly D. 1 1 .3.9.3 : Neratius-minoris sit, is the minority rule, see note 48 and cf. 2 LENEL, PALINGEN .. Ulpianus ad edict11111, No. 703, n. 2. But more than that I believe vilior indicates the non-classicality of [ hoc-factus sit ] of the same fragment, and shows [q11a11ti­ fact11s sit] of D. 1 1 .3.1 4.8 to be a Tribonianism. Cf. Scialoj a, Tribo nia11ismi in nuiteria di obbliga::ioni alternative e generiche ( I 899 ) 11 BuLL. 63, on D. 46.3.95.1 : [neq11e-co11stit 11tu111 est ) and Solazzi, Sulla capacita del filius fainilias di stare i11 giudi::io ( 1 899 ) 1 1 BuLL. 1 68, on D. 47.10.17. 1 3 : [ ln t erd11111-fi11.) and D. 47.10.1 7.14 : [vel---..n'lis] .

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84 2

Trade Secret, and the Roman Law , the Artio Servi Corrupti

slave48 and liability of the master to other persons because of wrongful acts committed by the slave upon them. 4 9 And it is very likely that the damages for "other things" 50 included more than these two matters, and in fact, meant all direct and indirect damage suffered. 51 Other factors of the measure of damages 52 and criminal responsibility in cer­ tain cases 53 are to be noted. The formal aspects of the actio scrvi corrupti have been presented. Those commercial aspects of the action which indicate that the actio servi corr11pti was employed by one competitor against another for un fair acts occasioned by the second competitor's interference with the em­ ployee (slave ) of the first are now to be considered. 5 4 The corruption of accounts, 55 which might be the destruction of the evidence of out­ standing debts, removal of the inducer's own debt, obliteration of lists of customers, mutilation or falsi fication of records that would in any way injure the business of the employer, in many cases redounded to the benefit of the competitor-enticer. The differentiation in the value of the slave would be small in these cases, and the employer would have to rely on damages from "other things"56 for satisfaction. \Vhen a slave stole something from his master, 57 the instigator was liable, "nor does it matter whether the things stolen were brought to him or to another or even destroyed." 58 \Vhat reason would the enticer have for procuring the things themselves except to make use of them ? And what could be made use o f more favorably than the business records or secret formulae of a competitor ? The second case would arise be­ cause of a fiduciary relationship between the enticer and the other person,

+

.. D. 1 1 .3.9.3 1 1 .3.1 1 pr. is to be read : Sed . . . senserit [Jr oc-fact1u sit ] an . . . ceteror11111. et Neratius . . . mi11oris sit. [Neratius-posteaJ furta (autem> facta . . . se11te11tia 111 [veramJ puto . . . ·verba < formulae) [ edicti ) qua11ti . . . recipi1111t. S o Lene!, with m y interpolation, though 1 LEVY, KoNK. 467, n. 2, doubts the necessity of formulae instead of edicti, cf. 1farchi, Il risarci­ mento de/ damzo morale secondo ii diritto rom.a no ( 1 904) 1 6 B ULL. 232, n. 4.

Thus the opinion of N era ti us that thefts were not included in the damages is controverted by Ulpian. In accord with Ulpian is Paul, D. 1 1 .3.10. •• D. 1 1 .3.14.6. 00 D. 1 1 .3.9.3. &, E1sEXBERGE.R, op. cit. supra note 13, at 14. 02 D. 1 1 .3.6 : time of valuation ; D. 1 1 .3.14.5 : extra rem, on this difficult frag­ ment see 2 LEVY, Ko�rn. 33, n. 3 . .. D. 47.1 1 .5, see supra note 38 ; D. 1 . 18.21 , see infra note 66. 04 The enticer is here assumed to have been a competitor although he may, in some cases, merely have been spiteful and indirectly benefited another competitor, D. 1 1 .3.10 : the slave's delivery of the stolen articles to a stranger . .. D. 1 1 .3.1.5 ; 1 1 .3. 1 1 .1. Supra notes 40 and 4 1 . On the slave-accountant, generally the actor in legal texts, see 1 :MARQUARDT. Ro:MISCIIE PRIVATALTER­ TH U:\IER (= 5 BECKER'S HAXDBUCH 1 864-67) 1 43, 156 et seq., 161 ; BLUM :-lER, op. cit. supra note 9, at 282 et seq. "' D. 1 1 .3.9.3 ; supra note 48. $' Supra note 25 . .. D. 1 1 .3.10. The conclusion o f the passage referring to natural j ustice is interpolated, 1::-.nEx b,TF.RP. 147. 6

Trade Secrets and the Roman Law; the Actio Servi Corrupti

843

or because o f pure spite on the part of the inducer ; here also common sense indicates that the "things" were o ften the actual documents containing busi ness in formation valuable to a competitor. I f the slave was unable to carry off this i nformation, or if the in formation was harm ful to the enticer, what would be more natural than to i nduce the slave to dest roy it ? A nother passage reads : " I f a slave has been persuaded to copy my accounts, I ( Ulpian ) hold the suit is to be the actio scrvi corrup ti." 59 :No reason exi sts for any one to entice an em­ ployee to copy accounts unless he intends to use the copy ; accounts are only valuable to a busi ness man, and that business man a competitor. Thus it is seen that the Roman law knew "enticement to communicate business secrets" and that the remedy for such insti gation was the

actio servi corrnpti.

Other passages o f the Digest also indicate the commercial possi­ bil ities of the actio servi corrnpti. No suit was permitted against a parent or patron or the children of such. 60 A third person was liable for corruption of a free man i f he thought hi m to be a slave, 61 which indicates that the employee rather than the slave was in the mind o f t he law. Letting and hiring o f slaves w a s common ; there may also have been gratuitous loan (bailment ) and deposit of slaves, possibly in order to cut down expenses of food and keep. 62 Such contractual relations did not destroy the master's right to the actio servi corrnpti against the en­ ticing hirer, bailee, or depositary. On the other hand, the master was liable to the hirer for inj ury suffered by the wrong ful act of the slave. 63 As a protective measure the inclusion i n such contracts of agreements aiming at the prevention of corruption of slaves is to be noted. 64 It is j u st in letting, bailment and deposit of a slave that the greatest possi 11

D. 47.2.52.24. See also supra note 42. '° D. 37. I 5.5.1 + 6 : forbidden because of calumny. In many cases the son or freedman would engage in the same business as the father or master. •• D. 11.3.5.1. 4 BE.SE.LE.R, BErTRAGE 243, on the basis of 2 BINDING, DrE NoR­ ME!'l UND IHRE OnF.RTRETUNG (2d ed. 1 916) 708, thinks this passage interpolated and a "not" omitted. I do not believe false analogy exists, and even if it did, this would not be conclusive of non-classi cality. 2 • References in BLU:"1.DIF.R, op. cit. supra note 9, at 285, n. 3 et seq. ; 2 FRIEDLANDER, op. cit. supra note 6, at 369 ; Gu M M ERUS, P\V 1 455 et seq., 1483

et seq.

a D. 11.3.14.7, cf. infra note 67. The sources give no evidence of the ex­ tension of the a" scro. corr. to the hirer, etc., against the owner of the slave. The usu f ructuary had the a" uti/is scrJ. corr. against the bare owner, D. 11.3.9.1 ; 11.3.14.3, but since the usufructuary, though not the owner, was in quite a differ­ ent position than the hirer, etc., the extension of the action to the former does not ind icate that the latter had the action. The granting of the action to the usuf ructuary shows further attem pts to guarantee uncorrupted service, but whether such service was commercial or not it is impossible to say . .. D. 2.1 4.50, the interpolations [ct cetcris similibus] and [hoc est-cfficiatur], I NDEX I NTERP. 28, Supp. 31, strengthen the case, but I do not agree with 2 DE FRANCISCI, SvNALLAGMA (1916) 429, regarding [sirn t-/in. ] .

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844

Trade Secrets and the Roman Law; the Actio Sm1i Co"upti

bility of divulgence of the master's business affairs and trade secrets might occur. 65 Another instance o f application of the action showing its commercial character is the infliction of criminal punishment in addition to punitive damages upon a competitor who corrupted an overseer ; 66 it is apparent that an overseer would have much more information to divulge or could more easily acquire secret information than an ordinary employee. In addition to the inclusion of theft and iniuria committed by the slave among the damages for "other things, " the competitor is liable for corruption while the slave has been hired out. 67 The penal nature of the suit68 and its availability after the slave has died, been disposed of, or manumitted69 indicates that the business element and not the person is the important factor. The action lay even if property stolen had been recovered ;70 the damage was done when the competitor learned of the status of the other's business or had acquired the secret formulae. It has been the purpose of this article to show that at least this element of modern unfair competition, enticing a slave-employee to divulge business secrets, was ably handled in Roman law by the actio servi corrupti, an action undoubtedly originally conceived with no com­ mercial aspects in mind. That the other employees were subject to similar conditions is shown by the mention of the filizts, son, a type of free employee, in this connection. 7 1 This leads one to believe that further aspects of trade regulations were part and parcel of Roman private civil law, for example, the field of trade-marks. Factory marks and firm names were exceedingly common, especially on pottery, bronze and lead ; labels for drugs and wine bottles were known. 72 \Vas the 00 On servus com modatus, /ocat us, depositus and in precario see B UC KLA ND, SLAVERY 265 et seq. ; on servus 11snfr11 ct11ari11s and 11s11a ri11s, BUC KLAND, SLAVERY 356 et seq. .. D. 1 .18.2 1 , see supra note 53. "' D. 1 1 .3.1 4.7. These cases, for example, are possi ble : A master lets a slave to A, and B enti ces the slave t o divulge t rade secrets of A. Or a master lets a slave, who alone knows a secret formula, to A, together with a l icense to use this formula, and B entices the slave to divulge the secret, thereby ruining A's business. See also su pra note 63. •• D. 1 1.3.8 : avail able to the heir of the master ; D. 11.3.13 pr. : actio perpetua. Cf. B UCKLAND, SLAVERY 34, n. 13, 35, n. I. •• D. 1 1 .3.5.4, the interpolation of Beseler, Et (atque) ideo, et (atq ue) idcirco, ideoque, idcircoque (1925 ) 45 ZEITSCHRIFT DER SAVIGNY- STIFTUNG FUR RECHTS­ GESCH ICHTE, Ro.MANISTISC H E ABTEILU NG 462, does not affect this view ; D. 1 1 .3. 1 6. 10 D. 11.3.12, see 2 LEVY, KoNK. 35 et seq. 0 71 D. 11.3.14.1, pract ically al l scholars are agreed that the a ut ilis sen•. corr. for the corrupti on of a son i s a Tri bonianism, [sed-fin. ] , I NDEX I NTERP. 147, Supp. 174. But the mention of the son by Paul in the v alid portion indicates that even in classical t i mes some remedy existed for this type of corruption. Cf. also D. 47. 10.26, but note 1 LEVY, KoN K. 507, n. 6 : [ve/ /ilium ] . 72 Trade-marks and firm names are collected t o some extent i n 15 CORPUS 1NSCRI PTIONUM LATI NARUM (1891-99 ) ; wine l abels in 4 op. cit. (1898) 5510 et See generally FRAN K, op. cit. supra note 4, at 219 seq.; drug l abels scattered. et seq.; GuMMERUS, PW 1463 et seq. , 1485 et seq. ; KOHLER, op. cit. (1910 ) supra note 2, at 13 et seq.; RosrovTSEV, op. cit. supra note 4, at 1 63, 515, 538.

8

Trade Secre/1 and the Roman Law; the Aclio Servi Corrupti

845

owner of a mark or firm name legally protected against unfair usage of that mark or name by a competitor ? The writer believes this question is to be answered in the affirmative for the classical period. 73 At any rate, business practice in regard to the actio servi corrnpti shows that Roman j urists granted commercial relief in this field under the guise o f private law actions, 74 whatever the reason may have been for not de­ veloping a "commercial law." 75 It is therefore unwise and perhaps incorrect to say that during the classical epoch the state did not inter­ £ ere with business other than for fiscal 76 and purely administrative77 reasons. If, as the writer believes, various private causes of action were available in satisfying commercial needs, the state was acting in exactly the same fashion as it does at the present day.

72 Rostovtsev and Frank hold the opposite view. The work of ARANGIO­ Ruiz, IL DIRIITO DI STAMP A (1909) , is inaccessible to me. " HuVELIN, op. cit. sup ra note 4, at 81, 85 et seq. 1 5 GOLDSCHMIDT, UNIVERSALGESCHICHTE DES HANDELSRECHTS (= 1 HAND­ BUCH DES HANDELSRECHTS, 3d ed. 189 1 ) 71 et seq. : The abstract and central­ izing instinct of the Roman jurists thoroughly opposed the idea of a commercial law. Thaller, De la place du comme rce dans l'histoire gene rale (1892) 6 AN­ NALES DE DROIT COMMERCIAL 156 : No special commercial law because the Ro­ mans, on account of their spirit of assimilation, adopted whatever intellectual ideas and precepts of practice that they discovered. HuvELIN, op. cit. sup ra note 4, at 81 : The conquest of all civilized countries by Rome and the resultant internal character of any commercial rules prevented the establishment of a separate commercial law, in which the element of international relations is im­ portant. Huvelin, incidentally, is mistaken in thinking that mercantile law is the body and soul of English commercial law. Anglo-American law does not and should not know a "commercial law." ,e The intervention of the state in this field is illustrated by the imposition of p o rto ria or customs duties, grants of market rents to cities, tax on auction­ sales and tax on certain types of business ; cf. HuvELIN, op. cit. supra note 4, at 50 et seq. " The state intervened to guarantee the amuma, or food supply distributed in Rome and other cities, and to ad!T'inister markets. Price regulation and or­ ganization of commercial associations are not pure administrative interferences; behind them may be factors of trade regulation and unfair competition. Cf. HuVELIN, op, cit. sup ra note 4, at 57 et seq.

9

Sources and Influences of the Roman Law, III-VI Centuries A. D. -:�

B

EFORE the rediscovery of the idea of interpolation by Fridolin Eisele and Otto Gradenwitz some forty years ago a discussion of the sources and influences of the Ro­ man law from the third to the sixth centuries, A. D. , would have been almost an impossibility, in addition to being considered fanciful and nonsensical. Had not Justinian, in the Digest compiled by his command, col­ lected the judicial utterances of the j urists of the first centuries of the Christian era and republished them as legal principles valid for his own time ? What possibility was there, then, for any development of Roman law be­ tween these two epochs ? Today, however, when there is hardly a passage in the Digest that is not considered by some scholar or another as interpolated, the problem of legal development in this period is of utmost interest. If the commission appointed by Justinian was specially in­ structed to bring the juristic writings it utilized up to date, and if modern scholars are able to identify the ad­ ditions, omissions or substitutions that the commission made, there is clearly a discrepancy between classical law and that of the era of Justinian. Collinet, in the first volume of his Etudes historiques sur le droit de Justinien,1 published in 1912, was the first to attack the problem. Inasmuch as all scholars now realize that the law of the 2/3 Century A. D. was not the law of the 6th Century A. D., in addition to fixing the exact nature of the difference, we must attempt to deter• Recently delivered before the Riccobono Seminar at Georgetown University Law School. 1 Entitled Le caractere oriental de l'oeuvre legislative de Justinien e t les destinces des institutions classiques en Occident. Noteworthy reviews are those of Audibert, Nouvelle Revue Historique de droit fran