Theory and practice in the Roman law of contracts

One of the enduring qualities of Roman law in the Corpus Iuris Civilis is the level of intellectual abstraction visible in the snippets of juristic writing and Imperial rescripts. This is a testament not only to the Roman legal genius, but also to efficiency of Justinian’s compilers in severing all texts from their original context. Although the lack of context, among other things, was largely responsible for the ease with which the legal rules and terminology of Roman law was grafted into the ius commune of Western Europe, it sometimes obscures the very essence of some of these rules. To that end, this paper will use a single example from the law of urban tenancy, namely the landlord’s hypothec over the tenant’s goods, to argue this point. It will demonstrate that a better understanding of the context in which this rule arose and of its practical application may provide new insights into both Roman law and the European ius commune.