In this book B. analyses the Roman legal term pecuniam debitam constituere, which appears in the praetorian edict. According to the prevailing opinion it means: ‘to promise the fulfilment of an already existing monetary debt at a certain date’. The praetor sanctions the promisor's failure to comply (non fecisse quod constituit), granting the actio de pecunia constituta, which is aimed at the plaintiff's interest in compliance with the constitutum. There is also evidence of a reciprocal sponsio/stipulatio of the litigants ‘about the half’ (sponsio dimidiae partis).
B. confidently masters the entire literature on pecunia constituta, the ‘Vielzahl von mehr oder weniger gelungenen Hypothesen’ (p. 57). The internal structure usually consists of a survey on the discussion about classical problems and B.'s own ‘Stellungnahme’. The whole field is so intensively ploughed through that in most questions – on the origin of the edict, on its imperial handling, on Justinianic reforms, on medieval interpretation – B. has to follow an already existing solution (by Bruns 1861, Kappeyne van de Coppello 1885, Astuti 1938, Roussier 1958, Frezza 1962 and others) – albeit with distinctions, deepening and supplementing the argumentation. To penetrate the problems, to evaluate the arguments and to confidently commit to a solution as B. does requires a high degree of legal acumen, methodological awareness, and mastery of language and sources.
Methodologically, I find the handling of the first fragment of the relevant Digest title to be less successful. In D. 13.5.1 pr., Ulpian (27 ed.) speaks of constituta ex consensu facta and motivates the edict with grave est fidem fallere. According to B. (p. 29), Ulpian ‘soll ex consensu facta in seinem Ediktskommentar geschrieben haben’, thus showing himself open to an old suspicion of interpolation. On p. 55 B. assumes the ‘Echtheit jedenfalls des zitierten Satzteils’ in spite of ‘Verdachtsmomente’. On p. 340 he even sees Ulpian ‘in der Hochklassik [Spätklassik?] mit großer Selbstverständlichkeit von constituta ex consensu facta sprechen’ and recognises in this a massive shift in understanding since the edict was created. On p. 57, on the other hand, he assigns fidem fallere to ‘(Pseudo-?) Ulpian’. So Ulpian is either adulterated or adulterating on his part?
To present the subject in a new monograph was undoubtedly justified when B. began his work. If I understand correctly, B.'s study was completed in ‘essential parts’ in the early 2000s, in 2008 a ‘first complete draft’ was available, the work was submitted in 2011, accepted as a dissertation in 2018 and published in 2020. My own work on the constitutum was completed in 2009 and published four years later (Das Edikt de pecunia constituta [2013]). B. includes references to my book in the core monograph, but also adds a review-like ‘appendix’ on my theses (pp. 444–73). Sometimes, B.'s references sound a bit strange, for example: ‘… wie hier jetzt mit Recht auch Platschek …’ (p. 55 n. 150); ‘Gegen mein abweichendes Verständnis der Stelle wendet Platschek vor allem ein …’ (p. 466). This sounds as if we have been in a discussion for years. No doubt, B. is the expert in this area for the next decades of research into Roman law, his book will serve as the reference. However, not the thoughts, but the published statements of B. are such of 2020. He literally draws readers into his ‘inner’ chronology.
According to B., pecuniam constituere is originally purely a time determination (p. 344), repeating Bruns's model of evolution. The commitment to a calendar-based day is undoubtedly the central case of pecuniam debitam constituere. I (2013, p. 144) spoke of a ‘besondere Affinität’ of constituere as ‘in der Regel’ fixing a certain date (in B., p. 449, these expressions seem a bit distorted). However, neither in the time of classical jurisprudence nor when the edict came into being can constituere be defined as a calendar-based promise of payment. The jurists speak of dies constituti, documents of dies pecuniae (TPSulp 63), Cato of dies argento (Agr. 146.2); and diem constituere is undoubtedly the usual phrase for ‘to terminate’. But the expression in the edict is not pecuniae debitae diem constituere, but pecuniam debitam constituere.
B. rejects my idea of the edict being coined by Hellenistic credit and document practice. This includes the connection that I make between the hêmiolia (‘the one and a half’), the standard penalty in the Greek loan deeds, and the sponsio dimidiae partis (which in sum leads to the plaintiff's conviction to one and a half). According to B., there is no evidence that Plato's regulation of a procedural penalty of a half or one and a half ‘in den griechischen Poleis jemals umgesetzt worden wäre’ (p. 447). But the argumentum e silentio is not too strong either. For me, the trial penalty in Plato is above all part of a model for explaining the hêmiolia in the documents (which, like the enforcement clause kathaper ek dikês, anticipates the situation after a judicial conviction). B.'s reference to the increase in the debt amount by 50% ‘schon im babylonischen Recht’ is not comprehensibly documented (p. 73 n. 241: what is probably meant is E. Revillout, Les Obligations en droit égyptien [1886], pp. xlvff., esp. lvi; but there one does not find any evidence of a Babylonian hêmiolia, see also ibid., pp. 463–4).
According to B., the principle of ‘Zweckverfügung’, which I see effective in the edict, is not a purely Greek phenomenon, but one of ‘vieler junger Rechtsordnungen’ (p. 447), including early Roman law. Pecuniam constituere certainly does not belong to the old ius civile of the Romans. It is remarkable that the Roman praetor established a matter of infringement within a developed legal system in which one could already deal with contractual penalties, damage caused by delay, assumption of debt etc. using the oral stipulatio. B. is right that I see the actio de pecunia constituta giving validity to ‘auf einer früheren Stufe verharrten hellenistischen Vorstellungen’ (p. 448) – because the practice surrounding Rome ‘verharrt’ at this stage. Why should a creditor who insists on keeping a written promise, as it is in all documents, care about any legal ‘Ideengeschichte’?
For B., legal protection for non-Roman practices to increase the attractiveness of the Roman trading centre does not fit well ‘zum Selbstverständnis einer aufstrebenden res publica, die ihren Vorstellungen ansonsten mit dem Schwert in der Hand Geltung zu verschaffen wusste’ (p. 448) – this is heavily burdened by outdated prejudices.
From the Digest's sparse casuistry B. concludes that a longer period of time can be expected between the creation of debt and constituere – longer than the moment that I consider sufficient (I would never deny that constituere must take place ‘afterwards’ – misunderstood by B., p. 460). But casuistry does not serve to illustrate the normal case. The Digest fragments explicitly say nothing about the normal case. Should the promise of performance given immediately after the creation of debt not be covered by the edict at all? How should subsumption fail here? Conversely, if every promise of fulfilment after the creation of a monetary debt, every homologô apechein (= acknowledgement of the pecunia debita) … kai apodôsô … (= promise of fulfilment), every scripsi me accepisse … quae tibi reddam … falls under the edict, then this is the most common case of pecuniam debitam constituere due to its ubiquity in credit practice. If at the same time it is certain that the Romans adopt the structure, stylisation and designation of the Greek cheirographa for a significant part of their credit documents, then the most common case of the pecuniam constituere lies in an area in which the Romans join their Greek environment. While I subject the Latin chirographum examined by Modestin in D. 22.1.41.2 to the edict de pecunia constituta, B. considers Kaser's assumption to be ‘näherliegend’ that we find here (after the constitutio Antoniniana!) ‘einen Fall aus dem peregrinen Rechtsverkehr’ (Kaser: between dediticii!), to which the Roman jurist applied peregrine law (p. 460). Methodologically, I think that is questionable. I see no progress in the strict separation of ‘Roman law’ from any ‘non-Roman’ tradition.
