The benefit to Romanists of using the Basilica : The example of B. 14,1,26,8 (D. 17,1,26,8)

Abstract

In Roman and Byzantine legal literature there has been much debate about the payment ( merces /μισθός) claimed by the mandatory in D. 17,1,26,8 (B. 14,1,26,8). The reason was the requirement of gratuitousness of mandatum , which made that this case should in principle be classified as a locatio conductio /μίσθωσις. To explain the presence of merces in Roman law literature several suggestions were made: interpolation, remuneration, the existence of two contracts or a pactum adiectum . In Byzantine law literature μισθός was interpreted as the payment for the slave. These interpretations are one way or another unsatisfactory. In (early) Byzantine law a plausible new interpretation can be found. Here the payment is interpreted as expenses incurred to make the property, i.e. slave, worth more, and such expenses (for training slaves) are ‘useful’ expenses. This interpretation is plausible and applies also for classical Roman law. It shows that the use of the Basilica is of indispensable benefit to Romanists.