Cessante Labore Cessat et Praemium? ― 無勞動 無賃金? 로마법상의 고용계약에 관한 소고 ―

Abstract

This article deals with the question in Roman law of whether or not the employer was obligated to pay the remuneration (wage), when the employee was hindered from offering his labor by an event not attributable to both of them. It is hard to answer this question of risk distribution between the parties in the Roman law of labor contract, because there is only a very limited number of legal sources available. A critical survey of these sources, esp. D.19.2.19.8-10 (Ulp. 32 ed.) and FIRA III, No.150 a-c (CIL III, 948-949 Tab. IX-XI), reveals no certain legal guideline in theory and practice. The latter shows but a spectrum of practical solutions by way of conventional agreements between the parties, and the former sanctions according to the general principles of contract law, because the case it deals with concerns a situation not of risk distribution, but of a fault to be blamed to one of the parties. The picture we have shows a settled contract of labor freely stipulated by the parties. However, we also find a series of legal decisions securing laborers working conditions tolerable and humane as are necessary for their health and aliment (Alf. D.38.1.26; Ner. D.38.1.50.1; Iav. D.38.1.33; Gai. D.38.1.19; Paul. D.38.1.20.pr; Gai. D.38.1.22.2; Paul. D.38.1.16.1). It is, therefore, worthy to emphasize on the two competing ideas of labor contract among the Roman jurists. The veteres, the Republican jurists succeeded by the Sabinians in the classical period, deemed it as a status contract to the effect that it might encompass protective measures for the working persons (that means practically “Payment in spite of no labor”), whereas the proponents of the New Jurisprudence, of which the originator was Servius Sulpicius Rufus and which was followed by the Proculians in the classical period, took for granted its being a free transaction between the parties (they tended to recognize “No payment without labor”). The sources we have analysed reflect the typical law of the classical period in which the Proculian idea prevailed.