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Contract Norms and Contract Enforcement in Graeco-Roman Egypt

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Contract Norms and Contract Enforcement in Graeco-Roman Egypt Contract Norms and Contract Enforcement in Graeco-Roman Egypt David M. Ratzan Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy under the Executive Committee of the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2011 © 2011 David M. Ratzan All rights reserved ABSTRACT Contract Norms and Contract Enforcement in Graeco-Roman Egypt David M. Ratzan This dissertation explores the ethics and norms associated with contracting in Ptolemaic and Roman Egypt as a contribution to the institutional study of ancient contract and its relationship to the economic history of the Roman world. Although ancient contracts in the Hellenistic tradition (i.e., non-Roman law contracts) have been studied rigorously from a legal perspective, there has been no systematic study of contract as an economic institution in the eastern half of the ancient Mediterranean. The first three chapters argue that such a study is a historical desideratum and seek to establish the theoretical and methodological basis and scope of such a project. Theoretically, the most decisive factor in determining the nature, extent, and success of contract as an economic institution is actual enforcement, as opposed to mere legal ―enforceability.‖ While the modern (Western) state has been justly credited with having had a transformative effect on contract by publishing clear rules (i.e., contract law) and providing effective ―third- party‖ enforcement, even modern contracts depend on the enforcement activities of the individual parties and the power of social norms. Historically, there is no question that the ancient state, Rome included, was less invested and less effective in its support and promotion of private contracting than its modern counterparts. Ethics and norms therefore played a larger and more important role in ancient contracting than they have in the last century and as such need to be studied in their own right. The nature of the project also argues for Egypt being the primary locus of study, since the papyri afford us the most complete access to ancient individuals and organizations using contracts to organize transactions. After the theoretical and methodological discussion, there follow explorations of several important social values and norms with respect to contracting in Graeco-Roman Egypt, including trust (pistis), ―respect‖ (eugnōmosynē), and ―breach.‖ The results show how ―personal‖ contracting was and reveal some of the ways in which individuals bridged the inevitable ―trust gaps‖ in their efforts to build credible commitments with those outside the immediate circle of their trusted intimates. It also illuminates the discourse of reputation, a key lever in ancient contract formation and enforcement. Finally, the notion of breach is shown to have become both more common and to have evolved conceptually in written contracts over time. It is argued that these changes in the idea and drafting of breach should be interpreted in light of a larger pattern of historical and legal development spanning the second century BCE to the second century CE, a period which witnessed an increasing ―moralization‖ of contract, itself an adaptation to an enforcement regime heavily dependent on ethics and norms. The last chapter offers a synthesis of the findings and a prospectus of the next phase of the project, which turns to the role of the state, arguing that it was generally more effective and activist than the current opinion allows. TABLE OF CONTENTS Table of Contents ............................................................................................................................. i List of Tables and Figures.............................................................................................................. iv Acknowledgments........................................................................................................................... v Chapter 1: Law, Economy, and Contract in Roman Egypt ............................................................. 1 1.1 Contracting in Roman Tebtynis ............................................................................................ 3 1.2 Papyrus Contracts, Roman Justice ...................................................................................... 11 1.3 Of Enforcement and Enforceability .................................................................................... 14 1.4 Contract and the Ancient Economy .................................................................................... 18 1.5 The Argument ..................................................................................................................... 29 Chapter 2: The Economics of Contract ......................................................................................... 39 2.1 Contracts and Exchange ...................................................................................................... 39 2.2 Contract and NIE: Contract as Governance Structure ........................................................ 44 2.3 Contract Enforcement and Self-help ................................................................................... 51 2.4 Contracting in the State of Nature ....................................................................................... 64 2.5 Contract and NIE: The Historical Perspective .................................................................... 71 2.6 The Economic and Institutional Study of Ancient Contract: An Agenda ........................... 80 Chapter 3: The Institution of Contract in Graeco-Roman Egypt and the Study of Norms ........... 84 i 3.1 Contract in Egypt ................................................................................................................ 87 3.2 Formalism, Credibility, and Choice .................................................................................... 89 3.3 An Institutional Map of Contract ...................................................................................... 100 3.4 The Evidence for Norms ................................................................................................... 111 3.5 The Norms of Contract in Graeco-Roman Egypt.............................................................. 117 Chapter 4: Pistis and Eugnōmosynē ............................................................................................ 121 4.1 The Study of Pistis ............................................................................................................ 121 4.2 The Social Dynamics of Pistis .......................................................................................... 131 4.3 The Business Dynamics of Pistis ...................................................................................... 145 4.4 Pistis and Contract ............................................................................................................ 155 4.5 The Social Dynamics of Agnōmosynē and Eugnōmosynē ................................................ 170 4.6 The Business Dynamics of Agnōmosynē and Eugnōmosynē ............................................ 175 4.7 Agnōmosynē, Eugnōmosynē, and Contract ....................................................................... 180 4.8 Of the Importance of Being Pistos and Eugnōmōn: Reputation and Contract.................. 195 4.9 Positive Norms: Conclusion .............................................................................................. 225 Chapter 5: Breach and the Moralization of Contract .................................................................. 231 5.1 The Vocabulary of Breach ................................................................................................ 236 5.2 Breach and Demothenes‘ Against Dionysodoros (Dem. 56) ............................................ 248 5.3 Parasyngraphein and Early Ptolemaic Contracts ............................................................. 267 ii 5.4 Parasyngraphein and Later Ptolemaic and Roman Contracts .......................................... 288 5.4.1 Parasyngraphein and the Nichtangriffsklausel .......................................................... 293 5.4.2 Parasyngraphein and the Transactional Agreement .................................................. 298 5.4.3 Addendum: Athetein ................................................................................................... 317 5.5 The Fall of Parasyngraphein ............................................................................................ 320 5.6 Parabainein and Contract ................................................................................................. 325 5.6.1 Parabainein and Law ................................................................................................. 335 5.6.2 Parabainein and oath and promise ............................................................................. 339 5.7 The moralization of breach ............................................................................................... 361 Chapter 6: Conclusion and Prospectus ...................................................................................... 379 6.1 Conclusion ......................................................................................................................... 379 6.2 Prospectus.......................................................................................................................... 415 Bibliography: .............................................................................................................................
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