(being continued from 20/01/15)
The preliminary skirmishes between Dareius and Dionysodorus serve to remind students of Athenian Law that a trial in court was often only the last step in a long series of maneuvers between litigants. Whatever their true intentions,each one attempted to act as if he did not wish to bring their case to court; both men strove to win over public opinion by offering compromises and avoiding the appearance of being litigious. This led to a series of proposals and counter-proposals, each aimed ostensibly to reach a settlement.
Given the nature of the sources for Athenian Law, it is impossible know how often attempts at out-of-court settlements succeeded, but it would appear that Greek attitudes favored settlement over trial.The Athenians admired a bold warrior on the battlefield and a determined competitor in an athletic contest, but in the agora they expected citizens and metics to refrain from aggressive behavior and to demonstrate their willingness to compromise and cooperate. But social attitudes against litigiousness and the possibility of compromise were not strong enough in this instance to achieve a settlement, and Dareius was forced (or preferred) to bring his case against Dionysodorus to court.
After presenting his version of the facts in the case (5–18), Dareius turns to his legal arguments (19–44). Some
scholars claim that the Athenians were amateurs in legal matters, but even the structure of Dareius’ speech reveals a certain level of legal sophistication. Dareius does not throw together factual and legal arguments, but keeps the two kinds of arguments strictly separate. This separation reveals his awareness that the two kinds of arguments are different and require different methods of reasoning.The narrative of the speech recounts a series of events and carefully attempts to create causal links among these events by analyzing the motives of his opponents and showing them acting consistently in accordance with these motives.The section containing the legal arguments is very different.
Here Dareius focusses more closely on the terms of the contract and contrasts how the actions of his opponents violated the contract, then refutes the arguments his opponents will presen t. Narrative gives way to analysis, and the diff erent modes of presentation show that Dareius clearly understood the distinction between factual and legal arguments.
As Dareius stresses is opening words, he relies p rimarily on the Athenian law stating that all agreements entered into willingly are binding. He therefore places great weight on the actual wording of the contract. He predicts that Dionysodorus will make three main arguments in his defense. First, he will claim that their ship was “wrecked” or “damaged” on its return from Egypt and forced to put in at Rhodes. To prove this assertion, Dareius will show that he hired ships at Rhodes to transport some of his cargo to Athens. Second, he will point out how several other creditors were willing to accept payment of interest only as
far as Rhodes. Third, he will rely on a clause in the contract that obligated him to repay the loan only in the event that
“the ship was safe.” Since the ship could not arrive safely in the Peiraeus, Dionysodorus was not obligated to repay the
loan.This section of the speech is valuable for giving some indication of the points Dionysodorus may have made. On
the other hand, one cannot be certain that Dareius does not misrepresent his opponent’s arguments or fails to do
them full justice.
In answer to the first argument Dareius questions his opponent’s claim that the ship suffered serious damage.
If this was so, why did the ship later sail back to Egypt and is now visiting every port in the sea except Athens?
He brushes aside Dionysodorus’ story that his partner shipped some of his cargo to Athens; he claims that they
only transported the items that were selling at high prices in Athens, but sold their grain in Rhodes because the
price for grain was higher there. Dareius’ objection rest in part on the unproven fact that the ship is now sailing
again. Dareius provides no evidence for his assertion,and Dionysodorus might well have denied that the ship
could have been repaired. Dareius also assumes that Dionysodorus could have shipped the grain from Rhodes to
Athens, but he does not countenance the possibility that officials in Rhodes may have forced him and his partner to
sell their grain there. As noted in Section 1, the Athenians had a law that forbid citizens and metics from transporting
grain outside of Attica and established a board of ten superintendents of the port to enforce this law (Constitution
of the Athenians 51.4). The people of Rhodes could havehad a similar law, and the officials at Rhodes might ave prevented Parmeniscus from shipping the grain (Cf.[Aristotle] Oeconomica 1348b33f) such a scenario is all the more likely when one recalls that Dareius himself insists That the price of grain was much higher in Rhodes than it was in Athens. Faced with a severe shortage, officials in Rhodes are unlikely to have allowed to Parmeniscus to remove the grain from their market. In fact, several sources indicate that poleis might detain ships carrying grain to other ports and force them to sell their cargoes (e.g. [Demosthenes] 50.6)
Dareius next addresses Dionysodorus’ second argument that his other creditors accepted his proposal to receive
the payment of interest only as far as Rhodes. He dismisses this argument on the grounds that the settlements
reached with the other creditors are irrelevant to his own case (26) He insists on the terms of their agreement: either they show that the contract is not binding or abide by its terms (27). Dionysodorus probably intended to contrast the willingness of the other creditors to settle for a smaller amount of interest with Dareius’ own intransigence as a way of making him look greedy and stubborn. To counter this strategy, Dareius claims that these creditors did not yield part of their gains, but actually profited from their settlement since they immediately recovered their loans at Rhodes, then were able to lend out the principal again
to the two men and receive interest from their subsequent trip to Egypt and back (28-29). Dareius’ counter-attack not
only accuses the other creditors of acting solely out of a desire for profit but also charges them with lending money
to ship grain to another port besides Athens. In reality, it may have been Dareius who was the greedy one. Whatever
amount of interest the other creditors may have been earning,Dareius and his partner would have gained far more if
they won their case since they were asking for double the principal or 6.000 drchmas.
Dareius devotes the longest reply to Dionysodorus’ argument based on the clause which required repayment only
in the case that the ship arrived safely. Dareius interprets this clause narrowly and claims its only applied in the case
where the ship actually sank. Dionysodorus appears to have interpreted the clause differently (38). To judge from
Dareius’ brief summary of his argument, Dionysodorus was prepared to stress the clause in the contract that called
for the ship to return to Athens. Since the ship suffered serious damage, it could not continue safely on its voyage
and arrive safely in the Piraeus. In other words, Dionysodorus Have a broad interpretation of this clause, which
he argued gave exemption to himself and to his partner not only if the ship sank, but also in the eventuality that
it suff ered damage and was unable to continue safely on its journey. Dareius’ reply to this argument is that Dionysodorus
could have repaired the ship and continued on his voyage to the Piraeus. But Dareius’ reply may ignore the
possibility that Pamphilus may have been forced to sell the grain in Rhodes.
Whatever the actual circumstances, the diff erent interpretations of the phrase “if the ship arrives safely” illustrate
what the philosopher of law H. L. A. Hart has called “the open texture of law.” Hart notes that laws and contracts
usually contain general terms or cover large categories of persons or actions. While these terms and categories provide
clear guidance in most situations, it may on occasion be difficult to know how to apply a general rule to a specific
situation. In this case, the phrase “if the ship arrives safely” contains a potential ambiguity. The phrase obviously exempted
the borrower from repayment if the ship sunk,but left it unclear how to apportion losses if the ship was only damaged and forced to seek a harbor short of its final destination. Should the borrower have to pay additional interest or was it unfair for the borrower to shoulder all the losses caused by the unforeseen circumstances? The Athenians were certainly familiar with the practice of allocating risk; for instance, in the law of Agyrrhius discussed in part 1.6 one clause stipulates that the men who collected
the dodekate had to take the entire risk of loss during transport of the grain to Athens (lines 11-15). In the private
contract drawn up by Dareius and Dionysodorus, however, this question was not addressed. As a result, the dispute
ended up in court. It would be fascinating to know how the court decided the legal issue involved in the case and
how it arrived at its decision, but the sources are silent.
The speech “Against Dionysodorus” provides valuable information about the legal relationship between lenders
and mechants in overseas trade. Although lenders took considerable risks in making loans to merchants, the law
provided them with several ways of minimizing these risks. Taking advantage of praxis-clauses and the practice
of real security and relying on the courts to enforce contracts, lenders could increase the odds of recovering their
principal and earning interest. As Dareius observes in the closing words of his speech, the laws and the courts of Athens
played a major role in promoting the overseas trade that made the agora of Athens a thriving marketplace.
Edward M. Harris
SOURCE HARVARD UNIVERSITY HELLENIC STUDIES