Law and Economy in Classical Athens (IV last)

(being continued from   20/01/15)

PART 2.6

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)

PART 2.7

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.


PART  2.8

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


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