Periculum maris come il valore contrattuale nel diritto romano

Abstract


 
 
 For persons who wanted to invest their resources in international commerce, the necessity of a sea voyage significantly increased the risk connected to this venture. Thus the contracts, which took into account the risk related to navigation, constituted under Roman law a special category of contracts, as they modified standard contracts such as a loan or a partnership contract. In the contract of maritime loan the fact that the creditor assumed the risk of losing money in case the condition si salva navis pervenerit was not fulfilled and in exchange could claim high interest to compensate him for such risk transforms this contract into an instrument used for the joint gain of profits. The classical scheme, in which all partners were obliged to share both profits and losses was modified by a partnership contract, in which a partner whose contribution involved exclusively undertaking risky sea voyages was exempt from bearing losses. This pactum made it possible to treat pecuniary contributions and in-kind contributions as equivalent in value. This prevented a situation in which the partner whose sole contribution involved services, in spite of due performance of his obligations, would be liable to repay a part of the loss to the partner who brought capital, if the activity of the partnership resulted in the loss. A typical example, referred to by jurists, of a situation in which services performed by a partner justified discharging him from participating in the loss, was the case in which one of the socii financed the purchase of goods to be subsequently sold with profit in another port, while the other one carried out this venture risking his life during the sea voyage. Therefore, undoubtedly, services entailing a dangerous sea voyage constituted a good example of a partnership, in which the value of a contribution of opera was even greater than the value of the capital invested, and this justified releasing one of the partners from participation in the loss. Therefore, the risk related to navigation, and more specifically the willingness to assume it, starts to be considered as having a certain economic and market value. This value constitutes a special periculi pretium, that is to be taken into consideration in a contract relationship. The acknowledgement by Roman jurists that the willingness to assume the risk connected with certain types of business constituted an economic value, means that the importance of such factors as the partner’s efficiency, resourcefulness, or willingness to embark on a risky activity (in most cases crucial for a success of an enterprise) – was fully appreciated.