1 Introduction
During the second and third centuries CE Roman jurists extensively debated the question of whether or not a sale was contracted if no money was involved. Simultaneously, Jewish legal authorities were debating the relationship in sale transactions between coins and other goods on the one hand, and various monetary instruments on the other. Both Roman law and Jewish legal sources preserve debates on procedural aspects of sale that eventually affected the way transactions were carried out. In both traditions, legal practicalities affected the juristic definitions that attributed transactions to specific categories of sale. In each tradition, the outcome of these debates had crucial implications for the real-life conduct of sale transactions, as it determined the legal aid available in the event of a dispute. This paper uncovers certain communalities between the two legal traditions and argues, further, that these were created by a shared conceptual approach; that is, by an understanding that money is a unique phenomenon requiring special attendance. As such, money highlights conceptual classifications, and in so doing, it enables individual items of sale to be differentiated and thereby, it enables a proper operation of a valid legal procedure.
2 Roman Law
One of the most innovative contributions of Roman jurisprudence is the formation of consensual contracts, which enables the creation of obligations based on nothing more than agreement between the parties. It is mere consent, rather than any procedural formalities, that gives such contracts their legal force. This novel development originated at an unknown point during late archaic Rome, perhaps in the course of the third century BCE. Out of the four Roman consensual contracts—emptio venditio (sale), locatio conductio (lease or hire), mandatum (mandate or agency), and societas (partnership)—emptio venditio, the Roman contract of sale, was allegedly the earliest.1 By the turn of the second century BCE, emptio venditio had emerged as a contract enforceable solely on the basis of agreement between buyer and seller.2 It created bilateral obligations between the parties, who were reciprocally liable to one another;3 and was conditioned neither by conveyance,4 nor by any transfer of earnest money.5 This novelty detached the moment a sale was concluded from that of delivery, which, in turn, potentially enabled sale on credit to become an integral feature of the Roman economic landscape.6
In order for a Roman contract of sale to be valid, the parties had to agree on two issues: the object sold, merx; and its price, pretium. The former, merx, could be “anything which one may have, possess, or sue for”.7 The latter, pretium, was subject to certain restrictions. First, it had to be certum, “definite”,8 meaning that the contract either stated a final figure or described the conditions that led to one.9 Second, it had to be verum, “real”, i.e., not symbolic.10 Third, in later period—although probably not before the end of the third century CE, introduced at the earliest by Diocletian—a price also had to be iustum, “just”.11 This requirement is known in the scholarship as the doctrine of laesio enormis and raises many interesting questions that are beyond the scope of the current discussion.12 Fourth, and this is the requirement that interests us here, the price had to be constituted in monetary terms, that is in numerata pecunia.
For several decades, the issue of pretium in numerata pecunia stood at the heart of one of the most celebrated controversies between the two schools of Classical Roman Law: The Proculians and the Sabinians. Since the first century CE, the intellectual life of Roman jurists was dominated by a division into these two schools of thought, whose legal rulings differed in a long list of controversies.13 The reasons for the emergence of two distinct schools, as well as the nature of the division between them, has been the subject of many scholarly debates and it, too, is beyond the scope of the present discussion.14 What concerns us here are the specifics of the pretium in numerata pecunia controversy. The school controversy regarding the pecuniary nature of a purchase-price is known mainly due to a single paragraph contained in Gaius’ Institutiones (3.141) and to two fragments of Paul’s Ad Edictum, which are preserved in Justinian’s Digest (18.1.1.1 and 19.4.1.pr). All three texts are cited here in full, starting with Gaius’ Institutiones, which reads:
Likewise, the price must be in money. There is, however, much question whether the price can consist of other things, for example, whether a slave, or a toga, or a piece of land can serve as a price for another thing. Our teachers think that the price can also consist of another thing. Hence, they commonly think that by bartering things a contract of sale is concluded and that this is the most ancient form of sale. And by way of argument they bring forward the Greek poet Homer, who has said somewhere: “Thence the long-haired Achaeans procured wine, some in exchange for bronze, others in exchange for gleaming steel, some for hides and others for the live cattle, and some for slaves” and so on. The authorities of the other school disagree and hold that bartering things is one thing and that sale is another. Otherwise, when things are exchanged one cannot determine which thing is considered as having been sold and which as having been given by way of price. But, on the other hand, it seems absurd that both things are considered as sold and as given by way of price at the same time. Caelius Sabinus, however, has said that, if I have given to you, who offers a thing for sale—e.g., a piece of land—a slave by way of price, then the piece of land is considered as having been sold and the slave as having been given by way of price in order to acquire the piece of land.15
According to Gaius, the controversy revolved around the question of whether or not a purchase price had to consist of money, as the Proculians claimed (diversae scholae auctores); or, whether it could potentially consist of other things, such as a slave, a toga, or a piece of land, as maintained by the Sabinians (nostri praeceptores). The Sabinians contended that barter (permutatio) was a species of sale (emptio venditio), in fact, “the most ancient form of sale”. The Proculians, on the other hand, took the view that permutatio and emptio venditio were independent legal procedures, because in permutatio it was impossible to discern between the item being sold (merx) and the price received for it (pretium). Gaius also mentions a media sententia offered in the second-half of the first century CE by Caelius Sabinus; who claimed that the order in which the exchange took place determined which party offered the goods (merx) and which party offered the purchase price (pretium). Hence, it also determined which party was able to invoke the remedy of actio venditi and which party could invoke that of the actio empti. The moderate view offered by Caelius Sabinus confirms that procedures were often applied inconsistently, a fact that often required the juristic authorities to intervene, in order to determine which legal procedure was the correct one to apply.
The excerpts from Paul’s commentary on the Praetor’s Edict, written approximately one generation after Gaius’ text, elaborate on the Proculian line of argument and lend support to the hypothesis that, by the early third century, the controversy was decided in favour of the Proculian stance. Dig. 18.1.1.1 (Paul. 33 ad ed.) reads:
And today it is a matter for doubt whether one can talk of sale when no money passes, as when I give an outer garment to receive a tunic; Sabinus and Cassius hold such an exchange to be a sale, but Nerva and Proculus maintain that it is barter, not sale. Sabinus invokes as authority Homer who, in the lines which follow, relates that the army of the Greeks bought wine with copper, iron, and slaves: “Then the longhaired Achaeans bought themselves wine, some with copper, others with splendorous iron, ox-hides, oxen themselves, or slaves.” These lines, however, suggest barter not purchase, as also do the following: “And now Jupiter, son of Saturn, so deranged the mind of Glaucus that he exchanged his armour with Diomedes, son of Tydeus.” Sabinus would have found more support for his view in what this poet says elsewhere: “They bought with their possessions.” Still the view of Nerva and Proculus is the sounder one; for it is one thing to sell, another to buy; one person again is vendor and the other, purchaser; and, in the same way, the price is one thing, the object of sale, another; but, in exchange, one cannot discern which party is vendor and which, purchaser.16
From this excerpt, it appears that the relevant question was simply whether or not a sale occurred—hence, the remedy of the actiones empti et venditi was instituted—whenever no money (here, specifically, coinage, nummi) was involved. Paul sides with the Proculian view, arguing that emptio venditio requires a clear distinction to be made between buyer and seller, which can only be achieved via a clear distinction, in turn, between the goods (merx) and the purchase price (pretium), a task impossible in barter (permutatio). The incentive for distinguishing merx from pretium was due to a procedural requirement to determine which party was permitted to use the remedy of the actio empti and which that of the actio venditi. However, the final part of the excerpt gives the impression that the controversy turned on the issue of distinguishing barter (permutatio) from sale (emptio venditio). Thus, a procedural requirement of Roman law gave rise to a conceptual distinction between barter and sale, a distinction that became the “bread and butter” of Roman commercial thought and indeed, of modern thought on the subject.
Another excerpt from Paul’s commentary on the Praetor’s Edict that explains that the need to distinguish sale from barter was necessitated not only by a need to establish who was entitled to invoke the remedies of the actiones empti et venditi, but also by further formalities intrinsic to Roman jurisprudence. Dig. 19.4.1.pr (32 ad ed.), reads:
Just as selling is distinct from buying and the buyer from the seller, so too the price is distinct from merchandise. But in barter it is impossible to distinguish who is buyer and who is seller, their duties being very different. The buyer is liable on sale if he does not make the recipient the owner of the money, whereas the seller need only obligate himself in the event of an eviction, deliver the possession, and remain free of bad faith, and thus he owes nothing if there is no eviction from the object. But in barter, if both things are price, then they must become the property of each party, and if merchandise, then they need not become the property either. But since there should be both an object and a price, [barter] cannot [be sale and purchase, for there is no way] of knowing which thing is merchandise and which price, nor does common sense allow that one and the same thing be both the object sold and the price of purchase.17
From this excerpt it follows that, because in emptio venditio each party was bound under a different set of obligations (multumque differunt praestationes), a clear distinction between buyer and seller was called for. While the former (the buyer) was obliged to transfer ownership over the purchase price agreed,18 the latter (the seller) was not obliged to transfer ownership over the merx, as it was not always the case that the seller was the owner.19 To transfer ownership, a separate legal act of formal conveyance was required: Mancipatio in the case of res mancipi,20 and traditio in the case of res nec mancipi.21 Thus, a need to distinguish the buyer from the seller was not derived solely from the question of who was entitled to invoke which remedy. The consequences of all these scenarios, though, are the same: it was crucial to differentiate between merx (merchandise) and pretium (purchase price), in order for the emptio venditio to be able to function correctly. Whenever such a differentiation was impossible, Roman jurisprudence faced a real difficulty in accommodating the formalities of emptio veditio with any accuracy. Eventually, Roman jurists simply preferred to view such transactions as something else, as permutatio. In so doing, they helped to create a clearer distinction, a dichotomy in fact, between barter and sale.
The difference of opinion between the two schools concerning the pecuniary nature of a purchase price continued throughout the second century and perhaps also into the third. However, by the second half of the third century, legal opinion at the imperial court was promoting the Proculian stance, and before the end of the third century the controversy had been finally decided in favour of the Proculian view.22 Emptio venditio was recognised as a completely separate transaction from permutatio, whereas the method used to distinguish between the two required the existence of a purchase price (pretium) formulated in numerata pecunia, i.e., “in counted money”. Thus, the debate concerning the nature of pretium was neither purely theoretical nor a case of interpretatio doctrinalis. Any requirement that a purchase price should be defined in monetary terms had crucial implications for both juristic procedures and the legal aid provided to each of the parties involved; and hence, also, to the conduct of sale transactions in general. At the end of the debate, the triumphal Proculian stance dictated that a contract of sale (emptio venditio) should be contracted by means of an agreement over two issues, merchandise (merx) and purchase price (pretium); and also, that the latter should be stated in monetary terms (in numerata pecunia). This controversy between the two schools was not initiated by a theoretical enquiry into the nature of emptio venditio, nor that of pretium; rather, procedural aspects of Roman law were the engine behind these continuous juristic debates. The resolution of the controversy came with a firm establishment of a conceptual dichotomy between barter and sale. The two were contrasted to one another, with the use of money and the definition of pretium as having a pecuniary component forming the boundary between emptio venditio and permutatio.23 Taken as a whole, the significance of this conceptual framework extended far beyond the sphere of Roman jurisprudence, as is demonstrated below, with an example taken from Jewish legal sources.
3 Jewish Law
On the face of it, the question of pretium in numerata pecunia has no place in a discussion on the contracting of a sale, as expounded in Jewish legal sources. Both the notion of a sale and the legal measures for making an act of sale are completely different in terms of structure, internal logic, and practical procedures within the Jewish legal tradition, when compared with Roman law. In Jewish law, contracts of sale fall under a larger category of dinei mamonot, literally “property laws”; which is a category that does not fully coincide with that in Roman ius civile. A central notion in Jewish property law (dinei mamonot) is the legal term qinyan. This derives from the root q-n-h (ק-נ-ה), which means “to acquire”, “to buy”, “to obtain”, or “to get hold of”. Qinyan generally stands for “possessions” or “property”, but can mean also “a formal mode of acquiring or conveying property or creating an obligation”, as well as “ownership” and “contract”.24 The same word enfolds all of these meanings, as do the verbs deriving from it in Hebrew. However, in contrast to Roman law, qinyan is not restricted to property law and can be applied to other areas of life. Thus, for example, it is used in the legal formulation applicable to Jewish marriages, where a woman is “acquired” by her husband.25
In Jewish law, a valid contract of sale required the consent of both parties and a modus acquirendi, which was termed by later Jewish legal authorities as ma‘aseh qinyan, “a deed of acquisition”, a phrase not used by talmudic sages.26 Practically, it meant that, in order to contract a sale, some act needed to be performed to render the transaction binding. This was contrary to Roman law, where sale was a consensual contract. Valid deeds of acquisition varied depending on the details of the transaction, the prevailing custom, and the opinion of different sages. Procedural diversity was intrinsic to the creation of sale transactions in Jewish law, with its roots reaching back to Biblical law.27 Unlike Roman law, in Jewish law there were many valid modi acquirendi. There was no Praetorian Edict that demanded a rigidness of formulae, no strict procedural need to differentiate the seller from the buyer, and, hence, no strict division between sale and barter. In fact, it may even be said that, in Jewish law, barter was a species of sale, with one Jewish modus acquirendi being called qinyan ḥalifin (קניין חליפין), literally “acquisition by barter”; whereby it too was divided into multiple categories, which depended on the practical procedures involved.28
Here, we will address one type of acquisition method called Acquisition by Pulling or Drawing (qinyan meshikhah). Acquisition by Drawing could be applied to movables and, to follow Menaḥem Elon, was “a mode of acquisition created by an enactment pursuant to which ownership is not acquired upon payment of the purchase money … but is acquired only when actual possession is taken”.29 Leaving aside the question of whether or not Acquisition by Drawing was in fact a result of the sages’ “enactment”, the doctrine of Acquisition by Drawing requires the actual transfer of the item sold, rather than that of the payment for it. Taking physical possession of the item sold renders the transaction officially complete.
Regulations regarding Acquisition by Drawing appear in the Mishnah, which is a redaction of Jewish oral traditions and dicta (halakhot) from the late pharisaic period (c. 536 BCE–70 CE), although probably not predating the first century BCE, and also from the tannaic period (c. 10–220 CE). It was collated by Jewish sages living in the Roman province of Syria Palaestina in the second and early third centuries CE; and, according to tradition, was concluded by Rabbi Judah the Patriarch (who died c. 220 CE).30 The paragraph relevant to our discussion of Acquisition by Drawing appears in order Neziqin, tractate Bava Metzi’a 4:1 of the Mishnah, and is further elaborated in the Mishnah’s commentaries in the Palestinian and Babylonian Talmuds; the former may have been compiled by the fourth century and the latter perhaps by the sixth or even the seventh centuries.31 I will begin by citing the three texts in full:
The Mishnah reads:
Silver acquires gold but gold does not acquire silver. Brass acquires silver but silver does not acquire brass. Bad coins acquire good ones but good ones do not acquire bad ones. A blank acquires a coin but coin does not acquire a blank. Movables acquire coins but coins do not acquire movables. This is the rule: all movables acquire one another.32
The Palestinian Talmud elaborates on this mishnaic excerpt as follows:
This is a summary of the matter: Anything worth less than the other acquires the other. Rebbi Ḥiyya bar Ashi said, who stated this? Rebbi Simeon ben Rebbi { = Judah the Patriarch}. His father told him, change your opinion and state the following: “Gold acquires silver.” He told him, I do not change my opinion since when your faculties were unimpaired, you instructed me to state: “Silver acquires gold.” The word of Rebbi implies that gold is like produce. The Mishnah implies that silver is like produce. [Rebbi Ḥiyya’s baraita implies that gold is like produce, but his word implies that silver is like produce, as the following:] The elder Rebbi Ḥiyya’s daughter lent denars to Rav { = Abba Arikha, her cousin}. She came and asked her father, who told her: Take from him good and full weight denars. Do we learn from Rebbi Ḥiyya’s daughter? Rebbi Idi said, also Abba, Samuel’s father, asked before Rebbi: May one lend denars against denars? He answered him, it is permitted. Rebbi Jacob bar Aḥa said, also Rebbi Joḥanan and Rebbi Simeon ben Laqish both instruct: It is permitted to lend denars against denars. Qerat against qerat is permitted, lekan against lekan is forbidden.33
The text of the Babylonian Talmud regarding this halakha reads:
(Mishnah) Gold acquires silver, but silver does not acquire gold; copper acquires silver, but silver does not acquire copper. Disused coins acquire current ones, but current coins do not acquire disused coins. Unminted metal acquires minted metal, but minted metal does not acquire unminted metal. Movable property acquires coined money, but coined money does not acquire movable property. Movable property acquires other movable property.34
(Gemara): Rabbi35 taught his son R. Simeon: Gold acquires silver. Said he to him: Master, in your youth you did teach us, Silver acquires gold; now, advanced in age, you reverse it and teach, Gold acquires silver. Now, how did he reason in his youth, and how did he reason in his old age? In his youth he reasoned: Since gold is more valuable, it ranks as money; whilst silver, which is of lesser value, is regarded as produce: hence [the delivery of] produce effects a title to the money. But at a later age he reasoned: silver [coin] [44b] is current, it ranks as money; whilst gold, which is not current, is accounted as produce, and so the produce effects a title to the money.36
R. Ashi said: Reason supports the opinion held in his youth, since it [the Mishnah] teaches: Copper acquires silver. Now, should you agree that silver ranks as produce vis à vis gold, it is well: hence it states: Copper acquires silver, to show that though it is accounted as produce in relation to gold, it ranks as money in respect to copper; but should you maintain that silver ranks as money in respect of gold, then [the question arises:] If in relation to gold, which is more valuable, you say that it ranks as money, it is necessary [to say so] in relation to copper, seeing that it is both more valuable and also current? It is necessary: I might have thought that the [copper] coins, where they do circulate, have greater currency than silver: therefore, we are taught that since there is a place where they have no circulation, they rank as produce.37
Now, R. Ḥiyya too regards gold [coin] as money. For Rab38 once borrowed [gold] denarii from R. Ḥiyya’s daughter. Subsequently, denarii having appreciated, he went before R. Ḥiyya. “Go and repay her current and full-weight coin”, he ordered. Now, if you agree that gold ranks as money, it is well. But should you maintain that it is produce, it is the equivalent of [borrowing] a se’ah for a se’ah [to be repaid later], which is forbidden? [That does not prove it, for] Rab himself possessed [gold] denarii [when he incurred the debt], and that being so, it is just as though he had said to her, “Lend me until my son comes”, or “until I find the key”.39
These texts have attracted the interest of scholars due to the relationship that they describe between different metals and also between metal and coinage. Scholars have often focused on interpreting the mishnaic excerpt and its talmudic commentaries in the context of late second and early third-century numismatic evidence and third-century coin debasement.40 Here, however, the focus is on the legal institutionalisation at the background of the sages’ deliberations. The discussion centres on the legal problem at issue, as well as on the type of categorisation that created the need for the ruling in the first place.
As the commentaries in both Talmuds show quite clearly, Rabbi Judah the Patriarch gave this tannaic ruling in the late second century CE.41 The first thing that strikes the reader, however, is the difference in the mishnaic text. Here, a brief clarification is needed: manuscripts that hold only the Mishnah carry the text cited here (see note 32 above). In the manuscripts of both the Palestinian and the Babylonian talmuds the mishnaic text is only sometimes quoted. However, the full text of the Mishnah only appears in manuscripts that contain the Babylonian Talmud, whereas, strictly speaking, manuscripts of the Palestinian Talmud originally did not contain the full text of the Mishnah (although subsequently, the mishnaic text, as it appears in manuscripts that contain the Mishnah alone, was added to European manuscripts of the Palestinian Talmud).42 While manuscripts that contain only the Mishnah stipulate that “Silver acquires gold but gold does not acquire silver”, manuscripts that hold the Babylonian Talmud and also contain the full text of the Mishnah have it the other way around: namely, they stipulate that “Gold acquires silver but silver does not acquire gold”. The halakhah of the Palestinian Talmud and the gemara of the Babylonian Talmud indicate that both such rulings were given by Rabbi Judah the Patriarch, and that from the end of the second century and throughout the third century, there was a lively debate as to which ruling should be followed. The sages cited in both Talmuds were familiar with both versions of Rabbi Judah’s ruling and debated which one of them was his last and hence, which of his views was the authoritative one. As historians, we of course would like to know not only which view was regarded as more authoritative, but also which one predated the other. In fact, the latter question was answered more than forty years ago, when Daniel Sperber argued convincingly that the original text of this ruling was the one carried in the manuscripts that contain only the Mishnah (i.e., “Silver acquires gold”). This ruling was then subsequently replaced during the third century with the one from the manuscripts that contain both the Mishnah and the Babylonian Talmud (i.e., “Gold acquires silver”).43
Of interest for the present discussion are not the faculties of specific objects, nor their order of hierarchy. Rather, it is the conceptual structure that formulated the legal discussions carried on between the sages in other words, the legal problem at issue. The Mishnah, as preserved in manuscripts that contain the mishnaic text only, presents a consistent order of hierarchy, which is explained quite straightforwardly in its halakhah, i.e., in the Palestinian Talmud: this explanation is that “Anything worth less than the other acquires the other”. The purpose of the mishnaic legal discussion was to regulate Acquisition by Drawing through the setting of clear rules as to when the drawing of an item actually finalized an act of sale and when it did not. In each of the pairs of items described—gold/silver, silver/brass, bad coins/good coins, blank/coin, movables/coins—only the drawing of one item qualified as a valid modus acquirendi. The consistency of scale offered in the mishnaic text is explained logically in the Palestinian Talmud. Thus, in the Palestinian Talmud, the legal problem to be decided is one of a definition of the item sold. In the terminology of Roman law, the juristic discussion carried on in this context concerned the definition of merx.
The Babylonian Talmud, however, in its citation of the mishnaic text, preferred a statement that was described as Rabbi Judah the Patriarch’s later ruling. According to this, “Gold acquires silver” and thus, the commentary offered in the Babylonian Talmud was unable to emulate the simplicity of reason offered in the Palestinian Talmud. The sages of the former were compelled to seek creative justifications for their ruling and came up with various solutions. One argument presented in this context is that Rabbi Judah’s change of heart was affected by a change in the preferred currency in use;44 whereas a second line of reasoning emphasises the relative value of the items in question.45 Some scholars have taken this as evidence for third-century coin debasement.46 A third argument links the mishnaic discussion in Bava Metzi’a 4:1 with a topic well debated in Jewish jurisprudence; namely, that of “produce”, literally “fruits” (pera, פירא, in the Aramaic text of the Babylonian Talmud). Since in the subsequent paragraph of this tractate, in Bava Metzi’a 4:2, a dichotomy is presented between “produce” (literally “fruits”) and “money” (literally “coins”), the commentators of the Babylonian Talmud saw fit to insert these particular categories in their analysis of Bava Metzi’a 4:1. All of these later explanations arise from a need to accommodate the later ruling “Gold acquires silver” as the original text of the Mishnah. Yet, their ingenuity does not contradict the claim that the original legal problem at hand was one of definition of the item forming the subject of the transaction—the merx, to use Roman legal terminology—the drawing of which finalized an act of sale under Jewish law.
This point gains further support in the last two statements of the mishnaic ruling (Bava Metzi’a 4:1), as it appears in the text of both the Mishnah and the Babylonian Talmud. The first is that “Movables acquire coins but coins do not acquire movables”. Here, a clear dichotomy arises between movables and coins. Only the drawing of the former qualifies as the valid implementation of Acquisition by Drawing, from which the parties would be unable to retract. Payment in coinage, even when augmented by consent, is not a valid acquisition method. Hence, no sale comes into being (yet) and both parties would be free to renounce the transaction. The dichotomy between movables and coinage echoes contemporary Roman legal discussions, in which a sale (emptio venditio) was contracted by an agreement over the merx and the pretium; with the triumphal Proculian stance ruling that pretium must be stated in numerata pecunia, i.e., in coins or in money. In the mishnaic text, however, coins, which represent money, are alienated from all other items and receive special treatment.
This is further emphasised in the concluding statement of the mishnaic paragraph, which reads “All movables acquire one another”.47 From this statement, it follows that, when both parties offer movables, the drawing of any of them by either party operates to finalize the sale, in a manner similar to the Roman permutatio. Thus, it can be deduced that the objects discussed earlier in the paragraph were not categorised as movables. These include: gold; silver; brass or copper; bad, disused, or cancelled coins (ma‘ot hara‘ot); valid or current coins ([ma‘ot] hayafot); uncoined or unminted metal (i.e., blanks) (aseman); and coined metal (matbe‘a). I would argue that none of these items are categorised as movables because of their potential capacity to act as monetary instruments. In fact, they do not create the same reciprocal relationships as movables. Instead, only the drawing of one of these qualifies as an act of acquisition, while the drawing of the other does not; just as with movables and coins, in the penultimate statement of this paragraph. Since all of these items could potentially function as monetary instruments, it was unclear whether or not their drawing had actually finalized an act of sale. Hence, it was necessary to establish a relationship between them. This is exactly the aim of the sages’ ruling. In other words, the legal problem that gave rise to this mishnaic ruling was how to approach Acquisition by Drawing (qinyan meshikhah) in a situation where both parties offered items that had the potential to serve as monetary instruments.
The subtext of the sages’ discussion is, in my view, the dichotomy between money and merx. Its logic is as follows: all items sold that can be acquired by drawing are either movables or monetary instruments. When both parties offer movables, the drawing of movables by either party finalizes the sale. When one party offers movables whereas the other offers money, only the drawing of the movables finalizes the sale. Difficulties arise when both parties offer items that are capable of functioning as monetary instruments. The mishnaic ruling confronts the uncertainty associated with this type of scenario by offering consistent regulations as to governing which items should be classified as “movables” and which as “money”. It determines which item is the one, the drawing of which finalized an act of sale and which does not.
Such a formulation of the legal problem at hand by the Jewish sages arose precisely at the same time when Roman jurists were resolving the pretium in numerata pecunia controversy. Both legal traditions, each following its own methodology and its own internal logic, discuss the juristic uncertainties that arise from an identical conceptual approach; namely, a clear distinction between money and the items which may manifest it on the one hand, and all other goods on the other. The Jewish legal debates can be understood properly only when contextualised in terms of the consequences arising from the Roman pretium in numerata pecunia controversy. This differentiated the merchandise (merx) from the purchase price (pretium), based on the presence of money (numerata pecunia or nummi). The assumption underlying this differentiation was that money has special attributes enabling it always to elicit the distinction between pretium and merx. Similarly, the notion that “movables” are the opposite of “money” or “coins” is fully integrated within the conceptual framework accepted by the Jewish sages; and even though they debated the particular classifications of different items, the legitimacy and validity of the dichotomous categorisation (“movables”/ “money”) was never doubted. The reason for this was that such an approach was derived from the prevailing conceptual status quo just mentioned and that, insofar as this is the case, it had a major impact on the economic reality prevailing at the time.
4 Conclusions
The first part of this paper summarises the famous controversy between the two schools of Roman law regarding the pecuniary nature of a purchase price in contracts of sale. This school controversy was not brought into being by an intention to determine the nature of sale contracts; rather, it arose because of the imperatives of Roman jurisprudence itself. In the three Roman legal texts cited above, and especially in the excerpts from Paul’s commentary on the Praetor’s Edict, discussions revolve around the issue of which legal remedy should be used, i.e., which actio can be applied in a given situation. When this controversy was finally resolved, however, it gave rise to certain long-lasting conceptual and jurisprudential consequences. I argue that the resolution of the controversy in favour of the Proculian stance, which stipulated that pretium in numerata pecunia was a prerequisite for emptio venditio as a way of differentiating it from permutatio, established the distinction between sale and barter on a firm and durable footing. That distinction, in turn, was backed up by an unspoken, yet even fiercer, dichotomy between money and all other items.
The second part of this paper demonstrates that this dichotomy transcended the limits of Roman law. It examines a discussion in Jewish legal sources during the Roman period regarding sale transactions contracted via a modus acquirendi called Acquisition by Drawing. The ruling preserved in the Mishnah, tractate Bava Metzi’a 4:1, and elaborated in its commentaries in the Palestinian and Babylonian Talmuds, I argue, was initiated by a rudimentary though tacit dichotomy, which contrasted money and all other items. The classification of money as a separate phenomenon requiring special attention was the main factor behind the Jewish sages’ ruling that, in Acquisition by Drawing, the drawing of money did not qualify as a valid modus acquirendi. A practical problem arose when both sides of a transaction offered items that were each capable of functioning as monetary instruments. The solution offered in Bava Metzi’a 4:1, was to set clear rules regarding which items should be classified as money and which should be classified as movables. Thus, the same pattern of thought, which eventually favoured the Proculian stance in the pretium in numerata pecunia controversy and saw money as a special phenomenon permitting a clear separation between pretium and merx, also dictated the preferences, and indeed, the rulings of the Jewish sages.
In conclusion, the legal procedures needed to bring about a valid act of sale have a completely different structure, internal logic, and practical modalities in the Jewish legal tradition when compared with Roman law. Even so, an examination of the juristic debates that took place in both legal traditions throws up some surprising similarities: in both, the decisions arrived at were shaped by a similar duality and a greater “notional status quo”, which differentiated money from all other items. Money was perceived as a unique phenomenon requiring special attention as well as a kind of divider between the purchase price (pretium) and the goods (merx). This conceptual framework, which treated money as an exceptional category, affected the conduct of sale transactions due to its influence on the relevant legal procedures and formalities. Moreover, it regulated simultaneously the behaviour of the economic actors and the economic reality at large.
Here, some clarification is needed regarding the issue of co-existing systems of law. The legal practicalities regulating economic activity resulted from the interrelations between a variety of different legal traditions operating within the Roman Empire. The present paper focused on juristic debates that were taking place in both the Roman and the Jewish legal traditions during the same period, namely, the late second and early third centuries CE. This simultaneity by itself, however, is not enough to substantiate the claim that the debates of the Jewish sages were influenced by Roman law. Considerable differences between the two legal traditions regarding the conclusion of sale transactions support the claim that, communalities here detected do not mean that local law was in some way subjected to Roman law; nor do they derive from any adaptation, whether mandatory or voluntary, of local law to the principles of Roman jurisprudence. Rather, such communalities were created by a common conceptual framework: namely, the perception of money as a unique phenomenon quite distinct from all other items. It is this theoretical common denominator that drove the corresponding debates in both legal traditions. As such, it reflects a collective mind-set that structured both the economic understanding and the day-to-day reality of the inhabitants of the Roman Empire.
Finally, I believe that the explanation offered here is in force regardless of the extent to which communalities between Roman and Jewish law regarding the role of money in sale transactions were affected by the introduction of the famous Constitutio Antoniniana.48 How Caracalla’s general grant of citizenship affected the relationship between the Roman Empire’s co-existing systems of law is a topic (yet again) currently under debate by scholars.49 Inclusion of the reflections presented here within a wider discussion on the aftermath of the Constitutio Antoniniana would require significant further research. Thus, that particular topic exceeds the limits of this paper and in any event, would need to take into consideration the special attention Jewish law received in later Roman legal sources.50
A. Watson, ‘The origins of consensual sale: a hypothesis’, Tijdschrift voor Rechtsgeschiedenis 244 (1964), 245 ff.; idem, ‘The evolution of law: the Roman system of contracts’, Law and History Review 4.1 (1984), 8.
Gai. 3.135; Ulp. Dig. 18.1.2.1 (1 ad sab.); 9.1 (28 ad sab.); Paul. Dig. 19.4.1.2 (32 ad ed.); M. Kaser, Das römishce Privatrecht, Erster Abschnitt: Das altrömische, das vorklassische und klassische Recht (München 1971, 2nd ed.), 547–548; R. Zimmermann, The Law of Obligations, Roman Foundations of the Civilian Tradition (Oxford 1996), 230, 239.
Gai. 3.137; Iust. Inst. 3.22.3.
Ulp. Dig. 18.1.2.1 (1 ad sab.); Kaser 1971, op. cit. (no.2), 547–548; Zimmermann 1996, op. cit. (no.2), 230–231.
Gai. 3.139.
Pompon. Dig. 18.1.19 (31 ad quint. muc.); Kaser 1971, op. cit. (no.2), 545–548; A. Jördens, ‘Kaufpreisstundungen (sales on credit)’, Zeitschrift für Papyrologie und Epigraphik 98 (1993), 263–282.
Paul. Dig. 18.1.34.1 (33 ad ed.): “Omnium rerum, quas quis habere vel possidere vel persequi potest, venditio recte fit”. English translation follows A. Watson, The Digest of Justinian. Latin text edited by Theodor Mommsen with the aid of Paul Krueger; English translation edited by Alan Watson (Philadelphia 1985).
Gai. 3.140; Paul. Dig. 19.2.20.pr. (34 ad ed.); Ulp. Dig. 18.1.37 (3 disput.).
Ulp. Dig. 18.1.7.2 (28 ad sab.); 19.1.13.24 (32 ad ed.); Zimmermann 1996, op. cit. (no.2), 253–254.
i.e., more than nummus unus; Ulp. Dig. 19.2.46 (69 ad ed.), in the case of locatio conductio.
Cod. Iust.4.44.2 (Diocl., 285); 8 (Diocl., 293).
Much has been written on laesio enormis; see, for example, A. Watson, ‘The hidden origin of enorm lesion’, Journal of Legal History 2.2 (1981), 186–193; A.J.B. Sirks, ‘La laesio enormis en droit romain et byzantin’, Tijdschrift voor rechtsgeschiedenis (= Revue d’histoire du droit) 53.3–4 (1985), 291–307; idem, ‘Diocletian’s option for the buyer in case of rescission of a sale. A reply to Klami’, Tijdschrift voor rechtsgeschiedenis (= Revue d’histoire du droit) 60 (1992), 39–47; idem, ‘Laesio enormis und die Auflösung fiskalischer Verkäufe’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 112 (1995), 411–422; idem, ‘Laesio enormis again’, Revue internationale des droits de l’antiquité 54 (2007), 461–469; H.T. Klami, ‘Laesio enormis in Roman Law’, Labeo 33 (1987), 48–63; T. Mayer-Maly, ‘Pactum, Tausch und laesio enormis in den sog. Leges Barbarorum’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 108 (1991), 213–233; Zimmermann 1996, op. cit. (no.2), 255–270; J.D. Harke, ‘Laesio enormis als error in negotio’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 122 (2005), 91–102; R. Westbrook ‘The Origin of Laesio Enormis’, Revue internationale des droits de l’antiquité 55 (2008), 39–52; J. Platschek, ‘Bemerkungen zur Datierung der laesio enormis’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 128 (2011), 406–409.
Gaius discusses twenty-two such controversies, and some are mentioned also in Justinian’s Corpus Iuris Civilis; T.G. Leesen, Gaius Meets Cicero: Law and Rhetoric in the School Controversies (Leiden 2010).
For a short summary of the state of research, see Leesen 2010, op. cit. (n. 13), 5–20.
Gai. 3.141: “Item pretium in numerata pecunia consistere debet. Nam in ceteris rebus an pretium esse possit, veluti homo aut toga aut fundus alterius rei <pretium esse possit>, valde quaeritur. Nostri praeceptores putant etiam in alia re posse consistere pretium; unde illud est quod vulgo putant per permutationem rerum emptionem et venditionem contrahi, eamque speciem emptionis venditionisque vetustissimam esse; argumentoque utuntur Graeco poeta Homero, qui aliqua parte sic ait: ἔνθεν ἂρ’οἰνίζοντο καρηκομόωντες Ἀχαιοί, / ἄλλοι μὲν χαλκῷ, ἄλλοι δ’αἴθωνι σιδήρῳ, / ἄλλοι δὲ ῥινοῖς, ἄλλοι δ’αὐτῇσι βόεσσιν, / ἄλλοι δ’ἀνδραπόδεσσι. [et reliqua.] Diversae scholae auctores dissentiunt aliudque esse existimant permutationem rerum, aliud emptionem et venditionem; alioquin non posse rem expediri permutatis rebus, quae videatur res venisse et quae pretii nomine data esse, sed rursus utramque rem videri et venisse et utramque pretii nomine datam esse absurdum videri. Sed ait Caelius Sabinus, si rem tibi venalem habenti, veluti fundum, [acceperim et] pretii nomine hominem forte dederim, fundum quidem videri venisse, hominem autem pretii nomine datum esse, ut fundus acciperetur”. English translation follows T.G. Leesen, ‘The controversy about the nature of the price in a contract of sale’, Revue internationale des droits de l’antiquité 55 (2008), 285–286.
Paul. Dig. 18.1.1.1 (33 ad ed.): “Sed an sine nummis venditio dici hodieque possit, dubitatur, veluti si ego togam dedi, ut tunicam acciperem. Sabinus et Cassius esse emptionem et venditionem putant: Nerva et Proculus permutationem, non emptionem hoc esse. Sabinus Homero teste utitur, qui exercitum Graecorum aere ferro hominibusque vinum emere refert, illis versibus: ἔνθεν ἀρ’οἰνίζοντο καρηκομόωντες Ἀχαιοί, / ἄλλοι μὲν χαλκῷ, ἄλλοι δ’αἴθωνι σιδήρῳ, / ἄλλοι δὲ ῥινοῖς, ἄλλοι δ’αὐτῇσι βόεσσιν, / ἄλλοι δ’ἀνδραπόδεσσι. Sed hi versus permutationem significare videntur, non emptionem, sicuti illi: ἔνθ’ αὖτε Γλαύκῳ Κρονίδης φρένας ἐξέλετο Ζεύς, / ὃς πρὸ Τυδείδην Διομήδεα τεύχε᾽ἄμειβεν. Magis autem pro hac sententia illud diceretur, quod alias idem poeta dicit: πρίατο κτεάτεσσιν ἑοῖσιν. Sed verior est Nervae et Proculi sententia: nam ut aliud est vendere, aliud emere, alius emptor, alius venditor, sic aliud est pretium, aliud merx: quod in permutatione discerni non potest, uter emptor, uter venditor sit.” English translation follows Watson 1985, op. cit. (n. 7).
Paul. Dig. 19.4.1.pr. (32 ad ed.): “Sicut aliud est vendere, aliud emere, alius emptor, alius venditor, ita pretium aliud, aliud merx. At in permutatione discerni non potest, uter emptor vel uter venditor sit, multumque differunt praestationes. Emptor enim, nisi nummos accipientis fecerit, tenetur ex vendito, venditori sufficit ob evictionem se obligare possessionem tradere et purgari dolo malo, itaque, si evicta res non sit, nihil debet: in permutatione vero si utrumque pretium est, utriusque rem fieri oportet, si merx, neutrius. Sed cum debeat et res et pretium esse, non potest permutatio emptio venditio esse, quoniam non potest inveniri, quid eorum merx et quid pretium sit, nec ratio patitur, ut una eademque res et veneat et pretium sit emptionis.” English translation follows Watson 1985, op. cit. (n. 7).
Also, Ulp. Dig. 19.1.11.2 (32 ad ed.).
e.g. Ulp. Dig. 18.1.25.1 (34 ad sab.); 28 (41 ad sab.), who states explicitly that sale of a third party’s property is valid; Kaser 1971, op. cit. (no.2), 550–551; Zimmermann 1996, op. cit. (no.2), 278–279.
Res mancipi is an archaic category of property that included “lands and houses on Italic soil; likewise slaves and animals that are commonly broken to draught or burden, such as oxen, horses, mules, and asses; likewise rustic praedial servitudes”; Gai. 2.14a; English translation follows F. de Zulueta, The Institutes of Gaius. Text with critical notes and translation (Oxford 1946). For the procedure of mancipatio, see Gai. 1.119–122; 4.131; Paul. Sent. 1.13a.4. Also, see Kaser 1971, op. cit. (no.2), 131–134, 545–546; Zimmermann 1996, op. cit. (no.2), 271–272.
Gai. 2.19–20. From the late Republic praetorian ownership over res mancipi could pass also by traditio via the act of sale, in which case the sale provides the iusta causa traditionis. This could be achieved by the passing of the object of the sale from hand to hand; e.g. Paul. Dig. 41.2.1.21 (54 ad ed.); or, by already having it in the possession of the purchaser before the sale took place (traditio longa/ brevi manu); e.g. Ulp. Dig. 6.2.9.2 (16 ad ed.); Gai. Dig. 41.1.9.5–6 (2 cott.); Paul. Dig. 41.2.3.1 (54 ad ed.). Also, see Kaser 1971, op. cit. (no.2), 416–418, 546–547; Zimmermann 1996, op. cit. (no.2), 239–240.
Iust. Inst. 3.23.2, who follows Gai. 3.141, in reporting the controversy, but states that previous emperors (anteriores divi principes) had already settled it in favour of the Proculians. Also, Cod. Iust.4.64.7 (Diocl. et Maxim., 294), who explicitly state that exchanging grain for oil does not fall within the category of sale, and that a decision to this effect had already been given before.
e.g. Paul. Dig. 19.5.5.1 (5 Quest.).
M. Elon, Jewish Law: History, Sources, Principles (Jerusalem 1994), G·7, 80.
M. Qidd. 1:1: “By three means is the woman acquired and by two means she acquires her freedom. She is acquired by money or writ or by intercourse. … And she acquires her freedom by a bill of divorce or by the death of her husband.” English translation follows H. Danby, The Mishnah. Translated from the Hebrew with introduction and brief explanatory notes (London 1933).
I wish to thank Dr. Amit Gvaryahu for this comment.
Gen. 23:8–19, where Abraham bought the Cave of the Patriarchs in Hebron from Ephron the Hittite; Ruth 4:7, where Boaz bought all that was Elimelech’s property from the kinsman that was to inherent it; Jer. 32:9–12; 44, were Jeremiah bought a field at Anathoth from his cousin Hanamel.
Elon 1994, op. cit. (n. 24), G·7, 583–584.
Elon 1994, op. cit. (n. 24), G·7.
C.E. Hayes, Between the Babylonian and Palestinian Talmuds: accounting for halakhic difference in selected Sugyot from Tractate Avodah Zarah (Oxford 1997), 3–24; S. Fraade, ‘Introduction to the symposium: What Is (The) Mishnah?’, Association for Jewish Studies Review 32.2 (2008), 221–223; S. Albeck, Introduction to Jewish law in Talmudic times (Ramat-Gan, Israel 2013), 97–106.
The date of concluding the Talmuds is generally unknown and is a source for many scholarly discussions. See, for example, Hayes 1997, op. cit. (n. 30), 20; Albeck 2013, op. cit. (n. 30), 114–115.
M.B. Meṣ. 4:1: “הכסף קונה את הזהב והזהב אינו קונה את הכסף. הנחשת קונה את הכסף והכסף אינו קונה את הנחשת. מעות הרעות קונות את היפות והיפות אינן קונות את הרעות. אסימון קונה את המטביע והמטביע אינו קונה את אסימון. המטלטלין קונים את המטביע והמטביע אינו קונה את המטלטלים. זה הכלל: כל המטלטלין קונים זה את זה.”. English translation follows H.W. Guggenheimer, The Jerusalm Talmud. Edition, Translation and Commentary (Berlin 1999–2015), Band 45 (Berlin 2008), 348. I wish to thank Dr Hanan Mazeh for pointing out the best text editions for citations from the Jewish legal sources.
Y.B. Meṣ. 4:1: “זהו כללו שלדבר. כל הירוד מחבירו קונה את חבירו. אמ׳ ר׳ חייה בר אשי: מאן תניתה? ר׳ שמעון בר׳. אמ׳ ליה אבוי: חזור בך ותני כהדא ״הזהב קונה את הכסף״. אמ׳ ליה: לינא חזר בי, דעד דהוה חילך עליך אתניתני ״הכסף קונה את הזהב״. מילתיה דר׳ אמ׳: זהב כפירות. מתנית׳ אמרה: כסף כפירות. <מתניתה [דר׳ חייה] אמרה: זהב כפירות. מלתיה אמרה: כסף כפירות. כהדה> ברת ר׳ חייה רובה אוזפת לרב דינרין, אתת שאלת לאבוה, אמ׳ לה: שקילי מיניה דינרין טבין ותקילין. מברת ר׳ חייה ילפין? אמ׳ ר׳ אידי: אוף אבה אבוי דשמואל בעא קומי ר׳: מהו ללוות דינרין בדינרין? אמ׳ ליה: מותר. אמ׳ ר׳ יעקב בר אחא: אוף ר׳ יוחנן וריש-לקיש תריהון מרין: מותר ללוות דינרין בדינרין. קרט בקרט שרי, לקן בלקן אסור.”. English translation follows Guggenheimer 1999–2015, op. cit. (n. 32), 350–352. See also, m. Qidd. 1:16.
B.B. Meṣ. 4:1a [44a]: “הזהב קונה את הכסף והכסף אינו קונה את הזהב. הנחשת קונה את הכסף והכסף אינו קונה את הנחשת. מעות הרעות קונות את היפות והיפות אינן קונות את הרעות. אסימון קונה את המטביע והמטביע אינו קונה את אסימון. המטלטלין קונים את המטביע והמטביע אינו קונה את המטלטלים. זה הכלל: כל המטלטלין קונים זה את זה.”. English translation follows H. Freedman, Hebrew-English Edition of the Babylonian Talmud. Baba Meẓi’a (London 1962).
i.e., Rabbi Judah the Patriarch.
B.B. Meṣ. 4:1b [44a–b]: “מתני ליה ר׳ לר׳ שמע׳ בר׳: הזהב קונה את הכסף״. אמ׳ ליה: ר׳, שניתה לנו בילדותך ”הכסף קונה את הזהב“. בילדותו מאי סבר ובזקנותו מאי סבר? בילדותו סבר: דהבא דחשיב הוי טיבעא, כספא דלא חשיב הוי פירא—וקני ליה פירא לטיבעא. בזקנותו סבר: כספא דחריף הוי טיבעא, דהבא דלא חריף הוי פירא—וקני ליה פירא לטיבעא.”. English translation follows Freedman 1962, op. cit. (n. 35).
B.B. Meṣ. 4:1c [44b]: “אמ׳ רב אשי: כילדותו מסתברא, מדקתני: ״הנחשת קונה את הכסף״. אי אמרת בשלמ׳: כספא לגבי דהבא פירא הוי, הינו דקתני ״הנחשת קונה את הכסף״—דאע׳ג דלגבי דהבא כספא פירא הוי, לגבי נחשא טיבעא הוי. אלא אי אמרת: כספא לגבי דהבא טיבעא הוי, השתא לגבי דהבא דחשיב מיניה אמרת: טיבעא הוי; לגבי נחשא דאיהו חשיב ואיהו חריף מיבעיא?! אצטריך, סל׳ דע׳ אמינ׳: הני פריטי באתרא דסגיאן אינהו חריפין טפי מכספא—אימא טיבעא הוי, קמ׳ל.”. English translation follows Freedman 1962, op. cit. (n. 35).
Rab is the short name for Abba Arikha, the nephew of Rabbi Ḥiyya.
B.B. Meṣ. 4:1d [44b]: “ואף ר׳ חייא סבר: דהבא טיבעא הוי. דרב יזיף דינרי מברתיה דר׳ חייא. איקור. אתא לקמיה דר׳ חייא, אמ׳ לה: זיל הב לה דינרין טאבין ותקלין. אי אמרת בשלמ׳: דהבא טיבעא הוי—שפיר. אלא אי אמרת: פירא הוי—הוה ליה סאה בסאה ואסיר! לא, רב דינרי הוו ליה, וכיון דהוו ליה דינרי, נעשה כאומ׳ לו: הלויני עד שיבא בני או עד שאמצא מפתח.”. English translation follows Freedman 1962, op. cit. (n. 35). See also B. B Meṣ. 75a.
e.g. E. Kleiman, ‘Bimetallism in Rabbi’s time, two variants of the Mishna “Gold Acquires Silver” ’, Zion 38 (1973), 48–61 (in Hebrew); D. Sperber, ‘Gold and silver “standards”. A study in rabbinic attitudes to Roman coinage’, Numismatic Chronicle 7/8 (1968), 83–109; idem, Roman Palestine, 200–400: money and prices (Ramat-Gan, Israel 1974): 69–97; B. Geva, ‘The monetary legal theory under the Talmud’, Revue internationale des droits de l’antiquité 55 (2008), 13–38.
Y.B. Meṣ. 4:1; y. B. Meṣ. 4:1b; also, see Sperber 1974, op. cit. (n. 42), 71–72.
I wish to thank Dr Amit Gvaryahu for pointing out the need to clarify this issue.
Sperber 1974, op. cit. (n. 42), 69–90; Guggenheimer 2008, op. cit. (n. 32), 349.
B.B. Meṣ. 4:1b [44b]; n. 37 above.
B.B. Meṣ. 4:1c [44b]; n. 38 above.
See, n. 42 above.
Elsewhere in the Mishnah we read that “all movables are acquired by drawing”; M. Šeb. 10:9: “כל המטלטלין נקנים במשיכה”.
I wish to thank Prof A.J. Boudewijn Sirks for pointing out the need to add these clarifications.
e.g. with further references, C. Ando, ‘Sovereignty, territoriality and universalism in the aftermath of Caracalla’, in C. Ando (ed.), Citizenship and Empire in Europe 200–1900. The Antonine Constitution after 1800 years (Stuttgart 2016), 7–28; G. Kantor, ‘Local law in Asia Minor after the Constitutio Antoniniana’, in C. Ando (ed.), Citizenship and Empire in Europe 200–1900. The Antonine Constitution after 1800 years (Stuttgart 2016), 45–62; A. Imrie, The Antonine Constitution: an edict for the Caracallan Empire (Leiden; Boston 2018).
Namely, see Cod. Theod. 2.1.10 (398 CE); Cod. Iust.1.9.8 (398 CE). For further references and discussions see, A.M. Rabello, ‘The legal conditions of the Jews in the Roman Empire’, Aufstieg und Niedergang der roemischen Welt, II: Prinzipat 13 (Berlin 1980), 731–738; S. Simonsohn, The Jews of Italy: Antiquity (Leiden 2014), 118–156.