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The Liability of Business Partners in Athenian Law: The Dispute Between Lycon and Megacleides ([Dem.] 52.20–1)

Published online by Cambridge University Press:  11 February 2009

Edward M. Harris
Edward M. Harris
Affiliation:
Brooklyn College and the Graduate Center, The City University of New York
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Abstract

One of the most striking features of Athenian laws regulating commercial activities is the absence of any concept akin to the modern legal notion of the partnership or corporation. Despite the presence in Athenian society of numerous koinoniai, groups of individuals cooperating for some purpose, be it commercial or otherwise, Athenian law concerned itself solely with individual persons and did not recognize the separate legal existence of collective entities. And just as Athenian law did not recognize the legal existence of partnerships or corporations, it also did not possess the notion of corporate liability. This meant that if someone entered into an agreement with a group of individuals and one of those individuals violated the terms of the agreement, the plaintiff proceeded only against the individual who acted contrary to the agreement, not against the group as a whole. If the plaintiff won his suit, he only had a right to receive compensation from the defendant's private property; he did not have a claim on all the funds held in common by the group.

Type
Research Article
Information
The Classical Quarterly , Volume 39 , Issue 2 , December 1989 , pp. 339 - 343
Copyright
Copyright © The Classical Association 1989

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References

1 For the absence of the legal notion of partnership or corporation in Athenian law, see Finley, M. I., Studies in Land and Credit in Ancient Athens, 500–200 B.C. (New Brunswick, 1951), p. 275 nGoogle Scholar. 5. Harrison, A. R. W., The Law of Athens: Property (Oxford, 1968), p. 242 n. 1Google Scholar, questioned Finley's position, arguing that it rested merely on an inference from the fact that Attic documents do not differentiate consistently between the members of an association and the entity itself. But Finley's position is perfectly sound: see, for instance, Rheinstein, M. and Shils, E., edd., Max Weber on Law and Society (New York, 1954), pp. 156–7Google Scholar: ‘The most rational actualization of the legal personality of organizations consists in the complete separation of the legal spheres of the members from the separately constituted legal sphere of the organization; while certain persons designated according to rules are regarded from the legal point of view as alone authorized to assume obligations and acquire rights from the organization, the legal relations thus created do not at all affect the individual members and their property and are not regarded as their contracts, but all these relations are imputed to a separate and distinct body of assets. Similarly, what the members as such may claim from or owe to the organization under its rules, belongs to or affects their own private assets, which are legally entirely separate from those of the organization.’

2 For the koinonia, see Endenburg, P. J. T., Koinoonia: En Gemeenschap van Zaken bij de Griken in den klassieken Tijd (Amsterdam, 1937)Google Scholar.

3 Lipsius, J. J., Das attische Recht und Rechtsverfahren (Leipzig, 1905–1915), p. 771Google Scholar thought that the δκαι κοινωνικαι mentioned at Ar. Ath. Pol. 52.2 were suits against or by corporations, but his view was rightly questioned by Harrison, A. R. W., The Law of Athens: Procedure (Oxford, 1971), p. 22Google Scholar.

4 One cannot argue that the case is not evidence about the principles of Athenian law because it was decided by a private arbitrator and not by a law court. Private arbitrators were guided by the same legal principles as were the law courts. The parties in a suit might ask an arbitrator to ignore the legally stipulated penalties when making his judgment, but I am not concerned with the decision Archebiades might have reached. On this topic, see Meyer-Laurin, H., Gesetz und Billigkeit im attischen Prozess (Weimar, 1965), pp. 41–5Google Scholar with the bibliography cited there.

5 Megacleides probably intended to return with a cargo of grain. For Ace as a major supplier of grain for Greece, see Herodas 2.16–17 with Headlam, W., Herodas: The Mimes and Fragments (Cambridge, 1922)Google Scholar, ad loc. For maritime loans in general, see the important articles of Ste, G. E. M. de. Croix, , ‘Ancient Greek and Roman Maritime Loans’, in Edey, H. and Yamey, B. S. (edd.), Essays in Honour of W. T. Baxter (London, 1974), 41–59Google Scholar, and Millett, P. C., ‘Maritime Loans and the Structure of Credit in Fourth-Century Athens’, in Garnsey, P., Hopkins, K., and Whittaker, C. R. (edd.), Trade in the Ancient Economy (London, 1983), 36–52Google Scholar.

6 Wolf, H. in Reiske, J. J., Oratorum Graecorum X (Leipzig, 1774), p. 952Google Scholar: ‘Si τοὺς δανεισαμένους subintelligas (as the subject of πλειν), verte: cum mutata sententia non committendum esse putasset, ut illi cum periculo illuc navigarent. Sed durum hoc est, et parum consentaneum. Quare legere malim, μεταδόξαν αὐτοῖς ‘Wolfs emendation has been accepted by both the Loeb and Budé editors. Rennie's Oxford text retains αὺτῷ, but notes Wolf's proposal in the apparatus criticus.

7 Ship pledged as security: Dem. 32.14; 35.33; 56.3. Cargo pledged as security: Dem. 32.12; 34.6; 35.10, 52.

8 e.g. Dem. 33.6; 35.12.

9 Hansen, M. H. in Isager, S. and Hansen, M. H., Aspects of Athenian Society in the Fourth Century B.C. (Odense, 1975), p. 83 n. 67Google Scholar, lists Lycon along with certain Massaliote citizens (Dem. 32.4–5, 12), Lampis and Theodorus (Dem. 34.6, 8,22, 26,40), as lenders who travelled with the ship. But there is no evidence in Dem. 32 that the Massaliot citizens sailed on the ship with their borrowers Zenothemis and Hegestratus, nor any in Dem. 34 that Theodorus travelled on Lampis' ship. Phormio claims that he repaid a loan to Lampis, but Chrysippus points out that his claim is implausible (Dem. 34.25–8). Besides, even if Lampis did lend money to Phormio, the former sailed with the ship not because he was a creditor, but because he was its naukleros.

10 Thompson, W. E., ‘The Commercial Dispute at D. 52.20’, AJP 108 (1987), 600–2 at p. 601Google Scholar, suggests that this might have been the arrangement worked out between Lycon and the brothers, but does not pursue the possibility further. The passages he cites as referring to similar arrangements are not relevant to the question of maritime security: Dem. 34.8 concerns a letter sent by a creditor to his slave and a friend, both in Bosporus, requesting them to inspect the goods pledged to him as security. [Dem.] 49.31–2 deals with a deposit made by Timosthenes to Phormio. [Dem] 52.3 and 7 describe how Lycon instructed Pasion to pay the money he owed to Cephisiades, who was at the time abroad on a trading voyage. Nor does he cite [Dem.] 56, the case that is actually relevant to his point. Finally, Thompson does not attempt to discover the rationale behind the arrangement. Previous scholars have not discussed this type of security arrangement in maritime loans. No treatment of it can be found in Hansen, and Isager, , Aspects of Athenian Society, Cohen, E. E., Ancient Athenian Maritime Courts (Princeton, 1973)Google Scholar, Vélissaropoulos, J., Les Naucleres grecs. Recherches sur les institutions maritimes en Grece et dans t Orient hellénisé (Geneva, 1980)Google Scholar, and Carey, C. and Reid, R., Demosthenes: Selected Private Speeches (Cambridge, 1985)Google Scholar.

11 For a similar arrangement see Dem. 35. 16–17: when Androcles lends money to Artemon and Apollodorus on the security of goods to be purchased in Chalcidice and sold in the Pontus, Lacritus, Artemon s brother, reassures him by stating that he is his brother's partner (κοινωνός) and by promising ποιἠσειν… τ⋯ δικαια και ἃπιδημσειν 'αθ⋯νσι, τỜν ⋯δελΦ⋯ν τ⋯ν αὑτού 'αρτέμωνα πλεύσεσθαι ⋯πι τοῖς χρ⋯μασι. Androcles, however, was incautious and did not make sure that Lacritus was included in the syngraphe.

12 For a discussion of the legal issue involved in the case and Dionysodorus' defence, see Meyer-Laurin, , Gesetz und Billigkeit, pp. 12–15Google Scholar. His analysis is superior to that of Carey and Reid, Demosthenes, pp. 197–200, who mistakenly argue that Dionysodorus probably sought ‘some kind of “equity” ruling’.

13 For a similar clause in a document for a maritime loan, see Dem. 35.12. For the purpose of the praxis-clause, see Wolff, H. J., ‘The Praxis-Provision in Papyri Contracts’, TAPA 72 (1941), 418–38 at p. 428Google Scholar: ‘the primary purpose of the contractual praxis-provision’ is to create ‘the debtor's liability and subjection to a possible execution to be carried out by the person for whom the clause was made out, in cases not covered by any liability provided for by law’. See also Simon, D., Studien zur Praxis der Stipulationklausel (Munich, 1964)Google Scholar.

14 I follow the reconstruction offered by Thompson, art. cit. (n. 10), 601 n. 4. It was probably disputes of this sort that led to the inclusion of phrases like σύν ⋯μιολια in the loan documents found on Greek papyri in Egypt. By adding this phrase, the debtor agreed beforehand to pay the stated interest on the loan even if he repaid the principal long before it was due. For the phrase and its meaning, see Lewis, N., ‘The Meaning of σỪν ⋯μιολιᾳ and Kindred Expressions in Loan Contracts’, TAPA 76 (1945), 126–39Google Scholar.

15 For the absence of modern notions of juridical personality in Roman law, see Nicholas, B., An Introduction to Roman Law (Oxford, 1962), pp. 60–1Google Scholar. Cf. Taubenschlag, R., The Law of GrecoRoman Egypt in the Light of the Papyri (New York, 1944), p. 49Google Scholar: there is ‘no evidence of the existence of private bodies with a fully corporate personality in Greco-Roman private law in Egypt'.

16 Carey and Reid, , Demosthenes, pp. 114–17Google Scholar, do not realize that the Athenians did not share our modern notion of juristic personality and consequently give a confused account of the relationship between Nicobulus and Evergus. For instance, they state that ‘the probability is that as partners in the loan both Nicobulus and Evergus could be held responsible for the acts committed by one of them'. But if so, why doesn't the charge against Nicobulus drawn up by Pantaenetus (23–9) contain any mention of Evergus’ actions?

17 Previous analyses of the dispute are vitiated by their failure to understand the difference between the two proposals made by the other creditors at 12–13. For a discussion of the settlement worked out by the three parties and its implications for our understanding of real security in Classical Athens, see my ‘When is a Sale not a Sale? The Riddle of Athenian Terminology for Real Security Revisited’, CQ 38 (1988), 370–7Google Scholar.

18 Such an explanation of the procedure followed in the dispute is preferable to Thompson's suggestion (art. cit. (n. 10), 601–2) that Apollodorus, though using the singular throughout the passage, considers the acts of Megacleides to be the work of both Megacleides and Thrasyllus. As we have seen, this assumption is unnecessary; the passage can easily be explained without resorting to any hypothesis about Apollodorus' linguistic habits. Moreover, the passage adduced by Thompson as a parallel, [Dem.] 35.6–7, is not really similar. Here the author employs the plural several times before switching to the singular. That is not the case in Apollodorus' account of Lycon's dispute. Apollodorus only says that the two men received the loan, but never states that both were involved in the ensuing dispute. Finally, if, as Thompson claims, both Megacleides and Thrasyllus participated in the arbitration, why was Megacleides alone called on to testify about Archebiades' role as arbitrator?

19 Thompson, art. cit. (n. 10), 601 n. 4, aptly compares the action of Dionysodorus at [Dem.] 56.12–16 and 32.

I would like to thank the journal's anonymous referee for several intelligent suggestions that have significantly improved this article.