Cessante Labore Cessat et Praemium? -무노동 무임금? 로마법상의 고용계약에 관한 소고 -

Abstract

This article deals with the question in Roman law of whether or not the

employer was obligated to pay the remuneration (wage), when the employee was

hindered from offering his labor by an event not attributable to both of them. It

is hard to answer this question of risk distribution between the parties in the

Roman law of labor contract, because there is only a very limited number of

legal sources available.

A critical survey of these sources, esp. D.19.2.19.8-10 (Ulp. 32 ed.) and FIRA

III, No.150 a-c (CIL III, 948-949 Tab. IX-XI), reveals no certain legal guideline

in theory and practice. The latter shows but a spectrum of practical solutions by

way of conventional agreements between the parties, and the former sanctions

according to the general principles of contract law, because the case it deals

with concerns a situation not of risk distribution, but of a fault to be blamed to

one of the parties. The picture we have shows a settled contract of labor freely

stipulated by the parties.

However, we also find a series of legal decisions securing laborers working

conditions tolerable and humane as are necessary for their health and aliment

(Alf. D.38.1.26; Ner. D.38.1.50.1; Iav. D.38.1.33; Gai. D.38.1.19; Paul.

D.38.1.20.pr; Gai. D.38.1.22.2; Paul. D.38.1.16.1). It is, therefore, worthy to

emphasize on the two competing ideas of labor contract among the Roman

jurists. The veteres, the Republican jurists succeeded by the Sabinians in the

classical period, deemed it as a status contract to the effect that it might...