S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 47, Number 1/4 (2006)
Cessante Labore Cessat et Praemium? -무노동 무임금? 로마법상의 고용계약에 관한 소고 - : No Payment without Labor? -What Roman Law says as to Locatio conduction operarum as Labor contract-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.47 No.1, pp. 76-106
- 위험부담 ; 무노동 무임금 ; 피용자의 병환 ; 보수 청구 ; Labor contract ; no payment without Labor ; 계약의 신의 ; Locatio conductio operarum ; 고용계약 ; 다키아 서판
- 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.188.8.131.52-10 (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.184.108.40.206; Iav. D.38.1.33; Gai. D.38.1.19; Paul.
D.38.1.20.pr; Gai. D.220.127.116.11; Paul. D.18.104.22.168). 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...