Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Part 2.8.
Edward M. Harris, edition of March 22, 2003
page 15 of 15
Plot on a Map
Whatever the actual circumstances, the different interpretations of the phrase “if the ship arrives safely” illustrate what the philosopher of law H. L. A. Hart has called “the open texture of law.” Hart notes that laws and contracts usually contain general terms or cover large categories of persons or actions. While these terms and categories provide clear guidance in most situations, it may on occasion be difficult to know how to apply a general rule to a specific situation. In this case, the phrase “if the ship arrives safely” contains a potential ambiguity. The phrase obviously exempted the borrower from repayment if the ship sunk, but left it unclear how to apportion losses if the ship was only damaged and forced to seek a harbor short of its final destination. Should the borrower have to pay additional interest or was it unfair for the borrower to shoulder all the losses caused by the unforeseen circumstances? The Athenians were certainly familiar with the practice of allocating risk; for instance, in the law of Agyrrhius discussed in Part 1.6, one clause stipulates that the men who collected the dodekate had to take the entire risk of loss during transport of the grain to Athens (lines 11-15). In the private contract drawn up by Dareius and Dionysodorus, however, this question was not addressed. As a result, the dispute ended up in court. It would be fascinating to know how the court decided the legal issue involved in the case and how it arrived at its decision, but the sources are silent.
The speech Against Dionysodorus provides valuable information about the legal relationship between lenders and mechants in overseas trade. Although lenders took considerable risks in making loans to merchants, the law provided them with several ways of minimizing these risks. Taking advantage of praxis-clauses and the practice of real security and relying on the courts to enforce contracts, lenders could increase the odds of recovering their principal and earning interest. As Dareius observes in the closing words of his speech, the laws and the courts of Athens played a major role in promoting the overseas trade that made the agora of Athens a thriving marketplace.
page 15 of 15