Dēmos · Classical Athenian Democracy · a Stoa Publication
→ § 43 (Dem. 34).
Craig Gibson, trans., edition of April 30, 2003
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(1) A merchant named Phormio borrowed twenty mnae from Chrysippus and sailed to Bosporus, but upon arriving there he found that there was no market for the cargo that he was conveying. (2) So when Lampis, the ship’s captain, wanted to sail back to Athens and ordered him to load up the goods bought with Chrysippus’ money—for that is what the contract specified—he did not put any cargo or money on board; rather, he told Lampis that he was unable to do so at the present time, but that he would very soon disembark on another ship with the money. (3) Then Lampis’ overloaded ship sank, and Lampis and a few other men were saved on the lifeboat. Upon arriving at Athens he revealed the story of Phormio’s good luck to Chrysippus—that he he had stayed behind in Bosporus and had not put anything on board the ship. (4) But later, when Phormio sailed back and was being asked for the money, he at first (according to Chrysippus) agreed that he owed it and promised to pay it back, but he later claimed that he did not owe anything since he had already paid Lampis back; for the agreement stated that Phormio should be released from the debt, if the ship suffered some misfortune at sea. (5) Then Chrysippus took him to court. But Phormio brought an indictment against him for an illegal prosecution. Lampis testified before the arbitrator that he had left Phormio’s money behind in Bosporus and that it had been lost along with everything else in the shipwreck. But previously he had said the opposite to Chrysippus, that Phormio had not put anything on board the ship. When he was questioned on these points, Lampis claimed that he had been out of his mind when he said that to Chrysippus. When the arbitrator heard all of this, he was unable to come to a decision and so sent the matter to court. (6) The case is technically a paragraphe [i.e., an indictment for an illegal prosecution], but in fact is directed against the primary case. For the orator does a good job of showing that there cannot be an indictment for an illegal prosecution, if Phormio says that he has done everything in accordance with their agreement and has paid the money back to Lampis, since the written contract prescribes this and releases him from any debt if such a disaster should occur. (7) This kind of argument is characteristic of one who is making his primary case and is trying to counter the complaints brought against him, not of one who is trying to annul a case about those complaints and get a suit declared inadmissible. But the law allows indictments for illegal prosecutions (he says) concerning contracts that have not in general been made at Athens or on the way to Athens. (8) He carefully observes in this speech the same practice as in “Against Neaera”—that the speech should be delivered by more than one person—but <in that speech> there is a clear distinction between the two speakers,46 while here the distinction is blurred. (9) It seems to me that the second speaker begins speaking at this point: “Now after hearing us several times and believing, Athenian gentlemen, that Lampis was committing perjury, Theodotus….”47 It is obvious that Phormio’s opponents in this trial are partners.
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