15: COMMERCIAL LAW
Adefining characteristic of classical Greek civilization is its tendency to understand and to organize phenomena not (as we do) through definitional focus on a specific subject in isolation, but through contrast, preferably through complementary antithesis.1 In no context, perhaps, is this trait more striking than in the area of commerce and commercial law. Although Anglo-American law easily contrasts “real property” and “personal property” but still allows for items sharing certain characteristics of both (“fixtures”), the Greek antithetical universe recognized only two contrasting divisions – “visible property” (phanera ousia) or “invisible property” (aphanēs ousia)2 – and even the differentiation between realty and personalty tended to be expressed through this distinction.3 Even the sale of sex was practiced through polarity: pragmatic business and conceptual legal distinctions flow from the binary contrast of the pornē (“whore”) and the hetaira (“courtesan”).
But the fundamental commercial differentiation is between land and sea, a pervasive opposition between the nonmaritime and maritime spheres. Thus, interest (tokos, literally “yield”) is either “maritime” (nautikos) or “landed” (eggeios): there is no alternative.4 All commercial activity is “sharply separated,” conceptually and legally, into kapēleia, landed retail trade, and emporia, exchange by sea5 – a division recognized juridically by the explicit separation of “commercial maritime” laws (emporikoi nomoi) from those of the landed community (astikoi nomoi).6 This segmentation corresponded to Hellenic reality. In the modern world, maritime transactions may still constitute an important part of total economic activity, but technological developments and multifaceted mechanisms of communication have reduced marine trade to one factor among many (and in some countries to virtual insignificance). In the Hellenic world, however – because of the pervasive pattern of Greek settlement along the coasts of the Mediterranean and Black Seas (rather than inland) and the primitive nature and high cost of the mechanisms available for transportation and communication over the harsh ground terrain – the maritime sphere was probably the dominant half of a commercial universe divided between land and sea.7 In the very construction and placement of their communities, the Greeks manifested this basic dualistic dichotomy: the nonmaritime city-proper (asty) with its “landed” market (agora) and its “landed” trade (kapēleia), separated from the “maritime” commercial center (emporion), generally on the coast and away from the “landed” hub.8 The ultimate embodiment of this complementary disjunction, of course, is Athens, with its elaborate agora city-center miles from the sea, and its incomparable Piraeus harbor and maritime center directly on the water and constituting the emporion par excellence.9 The important silver-testing legislation at Athens, for example, sets parallel but separate provisions for the emporion at Piraeus and for the agora in the city,10 whereas Xenophon, in his proposals for increasing revenues at Athens, makes parallel provision for capital expenditures in the Piraeus and in the asty (Poroi 3.13). Five agoranomoi (“market controllers”) were selected annually for Athens and five others for the Piraeus.11 Yet the many analogous aspects of the two spheres are transcended by two seminal contrasts: agora transactions in their essence tend to be relatively simple – at retail, often undocumented and largely unwitnessed – and are almost entirely free of governmental intrusion; maritime commerce in its essence is complex – on a wholesale basis, almost invariably pursuant to witnessed, written documentation – and is fostered and fettered by governmental activism. Accordingly we will focus first on the Athenian Agora and then on the Athenian emporion during the fourth century B.C.E. (and the years immediately before and after the fourth century), an emphasis dictated by the fact that the overwhelming bulk of surviving evidence for Greek commercial law12 relates to Athens during that relatively limited period.13
LEGAL CONSIDERATIONS AFFECTING THE LANDED MARKET (AGORA)
Athenian law in general was largely free of technical complexity or tortuous legalisms,14 and this is especially true of the commercial law relating to retail transactions. Except for some limited protection against the making of patently false statements and the offering of adulterated or defective goods,15 and against the charging of excessive prices for grain,16 consumers were the beneficiaries of no legally imposed safeguards, such as warranties relating to the quality or usability of the products sold. Legal provisions directly affecting transactions in the Agora were effectively confined to the areas of deceit or disorder.17 This circumscribed juridical involvement appears to have grown out of a fundamental Greek belief – which “Greek law never abandoned” (Pringsheim 1950: “Thesis”) – that a market transaction attains juridical significance (that is, gives rise to a legal action for claims relating to the transaction) only through simultaneous payment of the purchase price and delivery of the good being purchased.18 This requirement rendered sale, for legal purposes, an instantaneous transaction: immediately prior to the exchange, neither party had any obligation or right relative to the other. Because a legal relationship, and hence a juridical basis for enforcement of an obligation between the parties, could thus arise only on actual delivery of goods against actual payment of the full purchase price, Athenians could not enter directly into legally enforceable “executory” (i.e., future) obligations, such as deferred delivery of merchandise or sellers’ provision of credit to be secured by delayed transfer of unencumbered full title to the commodities being purchased. This rule would have sharply limited potential grounds for dispute or misunderstanding by effectively eliminating the judicial enforceability of unconsummated agreements. It is therefore not surprising that of the scores of extant law cases from Athens, only a single one (Hypereides, Against Athenogenes) deals with a transaction focused on sale of goods.
At least in theory, therefore, Athenian commercial law was juridically simple.19 “The inflexibility of such a simple system and its inability to meet the sophisticated requirements of a more developed economy” (Millett 1990: 17) has confirmed for some commentators the essentially “primitive” nature of the Athenian economy.20 But other scholars have demonstrated the variety of sophisticated credit mechanisms that permitted Athenian commerce to function through the “legal fictions” of arrangements economically equivalent to sales with deferred delivery or sales on credit.21 Purchasers did pay the full price, but often with funds lent by sellers. Financing by the seller allowed the buyer to take immediate possession of the good. In turn, if the buyer did not repay the loan on the terms agreed, the seller was able to bring legal action to recover the sums advanced. Such indirect mechanisms for sale on credit or delayed delivery were so commonplace in Athens that Plato – deeply opposed to artful business practices and the profit-seeking business people who engaged in them22 – proposed (for the ideal state sketched in the Laws) the prohibition of all commercial exchange other than simultaneous “cash for goods and goods for cash” (nomisma khrēmatōn, khrēmata nomismatos). Plato’s Magnesia, the state representing not the utopia of the earlier Re-public but merely a “reformed” Athens,23 would deny all right of legal action to a seller seeking repayment of monies lent to a buyer to “pay” for goods acquired from the seller. A vendor indulging in the legal fiction of an independent loan would have to “grin and bear it” (stergetō) if the purchaser did not repay the “loan.” Similarly, a buyer would be denied court access to enforce arrangements permitting delayed delivery of goods.24 But, in actual practice at Athens, surviving sources confirm that credit was widely available for consumer (and other) purchases, from both vendors and banks.25 A producer of swords and sofas, for example, appears routinely to have offered consumer financing to expedite sales.26 Seller financing for the purchase of slaves appears to have been so common that two separate surviving law court presentations highlight the practice. In one, Spoudias allegedly failed to repay to the seller, Polyeuktos, either the principal sum of 1,800 drachmas or the financing charges (tokos) (Dem. 41.8). In the other, another vendor, Amyntas, is reported to have sold slaves for 3,500 drachmas to a buyer who lacked cash. Yet the sale was effectuated through the type of sophistication detested by Plato: a third party was entrusted with possession of a written contract providing for repayment to the seller of principal and financing charges (Lyk. Leok. 23). Sales of real estate on credit or for deferred delivery were legion. Athenian horoi (“mortgage”) inscriptions disclose more than a dozen examples of parcels encumbered to mark a continuing financial obligation related to the purchase price (economically akin to a “purchase money mortgage”) or to signal the possessor’s obligation of delayed delivery.27 Similarly, buyers could obtain an interest in goods by making a deposit (arrabōn) or an advance payment (prodosis), thereby creating a basis for legal action against a seller who conveyed the property to someone else or who failed to deliver an item on a timely basis despite timely tender of the full purchase price.28 For their part, banks (trapezai) are known to have provided funding for the ongoing operations of retail fragrance businesses (Lysias, Frag. 38.1 Gernet) and to have been involved in the sale of perfume outlets (Hyp. 3 Ath. 5–9). Bankers provided loans to purchase mining concessions and processing mills (Dem. 37, 40.52), to establish a cloth-making operation (Xen., Mem. 2.7), to purchase land (IG II2 2762; Arkh. Delt. 17 [1961–62]: Khronika 35, no. 4), to finance the import of lumber (Dem. 49.35–36), and even guaranteed payment of overseas commercial obligations (Isok. 17.35–37; Dem. 50.28) – all arrangements that were enforceable in the Athenian courts.29
Although some scholars have extolled the sophisticated “legal fictions” created by Athenian ingenuity (see note 21 above), and others – committed to a “primitivistic” view of classical Athens – have sought to denigrate these transactions as “exceptional,”30 in fact no elevated subtlety or advanced transformation underlay these practices. Athenian statutory law and Athenian courts simply (and uniformly) recognized as legally enforceable “whatever one party has agreed on with another.”31 As a result of this juridical acquiescence, the legality and enforceability of business arrangements was never dependent on mechanisms specifically sanctioned by statute or tradition. The simplicity of Athenian legal conceptualization was not incompatible with intricate business transactions, nor was it inappropriate for a retail market where, in the overwhelming majority of sales, there would be no “agreement” prior to the simultaneous exchange of cash for goods and hence no basis for a dispute actionable at law. The relatively small amounts involved in individual transactions would have further inhibited resort to litigation or demand for more expansive legislation.
The almost total absence of polis involvement in the “landed” economy is shown strikingly by the only domestic Athenian business transaction known in detail, a complex financial transaction in which a young citizen, Epikrates, was allegedly defrauded in connection with his purchase of a perfume business burdened by substantial (and allegedly undisclosed) debts (Hypereides, Against Athenogenes). Strikingly, Epikrates is left haplessly to seek redress for himself: no administrative body is available to protect his rights. He is forced to claim that the statute granting legal effect to “whatever one party has agreed on with another” (note 31 above) should apply only to “equitable arrangements” (dikaia), but for this proposition – despite his assiduous study “night and day” of potentially applicable laws (Hyp. 3 Ath. 13) – he is unable to present any confirmatory statute, precedent, custom, or administrative procedure.32 But in sea trade, and in the maritime courts which heard its disputes, there was no lack of statutes, precedents, customs and administrative procedures, nor of intricate argumentations concerning their appropriate use.
LEGAL CONSIDERATIONS AFFECTING THE MARITIME MARKET (EMPORION)
Hundreds of ship-cargoes were required annually to satisfy Attica’s enormous need for grain33 – and many other items were imported by sea in amounts at least equal to deliveries of grain.34 Because of the primitive condition and high expense of overland transport (see note 7 and accompanying text), fourth-century Athens was entirely dependent on this maritime trade, and – in the perceptive words of an Athenian litigant – this commerce in turn was entirely dependent on the availability of financing.35 As a result, discussion of the legal structure of Athenian maritime trade is perforce largely a consideration of the legal rules and procedures affecting Athenian sea finance.
These rules and procedures were much influenced by the central role of written agreements in maritime transactions. Although in other areas arrangements in writing were wholly unknown at Athens until well into the fourth century – and only very late in that century did unwitnessed written agreements cease to be unusual36 – by the very beginning of the fourth century (and possibly earlier) maritime commerce was already functioning through written agreements.37 In contrast to the relatively simple retail dealings of the landed Agora, sea trade in the fourth century was extraordinarily intricate, involving multiple contingencies and disparate complex circumstances and conditions. A single ship might carry many “traders” (emporoi), and each of these emporoi in turn might be transporting disparate cargo securing separate loans38: at least thirty merchants were on board the cargo ship whose sinking is the focus of the litigation at Demosthenes 34. The vessel itself might be securing a separate loan from yet other lenders,39 and the ship owner might have subjected part or all of his own cargo to further lien(s) from yet other financier(s). Each of these lenders would normally require the borrower to provide substantial equity subordinate to each borrowing. This capital might itself be borrowed, possibly against yet other collateral. The resulting complexity is illustrated by the transaction about which we know most, the voyage from Athens to the Crimea (Demosthenes 35), which is the subject of the only maritime loan agreement surviving from antiquity.40 The vessel used for this transaction carried numerous merchants and agents pursuing their own separate undertakings: retainers of a certain Apollonides of Halikarnassos, a “partner in the ship,” were on board (33); a loan had been made to the ship operator secured by the vessel and by goods being transported to the Pontos (32–3); freight was being carried from Pantikapaion to Theodosia (in the Crimea) under arrangements unrelated to the loan documented in Demosthenes 35 (34). So disparate were the transactions that in addition to crew members, eight other persons offer depositions (20, 34) concerning cargo transported from Mende to the Pontic area, relating to other goods on board when the vessel was sailing along the Crimean coastline, and mentioning various financing arrangements covering diverse freight. The preserved contract clearly anticipates multiple cargoes independently owned: decisions on jettison must be taken by majority vote of persons on board (11).41 To keep track of these multitudinous obligations, Greek ship operators (nauklēroi) are known to have carried numerous written documents.42
Despite the simplicity inherent in Greek conceptualization of commercial legal obligations (note 19 above), these complex contracts were legally enforceable at Athens. In the conduct of maritime trade, as in domestic retail exchange, Athenian courts did accept as “legally binding” (kyria) “whatever arrangements either party willingly agreed upon with the other” (Dem. 56.2). In maritime matters, in fact, the parties (at least on occasion) envisioned that their agreements, often involving individuals from widely disparate parts of Greece, might even negate the specific statutes of individual jurisdictions. The unique maritime loan document preserved in Demosthenes 35, the best evidence for actual Greek practice (above note 40), provides explicitly that concerning the matters covered in the agreement “nothing else be more legally binding than (this) contract.”43 A similar covenant was contained in the compact which is the subject of litigation in Demosthenes 56.44 We have no way of knowing whether such provisions were merely hortatory (and without any expectation of actual enforceability in the courts of a polis) or whether the parties really anticipated that some Greek states might be willing to favor the parties’ consensual arrangements over polis law. But we do know that the Athenians categorically rejected such attempts at absolute “contractual autonomy.” To the contrary, the Athenians threatened capital punishment for residents of Attica who undertook to ship grain to any location other than Attica45 and forebade residents to lend money for delivery of grain to sites outside Attica.46 Athenian law further provided that once ships arrived in Athens – without regard to the parties’ undertakings – no more than one-third of cereals on board could be reexported.47 Athenian involvement in alimentary trade was so extensive that the grain supply was an obligatory subject for consideration on a recurring basis at meetings of the Athenian Assembly (ekklēsia),48 and the provisions governing the taxation and delivery of grain from Lemnos, Imbros, and Skyros (contained in a law discovered in the American excavations in the Athenian Agora and published in 1998) offer striking examples of the detailed regulations that might be adopted at these sessions, extending even to provisions intended to avoid “shrinkage” in transit from the Piraeus to the city Agora.49 Special officers (sitophylakes, “guardians of grain”) were assigned to enforce the myriad rules pertaining to cereals: during the course of the fourth century their numbers more than tripled.50 Other Athenians served as administrative officials of the harbor (epimelētai emporiou), charged with enforcing a further broad variety of provisions.51 And, perhaps most importantly, through their special maritime courts (dikai emporikai52), the Athenians managed both to offer an enticing jurisdiction for the adjudication of maritime disputes – to the advantage of merchants, shippers, ship owners, sailors, and financiers – and through these courts to exercise substantial influence over trade in the Eastern Mediterranean – to the Athenians’ advantage.
The dikai emporikai provided an attractive and unique forum because of their supranationality of access, rapidity of process, rigor of procedure and enforcement of judgments.
In the absence of special bilateral treaty relationships (symbola),53 the courts of the hundreds of independent Greek states were normally open only to litigants who were members (“citizens”) of that state.54 But the Athenian maritime tribunals accepted litigants without regard to personal status or place of origin or residence.55 But not for all matters. Although these courts were clearly “well-used” (Todd 1993: 334), some maritime disputes did not qualify for consideration. (The exact configuration of the jurisdiction of these special courts has been much discussed in modern scholarship – as it was in the tribunals themselves in the fourth century: the bulk of surviving cases involve pleas against jurisdiction (paragraphai), claiming that the matter under adjudication was not appropriately brought before the emporic court.56) It seems clear, however, that at the very least these courts were available for commercial maritime cases involving a written contract providing for trade to or from the port of Athens. A key explanation of the courts’ jurisdiction (Demosthenes 32.1), however, can be read expansively as granting the dikai emporikai jurisdiction over all maritime matters memorialized by written contracts (syngraphai) – even those having no relationship with Athens – and in addition as bestowing jurisdiction over any emporic dispute involving trade to or from the Piraeus – even those lacking any written arrangements.57 The more restrictive interpretation described above would link the availability of this legal procedure to the provision of imports and the taking of exports through the Piraeus – a boon for the Athenian economy, yet less domineering (and presumably less challenging for other states) than Athenian assertion of jurisdiction over a wider swath of sea trade.
In contrast to the protracted delays (diatribai) that seem to have been endemic in Athenian court processes, often extending the resolution of legal disputes for years and sometimes even for decades,58 the dikai emporikai were summary in procedure, rendering rapid decisions on a monthly basis. But the exact nature of this swift justice is not entirely clear, and here too variant interpretations have been offered. Some scholars believe that expedited dispute resolution resulted from a requirement that in the dikai emporikai cases be adjudicated within a month after initiation59; others contend that expeditious disposal of litigation resulted from the introduction of new groups of cases each month and the exemption of this litigation from institutionalized sources of delay.60
Special measures were available to assure a defendant’s appearance at trial and to enforce the judgments of the maritime tribunals. Despite the rarity of imprisonment as a procedural or punitive process at Athens,61 in the dikai emporikai foreign defendants (xenoi) were required to post bail through sureties. A foreigner unable to provide this bail “would go to jail.”62 Because the maritime tribunal was effectively the only court in fourth-century Athens to admit “foreigners” (who constituted a large portion of the persons involved in sea trade and in maritime litigation63), this requirement of pretrial bail for xenoi meant that – in contrast to the procedures in other courts where defendants might freely depart after an adverse judgment – a substantial proportion of litigants here were required either to post bond prior to adjudication or to be imprisoned while awaiting their court hearing (which of course was imminent because of the courts’ rapidity of procedure). Similarly, the dikai emporikai constituted the only courts in which, for “private” offenses (dikai), “imprisonment was the penalty until (defendants) should pay the judgment against them” (Dem. 33.1). Even for plaintiffs, possible imprisonment loomed: failure to capture a minimum share of the ballots carried liability for one-sixth the sum sought and jail for failure to pay.64
In all these ways, maritime litigation was an arena antithetical to the simplistically detached legalities of the landed sphere – both a continuing effect and a continuing cause of the fundamental commercial differentiation between land and sea pervasive in Greek society and in Athenian law.
1 On this dualistic opposition so central to Hellenic culture that it has been said to have “dominated Greek thought” (Garner 1987: 76), see Lloyd (1966: 15–85), E. Cohen (1992: 46–52, 191–4), Davidson (1997: xxv–xxvi).
2 See Gabrielsen (1994: 54–6, 1986), Bongenaar (1933: 234–9), Koutorga (1859: 6–11), Schodorf (1904: 90 ff.), Weiss (1923: 173, 464, 491), Schuhl (1953).
3 Harp. s.v.: 
; Lys. Fr. cxxxiv (79 Th.); Dem. 5.8.
4 See E. Cohen (1990), Lipsius (1905–1915: 721), Harrison (1968: 228, n. 3), Korver (1934: 125 ff.).
5 Gofas (1993: 167). For surveys of ancient references to these terms, see Finley (Finkelstein) (1935), Knorringa ([1926]1987).
6 Hesykh. s.v. 
. Cf. Dem. 35.3.
8 Vélissaropoulos (1977: 61).
9 The emporion was the physical, financial, and ideological sphere at Athens encompassing business people involved in maritime trade and finance. Physically the area encompassed the Western portion of the Piraeus harbor and centered on the deigma. (See Dem. 35.29 and 50.24; Xen., Hell. 5.1.21; Pollux 9.34; Suidas, s.v. δεῖγμα.) At some distance from the emporion was the Hippodameian Agora (west of Mounykhia Hill and north of Zea: Garland 1987: 141–2), where some retail activity presumably occurred (Panagos 1968: 223–4) although there is a dearth of positive evidence for consumer commerce here or in other areas outside the central Agora in Athens.
10 See SEG 26.72 (Stroud 1974: esp. lines 37 ff.) for the text of this legislation. Cf. Stumpf (1986), Alessandri (1984).
12 Occasional reference to “Greek law” in this chapter should be understood as consonant with Foxhall and Lewis’s conclusion that “as a coherent entity it does not exist . . . but as variations on a theme (it) does remain analytically useful” (1996a: 2–3). See also Gagarin on unity, above.
13 Pringsheim did collect masses of material (mainly scraps of papyrus) relating to “sale” in the Greek world over a 1,000-year period, but absence of context or interrelationship for these remnants forced him to acknowledge the impossibility of drawing conclusions from such disparate material (1950: 500).
14 In large part, at Athens “the language of the street was itself the language of the law” (Todd and Millett 1990: 17). Cf. MacDowell (1978: 9), Todd (1993: 64–5) (“primitive”).
15 False Statements: Dem. 20.9; Harp. s.v. κατὰ τὴν ἀγοράν. ἀψενδῖν; Hyp. 3 Ath. 14. Cf. Marzi (1977: 221, n. 37), Ste. Croix (1972: 399). Goods: Arist. Ath. Pol. 51.1 (duties of the agoranomoi); Hyper. 3 Athen. 15 (defective slaves).
16 Prices: Arist. Ath. Pol. 51.1; Lysias 22. Cf. Seager (1966), Figueira (1986). For the elements affecting the determination of prices in classical and Hellenistic Greece, see Grenier (1997).
17 The jurisdiction of the agoranomoi was restricted to maintaining order and preventing misrepresentations by buyers and sellers: Theophrastos, Laws (Szegedy-Maszak 1981: fr. 20).
18 See Pringsheim (1950: 86–90, 179–219), Gernet (1954–1960: I. 261), Jones (1956: 227–32), MacDowell (1978: 138–40), Harris (1988: 360), Millett (1990: 174), von Reden (2001: 74). Cf. Theophr., Laws 21.4; Arist., Rhetoric 1361a21–22 (
).
19 In contrast to the Greek insistence on simultaneous payment and delivery, classical Roman law permitted legal relationships (obligationes) to arise from a multitude of sources, including oral consensual executory agreements (stipulationes). Greek philosophical writers did attempt to extend the concept of blabē (“damage”) into a unifying and extended source for civil obligation (Vélissaropoulos 1993: 11), but this had little practical effect. Anglo-American law likewise has struggled in recent years, with limited success, to develop a unifying conceptualization of civil obligation (see Atiyah 1986: 42–3, 52; Cane 1991: 373).
20 See Millett (1990: 180–2), Finley ([1973]1999: 141). Cf. Finley ([1951]1985: 298, n. 28). Gernet considers it a “paradoxe” that the system was able to function “dans un état économique déjà avancé” (1955b: 207). Cf. Gernet (1955b: 222, n. 1).
21 Demeyere (1952, 1953), Gernet (1953), Wolff (1957), Kränzlein (1963: 76–82).
22 For Plato, “market people” (agoraioi anthrōpoi) were “defective men” (phauloi) who pursued monetary profit because they were incapable of more acceptable cultural and political pursuits (Republic 371c). Cf. Plato, Protagoras 347c; Politikos 289e.
23 Kahn (1993: xviii–xxx;). Cf. Morrow ([1960]1993: 592). For Plato’s recasting of the Athenian practice of publishing laws, for example, see Bertrand (1997, esp. 27–9).
24 849e: “Here they must exchange money for goods and goods for money, and never hand over anything without getting something in return; anyone who doesn’t bother about this and trusts the other party must grin and bear it whether or not he gets what he’s owed, because for such transactions there will be no legal remedy” (Translation: Saunders 1951). Cf. Laws 915d6–e2 (no legal action for delayed sale or purchase).
25 In other parts of Greece, seller financing is also attested. For Ptolemaic Egypt, see von Reden (2001: 74); for Greco-Roman Egypt, Rupprecht (1994).
27 Finley ([1951]1985: 63, 66c, 85c, 101, 112, 113, 114, 114B, 115 (all deferred delivery); 3, 18A, 114A (all deferred payment)). A further example of sale with deferred payment is SEG 34.167, published subsequent to Finley’s study. For discussion of the legal significance of the earlier horoi, see Pringsheim 1953.
28 Prodosis: Lysias Fr. I (38 Gernet): “Aren’t the retailers – from whom he’s taken advances and not made delivery – suing him?”. Arrabōn: Isai. 8.23; Theophr., Nomoi Fr. 5–6 (Szegedy-Maszak); Menander, Fr. 459 (K–A); Plautus Most. 637–48, Pseud. 342–6, 373–4, Rudens 45–6, 860–2, 1281–3; Fine 1951 (No. 28). For delivery of a sample (deigma) to secure an interest in property prior to payment of the purchase price or transfer of the goods, see the discussion in Gofas (1989a) of Pollux 9.34, a fragment from Hypereides. Cf. Talamanca 1953.
29 For the special significance accorded bankers’ records as evidence in Athenian litigation, see Gernet (1955a: 176, n. 2); Harrison (1971: 22, n. 7); Bogaert (1968: 328 n. 461). For a full exegesis of Athenian legal accommodation to business practices, even in derogation of general rules otherwise prevailing, see E. Cohen (1992: 94–110).
30 Finley ([1951]1985: 113–14); Millett (1990: 187) (“credit sales few and far between”). Because of the sparse quantity and fragmentary quality of surviving evidence – limitations compounded by the absence of ancient statistics – characterization of these numerous examples as “exceptional” (without the proffering of a multitude of “standard” examples) is necessarily a product of a priori assumptions.
31 See Dem. 47.77. Similarly: Dein. 3.4; Dem. 56.2; Plato, Symp. 196c; Arist. Rhet. 1375b9–10.
32 Whitehead 2000: 306 dismisses Epikrates’ argument as merely “an appeal to the spirit, not the letter, of the law.” On the role of “equity” in Attic procedure, see Meyer-Laurin (1965: 15–19, 24–5).
33 Despite wide variability in the assumptions, methodologies and conclusions of the large number of scholars who have studied the grain import requirements of Athens, virtually all agree on the need for extensive imports of grain: Whitby 1998 (with extensive reference to primary sources and prior scholarship). On a single occasion and in a single area, Philip of Macedon in 340 seized between 180 and 230 grain ships bound for Athens (Bresson 1994).
34 Garland (1987: 85). For a summary list of imports other than cereals, see Hopper (1979: 92).
35 Dem. 34.51: “Without lenders, not a ship, not a ship-owner, not a traveler could put to sea.”
36 See Pringsheim (1955), Thomas (1989: 41–5), Harvey (1966: 10).
37 The earliest known written contract at Athens appears to be that reported at Isok. 17.20 (an agreement from the early fourth century between a banker and a customer deeply involved in overseas commerce).
38 Cf. Dem. 32.5–8, 14; 35.31–32; 56.24.
39 See Dem. 32.14 and 56.6. In the latter case the goods selected for transport to Piraeus were hypothecated to other creditors. Cf. Gernet (1954–1960: III.133, n. 4).
40 This document is now generally accepted as genuine: see Purpura (1987: 203 ff.), Todd (1993: 338).
41 A single individual, however, might perform multiple roles (see Gofas 1989b: 425–30, esp. n. 1). The nauklēros Hyblesios of Dem. 35, for example, had an ownership interest in the vessel, personally sailed on the voyage, and was himself a borrower.
42 Xen. Anab. 7.5.14. Cf. Isok. 17.20; Dem. 32.16; IG XII. Supp. 347 III.2. See Bresson (2000: 141–9).
43 The speaker further interprets this clause as giving the contract priority even over laws and decrees (39). Cf. IG XII 7.67, 27, and 76.
44 Although the actual text has not been preserved, section 26 of the court presentation confirms the presence of such a clause.
45 Dem. 34.37, 35.50–51. Cf. Lyk. 1.27.
46 Dem. 35.51. Cf. Dem. 56.11.
47 Arist. Ath. Pol. 51.4. Cf. Harp. and Suidas, s.v. ἐπιμεληταὶ ἐμπορίου.
48 Arist. Ath. Pol. 43.4. Cf. Mossé 1996: 37–8.
49 Stroud (1998: esp. p. 26), cf. Harris (1999a), Faraguna (1999), Bresson (2000: 207–10), Osborne (2000b), Engels (2001).
50 Arist. Ath. Pol. 51.3. Cf. Lysias 22.8. See Gauthier (1981).
51 Arist. Ath. Pol. 51.4; Dem. 35.51, 58.8, 9. Homonymous officials are also attested at Miletos, Delos and Rhodes: see Migeotte (2002: 121–2), Vélissaropoulos (1980: 33–4).
52 The word “courts” seems to me the preferable rendering for dikai in the term dikai emporikai because their procedural and jurisdictional attributes differ markedly from those of other forms of legal action. See E. Cohen (1992: 125, n. 59).
53 For these diplomatic arrangements through which a member of one state might obtain the right to litigate in another jurisdiction, see Gauthier (1972). Cf. Gernet (1938b: 14–15).
54 Arist. Pol. 1275a (interpreted by Paoli [1930]1974: 283 ff.). For the vast number of separate communities in Hellenic antiquity, see Ruschenbusch (1978: 3–17, 1984: 55–7, 1985: 257). Cf. Hansen (1994: 14).
55 Although open access to commercial courts may have been an Athenian innovation in the fourth century (see Vélissaropoulos 1980: 248), other states, including Syracuse (Dem. 32.18), Rhodes (Dem. 56.47) and Byzantion (Dem. 45.64), came to offer similar access to foreigners in maritime matters. Cf. Scholion to Dem. 21.176.
56 Of the five emporic cases preserved in our sources, four revolve around issues of admissibility. See Wolff (1966), Paoli (1930: 75–174, 1935).
58 See, for example, Dem. 21, 30, 38, 39, 40, 43, 45. Cf. Aiskh. 3.219, 254; Lysias 17.5; Dem. 46.22, and the discussion of these cases at E. Cohen (1973: 10–12).
59 Gauthier (1974), Vélissaropoulos (1980: 241–5), and Hansen (1983).
60 E. Cohen (1973: 23–42), MacDowell (1976b, 1978: 232), Gofas (1978), Rhodes (1981: 583), Carey and Reid (1985: 223).
61 See E. Cohen (1973: 74–83). MacDowell (1990: 268), Hunter (1997). For a variant interpretation, see Allen (1997).
62 Dem. 32.29. Cf. Lysias 13.23, Isok. 17.12, Dem. 25.60.
63 For estimates of aliens’ importance in this trade, see Erxleben (1974: 462–82), Isager and Hansen (1975: 70–4), M. V. Hansen (1984: 71–921).
64 Dem. 56.4. Cf. Plut. Solon 15.2–3.