The four passages presented here outline, in broad terms, the text of the law regulating commercial suits (dikai emporikai). From passage (a) it appears that the law allowed merchants and shipowners (emporoi and nauklēroi) to bring an action against anyone who had wronged them in the context of commercial dealings in which Athens was either the point of departure or the destination where the transaction was to be completed. That the context in which this law could legitimately be applied was the emporion, and that Athens had to be involved in one way or another, emerges clearly from the passages cited.
Scholarly debate has long focused on the categories most protected by such actions, on their scope of applicability, and on certain procedural details, such as the period within which they could be brought. Regarding the first question, it is unclear whether a commercial action could be brought only by those who could be strictly defined as emporos or nauklēros, or by anyone provided that the offence occurred in the course of a commercial transaction in which Athens was somehow involved (cf. Cohen 1973, 114–129, who denies the existence of a legally identifiable ‘commercial class’ with clear boundaries; Harris 2015, 18, who instead argues that the socio-economic status of merchant or shipowner was a condicio sine qua non for bringing such an action).
On the scope of the dikai emporikai, three interpretations have been advanced:
a) in cases of failure to comply with an agreement, provided that it was based on a written contract (Cohen 1973, 105; Maffi 2016, 202);
b) in cases of non-fulfilment of an agreement concerning the transport of goods to or from Athens, and for any other breach of agreements based on a written contract (Gernet 1964, 187–189; Vélissaropoulos 1980, 237);
c) in cases of any offence committed in the context of a commercial transaction involving Athens, whether contractual breaches or common criminal offences (Harris 2015).
The repeated reference to the emporion in the sources (see passages b and c) nonetheless suggests that the dikai emporikai were confined to large-scale commercial transactions taking place in the Athenian emporion (Bresson 2016, 306–307, 322–323).
As for the period of applicability, scholars are divided. We know only that these were ‘monthly’ actions (dikai emmēnoi: [Dem.] 33.23), but it is unclear whether “monthly” meant that they could be brought once each month (Cohen 1973, 9–59; MacDowell 1976, 85; Rhodes 1981, 583–586, 665), or that they had to be concluded within a month from the lodging of the complaint with the competent magistrate (Lipsius 1905–1915, 901; Paoli 1930, 112–113; Harrison 2001, 2.15, 20–21; for a summary of the thorny issue of the magistrate competent in the dikai emporikai, see Erdas 2021, 54–57).
Particularly striking is that the dikai emporikai were accessible to anyone, regardless of legal status. As the main sources documenting cases that can be situated within the framework of a commercial action ([Dem.] 32, 33, 34, 35, 56) demonstrate, non-citizens were often involved (though it is difficult to determine whether they were metics or xenoi). This implies that such actions placed citizens, metics, and foreigners on an equal footing before the Athenian law. Some scholars have even suggested that slaves might have been able to bring legal action or appear as witnesses, given their proven involvement in trade as agents of their masters. However, the only attested case of a possible slave’s involvement in a dikē emporikē is highly disputed (Paoli 1930, 107; Gernet 1964, 162–163; Cohen 1973, 116, 121; Ismard 2019, 101–103). In general, it is more cautious to admit that, although slaves could indeed conduct business on behalf of their masters, legal liability ultimately rested with the latter (Harris 2013, 112; Lewis 2018, 43, 47 n. 78; Ismard 2019, 108–113).
This legal openness to non-citizens was undoubtedly a noteworthy innovation within the legislative and judicial framework of the poleis. However, its revolutionary scope should not be overstated to the point of suggesting that the dikai emporikai laid the foundations for the development of an international commercial law (so Paoli 1930, 111–117; Gernet 1964, 181; Cohen 1973, 69–70), thereby embracing a sort of “institutional fatalism.” In fact, the dikai emporikai had a rather more limited scope of applicability than the more widespread type of inter-polis agreement (symbola), which remained in operation even after the introduction of the dikai emporikai in the mid-4th century (Gauthier 1972, 199–201; Todd 1993, 322–323; Magnetto 2010, 169–174; Bresson 2016, 324). Furthermore, those bringing a dikē emporikē had in any case to abide by Athenian law, whereas symbola often led to genuine legal innovation (Gauthier 1972, 200).
That said, the dikai emporikai did enable anyone—even those of non-Greek origin—to receive legal protection in Athens in the context of a commercial transaction, even in the absence of specific agreements with their city of origin. Moreover, the fact that the procedure allowed for the presentation of an exception (paragraphē) by those who believed they had been unjustly summoned (see passages a and b) shows that the dikē emporikē protected foreigners both when they claimed to have suffered an injustice and when they needed to defend themselves against false accusations (on the importance of the paragraphē, see Harris 2015, 32–34; Maffi 2016, 205–207).
The undeniable protections afforded to foreigners engaged in commerce, together with the speed guaranteed by the monthly schedule of the dikai emporikai, undoubtedly brought significant benefits to Athens itself, which in this way could attract ever more merchants and thereby increase its financial power. It must finally be noted that the limits of this openness to foreigners repeatedly emerge in Attic speeches delivered in the context of commercial trials: emblematic is the insistence on the superiority of the politēs over the outsider, a superiority either explicitly acknowledged by the foreigners themselves ([Dem.] 34.50) or obliquely and contemptuously implied by the Athenians ([Dem.] 35.1).
a. [Dem.] 32.1
Ἄνδρες δικασταί, βούλομαι παραγεγραμμένος μὴ εἰσαγώγιμον εἶναι τὴν δίκην, περὶ τῶν νόμων πρῶτον εἰπεῖν, καθ’οὓς παρεγραψάμην. οἱ νόμοι κελεύουσιν, ὦ ἄνδρες δικασταί, τὰς δίκας εἶναι τοῖς ναυκλήροις καὶ τοῖς ἐμπόροις τῶν Ἀθήναζε καὶ τῶν Ἀθήνηθεν συμβολαίων, καὶ περὶ ὧν ἂν ὦσι συγγραφαί. ἂν δέ τις παρὰ ταῦτα δικάζηται, μὴ εἰσαγώγιμον εἶναι τὴν δίκην.
Gentlemen of the jury, since I have lodged an exception arguing that the action brought against me is not admissible, I wish first to speak about the laws under which I have raised the exception. The laws, gentlemen, provide that merchants and shipowners may bring actions concerning commercial transactions destined for Athens or departing from Athens, and in particular those based on a written contract. If anyone brings a case without meeting these requirements, the action is not admissible in court.
b. [Dem.] 33.1
Τοῖς μὲν ἐμπόροις, ὦ ἄνδρες δικασταί, καὶ τοῖς ναυκλήροις κελεύει ὁ νόμος εἶναι τὰς δίκας πρὸς τοὺς θεσμοθέτας, ἐάν τι ἀδικῶνται ἐν τῷ ἐμπορίῳ ἢ ἐνθένδε ποι πλέοντες ἢ ἑτέρωθεν δεῦρο, καὶ τοῖς ἀδικοῦσιν δεσμὸν ἔταξεν τοὐπιτίμιον, ἕως ἂν ἐκτείσωσιν ὅ τι ἂν αὐτῶν καταγνωσθῇ, ἵνα μηδεὶς ἀδικῇ μηδένα τῶν ἐμπόρων εἰκῇ. τοῖς δὲ περὶ τῶν μὴ γενομένων συμβολαίων εἰς κρίσιν καθισταμένοις ἐπὶ τὴν παραγραφὴν καταφεύγειν ἔδωκεν ὁ νόμος, ἵνα μηδεὶς συκοφαντῆται, ἀλλ’ αὐτοῖς τοῖς τῇ ἀληθείᾳ ἀδικουμένοις τῶν ἐμπόρων καὶ τῶν ναυκλήρων αἱ δίκαι ὦσιν.
The law allows merchants and shipowners, gentlemen of the jury, to bring actions before the thesmothetai if they suffer any wrong in the emporion, whether they are sailing from here to elsewhere or from elsewhere to here. For wrongdoers, it prescribes imprisonment as an additional penalty until they have paid whatever sum they are adjudged to owe, so that no one may wrong any merchant with impunity. The law also grants to those involved in a dispute without any legal liability arising from unfulfilled contracts the right to lodge an exception (paragraphē), so that no one is slandered and recourse to commercial actions is reserved for those merchants and shipowners who have genuinely suffered an injustice.
c. [Dem.] 34.42
Ὑπὲρ δὲ τοῦ τὴν δίκην εἰσαγώγιμον εἶναι ὁ νόμος αὐτὸς διαμαρτύρεται, κελεύων τὰς δίκας εἶναι τὰς ἐμπορικὰς τῶν συμβολαίων τῶν Ἀθήνησιν καὶ εἰς τὸ Ἀθηναίων ἐμπόριον, καὶ οὐ μόνον τῶν Ἀθήνησιν, ἀλλὰ καὶ ὅσα ἂν γένηται ἕνεκα τοῦ πλοῦ τοῦ Ἀθήναζε.
As for the admissibility of the present action, the law itself attests to it, providing that commercial suits may be brought concerning agreements made in Athens or to be completed in the Athenian emporion, and not only those made here, but also all those connected with a voyage to Athens.
d. [Dem.] 35.3
Ἐγὼ δέ, ὦ ἄνδρες δικασταί, χρήματα δανείσας Ἀρτέμωνι τῷ τούτου ἀδελφῷ κατὰ τοὺς ἐμπορικοὺς νόμους, εἰς τὸν Πόντον καὶ πάλιν Ἀθήναζε, τελευτήσαντος ἐκείνου πρὶν ἀποδοῦναί μοι τὰ χρήματα, Λακρίτῳ τουτῳὶ εἴληχα τὴν δίκην ταύτην κατὰ τοὺς αὐτοὺς νόμους τούτους καθ’ οὕσπερ τὸ συμβόλαιον ἐποιησάμην […].
I, gentlemen of the jury, having lent money to Artemon, the brother of this man here (Lacritus), in accordance with the commercial laws, for a trading voyage to the Black Sea and back again to Athens, and since he died before repaying me, have brought this action against Lacritus here under the same commercial laws in accordance with which I made the contract […].
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