Tulane European and Civil Law Forum, Vol. 11 (1996), pp. 19-29. Reprinted with the permission of the Tulane European and Civil Law Forum, which holds the copyright.


In 1929 A. Arthur Schiller published a celebrated article, Trade Secrets and the Roman Law; the Actio Servi Corrupti. His main conclusions are that the Roman owner of a mark or firm name was legally protected against unfair usage by a competitor through the actio servi corrupti, “action for making a slave worse,” which the Roman jurists used to grant commercial relief under the guise of private law actions. “If, as the writer believes [writes Schiller], various private causes of action were available in satisfying commercial needs, the state was acting in exactly the same fashion as it does at the present day.”

Schiller is sadly mistaken as to what was going on. I should like to make my point explicit. The actio servi corrupti presumably or possibly could be used to protect trade secrets and other similar commercial interests. That was not its purpose and was, at most, an incidental spin-off. But there is not the slightest evidence that the action was ever so used. In this regard the actio servi corrupti is not unique. Exactly the same can be said of many private law actions including those for theft, damage to property, deposit, and production of property. All of these could, I suppose, be used to protect trade secrets, etc., but there is no evidence they were. It is bizarre to see to any degree the Roman actio servi corrupti as the counterpart of modern law for the protection of trade secrets and other such commercial interests.

However, I am not writing to show weaknesses in Schiller's Roman law analysis. What you will see in this Section is the long prologue to a brief opera buffa in two Acts.