A Deficient Statute
and how to mend it?
Liability for Damage in Others’ Property in
Classical Law:
Lex Aquilia, Pauperies, Corruption of
Slave
The Principles of Roman Law and the Roman Law of Obligations
José Luis Alonso (University of the Basque Country)
Jakub Urbanik (University of Warsaw)
Unlawfulness in the early
prae-classical law
•
•
The praetors interpret ‘unlawful’ as
negligent: hence ‘iniuria’ passes
from strict liability to liability based
on (at least) minimal negligence:
cf. common law concept of DUTY OF
CARE towards one’s neighbour
Duty of care
•
Lord Atkin in Donoghue v Stevenson [1932] AC 562 of the House of Lords:
“There must be, and is, some general conception of relations giving rise to
a duty of care, of which the particular cases found in the books are but
instances. ... The rule that you are to love your neighbour becomes in law
you must not injure your neighbour; and the lawyer's question: Who is my
neighbour? receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who, then, in law, is my neighbour? The answer
seems to be — persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions that are called in
question. (...) My Lords, if your Lordships accept the view that this pleading
discloses a relevant cause of action you will be affirming the proposition
that by Scots and English law alike a manufacturer of products, which he
sells in such a form as to show that he intends them to reach the ultimate
consumer in the form in which they left him with no reasonable possibility
of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products will result
in an injury to the consumer’s life or property, owes a duty to the consumer
to take that reasonable care.”
From strict liability for unlawful damage
to negligence
•
D. 9.2.31: Paulus, On Sabinus, Book X. Where a trimmer of trees
throws down a branch, or a man working on an elevation kills a
passer-by, he is only liable where he threw down the object in a
public place, and did not give warning, that the accident might
be avoided. Mucius, however, states that even if this happened
on private property, an action could be brought for negligence;
because it is negligence when provision was not made by taking
such precautions as a diligent man would have done, or warning
was only given when the danger could not have been avoided.
On this principle it does not make much difference whether the
party injured was traversing public or private ground, since it
very frequently happens that many persons go through private
ground. If there is no roadway there, the party is only liable for
malice where he throws something down on anyone who is
passing by; for he cannot be held accountable for negligence, as
he would be unable to conjecture whether anyone is going to
pass through that place or not.
From strict liability for unlawful damage
to negligence
D. 9.2.5.3 (Ulpianus, Edict, book 18) Where a teacher wounds or kills a slave
while instructing him, will he be liable under the Lex Aquilia on the ground that
he committed unlawful damage? Julianus says that a person was held liable
under the Lex Aquilia, who blinded a pupil in one eye while instructing him;
and much more would he have been liable, if he had killed him. He supposes
the following case. A shoemaker, while teaching his trade to a boy who was
freeborn and the son of a family, and who did not properly perform the task
which he had given him, struck him on the neck with a last, and the boy's eye
was destroyed. Julianus says that, in this instance, an action for offence (actio
iniuriarum aestimatoria) will not lie because he inflicted the blow, not willing to
offend him, but as a warning and to teach him. Still, he is in doubt as to
whether an action on a contract will lie, because only moderate punishment is
conceded to a person who imparts instruction. I do not doubt, however, that
an action can be brought under the Lex Aquilia; 6. Paulus, On the Edict, Book
XXII. As extreme severity on the part of an instructor is attributed to
negligence.
•
the definition
of negligence
•
D. 9.2.28. Paulus, On Sabinus, Book X. Where
persons dig pits for the purpose of catching bears
or deer, and do this on the highway, and anything
falls into them and is injured, they will be liable
under the Lex Aquilia; but they will not be liable if
they dug the pits in some other place where this is
ordinarily done. (1) This action, however, should
only be brought where proper cause is shown; that
is to say, where no notice was given, and the owner
had no knowledge, and could not provide against
the accident. And indeed, a great many instances of
this kind are encountered, in which a plaintiff is
barred if he could have avoided the danger;
From strict liability for unlawful damage to
negligence: the concurrence contractual
and delictual liability
•
D. 9.2.27.29 Ulpianus on the Edict, book 18: If you
entrust an artisan with a cup to be polished, and he
breaks it through want of skill, he will be liable for
wrongful damage; but if he does not break it through
want of skill, but it had cracks which spoiled it, he
will be excusable; and therefore artisans, when
things of this description are entrusted to them, are
generally accustomed to provide by an agreement
that the work will not be at their risk; and this bars
any right of action on the agreement, or under the
Lex Aquilia.
•
Marcus has given to Quintus an agate, so
he could make it into a cameo. The stone
broke during the work. On what will be the
artisan’s liability based?
Marcus
Locatio operis
Receptum?
Actio locati
Actio damni iniuria dati
Ex lege Aquilia
Actio de recepto?
Quintus
Excursus:
Cumulating actions
poenales & reipersecutoriae & mixtae
(penal claims, indemnity claims, mixed)
only actions with different aim may be
brought upon the same ground
a special case: actio damni iniuria dati
ex l. Aquilia and its analogous action
(actio in factum)
•
•
•
The Action
D. 9.2.2.1 Gaius, On the Provincial Edict, Book VII
And then the statute further provides that, “An action
for double damages may be brought against a person
who makes a denial”.
D. 9.2.2.25. Ulpianus, On the Edict, Book XVIII. (2) It
should be noted that in this action which is granted
against the person making a confession, the judge is
appointed not for the purpose of rendering a
decision, but to assess the damages; for no trial can
take place for the conviction of persons who confess
originally: immediate execution through legis actio per manus
iniectionem (the statute used the expression ‘damnas esto’),
hence double value of the trial when the tortfeasor makes a
denial)
under proceeding per formulas: actio damni iniuria dati ex
lege Aquilia, but the double value of the trial rule is kept.
•
•
Action
Let Caius Aquilius be judge. If it appears that the
Defendant unlawfully killed Stichus, on which
ground the Defendant ought to give so much
money to the Plaintiff, as was the highest value of
Stichus during the last year, to double of this sum
let the judge condemn the Defendant in favour of
the Plantiff. If it does not appear, let the judge
absolve. (in case of denial, in duplum)
Let Caius Aquilius be judge. What should be paid
to the Plaintiff by the one who unlawfully killded
Stichus, this let the judge condemn the Defendant
in favour of the Plantiff. If it does not appear, let the
judge absolve (tortfeasor admits liability, the trial is for
the amount of damages only)
The Mixed Character of
Actio ex lege Aquilia
•
D. 9.2.2.1 (Gaius, 9 on Provincial Edict): If the
thing deposited, pledged or loaned for use
was damaged by the one who had received it,
we may think of using not only the actions we
are discussing but also the aquilian one.
However, if the trial is started with one of
them, the other fall.
A Case
•
Quintus loaned his mule for use to Aulus.
Aulus overloaded the mule with carrots and
the poor animal died of exhaustion. What
actions may be brought and why?
The requisites of Aquilian liability
Actio damni iniuria dati Actio ad exemplum
ex lege Aquilia
legis Aquiliae
Who may
proceed?
Quiritary Owner
He who has legal interest
(bonitary owner, pledgee..)
Damnum
Material, physical damage of
Damage of free person’s
the property.
body. Indemnification
Indemnification for the market includes ciała osoby wolnej,
value (damnum emergens)
+ lucrum cessans
iniuria
Strict Liability (unlawfulness of action). Later: liability based
on negligence (culpa levissima)
Datum
Directly inflicted (corpori
corpore)
Indirectly inflicted,
Omission
Liability for Damage
outside Lex Aquilia
Pauperies
•
D. 9.1.1.1-3: Ulpianus, On the Edict, Book XVIII. Where a
quadruped is said to have committed damage, an action
which has come down from a Law of the Twelve Tables
may be brought; which Law prescribes that either
whatever caused the damage must be given up, that is,
that the animal that committed it shall be surrendered, or
an amount of money equivalent to the damage shall be
paid. (1) The term “noxia” means the offence itself. (2)
This action has reference to every kind of quadruped. (3)
The praetor says “pauperiem fecisse”, which signifies the
damage caused not against the law by the animal which
commits it, for an animal cannot be guilty an act against
law, because it does not reason.
Pauperies: natural
behaviour of the animal
action
•
D. 9.1.1.(4) Therefore, as Servius states, this action is
available where an animal commits damage after its
ferocity has been aroused; for example, where a horse
which has the habit of kicking, kicks, or an ox which is
accustomed to butt, does so; or a mule commits damage
by reason of extreme savageness. But if an animal
should upset a load on anyone on account of the
inequality of the ground, or the negligence of the driver, or
because the animal was overloaded; this action will not
lie, but proceedings must be instituted for wrongful injury.
Pauperies
•
D. 9.1.5. Alfenus, The Digest, 5 Book: While
Agaso was leading a horse to the stable of
an inn, the horse sniffed at a she-mule, and
the she-mule kicked and broke Agaso’s leg.
An opinion was requested whether suit
could be brought against the owner of the
mule, on the ground that it had caused the
injury, and I answered that it could.
A traffic Accident
•
D. 9.2.52.2 Alfenus libro secundo digestorum:
Mules were hauling two loaded wagons up the
Capitoline Hill, and the drivers were pushing the
first wagon which was inclined to one side in order
that the mules might haul it more easily; in the
meantime the upper wagon began to go back, and
as the drivers were between the two wagons they
withdrew, and the last wagon was struck by the first
and moved back, crushing a slave boy who
belonged to someone. The owner of the boy asked
me against whom he ought to bring an action? (for
the solution SEE DAMAGE 3)
edictum de servo corrupto
•
D. 11.3.1 pr. (Ulpianus, Edict, book 23) The
Praetor says: “Where anyone is alleged to have
corrupted a male or female slave belonging to
another, or have persuaded him or her
maliciously to do anything which would
depreciate the value of him or her, I will grant an
action for double the value of the thing.”
edictum de servo corrupto:
Types and presumption of corruption
•
D. 11.3.1.4-5 (Ulpianus, Edict, book 23) (4) Shall a person, however, be
liable where he has driven a slave of good habits to commit a crime, or
instigates a bad slave, or shows him how to perpetrate the act? The better
opinion is that even if he showed the bad slave how to perpetrate the
offence he will be liable. And, in fact, if the slave had already intended to
take to flight, or to commit a theft, and the person referred to should have
approved of his intention, he will be liable, for the malice of the slave
should not be increased by praising him; therefore, whether he made a
good slave bad or a bad slave worse, he will still be held to have
corrupted him. (5) He also makes a slave worse who persuades him to
commit some offence or theft, or induces him to take to flight, or instigates
the slave of another to do these things, or to confuse his peculium, or to
be a lover, or to wander about, or to devote himself to magical arts, or to
be present too often at exhibitions, or to be riotous; or to persuade a slave
who is an accountant either by words or by bribery to mutilate or falsify
the accounts of his master, or even to render an account of which he has
been placed in charge unintelligible; D. 11.3.2 (Paulus, edict, book 19) Or
makes him extravagant or disobedient, or persuades him to indulge in
debauchery.
Corrupting of a Daemon?
•
Acts of Apostles [16] It happened, as we were going to prayer, that a certain girl
having a spirit of divination met us, who brought her masters much gain by fortune
telling. [17] The same, following after Paul and us, cried out, “These men are
servants of the Most High God, who proclaim to us the way of salvation!” [18]
This she did for many days. But Paul, becoming greatly annoyed, turned and said
to the spirit, “I charge you in the name of Jesus Christ to come out of her!” It came
out that very hour. [19] But when her masters saw that the hope of their gain was
gone, they seized Paul and Silas, and dragged them into the marketplace before
the rulers. [20] When they had brought them to the magistrates, they said,
“These men, being Jews, are agitating our city, [21] and set forth customs which
it is not lawful for us to accept or to observe, being Romans.” [22] The multitude
rose up together against them, and the magistrates tore their clothes off of them,
and commanded them to be beaten with rods. [23] When they had laid many
stripes on them, they threw them into prison, charging the jailer to keep them
safely, [24] who, having received such a charge, threw them into the inner
prison, and secured their feet in the stocks. [25] But about midnight Paul and
Silas were praying and singing hymns to God, and the prisoners were listening to
them. [26] Suddenly there was a great earthquake, so that the foundations of the
prison were shaken; and immediately all the doors were opened, and everyone's
bonds were loosened.
How many actions may one bring?
•
•
Dig.48.5.6pr. Papinianus 1 de adult. Inter liberas tantum
personas adulterium stuprumve passas lex iulia locum
habet. quod autem ad servas pertinet, et legis aquiliae actio
facile tenebit et iniuriarum quoque competit nec erit
deneganda praetoria quoque actio de servo corrupto: nec
propter plures actiones parcendum erit in huiusmodi crimine
reo.
The Julian Law only applies to free persons who have been
the victims of adultery or debauchery. With reference to
female slaves, recourse can easily be had to the action
authorised by the Aquilian Law, and that for injury will also
lie, and the Praetorian action for the corruption of a slave will
not be refused; so that the person guilty of this crime will not
escape on account of the multiplicity of actions.
A Case:
Titus discovered after having manumitted his slave Eros that the man
had regularly falsified the accounts entrusted to him, in this way he
could give presents to Clodia, femina famosa. What may the former
owner of Eros do? (see D. 11.3.16)
Would the situation differ if Eros had been well known for his
dissolute ways?
Let us assume for a while that Eros (still a slave responsible for the
forgeries) got accidentally killed by Marcus, so his master lost the
only possible way to clear his accounts.
Would the situation differ if Marcus killed Eros on purpose, being
outraged by his dissolute behaviour with the woman?