A Deficient Statute and how to mend it?

1. 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)

2. 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

3. 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.”

4. 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.

5. 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.

6. 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;

7. 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.

8. 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? Locatio operis Marcus Quintus Receptum? Actio locati Actio damni iniuria dati Ex lege Aquilia Actio de recepto?

9. 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)

10. 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.

11. 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)

12. 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.

13. 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?

14. The requisites of Aquilian liability

15. Liability for Damage outside Lex Aquilia

16. 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.

17. 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.

18. 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.

19. 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)

20. 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.”

21. 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.

22. 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.

23. 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.

24. 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?