Continental law before the nineteenth century

different ways that they could be reconciled, the medieval jurists were able to reach results that would have surprised the Romans. Had they wished to limit liability under the lex Aquilia, they could have held, for example, that an actio in factum or an actio utilis did not invariably lie, that the court had some power of discretion in allowing these actions that it did not have if the action were brought directly under the lex Aquilia. But they did not do so. The thirteenth-century jurist Accursius, who wrote the Ordinary Gloss on the Corpus iuris civilis, did say that an actio in factum is given ‘if equity persuades that an action be given’.4 But it is clear from the authority he cites that he meant that, as a matter of equity, the plaintiff should have an action even if the damage is not a corpore and in corpus. He did not mean that such an action is subject to a special requirement that the plaintiff show it is equitable that he recover.5 And indeed, a medieval plaintiff bringing an actio utilis would frame his complaint in the same terms as one bringing an action that lay squarely within the lex Aquilia. He would not add an allegation that his case is especially deserving and therefore he should have relief as a matter of equity.6 As Brunnemann noted in the eighteenth century, it did not matter which action the plaintiff brought.7

4Accursius, Glossa ordinaria (Venice, 1581), to D. 9.2.33.1 to lege Aquilia (‘et hoc [giving an actio in factum] si aequitas suaderet actionem dari’).

5In modern printed editions, the passage just cited ends ‘alioquin contra ut s[upra] eo[dem titolo lex] quaemadmodum § sed et si tanto’. This means that an action is given only when equity so ‘persuades’ because otherwise there would be a contradiction with the section that begins ‘sed et si tanto’ of the law that begins ‘quaemadmodum’ which is to be found in the same title (Dig. 9.2) as the law which Accursius is explaining. That must be a miscitation since there is no passage that exactly fits this description. But there is one that comes close: the passage beginning ‘sed si tanto’ in Dig. 9.2.29, which does begin ‘quaemadmodum’. And that, indeed, is the citation given in several medieval manuscripts. Vat. Lat. 2511 f. 78va; Vat. Lat. 1410 f. 158va; Pal. Lat. 733 f. 180va. This passage says that there is no liability under the lex Aquilia if a ship hits another because of the overpowering force of the elements. The context of the passage, and Accursius’s gloss to dominium make it clear that there would be an action had the navigators been at fault for managing the ship. Accursius says: ‘Et sic collige hic a contrario in damnum dari quando not fiat fortuitus casus’. Thus, when he says that an action outside the terms of the lex Aquilia is to be given only if equity so ‘persuades’, all he seems to mean is that one is not to give such an action invariably since then one would do so even if the defendant were not at fault.

6For model complaints, see Odofredus, Summa de formandis libellis in refugium advocatorum

(Vale Argentorael, 1510). The volume is neither folioed nor paginated but the form for an actio in factum under the lex Aquilia is on what would be f. 11v and the one for an actio directa is on what would be f. 40v. The complaints are the same except that the factual situation differs as one might expect from the Roman sources.

7J. Brunnemann, Commentarius in quinquaginta libros pandectarum (ed. novissima, Coloniae Allogrum, 1762), to D. 2.9.7 no. 11.

A second limitation can be inferred from the texts in which the Roman jurists said that the plaintiff can recover. Nearly always, his tangible property has been damaged physically or else put beyond his reach, as for example, when his ring is thrown into the river or his slave is allowed to escape.8 Two texts go further and let a father recover for the death of a son who is still in manus.9 Perhaps it seemed odd that the father could recover for the death of a slave but not a son.10 Or perhaps the loss of the son was seen as an economic loss because legally, as long as the son was in manus, the father had a right to any assets that the son possessed.

In any event, this limitation disappeared in the Middle Ages. The two texts just mentioned were generalized. A surviving widow was thus able to recover for economic losses suffered when her husband died.11

With this limitation gone, medieval12 and early modern jurists13 simply said that the plaintiff could recover if he suffered damage, and that damage meant a diminution in his patrimonium. They did not distinguish between loss of a physical asset and other kinds of loss. Indeed, they occasionally put cases in which, they said, the plaintiff will recover although he suffered what we today would call pure economic loss. The

8See Zimmermann, Law of Obligations, 1023–4. One Roman text did allow the plaintiff to recover the value of property he never obtained because the defendant destroyed a will or some other document legally necessary to obtain it. Dig. 9.2.41. In that case, however, the will or the document had been destroyed, which may not have seemed much different than physically destroying any other physical asset. At least, that is how medieval jurists regarded the destruction of such documents in other contexts. E.g. Glossa ordinaria to Decretales Gregorii ix to 5.36.7.

9Dig. 9.2.5.3; Dig. 9.2.7.4. A person could also recover if, not knowing that he was a free man, he served in good faith as someone’s slave. Dig. 9.2.13.pr. See Zimmermann, Law of Obligations, pp. 1016–17.

12Azo, Summa codicis (Lyons, 1557), to D. 9.2 (‘Et dicit damnum a demo vel a diminuatione patrimonium’); Hostienisis, Summa aurea (Lyon, 1556), lib. 5, rubr. ‘de damno dato’ no. 1 (‘Quid sit damnum. Diminutio vel redemptio patrimonii.’).

13G. A. Struvius, Syntagma iurisprudentiae secundum ordinem pandectarum (Jena, 1692), Exerc. XIV, lib. 9, tit. 2, no. xx (‘Fundamentum et causa huius actionis est damnum iniuria datum, quod est delictum privatum, quo patrimonium sive re aliena dolo aut culpa diminuitur’); W. A. Lauterbach, Collegium theorico-practici (Tübingen, 1707), to D. 9.2 no. vii (‘ut itaque hoc delictum dicatur commissum, requiritur ut damnum sit datum pecuniarium, scilicet, quo alterius diminuitur patrimonium’); A. Vinnius, In quatuor libros institutionem imperialium commentarius (4th edn, Amsterdam, 1665), to

I. 4.3 pr. (‘Nam damnum ad ademptione, et quasi diminutione patrimonii dictum est’); G. Heineccius, Elementa iuris civilis secundum ordinem pandectarum (5th edn, Traiecti ad Rhenum, 1772), to Dig. 9.2 § clxxxvi (‘quia haec actio ad patrimonii diminutionem pertinet’).

medieval jurist Durandus said that the plaintiff could recover if the defendant put dung in the street in front of his house, and he therefore had to pay a fine imposed by statute.14 One of the greatest medieval jurists, Baldus de Ubaldi, said that the plaintiff could recover against his secretary who revealed his secrets.15 In the sixteenth century, Zasius gave the same opinion in the case of the secretary, citing Baldus.16 In the eighteenth century, Lauterbach and Brunnemann said that a client could recover from an advocate who harmed him through lack of skill.17 Horst Kaufmann has found many other examples from the practice of early modern times.18

Before the nineteenth century, then, jurists would not deny relief under the lex Aquilia on the grounds that the plaintiff had suffered a purely economic loss. It does not follow that the plaintiff could recover in all the cases jurists put today when they discuss the problem of economic loss.19 The category of economic loss is ours, not theirs. We cannot assume that these jurists would have seen all cases of economic loss as similar to those in which they said the plaintiff should recover. They did say that the plaintiff could recover for damage, and that damage meant any diminution in his patrimonium. But jurists make general statements like this one to address questions that they have consciously in mind. The question before them was one the Romans had already asked and answered: whether he could recover for damages inflicted non in corpus and even non a corpore. We should be careful about reading their statements as answers to questions they were not asking.

The natural law schools

Neither the Romans nor the medieval jurists had been concerned with the theory or general principles of tort. The Romans had discussed

14G. Durandus, Speculum iuris (Basil, 1574) lib. iv, par. iv, De iniuriis et damno dato, § 2 (sequitur), no. 15.

15B. de Ubaldi, Commentaria corpus iuris civilis (Venice, 1577), to Dig. 9.2.41 (vulg.9.2.42) pr. in fine.

16U. Zasius, ‘Commentaria seu lecturas eiusdem in titulos primae Pandectarum’ to

Dig. 9.2 no. 1 39, in Opera omnia, vol. 1 (Lyon, 1550, repr. Scientia Verlag, Aalen, Darmstadt, 1966).

17Lauterbach, Collegium theorico-practici to Dig. 9.2 no. xv; Brunnemann, Commentarius to Dig. 9.2.8 no. 5.

18H. Kaufmann, Rezeption und Usus Modernus der Actio Legis Aquiliae (Köln, Böhlan, 1958), pp. 46–56.

19As noted by Kaufmann, Rezeption, p. 58.

concrete instances of recovery, and the medieval jurists had tried to reconcile Roman texts. In contrast, the members of the natural law schools which flourished from the sixteenth through to the eighteenth century were looking for principles. They were the first to ask whether a person should recover, not only when something that already belonged to him was harmed, but when he was prevented from obtaining something of value.

This question was debated in the sixteenth and early seventeenth century by jurists known to historians as the late scholastics or Spanish natural law school.20 Leaders of the group included Tomasso de Vio, better known as Cajetan (1468–1534), Domingo de Soto (1494–1560), Luis de Molina (1535–1600), Leonard Lessius (1554–1623), and Juan de Lugo (1583–1660). They were self-consciously trying to synthesize Roman law with the moral philosophy of Aristotle and Thomas Aquinas.21 In the seventeenth and eighteenth century, many of their conclusions were borrowed and disseminated throughout Europe by the northern natural law school founded by Hugo Grotius (1583–1645) and Samuel Pufendorf (1632–94) – paradoxically, since the Aristotelian philosophy on which these conclusions had been based was falling from favour.

The late scholastics developed their theories of tort and contract by drawing on Aristotle’s theories of distributive and commutative justice. While distributive justice guarantees each citizen a fair share of whatever resources were to be distributed, commutative justice preserves

20On the late scholastics generally, see H. Thieme, ‘Qu’est-ce que nous, les juristes, devons à la seconde scolastique espagnole?’, in P. Grossi (ed.), La seconda scolastica nella formazione del diritto privato moderno (Giuffrè Milano, 1973), 20; H. Thieme, ‘Natürliches Privatrecht und Spätscholastik’ in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Rom. Abt. 70 (1953), p. 230. For their influence on other areas of law, see J. Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford University Press, Oxford, 1991), pp. 69–133; I. Birocchi, Saggi sulla formazione storica della categoria generale del contratto

(1988); M. Diesselhorst, Die Lehre des Hugo Grotius vom Versprechen (Böhlan, Köln, 1959), 6; J. Gordley, ‘Tort Law in the Aristotelian Tradition’, in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford University Press, Oxford, 1995), p. 131; J. Gordley ‘Responsibility in Crime, Tort, and Contract for the Unforeseeable Consequences of an Intentional Wrong: A Once and Future Rule?’, in P. Cane and J. Stapleton (eds.), The Law of Obligations: Essays in Celebration of John Fleming (Oxford University Press, Oxford, 1998), p. 175; R. Feenstra, ‘Grotius’ Doctrine of Unjust Enrichment as a Source of Obligation: its Origin and its Influence on Roman-Dutch Law’, in E. G. H. Shrage (ed.), Unjust Enrichment (Duncker & Humblot, Berlin, 1995), p. 197; J. Gordley, ‘The Principle Against Unjustified Enrichment’, in H. Schack (ed.), Gedäctnisschrift für Alexander Lüderitz (C. H. Beck, Munich, 2000), pp. 213, 217–19.

21For a description of their theory of torts, see Gordley, ‘The Aristotelian Tradition’, For their theories about contract law, see Gordley, Philosophical Origins.

what belongs to each citizen. When people exchange resources voluntarily, commutative justice requires that they do so at a just price, a price that preserves each person’s share. If one person harms another by taking or destroying something belonging to that person, commutative justice requires that he undo the harm by giving back what he took or by making compensation.22

Thomas Aquinas had described what belongs to a person and the types of harm that one could suffer. The harm might be to a ‘thing’ that belongs to him. It might be to his ‘person’, and then, either to his person itself or to his dignity. It might be to his relationship with another person such as his wife or his slave.23 The late scholastics concluded that the Roman distinctions between different actions were mere matters of Roman positive law. In principle, and as a matter of commutative justice, a person should recover whenever he suffered harm. Sometimes they merely stated this principle,24 and sometimes they classified types of harm in much the same way as Aquinas.25

Grotius was merely summarizing their conclusions when he gave his famous description of the basic principles of tort law: ‘From . . . fault, if damage is caused, an obligation arises, namely, that the damage should be made good.’ He explained: ‘Damage is when a man has less than what is his . . . ’ ‘Things which a man may regard as his by nature are his life . . . body, limbs, fame, honor, and his own acts. In the previous part of our treatise we have shown how each man by property right and by agreements possesses his own not only with respect to property but also with respect to the acts of others . . . ’26

Anyone who culpably deprived another of any of these ‘things’ therefore owed compensation. But suppose he prevented the other from obtaining something that might have been his. Did he owe compensation

22Nicomachean Ethics, V.ii, 1130b–1131a.

23T. Aquinas, Summa theologiae, II–II, Q. 61, a. 3.

24E.g. D. Soto, De iustitia et iure libri decem (Salamanca, 1553), lib. 4, q. 6, a. 5; L. Molina,

De iustitia et iure tractatus (Venice, 1614), disps. 315, 724; L. Lessius, De iustitia et iure ceterisque virtutibus cardinalibus libri quatuor (Paris, 1628), lib. 2, cap. 12, dubs. 16, 18; cap. 20, dubs. 10–11.

25E.g. Lessius, De iustitia et iure, lib. 2, caps. 3, 9–12.

26H. Grotius, De iure belli ac pacis libri tres (eds. B. J. A. de Kanter-van Hettinga Tromp, 1939), II.xvii.1–2. For similar conclusions by other natural lawyers, see S. Pufendorf, De iure naturae et gentium libri octo (Amsterdam, 1688), III.i.2, III.i.3, III.i.6; J. Barbeyrac,

Le droit de la nature et des gens, où système général des principes les plus importants de la morale, de la jurisprudence, et de la politique par le baron de Pufendorf (5th edn, Amsterdam, 1734), no. 1 to III.i.2; no. 1 to III.i.3; no. 4 to III.i.6. See generally Zimmermann, Law of Obligations, pp. 1032–4.

then? Aquinas had said yes, adding that the amount to be paid in compensation is not the same:

[A] man is bound to make compensation [restitutio] for whatever of another’s he harmed. But one is harmed in two ways. One way is that he is harmed because that which he actually has is taken, and compensation must always be made for such a harm by payment of an equivalent. For example, when one person harms another by destroying his house, he is bound to pay the amount that the house is worth. The other way is that someone harms another by preventing him from acquiring what he was on the way (in via) to having. And compensation of an equal amount need not be made for such harm, for it is less to have such a thing virtually than to have it actually. One who is on the way to acquiring a thing has it only virtually or potentially. Consequently, if he is paid as though he had the thing actually, he would not receive the value of what was taken as compensation but more, which is not required in making compensation, as noted in article 3. He is bound, however, to make compensation according to the condition of persons and affairs.27

In Article 3, which he cites, Aquinas had put the case of someone who unjustly prevents another from obtaining a benefice. He said that compensation must be paid, but not for its entire value ‘because the man had not yet obtained the benefice and might have been prevented from doing so in many ways’.28 Similarly, if one person destroys seeds which belong to another and which have not yet grown, he need not make compensation for the value that the crop would have had at harvest.29

Disagreeing with Aquinas, Cajetan tried to distinguish the case of the seeds from that of the benefice. The person claiming compensation for the seeds had a right to them, and it was on this right that his hope to profit at harvest time was based. In the case of the benefice, the claimant never had either the right to it or to anything else. Therefore, Cajetan said, he was not entitled to compensation:

[N]o reason can be seen why I am bound to make compensation in whole or in part for impeding someone from seeking a benefit to which he never had any right. It follows from this – that he never had any right in anything – that nothing was his, and consequently it follows that no compensation is due him. And if it be said that he has a right hoped for [ius in spe], that is not a valid consideration because a right in hope is not a right, just as wealth hoped for is not wealth. Moreover, compensation for a thing hoped for is given when a person is deprived of a right on which that hope is founded, as is shown when

seeds are destroyed or the tools of a craft are taken away through the use of which a person’s family is supported, and in similar cases.30

Cajetan’s position was rejected by other late scholastics. They failed to see how it could matter from the standpoint of commutative justice whether or not a person’s expectations of a benefit were ‘founded’ on something he presently owned. If he was unjustly deprived of that benefit, as a matter of commutative justice, he was entitled to compensation. Moreover, Cajetan assumed that a person who does not yet have the right to the benefit he is seeking has, at present, no rights at all. Therefore, he cannot have been deprived of a right. In that respect, his argument is conceptualistic: the conclusion follows only if ‘having a right’ is implicitly defined to exclude a person from having a right to seek a benefit to which he, as yet, does not have the right. Lessius answered that a person could have a right to something he had not yet acquired, for example, to a gift that had not yet been made to him. Such a right was not ‘absolute’ but ‘conditional’. The recipient’s right to a gift was ‘conditional’ on the decision of the potential donor to give it to him.31 Molina distinguished two meanings of the phrase ‘having a right’:

[A] person is said to have a right [ius] to something in two different ways. First, because it is in some way his or owed to him. When right is used in this sense, we distinguish right in a thing [ius in re] and right to a thing (ius ad rem). In another sense, a person is said to have a right to something, not because it is owed to him, but because he has the capacity [facultas] for it, so that one who contravenes that right does him an injury. In this sense, everyone can be said to have the right to use his own things, for example, to eat his own food, so that injury and injustice is done to him if he is impeded. Indeed, we say that the poor have the right to beg for alms, that one who works for pay has the right to hire out his services, and that everyone has the right to hunt and fish in places where it is not prohibited. Consequently, if anyone impedes them in these matters, he does an injury and injustice and has the duty to make compensation.

Thus a person could have the right to seek what he had not yet acquired, and the violation of this right entitled him to compensation.

While the late scholastics generally agreed that Cajetan was wrong, there was less agreement about how much compensation should be paid in such cases. As we have seen, Aquinas said that one must pay, not the value of the benefice that was never obtained or of the crop never

30Cajetan, Commentaria to Thomas Aquinas, Summa theologica (Padua, 1698), to II–II, Q. 62, a. 2 ad 4.

31Lessius, De iustitia et iure, lib. 2, cap. 12, dub. 18.

harvested, but a lesser amount, according to the state of ‘persons and affairs’, since the party entitled to compensation could have been prevented from obtaining these benefits in many ways. Soto disagreed. If the land owner had wanted to sell his crop in the ear he would have done so. If he did not, it was in order to reap the harvest to come, and his loss was therefore the value of the harvest. As Soto put it:

If the person who has the object in hope [res in spe] does not want to sell it only in hope but to await all risks until he has it, therefore, he who destroys another’s thing against his will is not only bound to restore the amount that it is worth in hope but, it appears, the amount it will be worth.32

The trouble was, Soto thought, that a person who negligently destroyed another’s crop really should not have to pay the full value of the grain at harvest time. So he claimed that only a person who did harm intentionally should have to pay full compensation. A negligent person should pay only the amount that Aquinas had described.33

That conclusion was rejected by Lessius, de Lugo and Molina. They thought the amount of compensation to be paid should be the same whether harm is done negligently or intentionally. Lessius and de Lugo explained that if the owner did not want to sell his crop in the ear, admittedly, the wrong done to him was greater than if he did. Even if he is compensated, nevertheless, he was forced against his will to give up his crop and receive its value in money before he wished to sell it. But however great the wrong a person suffers, commutative justice entitles him to recover only an amount equivalent to the harm actually done.34 That harm, according to Lessius, is the value of the crop at the time it was destroyed ‘taking in account the circumstances prevailing then’.35 Molina argued that if the owner were paid the value of the crop at harvest time, he would be overcompensated. The further off the time of harvest, the less the crop is worth, since the perils to the crop and the labour necessary to produce it are greater.36 For Molina, this conclusion followed from general principles that determine the value of a thing at any given time. For example, one who destroys a thing need not pay both for the thing and for the fruits it was expected to produce, ‘because the value of a thing at the time at which is destroyed

34Lessius, De iustitia et iure, lib. 2, cap. 12, dub. 19, no. 137; I. de Lugo, Disputationum de iustitia et iure (Lyon, 1670), disp. 18, § 4, no. 79.

35Lessius, De iustitia et iure, lib. 2, cap. 12, dub. 19, no. 137.

36Molina, De iustitia et iure, III, disp. 726, no. 4.