!!Экзамен зачет 2023 год / The Law of Obligations

cases of embezzlement221 as well as of furtum possessions.222 In that respect, again, it is the traditional Roman and Roman-Dutch approach that has prevailed.

2. The condictio ex causa furtiva

On the other hand—and that takes us back to the field of private law—the condictio ex causa furtiva also still lives on in modern South African law.223 This would not be surprising if it were regarded as a special unjustified enrichment claim; the South African courts, after all, do not recognize a general enrichment action.224 Very widely, however, this specific condictio is held to be a delictual remedy,225 and thus one wonders what its practical significance might be: for the lex Aquilia, in its modern South African version, protects the injured party as comprehensively as its modern German statutory counterpart.226 Textbooks on delict thus hardly ever mention the condictio ex causa furtiva, but here and there, though very rarely, it still becomes the subject of a court decision. A recent case in point is Clifford v. Farinha.221 The plaintiff had leased a BMW motorcar, which was subsequently, without his consent, taken and used by the defendant. When the defendant parked and left the car for a short while, it was stolen by a third party. What attracted the court to resort to the condictio ex causa furtiva was the rule of fur semper in mora. The defendant had secured the windows of the car and locked its doors. No fault was thus attributable to her as far as the loss of the car through (the second) theft was concerned, and the actio legis Aquiliae therefore appeared to be unavailable.228 But since she had herself committed an

221 Cf. The State v . NeUmapius 2 SAR 121 at 126 ( "But this distinction fsc: betwe en theft and embezzlement] docs not exist in the Roman-Dutch law. . . . Just as one may by our law commit theft by means of false pretences, so likewise may he commit theft by means of embezzlement"); De Wet en Swanepoel, op. cit., note 1, p. 317.

222Milton, op. cit., note 1, pp. 629 sq. ("fAn owner] commits theft where he effects a contrectatio of his own property when someone else has a special property or interest in it of which the owner intends permanently to deprive him").

223The various actiones furti were already obsolete in Roman-Dutch law: cf. supra, note 179.

224Cf. supra, pp. 886 sq.

2Гг> Minister van Verdedi^im; v. Van Wyk 1976 (1) SA 397 (T) at 400C-H; De Vos,

Verrykwpaanspreeklikbeid,'p. 213; Pauw, (1976) 93 SALJ 399 sq.

22f> Cf supra, p. 948.

227 1988 (4) SA 315 (W). The last cases before Clifford v, Farinha were that of Minister van Verdediying v. Van Wyk (supra, note 225) and John Bell & Co. Ltd. v. Esselen 1954 (1) SA 147 (A).

22H Clifford v. Farinha 1988 (4) SA 315 (W) at 320D-E: "The difficulty experienced by the plaintiff in establishing Aquilian liability, on the facts of the present case is that the defendant's intentional acts . . . were not intended to cause the loss of the vehicle, while the act which proximately caused the loss of the vehicle—namely the theft by a third party—was not attributable to any fault on the part of the defendant." But quaere. The question is not so much whether the defendant was liable for the second theft but whether—under Aquilian principles—she was liable for her own act of furtum. If so, she was liable to pay damages, covering the plaintiff's interest in the car. The fact that this claim would normally (i.e. without the interference by the second thief) have been settled by way of restitution of the car is quite irrelevant. Cf, as far as German law is concerned (to which

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act of furtum, she carried the risk of accidental loss or damage.229 It is interesting to note that the defendant's conduct did not constitute theft in terms of South African criminal law, for it is a typical example of mere furtum usus. If that did not prevent the court from granting the condictio, we must be dealing here with the very last preserve in which the Roman notion of furtum survives in an unadulterated form.230

Cilliers AJ refers (at p. 321) when dealing with the principle of fur semper in mora), § 251

I BGB and Jens Peter Meincke. 1980 Juristenzeitung 677 sqq.

229 Minister van Verdediging v. Van Wyk 1976 (1) SA 397 (T) turned on the same point. In that case the defendant had unlawfully taken the plaintiff's car and driven it to a dance. He parked the truck at a parking lot, where it caught fire and hurnt out. The court applied the condictio ex causa furtiva because it allowed the plaintiff to recover the highest value of the stolen thing since the commission of the theft. Again, I think, the plaintiff could also have

received the same amount (value of the truck before it burnt out) under Aquilian principles. 23(1 Clifford v. Farinha 1988 (4) SA 315 (W) at 322G (". . . there is nothing to indicate that

the Roman-Dutch writers . . ., in dealing with civil actions based on theft in its various manifestations, considered a civil claim to be dependent on the particular manifestation of theft also being a crime").

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CHAPTER 29

Lex Aquilia I

I. ORIGIN AND CONTENT OF THE LEX AQUILIA

1. The essential data provided in the Digest

The lex Aquilia was undoubtedly the most important statutory enactment on Roman private law subsequent to the XII Tables. It was passed by an assembly of the plebs after it had been proposed by a tribune by the name of Aquilius (". . . lex Aquilia plebiscitum est, cum earn Aquilius tribunus plebis a plebe rogaveht"1). It repealed and superseded all earlier laws that had dealt with unlawful damage (to property)—XII Tables and others alike ("[l]ex Aquilia omnibus legibus, quae ante se de damno iniuria locutae sunt, derogavit, sive duodecim tabulis, sive alia quae fuit"2). The lex Aquilia was not particularly long or complex;1 it contained three "chapters" (we would rather say sections or paragraphs), the second of which was no longer in use in classical Roman law ("[h]uius legis secundum quidem capitulum in desuetudinem abiit").4 The first and the third chapters are preserved verbatim; they were quoted by Gaius in his commentary on the edictum provinciale (first chapter) and by Ulpian in his commentary on the Edict (third chapter), and these quotations have been incorporated into the Corpus Juris Civilis. Drafted no longer in the clumsy monumental style of the XII Tables nor, as yet, displaying the hairsplitting pedantry of the later Republican legislation,5 they read as follows:

"(Si quis] scrvum scrvamvc alicnum ahenamve quadrupedem vel pecudem iniuria Occident, quanti id in со anno plurimi fuit, tantum aes dare domino damnas csto";''

"Ceterarum rcrum practer hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit rupcrit iniuria, quanti ea res crit in dicbus triginta proximis, tantum aes domino dare damnas esto."7

1Uip. D. 9, 2, 1, 1.

"Ulp. D. 9, 2, 1 pr. On the effect ot this clausula derogatoria and on the provisions preceding the lex Aquilia, see Pernice, Sachbeschadigungen, pp. 21 sqq.; Van den Heever, Aquiiian Damages, pp. 15 sqq. ("Oh how I wish that Ulpian had given us an inkling of these prior laws": Franciscus Balduinus); Kaser, Altrcimisches ins, pp. 132 sqq.; Fritz Pringsheim, "The origin of the lex Aquilia", in: Gesantmelle Abhandlungen, vol. II (1961), pp. 410 sqq.; J.M. Kelly, "The Meaning of the Lex Aquilia", (1964) 80'LQR 81 sqq.; von Liibtow, Lex

Aquilia, pp. 22 sqq.; Lawson/Markcbinis, pp. 2 sq.

I But sec J.A. Crook, "Lex Aquilia", (1984) 72 Athenaeum 75 sq.

* Ulp. D. 9, 2, 27, 4.

""■ Norr, Causa mortis, p. 128. II Gai. D. 9. 2, 2 pr.

7 Ulp. D. 9, 2, 27, 5.

953

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2. The problem of the second chapter

This is practically all the information about the origin and content of the lex Aquilia with which we are provided by the Digest. A whole variety of questions remain open. Perhaps the most obvious one concerns the content of the second chapter. Generations of lawyers have engaged in speculations and conjectures. Johannes Voet, for instance, regarded it as probable that the second chapter dealt with the corruption of the morals of a slave ("de moribus servi corruptis"); the lex Aquilia was thus put together, he argued, "methodo quadam non inconcinna":

"sic ut primum quidem caput de toto servo perempto, secundum de partc ejus nobiliore, puta animo corrupto, terrium autem dc partc minus nobili, corpore scilicet laeso."H

As it turned out, this view was wide off the mark,9 for the discovery (by Niebuhr) of the text of Gaius' Institutes in 18161U finally terminated all speculation. "Capite secundo," we read in Gai. Ill, 215, "adversus stipulatorem qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur." An adstipulator was a person whom a stipulator asked to act as a kind of trustee and to recover what he (the stipulator) was owed by the promisor.11 The adstipulator therefore took a promise of "idem" from the (first) stipulator's debtor. He was thus in a position to dispose over the claim and could, in particular, release the debtor from his obligation (by way of acceptilatio). Where he did so "in fraudem stipulatoris", he was liable under chapter two of the lex Aquilia to make good the loss.12 Since the adstipulator normally acted at the request of the principal stipulator, the actio mandati was, of course, available too; and it was in fact the advent of this more convenient remedy that made the older action fall into obsolescence.'3

я Commentaruis ad Pandectas, Lib. IX, Tit. II, V.

9 Ben Beinart, "Roman Law in South African Practice", (1952) 69 SALJ 157; for a collection of further conjectures (Cuiacius, Bynkershoek and many others) c(. Johannes van der Linden in his notes on Voet, Commetttarhts ad Pandectas, printed (in translation) in Percival Gane, The Selective Voet, vol. II (1955), p. 550; Gluck, vol. 10, pp. 359 sqq.

The manuscript was found in a Veronese library; it is a palimpsest: some works of St. Jerome had been written over the Gaius text.

1 Siro Solazzi. L'estinzione dell' obbligazione tie! diritto ratnana (2nd ed., 1935), pp. 72 sqq.; Frezza, Gctranzie, vol. I, pp. 5 sqq.; Gaetano Schenllo, "L'adstipulator", (1963) 10 RIDA 241 sqq.; Kaser, RPr I, p. 660; Honscll/Mayer-Malv/Selb, p. 285. An adstipulatio was primarily applied when the stipulator wanted to make sure that payment would be made after his death; a direct stipulation post mortem was invalid: Gai. Ill, 117; Berger, ED, p. 352.

12For details cf. Levy-Bruhl, "La deuxieme chapitredcla loi Aquilia", (1958) 5 RIDA 507 sqq.; Giuseppe Grosso, "La distinzione fra 'res corporales' e 'res incorporales' с il secondo capo della 'lex Aquilia' ", in: Synteleia Vincenzo Arangio-Ruiz, vol. II (1964), pp. 791 sqq.; C. St. Tomulescu, "Les trois chapitrcs de la lex Aquilia". (1970) 21 lura 191 sqq.; Bernhard Schebitz, Вегескпищ ah Ersatzes nach der lex Aquilia (unpublished Dr. iur. thesis, Berlin, 1987), pp. 147 sqq.'

13Gai. Ill, 216.

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3. Dating the lex Aquilia

No palimpsest has as yet (like a deus ex machina) yielded a solution to the other disputes and uncertainties enveloping the early history of the lex Aquilia. To start with, unanimity does not even exist among modern scholars as to the date of its enactment; and any attempt to establish its policy background, the specific reason why or the occasion when the lex Aquilia was proposed, leads us inevitably even further into the field of speculation. A fairly strong body of opinion favours either the year 287 or 286 B.C. as the date of origin.14 This view is based mainly on a passage in Theophilus' paraphrase of Justinian's Institutes,™ where the lex Aquilia is connected with the so-called third secession of the plebs (to the mons Ianiculus); it is thus indirectly connected, too, with the passing of the lex Hortensia, which provided that plebiscites should have full binding force for the whole Roman people, plebs and patricians alike (". . . qua cautum est ut plebiscita universum populum tenerent").16 The lex Aquilia may thus have been one of the very first plebiscita enacted as a consequence of the lex Hortensia. On the other hand, however, it must be taken into consideration that Theophilus wrote more than 800 years after the (alleged) event and that, furthermore, he mentions the origin of the lex quite incidentally, when dealing with the absence of the word "plurimi" from the third chapter of the lex.17 Being a busy Dean of the Constantinople law faculty,18 he may neither have had the time nor the interest to research thoroughly a historical detail that was hardly relevant for the purpose of his exposition.19 He probably merely took over what he found in some source or other, which we, in turn, are no longer able to check. Whether or not he went even further (as Honore suspects)20 and blended various scraps of information, by a free association of ideas,

14 Cf. e.g. Van den Heever, Aquilian Damages, p. 7; Den Bcinart, "Once More on the Origin of the lex Aquilia", 1956 Butterworth's South African LR 70; Theodor Joseph Gerke, "Geschichtliche Entwicklung der Bemessung der Anspruche aus der 'Lex Aquilia1 ", (1957) 23 SDHI 61; Watson, Obligations, p. 234; Thomas, TRL, p. 363; Kaser, RPr I, p. 161; Paul van Warmelo, "A propos de la loi Aquilia", (1980) 27 RIDA 333; Richard A. Bauman, Lawyers in Republican Roman Politics (1983), pp. 83 sqq.; Honsell/Mayer-Maly/Selb, p. 364; Hans Ankum, "Quanti ea res erit in diebus XXX proximis dans le troisicme chapitre de la lex Aquilia: un fantasme florcntin", in: Religion, societe et politique, Melanges en hommage a Jacques Ellul (1983), p. 171.

ь Paraphrasis institutionum. Lib. IV, Tit. Ill, § 15.

16Gai. I, 3; plebiscita were thus practically equated to leges.

17This point is emphasized by W.M. Gordon, "Dating the lex Aquilia", 1976 Actajuridica

18Cf. A.M. Honore, "The Background to Justinian's Codification", (1974)48 Tutane LR 873. On Theophilus, who was also a member of the commission charged by Justinian with the drafting of the Institutes, cf. C. 1, 17, 2, 9 (". . . virum illustrem magistrum iurisque peritiim in hac splendidissima civitate laudabiliter optimam legum gubernationem extendentem").

19A.M. Honore, "Linguistic and Social Context of the Lex Aquilia", (1972) 7 The Irish Jurist 145 sq.

20(1972) 7 The Irish Jurist 145 sq.

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into what appeared to him a plausible story:21 his account can certainly not be regarded as incontestable authority for placing an exact date on the lex Aquilia. Nor, incidentally, does it provide a dependable basis for establishing the context within which the lex Aquilia originated. Beinart's view that the lex was introduced as a result of the disturbances preceding or accompanying the (third) secessio plebis22 has therefore not found much support.23

Equally little support has, however, been attracted by Tony Honore for his all too radical departure from the chronological framework suggested by the Byzantine sources. In his view,24 the lex Aquilia was part of a legislative programme to ensure the preservation of property rights. Its main point was to substitute for the fixed penalties of the earlier law a more flexible and equitable assessment of the damages suffered by the victim of the wrong. Fixed penalties were acceptable as long as the value of the currency was stable. It was the second Punic war that brought about the first serious inflation and within a short period the weight of the "as"25 was substantially reduced.26 In this situation, according to Honore, the lex Aquilia was necessary to protect the propertied classes against the effects of inflation. As a result, he suggests a date between about 209 and 195 B.C.27 But this kind of argument provides at best plausibility, not proof.28 Considering the economic context at the turn of the century, it is unlikely that the Romans still operated with fixed penalties; thus, one may perhaps deduce that the lex Aquilia could in any event hardly have been introduced at a later date. Nothing, however, compels one to believe that the Romans could not have found the transition from a fixed penalty to some kind of assessment of the actual damages convenient, or perhaps even necessary, at an earlier period.

21Gordon, 1976 Ada Juridica 315 sq. comments (sarcastically?): "It is, of course, well known that deans of faculties arc accustomed to putting together scraps of information and blending them into what they hope will be a plausible story. . . ."

221956 Butterworth's South African LR 70 sqq.; he argues that the main purpose of the statute was to protect plebeian property owners and to enable them to exact reparations for the losses which they had suffered at the hands of the patricians.

~ Cf. von Lubtow, Lex Aquilia, p. 16; Jolowicz/Nicholas, p. 275; Norr, Causa mortis, pp. 126 sq.; but see, in support of Beinart, Bauman, op. cit., note 14, p. 83.

24(1972) 7 The Irish Jurist 145 sqq.

25On which see, for example, H. Chantraine, in: Kleiner Pauly, vol. I. col. 632 sqq.

26Cf., for example, Plinius, Historia naturalis, Lib. XXXIII, XIII (42 sqq.).

27(1972) 7 The Irish Jurist 149 sq. Cf. also Schebitz, op. cit., note 12, pp. 36 sqq. who, for different reasons than Honore, argues in favour of a date around 210 B.C. For an overview of other opinions differing from the majority view, cf. Arnaldo Biscardi, "Sulla data della 'lex Aquilia' ", in: Scritti in memoria di Antonio Giuffre, vol. I (1967). pp. 77 sqq.

28Cf. e.g. Norr, Causa mortis, p. 128; against Honore, see also Alan Watson, "Personal Injuries in the XII Tables", (1975) 43 TR 217; Georg Thielmann, " 'Actio utilis' und 'actio

in factum' —Zu den Klagen im Umfeld der lex Aquilia", in: Studi in onore di Arnaldo Biscardi, vol. II (1982), p. 297; Schebitz, op. cit., note 12, pp. 31 sqq.

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Most probably, the lex Aquilia was younger than the lex Hortensia;29 by the middle of the 2nd century, on the other hand, it must already have been in force for quite a considerable period, for it would otherwise be surprising to find Marcus Iunius Brutus advocating, without further ado, an extensive application of one of the terms used in the third chapter.30 Within the framework set by these dates, stylistic and linguistic arguments point to the first rather than the second half of the 3rd century.31 This coincides roughly with the period suggested by the Byzantine sources;32 and while certain details may over the centuries have got muddled, or may perhaps even have been conjured up,33 it is unlikely that Theophilus should either have tried to mislead his readers or should himself have been completely misled by his sources as to—roughly—the period when the lex Aquilia was enacted. After all, at least up to the time of Ulpian, the history of this enactment appears to have been known:34 hardly surprising if one considers its significance.

4, The composition of the lex Aquilia

The next of our open questions concerns the strange way in which the lex Aquilia was composed. The first chapter dealt with the wrongful killing of (male or female) slaves and of grazing animals (literally: fourfooted beasts of the class of cattle), the third chapter provided a remedy for all other wrongful damage to property,35 inflicted by burning, breaking or tearing. The second chapter, in turn, was concerned with a rather special situation, namely release of the debtor by an adstipulator in fraudem creditoris. It is obvious that chapters one and three belong together, and that chapter two is something of a corpus alienum in this context. True: all three chapters are, in a way, united by virtue of the fact that one person has caused another

29 It may, however, have been validly enacted even before 286 (the year of the lex Hortensia) as a plebiscite, provided it was endorsed by the Senate; cf. Biscardi, Scritti Giujfre, p. 81; Honore, (1972) 7 The Irish Jurist 146; Theo Mayer-Maly, (1974) 126 Gottin^scht Gelehrte Anzeigen 132; Norr, Causa mortis, p. 128.

" Cf. Ulp. D. 9, 2, 27, 22 ("Si mulier pugno vel equa ictu a te percussa eiecerit, Brutus ait Aquilia teneri quasi rupto").

1 Cf. e.g. Biscardi, Studi Giuffte, pp. 83 sqq.; von Lubtow, Lex Aquilia, pp. 16 sq.; Mayer-Maly, (1974) 226 Gottingische Gelehrte Anzeigen 132; G. Cardascia, "La Portee Primitive de la Loi Aquilia". in: Daube Noster (1974), pp. 53 sqq.; Kaser, RPr I, p. 161; Thomas, TRL, p. 363; Norr, Causa mortis, pp. 124 sqq.; Honsell/Maycr-Maly/Selb, p. 364.

32Theophilus' statement is confirmed by the scholiast to Basilica 60, 3, 1. Bauman, op. cit., note 14, p. 83 thinks that the accounts of Theophilus and of the scholiast are based on different sources (which would be an argument in favour of their credibility). According to Norr, Causa mortis, p. 127, the scholiast does in fact not link the lex Aquilia with the sccessio plebis. Generally on the reliability of the two Byzantine statements on the lex Aquilia, see Gordon, 1976 Ada juridica 315 sqq.

33Kaser, for instance, thinks that the connection between lex Aquilia and lex Hortensia is

spurious (RPr I, p. 161); but cf. Honsell/Mayer-Maly/Selb, p. 364.

34 Emphasized by Bauman, op. cit., note 14, p. 83. 23 Cf. the summary given by Gai. Ill, 217.

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958 The Law of Obligations

damage—damage to a specific piece of property in the first and third instances, (pure) pecuniary loss in the second one. Gaius specifically tries to demonstrate this common thread running through the provisions of the lex Aquilia ("Qua et ipsa [sc: secunda] parte legis damni nomine actionem introduci manifestum est.").3(l But this kind of rationalization does not take us very far.37 It still remains to be explained why chapters one and three are separated in such a peculiar fashion; a rational legislator would hardly have structured the lex Aquilia in that manner.

The idea thus suggests itself that the provisions of the lex Aquilia were not drafted at one and the same time.38 Ulpian, as we have seen,39 refers to certain provisions of the XII Tables, as well as to "some other statute",40 as having been replaced by the lex Aquilia. Since the XII Tables far from covered all the ground (regarding damage to res se moventes, we know only of a fine prescribed for the os fractum of a slave41), it is not at all unlikely that such a "lex alia", preceding the enactment of the lex Aquilia, did in fact exist and that it dealt with the most important case of damage to two (in an agrarian society) particularly vital pieces of movable property, namely the killing of slaves or grazing quadrupeds. This statute may have established fixed rates of compensation and was either published together with42 or at a later date followed by43 an enactment dealing with adstipulatio.44 These were the predecessors of chapters one and two of the lex Aquilia which, in turn, set out to reform the rules on killing and also added a general clause dealing with damage to property "praeter hominem et pecudem occisos".45 Chapter two could not yet be abandonded, since the actio mandati still had to be developed to provide a satisfactory solution to the problem of adstipulatio. Thus, the new provision was simply added as chapter three to the two old ones. This was practically much more

36Gai. Ill, 216.

37Cf. David Daube, "On the Use of the Term Damnum", in: Studi in onoredi Siro Solazzi (1948), p. 155 ("Gaius' explanation is no explanation. It fails from whatever angle we look at it. It is one of the many rationalisations of historical difficulties undertaken by the Roman

jurists").

3M Cf., particularly, David Daube, "On the Third Chapter of the Lex Aquilia", (1936) 52

LQR 267 sq.; idem, Studi Solazzi, pp. 154 sqq.; Pringshcim, Gesammelte Abhandtungen, vol. II, pp. 410 sqq.

39Supra, note 2.

40Ulp. D. 9. 2, 1 pr. (". . . sivc alia flex] quae fuit").

41Tabula 8, 3; for all details d. Artur Volkl, Die Verfolgung der Korperverletzung im fmhen Romischen Recht (1984), pp. 144 sqq.

42Daube, (1936) 52 LQR 267 sq.

41 Pringshcim, Gesammelte Abhandlutigen, vol. II, p. 414.

44According to David Pugsley, "Si quis alteri damnum faxit", 1977 Acta juridica 299, the three chapters were originally three different ieges.

45According to Pringsheim, Gesammelte Abhandlungen, vol. II, pp. 410 sqq., chapter 3 had its predecessors, too. In fact, he detects five historical layers which succeeded each other in a logically and historically understandable manner. Pringsheim's analysis is based on the account provided by Gaius III, 210 sqq.

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convenient (though not entirely satisfactory from a systematic point of view) than altering the whole structure of the existing statute.46

5. The text of the lex Aquilia

This leads us to the question of how far the text of the lex Aquilia, handed down to us by Gaius and Ulpian, is genuine. There may well have been certain linguistic modernizations:47 the old-fashioned "erus" in chapter one was replaced by the word "dominus"48 and "quadrupedemve pecudem" was probably changed into "quadrupedem vel pecudem";49 on the other hand, archaisms such as "damnas" or "faxit" (in place of "fecerit") were retained. Such changes, of course, left the substance of the text unaffected. A prime candidate for a much more substantial interference50 with the classical text is the phrase at the outset of chapter three: "Ceterarum rerum praeter hominem et pecudem occisos." Quite a few modern authors delete these words when they reproduce the text of chapter three;51 according to a widespread view, the introductory "ceterarum rerum" is to be attributed either to Justinian's compilers or to Ulpian or perhaps even to alterations effected by Republican jurisprudence;52 "praeter . . .

occisos" is often regarded as an explanatory gloss that was also added only at a later stage.53 According to Kaser, the whole passage is "presumably a retrospective summary of a number of specific provisions".54 It is very unlikely, however, that Republican jurists would have tampered with the text of the lex Aquilia to such an extent. Republican leges and plebiscita were usually posted in such a way that

4(1 Cf. Daube, (1936) 52 LQR 268, who argues that it requires a much more developed technique to amalgamate new and old rules than only to add the new ones to the old. He also suggests that it may have had some influence that, for a long time, statutes were written on srone; making an appendix was then easier than fitting in an interpolation. Cf., however, the reservations by Cardascia, Daube Nosier, pp. 67 sq. and Schebitz, op. cit., note 12, pp. 9 sqq.

47 But see Crook, (1984) 72 Athenaeum 76 (". . . all too likely that what was quoted as the lex Aquilia in the days of Gaius and Ulpian was a heavily modernized text into which a sprinkling of obvious archaisms had been rcintroduced for verisimilitude").

48 Cf. Ulp. D. 9, 2, 11, 6 ("Legis autem Aquiliac actio его competit, hoc crat domino"); cf. also Gai. Ill, 154 a; Pernice, Sachheschadiguttgen, pp. 14 sq.; von Lubtow, Lex Aquilia,

p.19; also, generally, Wittmann, Korperuerletzuitg, pp. 44 sq.

44 Cf. e.g. von Lubtow, Lex Aquilia, p. 19; Crook, (1984) 72 Athenaeum 70.

э() A comprehensive reconstruction of both chapters one and three in general has been proposed by Pugsley, 1977 Ada Juridica 295, 302. His views have not, however, gained acceptance.

51 Cf. e.g. Kelly, (1964) 80 LQR 78; von Lubtow, Lex Aquilia, p. 21; Wittmann, Korpervcrletzung, p. 40; Crook, (1984) 72 Athenaeum 77; Hausmaninger, Lex Aquiiia, p. 7.

5i Cf. e.g. Otto Lend, (1922) 43 ZSS 577; De Zulueta, Gaius II, p. 210 ("It is as certain as such a thing can be that Ceterarum — occisos is a gloss"); Pringsheim, Gesammelte Abhandlmtgen, vol. II, p. 416; von Lubtow, Lex Aquilia, p. 21: Wittmann, Korperverletzung, pp. 39 sqq.; Schebitz, op. cit., note 12, pp. 114 sqq.

713 Pcrnicc, Sachbeschadigungen, p. 14; Lenel, (1922) 43 ZSS 575; H.F. Jolowicz, "The Original Scope of the Lex Aquilia and the Question of Damages", (1922) 38 LQR 221; von Lubtow, Lex Aquilia, p. 21.

54 RPr I, p. 161 (trans. Honorc, (1972) 7 The Irish Jurist 138); cf. also the interpretation by Cardascia, Daube Noster, pp. 60 sq.

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anybody was able to read them;55 the term "figere" (to affix) was sometimes used, metaphorically, to say that a law had been enacted. Later on the authentic version was kept in an archives, either in the aerarium Saturni or in the temple of Ceres on the forum Romanum;56 and although the Roman system of collecting, filing and recording legal enactments was defective,57 a reliable text was nevertheless fairly easily accessible. The lex Aquilia was of considerable importance, and it was regularly commented upon from the time of M. Iunius Brutus58 and Quintus Mucius Scaevola.59 Neither is it imaginable under these circumstances that substantial alterations crept in as a result of simple carelessness, nor that the text was falsified;60 the Roman jurists were, of course, aware of the distinction between the actual content of an enactment and the supplementing and interpretative activities of magistrates and jurisprudence/'1 Naturally, this applies to Ulpian too. He would hardly have purported to give a direct quotation (". . . ait eadem lex Aquilia") and then proceeded to throw in explanatory glosses. If there was an interference with the text, it must therefore be attributed to the (Justinianic) compilers. There are, however, no convincing reasons to suspect the introductory "ceterarum rerum"; neither the generalizing phrase as such nor the "genitive of respect"62 is objectionable.63 "Praeter hominem et pecudem occisos", on the other hand, appears to be faulty Latin.54 Apart from that, it is strange that the drafters of the lex Aquilia should have used the words "homo" and "pecus" in order to refer to what they had previously specified as "servus" and "quadrupes pecus"/15 Tony Honore66 has drawn attention to the fact that the terms "homo" and "pecus" are used in the very next fragment from Ulpian's commentary on the Edict;67 the commissioner in charge of excerpting this part of Ulpian's work probably lifted them from fr. 27, 6 and used them to construct his little gloss. This gloss, in

" For all details, see Fritz Schwind, Zttr Frage der Publikation itn romischeti Reeht (2nd ed.,

1973), pp. 26 sqq.

56Dieter Norr, "Textc zur lex Aquilia". in: Iuris Prafessio, Festgabe fur Max Kaser (1986), p. 215; cf. also Honore, (1972) 7 The Irish Jurist 139 sq.

57 Honore, loc. cit.

xCf. UIp.D. 9, 2, 27, 22. wCf Paul- D. 9, 2, 31.

*" Honore, (1972) 7 The Irifh Jurist 140.

01 This point is emphasized by Norr, Causa mortis, p. 125.

02 "ForentUther Qenitiv": Norr, Festgabe Kaser, p. 216.

63 Cf. Honore, (1V72) 7 The Irish Jurist 140 (who argues that the term "res" was used in an abstract sense before 120 B.C.) and Norr, Festgabe Kaser, pp. 215 sq., who shows that the words "cete rarum re rum" we re used (in a gene ralizing se nse: as f ar as ot he r matte rs are concerned) by the Roman legislat or; further, see Pugsley, 1977 Actajuridica 302.

64It should have been "praeter hominem et pecudem occisum". But see Crook, (1984) 72

Athenaeum 73.

65This disc repanc y of te rminolog y may, howe ve r, also be e xplic able on t he basis t hat chapter three was drafted at another (later) time than chapter one.

<* (1972) 7 ТЫ Irish Jurist 141.

67 Ulp. D . 9 , 2, 27 , 6 ( "Si quis ig it ur поп Oc cident homine m ve l pe cude m . . . ") .

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