!!Экзамен зачет 2023 год / The Law of Obligations

turn, was thought to be necessary in order to give an authentic interpretation of "ceterarum rerum"; for without explanation "ceterarum rerum" can either be taken to mean "as regards things other than slaves and grazing animals" or "as to matters other than killing a slave or grazing animal".68 Only in the second alternative was the mere wounding of slaves or grazing animals covered by the (third chapter of the) lex Aquilia.

II. THE ASSESSMENT OF THE SUM OF

CONDEMNATION

1. Chapter one

We have already seen that the most important change brought about by the lex Aquilia was the transition from a system of fixed penalties to a more flexible assessment of the damages suffered by the victim of the wrong. This assessment, however, appears to have been (at least from a modern point of view) rather odd. The judge was not instructed to determine (for instance:) "quod actoris interest", but "quanti id in eo anno plurimi fuit" (chapter one) and "quanti ea res erit in diebus triginta proximis" (chapter three). Where a slave or grazing animal had been killed (first chapter), the wrongdoer thus had to pay the owner the highest value which that object had had during the "previous year". Previous to what? That was problematic (and consequently controversial) in cases where the slave or animal had first been (mortally) wounded and only died at a later date. According to Julian, the year had to be calculated from the time the wound had been inflicted, Celsus regarded the time of death as relevant/19 But what was the sense of throwing the calculation back into the past? Did those who drafted the lex Aquilia want to make up for the fact that, prices being unsteady, "the owner of the slave might not have sold him just at the time when the wrong was committed?"70 More likely is another explanation.71 If a slave was killed, the death sometimes occurred as a result of a wound

6H Honore, (1972) 7 The Irish Juris! 140 sq. Norr. Festgahe Kaser, p. 216, incidentally, regards even this part of the text as (substantially) genuine; so do Pugsley, 1977 Ada Inridica 302 sq. and Schebitz, op. cit., note 12, pp. 114 sqq.

m Olp. D. 9, 2, 21, 1; cf. Pringsheim, Gesamnwite Abhewdhmgen, vol. II, p. 416.

711 Daube, (1936) 52 LQR 259; cf. also von Liibtow. Le'x Aquiiia, p. 120; but see Pringsheim, Gesammdte Abhandlungen, vol. I, pp. 416 sq. Cardascia, Daube Nosier, pp. 63 sq. draws attention to the fact that even in an economy where prices are stable (as in Rome during the first half of the 3rd century в.с.) the value of slaves and grazing animals (that is, of the most important work tools in an agrarian society) must have been subject to seasonal fluctuations. Hence the time period of one year, to take into account the fact that the delict might have happened during the bad season, and to allow the plaintiff to make good his true loss. Cf. also F.P. van den Heever, Aquilian Damages, p. 9; but see Pugsley. 1977 Actajuridica 298 sq.; Pieter Pauw. "Once Again on the Origin of the Lex Aquilia", (1978) 95 SALJ 188.

71 Kaser, RPr I; p. 161; Honsell/Mayer-Maly/Selb, pp. 365 sq.; Hausmaninger, Lex Aquilia, p. 28; cf. also Lawson/Markesinis, p. 5; Schebitz, op. cit., note 12, pp. 63 sqq.

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that he had received some time before. At the time of his death, he would thus have considerably decreased in value and it would have been inequitable to allow the owner merely to recover the value of an ailing slave with a mortal wound in his body. Even if the slave was stabbed and died immediately, it was at least arguable that for a second or so before his death he was mortally wounded and thus, at the time of death, without much value. But quite apart from such hairsplitting, the owner may often have found it difficult to prove how much a slave was worth at a specific point in time. It was in order to facilitate this proof and to cut off the kind of arguments mentioned, that the plaintiff was simply allowed to claim the highest value during the previous year: a somewhat rough-and-ready72 but nevertheless fairly effective method of avoiding difficulties. Sometimes the owner of the slave (or grazing animal) thus received something over and above the compensation of his actual loss;73 this could occur, for instance, where the slave had already decreased in value due to a previous, unrelated injury. If a valuable painter had his thumb cut off,74 it was, in a way, quite fortunate for the owner, if he was subsequently killed within a year after that injury had occurred; for under chapter one of the lex Aquilia the owner received "quanti fuit priusquam artem cum pollice amisisset":75 not the value of a thumbless invalid, but that of a highly skilled painter.76

2.Chapter three

(a)Chapters one and three compared

The manner in which the compensation was determined in chapter one was thus reasonably straightforward. More particularly, since one was dealing with the complete destruction of an object, reference to its real value made good sense. We can hardly expect to find a refined assessment of the concrete "quod actoris interest" in these early days, and restoration of the value of the slave (or animal) provided the plaintiff with what he was at least typically "interested" in. A good deal more mysterious is the position under chapter three. "Quanti ea res erit in diebus triginta proximis": this clause differs in three important respects from the one contained in chapter one, but appears to correspond with it regarding the very issue in which one would least expect such correspondence. First of all, the period here is not one year, but merely 30 days. Secondly, this period is not retrospective but prospective: it is the 30 days after the infliction of the wound that

72Lawson/Markesinis, p. 5.

73Gai. Ill, 214 (". . . quo fit ut quis plus interdum consequatur quam ci damnum datum est").

74Iul./Ulp. D . 9. 2, 23, 3.

75Iul./Ulp. D . 9, 2, 23, 3.

76For another example, see Ulp. D. 9, 2, 23, 5.

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matter, not the month preceding this event. Thirdly, the word "plurimi" is missing in the third chapter of the lex Aquiiia. And fourthly (and perhaps most surprisingly): the principle of the real value seems to determine assessment of the compensation here, too ("quanti ea res erit"); irrespective, therefore, of whether a slave was killed (chapter one) or whether he had merely been bumped into or scratched, the owner could claim his full value. Damage worth threepence, slave worth 300 pounds: the wrongdoer had to pay 300 pounds.77

(b) "Erit" or "fuit" ("fuerit")?

Of these four propositions—the one more mystifying than the other—only the first has remained uncontested; nobody has as yet disputed that the third chapter did in fact specify a period of 30 days. The tradition of discarding the word "erit", on the other hand, goes back to Gaius and Ulpianus. Gaius explains "[h]oc tamen capite non quanti in eo anno, sed quanti in diebus XXX proximis ea res fuerit, damnatur is qui damnum dederit",78 and Ulpian (D. 9, 2, 29, 8) has "fuit" in place of "erit" (or "fuerit"). Both of them appear to read the time backwards rather than forwards. Gregor Haloander, one of the most famous philologists of the late Middle Ages, followed suit. In his edition of the Digest he replaced the "erit" of the Florentina by "fuit".79 Many modern authors approve of this emendation;80 they usually regard "erit" as a scribal error81 and are thus able to explain the retrospective period in the same way as the "annus" of chapter one. Having thus (possibly) resolved one problem, the proponents of this view are, however, immediately faced with another: "quanti ea res fuit in diebus triginta proximis" does not make much sense if any moment of the last month might come into question. In other words: we would expect a reference to the highest value, as indeed it was contained in chapter one. Again, Sabinus already saw the problem and resolved it by way of interpretation: "proinde habendum ac si etiam hac parte plurimi verbum adiectum esset."82 Gaius in fact attempted to provide a rationalization: the legislator had thought it sufficient to have used the

77 Daube, Roman Law, p. 67; cf. also Van den Heever, Aquilian Damages, p. 12. 7K III, 218; cf. also hist. IV, 3, 14.

79 Cf. n. 17 on p. 158 of the Mommsen/Krugcr edition.

m Pernice, Sachbeschadi^un^en, pp. 14 sq.; Lend, (1922) 43 ZSS 575; Max Kaser, Quanti ea res est (1935) pp. 168 sq. '(but cf. today RPr 1, p. 161); Schulz, CRL, p. 588; Gerke, (1957) 23 SDHI 78 sqq.; Pringsheim, Cesammelte Abhattdlungen, vol. II, pp. 416 sq.; Medicus, Id quod interest, p. 239; Geoffrey MacCormack, "On the Third Chapter of the Lex Aquiiia", (1970) 5 The Irish jurist 169 sq.; Tomulescu, (1970) 21 Ima 195 sq.; von Lubtow, Lex Aquiiia, p. 21; Pugsley, 1977 Actajuridica 305; Van Warmelo, (1980) 27 RIDA 347; Ankum, Melanges Ellui, pp. 171 sqq.; Bchrends, \9SSJuristische Schulung 880.

81 Cf., in particular, Ankum, Melanges Ellui, pp. 180 sq. H2 Gai. III. 218; cf. also Ulp. D. 9, 2, 29, 8.

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word "plurimi" in the first chapter83 (sc: and did not deem it necessary to repeat it in the third).

(c)The meaning of "ea res"

As far as the fourth of the above-mentioned propositions is concerned, modern writers are split down the middle. The traditional, prevailing view has been indeed that the principle of the real value applied to the third as it did to the first chapter.K4 It is relatively easy to point out the absurdities to which this approach is apt to lead and David Daube has done so with nearly irresistible panache. "There is no child", he writes,

"that docs nor at some time or other scratch a letter or two, or even four, on the wall of a house. At Rome, on the basis of the prevalent view, the father would have to pay for the entire estate—not just the house, but the grounds as well. . . . That in a society governed by this kind of regulation nobody will be rich or poor for long is evident . . . Nothing mattered when all material life became a joke through the third chapter of this statute, which equated damaging with destruction.""5

And he concludes:

"[N]o economy could go on for a fortnight with the regulation ascribed to the Romans by the orthodox school; maybe it would not be viable for one day."H(l

Daube therefore suggests that one should read the phrase "quanti ea res erit" (not "fuit"!) in the sense of "the sum this affair will come to".87 Res does not refer to the object that has been damaged, and what the judge has to assess is therefore not the full value of that object but the actual damage suffered by the plaintiff (i.e., in particular, the mere difference between the full value and the reduced value after interference).88 But why does one have to wait for 30 days? Because, answers Daube, the plaintiff has to be given some time to see how the injury develops.89 Immediately after its infliction the plaintiff may still be in the dark: he does not know whether his slave will recover or remain disabled, whether the cost of hospitalization will be high or low, and so on. On the other hand, a certain time limit was indispensable, lest the wrongdoer be responsible for every indisposition

яз Gai. Ill, 218; cf. also Inst. IV. 3, 15 ("nam plebcm Romanam, quac Aquilio tribuno rogante hanc legem tulir, contentam fuissc, quod prima parte eo verbo usa est").

*" Lenel, (1922) 43 ZSS 577; Kaser, Quanti ea res est, p. 169; Schulz, CRL, p. 590; Gerke, (1957) 23 SDHI 79 sq.; Medicus, Id quod interest, p. 238; MacCormack, (1970) 5 The Irish Jurist 170; Van Warmclo, (1980) 27 RIDA 347.

Hj Roman Law, pp. 67, 68. It is great fun to read this whole tour deforce.

Hf l Roman Law, p. 71.

87 Cf. (1936) 52 LQR 257.

8H Daube's interpretation has been followed, at least essentially, by Watson, Obligations, pp. 234 sq.; Wittmann, Korperverletzung, pp. 40 sqq.; Cardascia, Daube Noster, pp. 53 sqq.; Kaser, RPrl, p. 161; Thielmann, Studi Biscardi, vol. II, pp. 299 sq.; Honsell/Mayer-Maly/ Selb, p. 366; Hausmaninger, Lex Aquilia, p. 29; Schcbitz, op. cit., note 12, pp. 165 sqq. All these authors reject the view that the full value could be claimed. But while some think (with Daube) that the plaintiff could recover his full intcresse, others confine his claim to the diminution in value of the damaged object. Cf. also Pauw, (1978) 95 SALJ 189 sqq. (who argues that the question was approached in a flexible manner).

?9 (1936) 52 LQR 256.

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which henceforth befell the injured person. A period of 30 days presents a reasonable compromise.

(d)The original scope of chapter three

There is, however, one obvious difficulty implicit in this explanation. The 30 days rule makes sense only in the case of damage to res se moventes: slaves, grazing quadrupeds and other animals. Where an inanimate object is damaged, the extent of the loss is clear immediately, and there is hardly any point in waiting another 30 days to see what happens. Daube is thus forced to postulate that the third chapter of the lex Aquilia applied originally only to the wounding of slaves and animals; damage to inanimate objects, far less momentous according to

Daube, was only included by way of interpretatio in the second half of the 1st century в.с.911

Here we are entering another arena of scholarly dispute, namely the discussion about the original scope of chapter three. It hardly comes as a surprise to see that some authors even maintain that exactly the opposite development took place: at the time the lex was passed, the third chapter dealt only with the destruction of inanimate objects and it was subsequent juristic interpretation of the lex that brought in partial damage (to inanimate objects as well as to res se moventes). The protagonist of this view is Jolowicz,y| and the main point of his theory is that it makes intelligible the "quanti ea res fuit" in its traditional interpretation: if the lex Aquilia originally envisaged only the destruction of property there was, of course, nothing odd about sticking to the principle of awarding the full value in chapters one as well as three. But is it really plausible to assume that damage to slaves or cattle (short of complete destruction—that is, killing) would not have been dealt with at all by the lex Aquilia? After all, even the XII Tables had already contained a rule concerning os fractum of a slave!42 Daube's theory, of course, provokes a similar objection, for it is hardly imaginable that Roman law could have been able to dispense with a comprehensive remedy for injury to chattels until the second half of the 1st century B.C. Another major weakness of both Jolowicz's and Daube's views lies in their assumption that considerable changes must have taken place between the date of the lex Aquilia and the end of the republican period; changes of which we find no traces in our sources; changes, furthermore, which even the lawyers of the classical age no longer remembered. Thus Daube admits that the original meaning of the third chapter was "utterly forgotten" already at the time of

90(1936) 52 LQR 255 sqq.; cf. also Schulz, CRL, p. 588; von Lubtow, Lex Aquilia, pp. 109 sq.; Cardascia, Daube Noster, pp. 53 sqq.; Alan Watson, "Personal Injuries in the XII Tables", (1975) 43 TR 214 sqq.; Schebitz, op. cit., note 12, pp. 116 sqq.

91H.F. Jolowicz, "The Original Scope of the lex Aquilia and the Question of Damages", (1922) 38 LQR 220 sqq.; cf. also Van Warmelo, (1980) 27 RIDA 340 sqq.

92Cf. supra, p. 958 (note 41).

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Sabinus:93 not a very plausible suggestion in view of the great practical importance of this provision, which must have been constantly before the courts.94 Ultimately everything that is said or written about the original scope of chapter three is based on speculation, and some of the indirect evidence advanced can be used in such a manner that it fits both views. Thus both Jolowicz and Daube try to draw support from the words which describe the type of damnum relevant for chapter three: urere, frangere, rumpere. Jolowicz interprets them as expressing damage of a total kind. An object that has been burnt, smashed or broken must be damaged to such an extent that it is virtually useless.95 Daube, on the other hand, regards the three words as particularly appropriate to describe three different kinds of wounding. The terms "frangere" and "rumpere" were in fact taken over from the XII Tables ("os fractum", "membrum ruptum"), where they had also not referred to inanimate objects but only to injury to living beings.96

(e)"Is anything . . . exempt from doubt?"

It may have become apparent by now that the third chapter of the lex Aquilia is like an equation with too many variables. Whatever view one embraces, it appears to be impossible to adduce the type of evidence that would exclude any possibility of alternative solutions.97 Much of the evidence that we have can be explained one way or the other. Take the controversy about "erit" or "fuit" ("fuerit"). Of course, "erit" can be explained as a copyist's slip. This kind of slip can happen, and thus the explanation is not, per se, implausible. In a way, however, textual emendations always smack of an emergency solution and may therefore not appear to be entirely satisfactory. But even this challenge can be countered. If, at the time when Ulpian wrote, damages under the third chapter were assessed on the basis of the loss suffered, "quanti ea res erit" can be taken to mean "how much the affair will come to (when the items of loss have been added up)".98 If one accepts this interpretation

93(1936) 52 LQR 264 sq.

94Daube himself, in another context, points to the "enormous prestige of the lex Aquilia in the first few centuries of its existence" (Studi Solazzi, p. 149). But see Norr, "Zur Interdepcndenz von Prozessrecht und materiellem Recht am Beispiel der lex Aquilia", (1987) 6 RJ 101, 112 (the lex Aquilia was of little practical relevance).

'* (1922) 38 LQR 220 sqq.

96(1936) 52 LQR 255, 260. Burning does not appear in the XII Tables, but Daube draws

attention to the fact that in biblical law burning, breaking and crushing are used to describe three different types of wounding. On "urere frangere rumpere", in this context, cf. further MacCormack, (1970) 5 The Irish Jurist 171 sqq.; Watson, (1975) 43 TR 215 sqq.; Artur Volkl, "Quanti ea res erit in diebus triginta proximis. Zum dritten Kapitel der lex Aquilia", (1977) 24 RIDA 465 sqq.; Van Warmelo, (1980) 27 RIDA 339 sq.; on membrum ruptum and os fractum in the XII Tables, cf. Peter Birks, "The Early History of Iniuria", (1969) 37 TR 179 sqq.; Volkl, op. cit., note 41, pp. 40 sqq.. 144 sqq.

97"The proper verdict is non liquet": De Zulueta, Gains II, p. 212; "Is anything . . .

exempt from doubt?": Crook, (1984) 72 Athenaeum 75.

98This argument has been advanced by MacCormack, (1970) 5 The Irish Jurist 170.

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(not, however, a particularly convincing one), even the assumption of a scribal error is unnecessary. Those, on the other hand, who wish to take "erit" in D. 9, 2, 27, 5 at its face value and who are thus prepared to throw the calculation forward,94 have to face the objection that Ulpian at another place uses "fuit", whereas Gaius has "fuerit".1"0 Of

course it would hardly be acceptable to postulate two scribal mistakes. But it may be argued that the law had changed over the centuries:101

while the lex Aquilia originally had "erit", it was applied in classical times as if it had "fuit". As we have seen, there are certain problems

with this kind of scenario.102 Again, however, an alternative explanation for the use of "fuit" or "fuerit" is at hand.103 The lex Aquilia itself

determined the matter from the moment of the injury: the plaintiff was to receive compensation for such consequences as would appear within the next 30 days after the infliction of the wound (hence the use of "erit"). The relevant formula of the lex Aquilia, however, which had to be applied when the plaintiff brought his suit, approached the matter, not unnaturally, from the point of view of the iudex. After all, the iudex had to be instructed to assess the damage which the plaintiff "had" suffered; at the time when he became concerned with the matter, the 30-day period lay in the past (although it was still the one following the injury). The formula of the actio legis Aquiliae, as proposed in the Edict, therefore used the past tense; and it is this phrasing that was taken up by Ulpian in D. 9, 2, 29, 8 and Gaius in III, 218 of his Institutes. All in all, I think, firstly, that in case of doubt the texts should be taken as they stand and, secondly, that D. 9, 2, 27, 5, the text where Ulpian purports to give the actual wording of the lex, should be the cardinal point of our investigation into chapter three.104 It follows, therefore, that "erit" should be taken to be authentic and that the time rule has to be read forwards. If, furthermore, one accepts "ceterarum

9"j. A. Iliffe, " 'Thirty days hath Lex Aquilia ", (1958) 5 RIDA 493 sqq.; Watson, Obligations, pp. 234 sq.; Wittmann, Korpervertetztmg, pp. 40 sqq.; John M. Kelly, "Further Reflections on the 'Lex AquiHa7 ", in: Studi in onore di Edoardo Volterra, vol. 1 (1971), pp. 239 sqq.; Thomas, TRL, p. 364; V6lkl, (1977) 24 RIDA 478; Thielmann, Studi Biscardi, vol. II, pp. 299 sq.; Crook, (1984) 72 Athenaeum 74; Hausmaningcr, Lex Aquilia, p. 29; Schebitz, op. cit., note 12, pp. 116 sqq.—Norr, Festgabe Kaser, p. 217 contemplates retrospectivity in spite of "erit"; Cardascia, Daube Noster, pp. 72 sq. argues the other way round—that one can

maintain prospectivity despite reading "fuit". 100 Cf. supra, p. 963.

""Cf. e.g. Daube, (1936) 52 LQR 261; d. also, most recently, Schebitz, op. cit., note 12, pp. 114 sqq.

102Cf. supra, pp. 959 sq., 965 sq. (note 94).

103It has been advanced by Wittmann, Korpervertetzung, pp. 40 sqq.; approved by Honsell/ Mayer-Maly/Selb, p. 366; Schebitz, op. cit., note 12, pp. 123 sq.; rejected by Ankum, Melanges Ellui, p. 178. For exactly the opposite view cf. Van Warmelo, (1980) 27

RIDA 347.

104 Cf. also Daube, Studi Solazzi, p. 146 (lectio difficilior); Cardascia, Daube Noster, p. 59.

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rerum" as genuine,105 it is not unreasonable to attribute the same abstract, or generalizing, meaning to the word "res" in "quanti ea res erit" as in "ceterarum rerum": if in the one case we may translate "matters other than the foregoing", we can just as well read the other clause in the sense of "as much as this affair will be". In other words: the wrongdoer did not have to pay the full value (nor, probably, as yet, the full financial loss, in the sense of quod interest, of the victim) but merely the diminution in value of the object damaged. Acceptance of the "ceterarum rerum" clause also implies that the third chapter did not originally have only a limited scope of application: from the time of its enactment it comprised injury to slaves and grazing animals and damage (partial damage as well as complete destruction) to all other objects.106 Thus it applied to all forms of damage to property, with the exception of the killing of slaves and grazing quadrupeds. As a result of this, we can no longer maintain Daube's rationalization of the significance of the "quanti ea res erit in diebus triginta proximis" clause: with regard to inanimate objects it would not have been necessary to wait for 30 days in order to assess the damage. But an alternative explanation is available. The period of 30 days may well have been taken over from the XII Tables;107 for in the olden days the condemned debtor had been granted exactly this period of time to pay or render restitution and thus to avert the harsh consequences of manus iniectio.108 This kind of regime made perfect sense under the lex Aquilia too:109 before thejudge could be asked to assess the damages, a period of 30 days had to elapse; within this time-span a wound might have healed, the debtor might have paid a sum that satisfied the other party, he might have

1(15 Cf. supra, p. 960.

106 C(. e.g. Volkl, (1977) 24 RIDA 465 sqq.; also MacCormack, (1970) 5 The Irish Jurist 171 sqq. MacCormack agrees that the third chapter covered all types of objects, but he reads the "quanti ea res" clause backwards (fuit). In order to avoid the absurdities pointed out above, he is thus forced to argue that "urere frangere rumpere" originally expressed types of physical damage, which constituted a serious injury to a slave, animal or other object. Thus, it makes good sense to say that the owner received the highest value within the previous year (along similar lines, see Van den Heever, Aquilian Damages, pp. 11 sqq.; Beinart, 1956 Buttertvorth's South African LR 77; Iliffe, (1958) 5 RIDA 502 sqq,; Detlef Liebs, "Damnum, damnarc, damnas", (1968) 85 ZSS 197). But it is implausible that no protection

should have existed against less serious (but more frequent!) forms of damage. 1(17 Cf. Kelly, Smdi Volterra, vol. I, pp. 240 sq.; Volkl, (1977) 24 RIDA 477 sqq. I(IH Cf. generally Kascr, RZ, p. 97.

11)4 Why did the first chapter not provide for a similar 30-day period? Cf. the suggestions and arguments advanced by Kelly and Volkl, loc. cit. Perhaps the policy reasons in favour of retxospectivity (cf. supra, pp. 961 sq.) prevailed as far as chapter one was concerned; with regard to chapter three, on the other hand, retrospectivity a la chapter one was out of the question, if one accepts that chapter three gave the plaintiff a claim only for the diminution in value, not for the full value of the object damaged. "What is the 'highest value' in the last thirty days of a crack in a wine-jar? " (Kelly, Studi Volterru, vol. I, p. 237).

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repaired the sedan chair that he had damaged or he might have given his creditor a new one.110

III.THE NATURE OF THE ACTIO LEGIS AQUILIAE

1.The reipersecutory character of the remedy

(a)Chapter one

What was the nature of the actio legis Aquiliae de damno iniuria dato?

110 The weak point in the scenario sketched above appears to lie, at first blush, in Gai. Ill, 218 and Ulp. D. 9, 2, 29, 8, and here not so much in the use of the words "fuit" and "fuerit" (on these cf. supra, p. 967), but in the suggestion to read "plurimi" into the text of the third chapter. Does that mean that the classical jurists reckoned backwards (as is usually taken for granted)? If that was so, we face the problem of a change of "interpretation" from "erit" to "fuit" sometime between 286 B.C. and classical law. This is indeed a serious obstacle, since such an "interpretation" against the words of the lex is neither very likely per se (cf. supra, pp. 960, 965 sq. (note 94)), nor would it have made much sense, since it would have involved a retrogression from a more refined to a more "primitive" way of assessing the damage (but sec Volkl, (1977) 24 RID A 479 sqq. for an interesting attempt to resolve these problems—which, incidentally, are in any event less serious than those faced by adherents of the "scribal error" viewpoint; for a detailed list of problems arising if one reads "fuit" or "fuerit" into the original text of the lex Aquilia. cf. Cardascia, Daube Noster, pp. 54 sqq). Yet, it is by no means necessary to assume that the classical jurists calculated the 30-day period backwards (cf. also Wittmann, Korperverletzittig, p. 41). They may in fact have retained "crit" without, however, understanding any longer why such a period had originally been inserted into chapter three: (legal) history was not the strong point of the Roman jurists. This would be particularly likely if the 30-day period was reminiscent ot, or tied up with, procedural niceties from the days of the XII Tables and the legis actiones, which were long since obsolete by Sabinus' time. (If the lex Aquilia dates from the first half of the third century, litigation resulting from it would, at first, have been by legis actio.) Since nobody understood (or approved of) the rationale of the 30-day rule, one simply applied it, under different auspices, as if it contained the word "plurimi" (under the influence of the first chapter, with which chapter three had by now been combined for about 300 years). The practical effect of this change of perspective was that the plaintiff was to receive quanti ea res est, to be assessed at that time within a 30-day period after the injury, when it was the highest. Thus, if a slave had been injured and the wound had nearly healed within the month following the injury, the diminution in value of the slave had to be assessed at the time ot the injury, not at the time when the slave had nearly reached his full value again; if, on the other hand, the slave became progressively more ill (that is, less valuable), the end of the 30-day period had to be chosen for the assessment of the diminution in value. It is, therefore, submitted that the classical lawyers attributed exactly the kind of rationale to the 30-day rule in chapter three that, according to Daube, was assigned to it by those who had drafted that part of the lex Aquilia. Of course, this rationale—and with it the 30-day rule—applied only to res se moventcs. not to the (more frequent) cases of damage to inanimate objects. This may be one of the reasons why the classical lawyers appear to have been so surprisingly uninterested in it—we do not find any case law concerning the 30-day rule in the Digest. There is, however, one important text which indirectly alludes to the 30-day rule and which appears to me to confirm the view advanced above. In D. 9, 2, 24 Faulus deals with the case where somebody has confessed to having injured a slave; but then it turns out that the slave is not injured at all. Paulus poses two (rhetorical) questions: ". . . aestimationem cuius vulneris faciemus? vcl ad quod tempus recurramus?" The text (genuine; c(. Watson, Obligations, p. 235; also Volkl, (1977) 24 RIDA 483) implies that the classical lawyers regarded aestimatio vulneris as relevant for the award of the sum into which the wrongdoer had to be condemned. The second question refers to a time which has to be taken into account for the purposes of aestimatio vulneris. One can draw the inference that the 30-day rule was still applied. If that was so, it can, however, hardly have been reckoned backwards. For how can one assess a wound (within) 30 days before it has been inflicted?

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We have seen that delictual remedies could either be penal in character or reipersecutory, or both penal and reipersecutory at one and the same time.111 The actio legis Aquiliae belonged to the latter category: "[rjem vero et poenam persequimur . . . ex h[aec] caus[a]", as we are informed by Gaius.112 It was the most interesting example113 of an actio mixta.114 On the one hand, it therefore aimed at compensating the injured party for his loss; hence the emphasis, in chapter one, on the value of the slave or grazing animal that had been killed. Restoration of that value was perhaps a somewhat rough, but nevertheless normally not entirely unsatisfactory method of providing the plaintiff with compensation. In the course of time, however,115 more refined considerations came to prevail. And whilst over the centuries aestimatio corporis always remained the basis for assessing the sum in which the defendant had to be condemned, certain further items came to be included, if that was required in an individual case. If, for instance, a slave who had been instituted heir was killed, the award of merely the value of the slave would not have compensated the plaintiff for his actual loss. For had his slave still been alive, he could have ordered him to accept the inheritance: with the result that it would have vested in himself. Of this chance he was deprived as a result of the slave's death and thus Neratius allowed the value of the inheritance to be included in the sum which the defendant had to pay under chapter one.116 Gaius took the same view: ". . . non enim tantum ipsius

1 Cf. supra, pp. 918 sqq.

112IV, 9.

113"Prototype": Kaser, op. at., note 84, p. 167.

114Iftst. IV, 6, 19. In favour of a dual nature of the lex Aquilia even in classical law

(whether under the name of actio mixta or not; cf. supra, pp. 919 sq. (note 114)) cf. e.g.

Ernst Levy, Privatstrafe und Schadensersatz im klassischen romischen Recltt (1915), pp. 135 sqq.;

Kaser, RPr I, p. 621;'Honsell/Maycr-Maly/SeIb, p. 365. Contra: Schulz, CRL, p. 589; von Lubtow, Lex Aquiiia, pp. 36 sqq., who attribute a purely penal character to the actio legis Aquiliae. They regard many of the texts contained in [he Digest as interpolated and do not even believe Gaius (". . . has been added by a man who had in mind Gai. 4, 17Г": Schulz, p. 589); but cf. Mayer-Maly (1974) 226 Gottingische Gelehrte Anzeigen 133. More recently, Hans Ankum, "Actions by which we claim a thing (res) and a penalty (poena) in classical Roman law", (1982) 24 BIDR 31 sqq. has also argued that the actio legis Aquiliae was purely penal. While rejecting von Lubtow's opinion as "ft]otally inacceptable" (p. 17), he argues that Gaius made a mistake (p. 19). Generally, one tends to believe that at least the penal element (if not also the compensatory one) was characteristic of the lex Aquilia from early on. For a different view (the original lex Aquilia did not have a penal character at all), ct Cardascia, Daube Naster, p. 63.

Since the actio legis Aquiliae was an actio mixta, it could not be cumulated with other reipersecutory actions; cf. Levy, Konktirrenz, vol. II, pp. 1 sqq.; Kaser, RPr I, p. 621; Hausmaninger, Lex Aquilia, pp. 35 sqq.; contra: von Lubtow, Lex Aquilia, pp. 69 sqq.

115 But see Geoffrey MacCormack, "Aquilian Studies", (1975) 41 SDMI 67 sqq., who regards it as misleading to picture the development of the law as a progression from objective (market) value to subjective interest. In his opinion, it cannot be assumed that the jurists, even at the time of the enactment of the lex Aquilia, applied inflexibly some particular standard for the assessment of compensation.

"'■ Cf. Ulp. D. 9, 2, 23 pr.

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