!!Экзамен зачет 2023 год / The Law of Obligations

pretium aestimatur, sed et-hereditatis amissae quantitas."117 Similar considerations prevailed if one member of a troupe of actors or musicians was killed, or a horse that formed part of a chariot team: not only did the dead person (or animal) as such have to be taken into account, but also the amount by which the others had decreased in value.118 These were the kinds of examples that induced Gaius to state, in a more general vein, "si servo occiso plus dominus capiat damni quam pretium servi sit, id quoque aestimatur";114 Paulus referred to "other heads of damage necessarily connected"120 (sc: with the damaging event—"causae corpori cohaerentes").121 Thus there was a gradual relaxation of the rather inflexible measure of "damages" set by chapter one: a relaxation brought about by way of interpretation122 and based upon a more and more individualizing approach. By the end of the classical period assessment of "quanti id . . . fuit" was no longer confined to the value of the object itself plus certain typical forms of consequential loss, but aimed at quod actoris interest: account had to be taken of whatever damages the individual plaintiff in each specific case had suffered as a result of the damaging event.123 "[H]oc iure utimur, ut eius quod interest fiat aestimatio"—this statement of Ulpian marks the end of the development.124 The practical consequences of this new formula can be gauged from the example discussed in D. 9, 2, 23, 4 (also a fragment taken from Ulpian's commentary of the Edict):125 a

117 III, 212. For further discussion of the problems arising from the killing of slaves instituted as heirs, cf. Ulp. D. 9, 2, 15, 1 in fine; Marci. D. 9, 2, 16; Ulp. D. 9, 2, 23, 1 and 2; Gerke, (1957) 23 SDHI 66 sqq.; Alan Rodger, "Damages for the Loss of an Inheritance", in: DaubeNoster (1974), pp. 289 sqq.; MacCormack, (1975)41 SDHI 71 sqq.; Schebitz, op. cit., note 12, pp. 290 sqq.

1 Paul. D. 9, 2, 22, 1 ("non solum . . . perempti corporis aestimatio facienda esl, sed ct eius ratio haberi debet, quo cetera corpora depretiata sunt"); Gai. Ill, 212 ("non solum occisi fit aestimatio, sed eo amplius id quoque computatur, quod ceteri qui supersunt depretiati sunt"); for a recent analysis, see Schebitz, op. cit., note 12, pp. 273 sqq.

114 III, 212.

120 Trans. C.F. Kolbcrt, in: Justinian, The Digest of Roman Law, Theft, Rapine, Damage and Insult (1979), p. 80.

121Paul. D. 9, 2, 22, 1.

122"Illud non ex verbis legis, sed ex interpretations placuit . . .": Inst. IV, 3, 10.

123Cf. e.g. Kaser, RPr I, p. 621; MacCormack, (1975) 41 SDHI 69 sqq.; Lawson/ Markesinis, pp. 35 sq.; Hans Ankum, "L'actio de pauperie et 1'actio legis Aquiliac dans le droit romain classique", in: Studi in onore di Cesare Sanfilippo, vol. II (1982), pp. 47 sqq.; Honsell/Mayer-Maly/Selb, pp. 367 sq.; Hausmaninger, Lex Aquilia, pp. 28 sqq. Contra: von Lubtow, Lex Aquilia, pp. 121 sqq.; cf. also Gerke, (1957) 23 SDHI 66 sqq., 82 sqq.; Medicus, Id quod interest, pp. 238 sqq.; Schebitz, op. cit., note 12, pp. 268 sqq., 355 sqq.

124D. 9, 2, 21, 2; regarded as interpolated by von Lubtow, Lex Aquilia, p. 122; Gerke, (1957) 23 5DH/82 sqq.; Schebitz, op. cit., note 12, pp. 361 sqq.; but see e.g. Ankum, Studi Sanfilippo, vol. II, p. 51. Cf. also Ulp. D. 9, 2, 23, 6.

Ulpian, however, refers to Labeo. Ankum, Studi Sanfilippo, vol. II, p. 50 therefore attributes the transition from the (objective) aestimatio corporis to the plaintiff's id quod interest to Labeo. Others refer to Julian (Kascr) or late classical jurisprudence (Hausmaninger); cf. also supra, note 115 above. Ulp. D. 9, 2, 23, 4 has (of course) also often been regarded as suspect; c(. Gerke, (1957) 23 SDHI 93 sqq.; but see Medicus, Id quod interest, pp. 241 sq.; MacCormack, (1975)41 SDHI69 sq.; Ankum, Studi Sanfilippo, vol. II, pp. 49 sq.

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slave had committed serious acts of embezzlement in the plaintiff's business; he was killed before the plaintiff had been able to extract from him—by means of torture (quaestio)—the names of his accomplices and thus to clear up all the details of this crime. What the plaintiff could claim from the person who killed the slaves is described as "quanti mea intererat fraudes . . . per eum commissas detegi": his interest in detecting the acts committed by the slave (and his accomplices).

(b) Chapter three

The same development from a standardized way of evaluating merely the diminution in value of the damaged object to a refined evaluation of the individual plaintiff's damages took place with regard to the "quanti ea res erit" clause in chapter three.126 Generally speaking, the plaintiff received compensation for what the jurists of the ius commune dubbed damnum emergens and lucrum cessans.127 Like aestimatio corporis in the first chapter, so was aestimatio vulneris in the third chapter (in the case of injury to animate objects; otherwise: estimation of the damage to the object itself) the starting point for any assessment of the sum to be awarded.128 But apart from that, medical expenses could, for instance, be recovered if a slave was injured; and that was so even in cases where the value of the slave had not been diminished by the injury he had received. 12'J Problems could arise as far as lucrum cessans was concerned. Where someone had destroyed the nets of a fisherman, he was liable for the value of the nets but not for the value of the fish which the fisherman was unable to catch on account of the damage: "incertum fuerit, an caperentur."130 The mere chance that some fish might have been caught is too vague and unspecific to deserve legal protection qua damages.131 The same argument probably prompted Marcellus to refuse to entertain the claim (based on the third chapter of the lex Aquilia) of a prospective heir against the person who had destroyed the

■will under which he had been instituted.132 Ulpian, however, dissented; in his view the position was the same as when a debt certificate

12r' According to Daube, (1936) 52 LRQ, 258 sqq., cf. also Studi Soiazzi, pp. 146 sqq., the principle of intcresse was first established in the third chapter of the lex Aquilia (it was inherent in the "quanti ea res erit" clause), which, according to him, at hrst applied only to the wounding of res se moveiitcs. When it was extended to cover inanimate objects, the method ot calculation applicable under chapter one (estimation of the market value) filtered through to chapter three, at least as far as cases of complete destruction were concerned. But this is unconvincing; cf. e.g. Medicus, Id quod interest, p. 239; Volkl, (1977) 24 RID A 483 sq.

127 Cf. supra, p. 827. There was no compensation for immaterial damages (mental pain and suffering); cf. Paul. D. 9, 2. 33 pr.: "Si servum meum occidisti, non affectiones aestimandas esse puto, veluti si filium tuum naturalem quis occiderit. . . . "

128Cf. Paul. D. 9, 2, 24.

129Ulp. D. 9, 2. 27, 17 in fine.

130Lab./Proc./Ulp. D. 9, 2, 29, 3.

131"Too speculative": Lawson/Markesinis, p. 35.

132C(. Ulp. П. 9, 2, 41 pr.

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("chirographum") had been destroyed. In both instances, according to Ulpian, the judge had to assess "quod interest".133

2. The penal character of the remedy

The penal aspect of the lex Aquilia, on the other hand, was slightly less straightforward. True: the actio legis Aquiliae displayed the characteristics of a typical actio poenalis. It was passively intransmissible and could therefore not be brought against the wrongdoer's heirs: ". . . in heredem . . . haec actio non dabitur, cum sit poenalis."134 When several persons had been involved in the act of killing a slave, each of them was liable under chapter one, unless it could be established which of them had dealt the mortal blow.135 The plaintiff could cumulate his actions and the fact that one of the co-delinquents paid the full amount did not release the others from their liability: "nam ex lege Aquilia, quod alius praestitit, alium non relevat, cum sit poena."136 Furthermore, when the delict described in chapters one or three had been committed by a son in power or a slave, the paterfamilias was liable under an actio noxalis: he either had to pay the sum that was due as a result of the delict himself, or he had to surrender the delinquent.137 But despite all this: was it really appropriate to state that the wrongdoer was punished by the actio legis Aquiliae ("[i]n hac . . . actione . . . dolus et culpa punitur")V3H After all, unlike in the case of furtum,139 the wrongdoer did not have to pay duplum or quadruplum, but merely the simple value of (as far as chapter one was concerned) the slave or grazing animal.

1ЯЗ D. 9, 2, 41 pr. For a detailed, and recent, discussion of what could be claimed under chapter three, cf. Schebitz, op. cit., note 12, pp. 165 sqq. He deals with D. 9, 2, 41 pr. and other cases involving the destruction of instruments (pp. 218 sqq.); in his opinion, all these texts arc largely spurious.

134 Ulp. I). 9, 2, 23, 8; cf. also Gai. IV, 112; further: Tobias Johannes Scott, Die Geskicdetti.s van die Oorerftikhi'id van Aksies op grand van Qnregmatige Daad ш die Suid-Afrikaaiise Re%

(unpublished Or. iur. thesis, Leiden, 1976), pp. 19 sqq. 155 Ulp. D. 9, 2, 11, 2: Iul./Ulp. D. 9. 2, 51, 1.

136 Ulp. D. 9, 2, 11,2; cf. further Levy, Kottkttrrenz, vol. I, pp. 484 sqq.; von Lubtow, Lex Aquilia, pp. 57 sqq.; Liebs, Klagetikonkurrenz, p. 181.

17The lex Aquilia is reported to have contained special rules about the paterfamilias's noxal liability: cf. Gai. IV, 76; Cels./Ulp. D. 9, 4, 2, 1. The paterfamilias seems to have been liable under the actio directa, "si servus scicnte domino occidit"; reason: "ipse enim videtur dominus occidisse" (Ulp. 1). 9, 4, 2 pr.)- Knowledge by the paterfamilias, however, was not easily to be assumed: "Scicntiam hie pro patientia accipimus, ut qui prohibere potuit teneatur, si non fecerit" (Paul. D. 9, 2, 45 pr.). Of course, the paterfamilias was also liable under the actio directa if the slave or son in power had acted under his orders. The same principle applied if a free man acting under orders committed an Aquilian delict: "actio legis Aquiliae cum со est qui iussit. si modo ius imperandi habuit" (lav. D. 9, 2, 37 pr.). For a detailed discussion, see von Lubtow, Lev Aqailia, pp. 41 sqq.; Hans-Peter Bcnohr, "Zur Haftung fur Sklavendelikte", (1980) 97 ZSS 273 sqq.; cf. also Hausmaninger, Lex Aquilia,

p.35.

13K Paul. D. 9, 2, 30, 3; cf. also Gai. Ill, 202 (". . . ctiam culpa puniatur").

139Cf. supra, pp. 932 sqq., 936 sqq.

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Gaius therefore pointed to the provision that the sums under chapters one and three had to be doubled if the defendant denied liability.140 "Infitiando lis crescit in duplum" is a rule that dates back to the days of the legis actio per manus iniectionem.141 Manus iniectio could be granted only if the defendant's liability had already been established, for instance by a previous trial. The creditor was now allowed to exercise his power of seizure over the debtor. However, a third party (referred to as vindex) was still able to intervene and to dispute the creditor's right of seizure. Another trial between vindex and creditor ensued. But since the vindex had disputed what had already previously been placed beyond doubt and what was therefore manifest, he was made to pay duplum if defeated in the second trial. Litiscrescence was thus a penalty imposed for litigating under circumstances where litigation appeared to be unwarranted. Similar considerations must have prompted the drafters of the lex Aquilia to include a provision on the doubling of damages contra infitiantem.142 As a result thereof, only the defendant

who confessed in iure was liable for simplum; if the suit was defended, the wrongdoer had to be condemned in duplum.143 The lex Aquilia

dealt with matters that were very obviously wrong and a person who was charged with an offence under this statute and who denied liability must have been regarded with some scepticism.144 All this reveals, however, that what was penalized by doubling the amount of damages was the defendant's reluctance to confess, not the Aquilian delict as such. If Gaius' somewhat unfortunate intimation in IV, 9 were to be accepted as correct, the actio legis Aquiliae in simplum could not have been penal: which is, however, manifestly wrong.145

This was seen by Justinian's compilers, who therefore drew attention, in addition to litiscrescence, to the "quanti id in eo anno plurimi fuit" clause of chapter one.'4'' Usually under this provision the plaintiff merely received a compensation for his loss; as a result of

140Gai. IV, 9.

141For what follows, cf. Kascr, RZ, pp. 94 sqq.

l4~ In what form was the doubling of the damages expressed in the statute? Cf. the synopsis of the discussion by Crook, (1984) 72 Athenaeum 75 sq.

143Kaser, Altromisches ins, pp. 132 sqq.; idem, HZ, p. 95; idem, RPr I, p. 162; cf. also

J.Paoli, Lis infitiando crescit in duplum (1933), pp. 95 sqq.; von Liibtow, Lex Aquilia, pp. 26 sqq.; Lawson/Markesinis, pp. 12 sqq. Cf, most recently, the interesting speculations by Norr, (1987) 6 RJ 113. He thinks the actio legis Aquiliae in duplum may have been available only if the wrongdoer denied that he had committed the delict, not if he merely disputed that he had acted iniuria.

144According to Norr, (1987) 6 RJ 113, thejurists in Rome were typically concerned only with cases where the question whether a particular person had committed the delict could

not easily be disputed.

4 That litiscrescence could not have been what gave the actio legis Aquilia its penal

nature is also emphasized by De Zulueta, Gaius II, p. 230; von Liibtow, Lex Aquilia, pp. 37 sq.; Cardascia, Daube Nosier, p. 70; Lawson/Markesinis, p. 5; Hausmaninger, Lex Aquilia, pp. 34 sq.; but see e.g. Wittmann, Korperverhtzung, p. 41 and others.

146 Inst. IV, 3, 9 ("qua ratione creditum est poenalem esse huius legis actionem"); lust. IV, 6, 19.

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the necessity to assess the highest value within the last year before the injury, it could, however, sometimes147 happen that the award went far beyond this limit. It was this surplus that could no longer be reconciled with the reipersecutory nature of the lex Aquiiia and that therefore contributed the penal element inherent in this action. But what a strange kind of penalty we are dealing with!148 It can have affected only a very small number of delinquents and these, in turn, were hit in an entirely arbitrary manner. Whether two, or four, or perhaps ten times more than the actual value of the dead slave or animal had to be paid did not depend on the extent of the wrongdoer's blameworthiness, or similar criteria, but on completely unrelated considerations. A penalty implying such absurdities is in fact so odd that we can hardly attribute it even to a legislator of the 3rd century B.C.149 It was, as we have seen, for entirely different reasons that the calculation was thrown into the past,150 and Justinian's explanation looks like a not particularly successful attempt to rationalize the ambiguity that undoubtedly existed between an action that was penal in its legal characteristics, but compensatory in its normal result.151 The real answer appears to be, quite simply, that poena did not necessarily imply that something was recoverable in excess of compensation.152 One and the same sum could have a dual function: it could be poena in the guise of compensation.

IV. THE STATUTORY DEFINITION OF THE DELICT: HARMFUL RESULT

We have now sketched the framework within which to appreciate how the Roman jurists applied and interpreted the individual requirements for condemnation in terms of the lex Aquiiia. It is obvious that, in order to be liable, the defendant had to have brought about some kind of harmful result: an object must have been damaged and the damage must have arisen as the result of some conduct of the wrongdoer. Both the result and the wrongdoer's action were described in the first chapter with the words "servum servamve alienum alienamve quadrupedem vel pecudem . . . occidere", while the third chapter referred to "damnum facere", specified by the terms "urere frangere rumpere". But in neither case were these merely objective, or factual, requirements sufficient. If it was to rate as an Aquilian delict, occidere, urere

147 "Aliquando" {Inst. IV, 3, 9); "imerdum" (Inst. IV, 6, 1У); but see Ankum, (1982) 24 BIDR 31 ("in many cases").

I4H Cf., particularly, Cardascia, Daube Noster, pp. 57 sqq. ("ине veritable loterie avec un petit nombre de numeros perdants"); also already, Pernice, Sachbeschadigungen, p. 121.

14y Cardascia, Daube Noster, p. 63 therefore chinks that the accio legis Aquiliae was originally not an actio pocnalis. But cf. e.g. Mayer-Maly, (1974) 226 Gb'ttmgische Gelehrte

Anzei%en 133.

150Supra, pp. 961 sq.

151Cf. the formulation by Dc Zulueta, Gains II, p. 210.

152But see Ankum, (1982) 24 BIDR 31 ("the excess is a penalty").

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frangere rumpere (or, more generally: damnum facere) had to be evaluated in a specific manner: it had to be labelled "iniuria". Under both chapters, iniuria was thus the essential term that gave the injury inflicted its distinctly delictual flavour.

1. Quadrupedes pecudes

As far as, first of all, the potential objects of the delict under chapter one were concerned, the terms "servus" and "servam" presented little difficulty. But which animals could be classified as "quadrupedes pecudes"? Gaius regarded as essential that they were kept in herds and gave as examples sheep, goats, horses, mules and asses.153 The qualification of pigs was doubtful,154 but since the time of Labeo they were also taken to fall under chapter one. Dogs were not included, and neither were (a fortiori) wild animals such as bears, lions or panthers. Elephants and camels were on the borderline: "natura eorum fera est", but on the other hand they served as draught animals.155 This was sufficient to bring them within the scope of chapter one.156

2. Occidere and mortis causam praebere

The real interpretive crux, however, was the term "occidere". Whether or not a slave or grazing animal was dead, could, of course, normally be established reasonably easily; but the specific problem lay in investigating whether the defendant's act, that had caused the death, could be dubbed "occidere". If someone holds up a red flag and thereby chases somebody else's oxen into a narrow confine so that they perish by falling over a cliff,157 it is obvious that the person with the flag in his hand caused the death of the animals and that, provided he has acted "iniuria", he should be liable for the resulting damage to the owner. But whether the act of flag-waving can be referred to as "killing" is quite a different matter. Or take the case where someone scares a horse, on which somebody else's slave is riding. The horse, as a result, throws off its rider, who falls into a river and drowns.158 Again, whoever is prepared to take words seriously can hardly say that the act of scaring a horse constitutes an act of killing. We are therefore faced with a situation where we have an act by the defendant (the waving of the flag, the scaring of a horse), the kind of delictual result envisaged by chapter one of the lex Aquilia (oxen and slave are dead) and also a causal connection between act and result (oxen and slave have died because

153D. 9, 2, 2, 2; cf. also fast. IV, 3, 1.

154For the reason, see Wesel, Statuskhre, pp. 50 sq. Unlike the other typical grazing animals, pigs are kept for no other purpose than to provide meat. On pigs and the lex

Aquilia, see also Gluck, vol. 10, pp. 354 sq.

155Gai. D. 9, 2, 2, 2.

156Wounding of quadrupedes pecudes and wounding and killing of all other animals was

covered by chapter three; cf. Gai. Ill, 217; Inst. IV, 3, 13.

157Cf. the cases in Ulp. D. 47, 2, 50, 4 together with Gai. D. 47, 2, 51; Nerat. D. 9, 2, 53.

158Ofilius/Ulp. D. 9, 2, 9, 3.

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defendant waved the flag or scared the horse). But the lex Aquilia does, strictly speaking, not make the defendant liable for having caused the death of the animal (for "mortis causam praebere" or "praestare"), but describes the wrongful behaviour with the term "occidere". "Occidere" and "mortis causam praebere" cannot simply be equated; there is a subtle difference between the two and the Roman lawyers were very conscious of it when they determined the scope of chapter one. Celsus formulated the basic proposition with characteristic boldness;

" . . . multum intercssc dicit, occiderit an mortis causam praestiterit. ut qui mortis causam praestitit, non Aquilia, sed in factum actionc teneatur."15y

We see, incidentally, that a defendant who had merely caused death, but not killed, did not escape liability: an analogous action modelled on the lex Aquilia was available which is described by Celsus in D. 9, 2, 7, 6 as an actio in factum. The development of these actiones in factum obviously occurred as a kind of compensation for the narrow, or literal, interpretation of occidere.

The Roman lawyers thus appear to have been faced with the necessity of broadening an originally fairly restricted form of liability. The position is exactly the opposite today. Like chapter one of the lex Aquilia, § 823 I BGB does not read "a person who . . . causes the death of another" but "a person who injures . . . the life of another". Unlike the Roman jurists, the courts and legal writers in Germany are, however, not particularly sensitive to this distinction. If a delinquent who finds himself trapped by a police squad runs away, and one of the policemen chasing him falls to his death,160 the delinquent is usually taken to have "injured the policeman's life", although, strictly speaking, he has merely caused his death.161 As a result of such a wide, and undifferentiated, interpretation of the objective requirements for liability, German lawyers have traditionally been engaged in lively debates about how to limit liability in a reasonable manner. After all, even the manufacturer of a knife or motorcar may be said to have caused the death of whoever may later be killed with the knife or run over by the car;162 and since it is not at all improbable that these

bv Ccls./Ulp. D. 9. 2, 7, 6. For a detailed analysis and the historical development of the phrase "causam mortis praestare", see Dieter Norr, Causa mortis; for a summary in English of the main points, see Dieter Norr, "Causam mortis praebere", in: The Legal Mind, Essays for Tony Honors (1986), pp. 203 sqq. Norr's views have been favourably received by, inter alia, Willvonseder, (1988) 105 ZSS 737 sqq.; Mayer-Maly, (1986) 37 lura 148 sqq. and MacCormack, (1988) 56 TR 209 sqq.; for very critical comments, sec Watson, Failures, p. 83.

lfi"Cf. e.g. UGH, 1971 Neue Jumtische Wochcnschnft 1980 (1981); BGH, 1971 Neue Jurislische Wodwiischrift 1982 (1983) (though not dealing with injury to life but to bodily integrity); Wolfgang Grunsky, in: Miitichetter Kommvntar, vol. II (2nd ed., 1985), Vor § 249, nn. 61 sqq.

161 For further discussion, see Reinhard Zimmcrmarm, "Herausforderungsformel und Haftung fur fremde Willensbetatigungen nach § 823 I BGB'", 1980 Juristenzeitttng 10 sqq.

'~ Cf. e.g. the discussion by Ernst von Caemmcrer, "Wandlungen des Deliktrechts", in: Gesammette Schriften, vol. I (1968), pp. 478 sqq.

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consequences may ensue from the use of dangerous instruments such as knives and cars, one could even attribute negligence to the manufacturer. Yet it is obvious that he should not be liable under § 823 I BGB, the modern equivalent of the Roman lex Aquilia.

3. The meaning of "occidere"

"Occidere", for the Roman lawyers, was different from (and entailed another legal sanction than) "causam mortis praebere". But what exactly did the term positively imply? Etymologically. it was thought to derive from "caedere" and "caedes", that is, from words connoting direct slaying.163 Hence the following definition was suggested by Iulianus: ". . . lege Aquilia is demum teneri visus est, qui adhibita vi et quasi manu causam mortis praebuisset";164 the death must have been brought about by force, and as the direct result of the defendant's physical action. Ulpian is perhaps slightly more precise when he states that the word "killing" implies either the use of a sword or similar weapon or a direct and violent application of the wrongdoer's body or any part of it against the victim (as, for instance, strangling, kicking or butting).165 But Roman definitions cannot always be taken at face value. What Julian and Ulpian are providing is the core meaning of the word;'6'' but not every element of their definition was absolutely indispensable. More particularly, the Roman lawyers did not always require the use of force. Thus, Labeo was prepared to grant the actio legis Aquiliae against a midwife who administered a poisonous drug to one of her clients, provided only she administered the drug with her own hands. "[S]i quidem suis manibus supposuit":167 nothing in the text suggests that the midwife must have forced the potion down the other woman's throat. Ulpian placed this point beyond all doubt when he commented: "[s]i . . . per vim vel suasum medicamentum . . .

infundit. . ., lege Aquilia teneri."168 The position was the same where someone killed another by injecting a lethal substance into his arm or

163 Iul. D. 9, 2, 51 pr.; von Lubtow, Lex Aquilia, p. 138. Cf also Lab./Ulp. D. 29, 5, 1, 17 concerning the senatus consultum Silariianum ("Occisorum appellatione eos contineri Labeo scribk, qui per vim aut caedem sunt intcrfecti . . .").

lf'4 Iul. D. 9, 2, 51 pr. Likewise, tresspass has traditionally been defined as the tort of inflicting direct and forcible injury; the formal allegation of the writ of trespass was that the defendant had acted "vi et armis et contra pacem Domini Regis". It was on the strength of this allegation (whether true or not) that the jurisdiction of the king's courts (as opposed to the local courts) was established. Cf F.W. Maitland. The Forms of Action at Common Law (1965), pp. 48sqq.

165D. 9, 2, 7, I: "Occisum autem acciperc debemus. sive gladio sive etiam fuste vel alio telo vel manibus (si forte strangulavit cum) vel calce petiit vel capite [lapide? cf Wesel, Statuslehre, p. 83] vel qualiter qualiter."

166Cf., in particular, N.H. Andrews, " 'Occidere' and the lex Aquilia", (1987) 46

Cambridge LJ 315 sqq.

167 Lab./Ulp. D. 9, 2, 9 pr. On this text cf. Norr, Causa mortis, pp. 166 sqq. 16H Cf. UIp. D. 9, 2. 9, 1.

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by rubbing him with a poisonous potion.169 Again, it was irrelevant whether the patient was forced or merely persuaded to undergo this kind of treatment. What mattered was whether the murderer had with his own hands given the injection or rubbed in the potion. The mere act of handing the drug or potion over to the patient, with the request to apply it to himself, was not regarded as sufficient. It did not constitute "occidere". Since, however, it involved "mortis causam praestare", an actio in factum was available.170 "Si quis corpore suo damnum dederit": this is how Gaius described the essential criterion for the range of application of the actio legis Aquiliae.171 The death must have been brought about by the wrongdoer "with his own body", it must have been the direct consequence of a physical action of his.172 Thus,173 the lex Aquilia was applicable when someone had killed a slave by dashing him against a rock,174 by dropping a heavy load upon him175 or by piercing him with a javelin.176 A decretal actio in factum,177 on the other hand, had to be resorted to against a person who held a slave so that a third party could murder him;178 who persuaded a slave to go down a dangerous well where he was killed;179 who gave a madman a sword, which the latter promptly used to commit suicide180 or who caused the slave's death by pushing a third party into him.181 The cases involving the red flag182 and the scared horse183 also fall into this category, and so do, very importantly, those cases where the death ultimately had occurred as the result of an omission. "Si quis hominem fame necavcrit, in factum actione teneri Neratius ait":184 this was apparently a much

l ( >''Cf. Ulp. D. 9, 2, 9, 1.

170Cf. Lab./Ulp. D. 9, 2. 9 pr.; cf. also Cels./Ulp. D, 9, 2, 7, 6.

171III, 219; d. also hist. IV, 3, 16.

172The same applies to the tort of trespass: the wrong must have been committed by "direct means". For details cf, for example, Winfield and Joiowicz, pp. 42 sqq., 53 sqq.; Fleming, Torts, pp. 15 sqq., 23 sqq.; cf. also Maitland, op. cit., note 164, p. 50 (". . . it was to the last necessary that there should be some wrongful application of physical force to the defendant's lands or goods or person—but . . . a wrongful touch to his person or chattels was held to be force enough and an adequate breach of the king's peace").

173For very useful schemes of cases falling under chapter one and being remedied by

actiones in factum, cf. Andrews, (1987) 46 Cambridge LJ 316 sqq.

174Cels./Ulp. D. 9, 2, 7, 7.

175Ulp. D. 9, 2, 7, 2.

176Ulp. D. 9, 2, 9, 4; cf. also Alf. D. 9, 2, 52. 2 ("aeque si quis . . .").

177Sometimes (cf. e.g. Gai. Ill, 219) also referred to as actiones utiles.

178Ulp. D. 9, 2, 11, 1.

l7"Cf. Gai. Ill, 219.

180Cels./Ulp. 1). 9, 2, 7, 6.

181Proc./Ulp. D. 9, 2, 7, 3 ("Proinde si quis alterius impulsu damnum dederit, Proculus scribit neque eum qui impulit teneri, quia non occidit, neque eum qui impulsus est, quia

damnum iniuria non dedit"). 1НЭ Supra, p. 976, note 157. 1!"

Supra, p. 976, note 158. 1M4

Ulp. D. 9, 2, 9, 2.

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requirement inherent in the term "occidere" was not complied with.185 Of course, it cannot always have been easy to draw the line, and many cases must have been controversial.186 Celsus, for instance, was prepared to grant an actio legis Aquiliac where someone drowned as a result of having been thrown off a bridge.187 Unlike the person who had scared the horse, the wrongdoer had in this case used direct bodily violence against his victim: he had thrown him into the water. Arguably, however, he had thereby furnished only a cause of death—for ultimately it was the force of the current that had killed the man. Hence we find Gaius arguing in favour of a mere action on the case.188 Another interesting case is discussed by Proculus. Someone irritates a dog in order to make him bite and kill somebody else's slave. Proculus appears to regard the dog as a kind of weapon (such as a javelin thrown at another) and therefore considers the actio legis Aquiliae to be applicable. 18'; Julian disagrees; in his opinion, the owner of the slave had to use an actio in factum, unless the dog had in fact been "held" by the defendant (in his hands? on a lead?)190

1K5 Cf. further Gai. HI. 219; Ulp. D. 9, 2, 2У, 7; Lab./Ulp. D. 47, S, 2, 20; von Lubtow, Lex Aquiiia, pp. 148 щ. Ulp. D. 19, 5, 14, ! deals with a case where a slave freezes to death because his clothes have been taken away. In both instances we are, however, not dealing with a "mere" omission; here, too, the death occurred as an indirect result of a previous action of the defendant: he had locked the slave in (so that he starved); he had taken away his clothes (so that he was exposed to the chill of a winter night).

1Mfl Similar problems arose with regard to the tort of trespass. For an instructive example cf. Scoff i'. Shepherd (1773) 2 Black W 892: A throws a lighted squib into a crowd, where it falls upon Б. B, in alarm, throws it away and it falls upon C, who does the same as B. The squib ends its journey by falling upon D, exploding and putting out his eye. The whole incident took place on a fair day, close to Guy Fawkes Night. Three of the judges regarded this as trespass by A to D; Blackstone J dissented and held an action on the case to be necessary. To read thejudgment is indeed to "step back into the age ot Julian and Ulpian and to be surprised by the anachronism that the Roman discussion is conducted in the prose of Boswell" (Andrews. (19S7) 46 Cambridge LJ 321). For an in-depth analysis, cf. M.J. Prichard, Scott e.

Shepherd (1773) and the Emergence of the Tort of Negligence (1976).

IH7 Cf. Ulp. D. 9, 2, 7, 7. It did not matter "sive ipso ictu pcrierit aut continue submersus est aut lassatus vi fluminus victus perierit".

IHH III. 219: ". . . item si quis alieuum servum de pome aut ripa in flumen proiccit"; cf. von Lubtow, Lex Aquiiia, pp. 145 sq. But some editors read "sed si" in place of "item si"; Gains would then have to be taken to have shared Celsius's opinion (as did, incidentally, Justinian: Inst. IV, 3, 16).

IK'' Ulp. D. 9,2, 11, 5; not interpolated: cfMacCormack, (1975)41 SDH/14 sqq. against

von Lubtow, Lex Aquiiia, p. 152 and others.

19(1 Cf. Ulp. P. 9, 2, 11, 5. Or was it the slave who was held so that the dog could bite him? The text does not make that clear: "Item cum eo. qui canem irritaverat et effeccrat, ut aliquem morderct, quarnvis cum поп tenuit, Proculus respondit Aquiliae actioncm esse: sed Julianus eum demum Aquiiia tencri ait, qui tenuit et effecit ut aliquem morderet: ceterum si поп tenuit, in factum agendum." Cf. e.g. von Lubtow, Lex Aquiiia, p. 152 ("tenere" refers to the slave); Geoffrey MacCormack, "Juristic Interpretation of the lex Aquiiia", in; Studi in onore di Cesare Sanjilippo, vol. I (1982), p. 277 ("tenere" refers to the dog); cf. further Jean Macqucron, "Lcs dominates causes par des chiens dans la jurisprudence Romaine", in: Flares

legtttn H.J. Scheltema oblati (1У71), pp. 147 sqq.

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