!!Экзамен зачет 2023 год / The Law of Obligations

examples, we encounter a different kind of justification. If С pulls down his neighbour's house in order to save his own, he does not act in self-defence. After all, no unlawful attack is emanating from that neighbour or his house. Nevertheless, C's action may be justified on the basis of, as a modern lawyer would say, (inevitable) necessity.20 The defence of necessity involves "more obviously than any (other) a hard choice between competing values and a sacrifice of one to the other":21 without having himself committed any wrong, the neighbour is made to suffer the destruction of his property. Obviously, this can be expected of him only under very special circumstances. Just how special was disputed amongst the Roman lawyers.22 According to Servius,23 C's interference with his neighbour's property must have been (objectively) necessary in order to avert a present danger from his own house: only if the fire did in fact reach the neighbour's piece of land was С not taken to have acted unlawfully. Celsus drew the line slightly differently. He did not make the decision dependent on an ex post facto evaluation of the situation, but looked at it from the perspective of the person whose house was threatened by the fire: he was allowed to pull down his neighbour's house, irrespective of whether the fire eventually reached that plot or not—provided only he had been moved by a reasonable fear ("iusto enim metu ductus").24 Ulpian appears to have approved of this more liberal view when he said "nee enim iniuria hoc fecit, qui se tueri voluit, cum alias non posset",25 But however this particular issue was settled, nobody appears to have found anything wrong with the fact that the interest protected (the security of C's house) can hardly be said to have outweighed, in principle, the interest of the neighbour not to have his property interfered with. This is rather surprising. Modern legal systems tend to require that the object saved must be considerablv more valuable than the one sacrificed;2'' and while

"(l For details, sec Limpens/Kruithof/Meinmzhagen-Limpcns, op. cit., note 6, nn. 170 sqc-.; Fleming, Tom, pp. 86 sqq.: §§ 228, 904 BGB.

-1 Fleming, Toris, p. 86.

~" For details, sec Pernice, Labco, op. cit., note 10, pp. 66 sqq.; Longo, h'estgabe von Liibrow, pp. 331 sqq.; Geoffrey MacCormack. "Aquilian Studies", (1975) 41 SDMI S3 sqq.; Lawson/Markesinis. pp. 20 sqq.; Hausmaninger, Lex Aquilia, pp. 21 sq.; Wacke. (1987) 20

De Jure 97 sqq.

Ulp. D. 43, 24, 7, 4; on this text, see Schipani, Lex Aquilia, pp. 153 sqq.

24Ulp. D. 9, 2, 49, 1 (also emphasizing, however, that the person pulling down his neighbour's house acted iniuria, "nisi magna vi cogente fucrit factum"). On D. 9, 2, 49, 1, sec Schipani, Lex Aquilia, pp. 310 sqq. Cf. also Cope v. Sharp? [19121 1 KB 496 (CA), where the defence of" necessity was successful, even though the fire was eventually extinguished before it reached the defendant's property; at the moment, however, at which the defendant acted, there appeared to be real and imminent danger.

25Ulp. D. 47, 9, 3. 7 in fine; for a discussion of the whole text, see Schipani. Lex Aquilia, pp. 206 sqq. Ulpian's view was regarded as authoritative on the matter by the authors of the

ius commune: cf. Andreas von Tuhr, "Der Nothstand im Civilrecht" (1888). p. 62.

26 Cf. e.g. § 228 BGB (harm must not be disproportionate to the danger), § 904 BGB

(imminent harm must be our of all proportion to the harm inflicted); tor France and the French legal family cf. Limpens/Kruithof/Mcinertzhagen-Limpens, op. cit., note 6, nn. 173

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one may therefore destroy one's neighbours' flowerbeds in an attempt to save one's own house, it is much less obvious that a person should be allowed to sacrifice someone else's house in order to save his own.

It would, however, be rash to generalize the solution adopted by the Roman lawyers in the fire cases. Their lack of concern for the neighbour's property may have been based on the fact that his house was (or at least: appeared to be) doomed by the fire anyway. Under those circumstances, C, in a way, did not save his own house by causing his neighbour any damage; he merely anticipated, as far as the neighbour's house was concerned, what was about to happen to it in any event.27 At the same time—and that may well have been a second factor militating against imposing liability on the trespasser—С not only saved his own house, but in most cases must have made a significant contribution towards preventing the fire from spreading to other parts of the town. Fires, it will be remembered,28 were a constant source of apprehension; considering the cramped living conditions in large parts of urban Rome, one was all too often unable to contain them.29 Once a fire was raging, any private initiative to try to stop it must have been welcome and deserved to be encouraged; and while С may merely have had the safety of his own house in his mind, he usually acted at the same time as a "public champion".30

In other cases of emergency the Roman lawyers never seem to have carried the trespasser's exemption from liability that far; there are no other decisions which would have allowed him to infringe upon an interest equal to or even more valuable than the one saved.31 We merely

sqq. (things sacrificed must be less valuable than the things saved (France); the damage caused must be less serious in kind and quantity than the one the defendant tried to avoid (Argentina)). Only in the common-law countries does there appear to be no specific requirement of this kind; but even here, the measures which are taken must be "reasonable" (cf Winfield and Jolowicz, p. 723, cf also p. 725 (more latitude in the protection of the actor's person than of his property)). German law (§ 904, 2 BGB) as well as some other legal systems, whilst maintaining that the infringement of the third party's interest is justified, nevertheless grant a claim for compensation on equitable grounds to that third party; cf. e.g. Limpens/Kruithof/Meinertzhagen-Limpens, op. cit., note 6, nn. 179 sqq.; Fleming, Torts,

pp.88 sq.; Winfield and Jolowicz, pp. 723 sqq.

"Cf., along very similar lines, Reinhard Willvonseder, Die Verwendung der Denkfigur der "condicio sine qua поп" hei den romischen Jttristen (1984), pp. 157 sqq.; Lawson/Markesinis,

p.21.

"M Cf. supra, pp. 347 sq.

4 "The terrible frequency of devastating conflagrations is one of the most remarkable

things in the history of Ancient Rome, and hardly less extraordinary is the apparent inadequacy of counteracting measures": P.K. Baillic Reynolds, The Vigiles of Imperial Rome (1926), p. 13. Only Augustus established the vigiles, who acted as police force as well as a fire brigade; for details, see W. Krcnkel, in: Kleiner Pauly, vol. V. col. 1270 and the work by Baillie Reynolds.

3(1 Cf. Fleming, Torts, p. 86; c(. also King's Prerogative in Salpelre (1607) 12 Co Rep 12 (dealing with the case of a person who blew up a house to prevent the fire spreading to the whole town).

11 Ulp. D. 19, 5, 14 pr. discusses a case where in a situation of maritime distress someone threw somebody else's merchandise overboard in order to save his own. But here, again, the

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read of sailors who cut the anchor ropes of another vessel into which their ship was blown, or of fishermen who slashed some fishing nets in which their boat got caught.32 Provided that vessel and boat could not be extricated in any other way and provided, too, that the emergency was not attributable to any fault on the part of the sailors or the fishermen, no liability under the lex Aquilia ensued. Any modern lawyer would probably come to the same conclusion.33

(d) Actions of a magistrate

Thirdly, then, the aedil D. Since he was responsible, inter alia, for the safety on the roads, he could take the steps that were necessary to secure safe traffic. If that involved the smashing of some beds, he could not be held liable under the lex Aquilia. The same principle applied to other magistrates who had to cause damage in the exercise of their official functions: "Is, qui iure publico utitur, non videtur iniuriae faciendae causa hoc facere: iuris enim executio non habet iniuriam."34 Of course, the magistrate could be liable under the lex Aquilia, or an actio in factum, if he exceeded the confines of his authority or acted improperly. Thus, if he returned worn and spoilt what he had seized by way of security, the actio directa could be brought against him;35 the actio in factum was applicable if the objects seized were cattle and if the animals died in his custody as a result of not being fed.36

(e) Consent

Finally, concerning the boxing and wrestling contest between E's slave and F in the course of which the slave was mortally wounded, the answer of the jurists was also: lex Aquilia cessat.37 After all, the slave's owner had consented to the bout. Pancratium was a dangerous sport, where nearly every manoeuvre of hands, feet and body was permitted:

"trespasser" also acted for the benefit of everybody else on board. Cf. also Mouse's case, (1609) 12 Co Rep 63. On Quint. Muc./Pomp. D. 9, 2, 39, c(. Okko Behrends, 1985 Juristische Schulunq 878 sqq.; Hausmanmger, Lex Aquilia, p. 23; Wacke, (1987) 20 De Jure 92 sqq.

32 Lab./Proc./Ulp. D. 9, 2, 29, 3; Wacke, (1987) 20 De Jure 94 sqq.; cf. also RGZ 5, 160; 88, 211.

13 For the historical development of the modern doctrine of necessity in private law, cf. Andreas Hatzung, Dogmengeschichtliche Grundlagen und Entstehung des zivilrechttichen Notstands

(1984), pp. 56 sqq. (usus modernus), 63 sqq. (natural law), 69 sqq. (pandectism), 90 sqq. (codifications of the age of reason), 134 sqq. (origin of the §§ 228, 904 BGB).

34 Ulp. D, 47, II ), 13, 1. For examples cf. Ulp. D. 9. 2, 29, 7 (where the magistrate was compelled "quid . . . adversus rcsistentem violentius [facere]"); Ulp. D. 43, 24, 7, 4 ("incendii arcendi causa vicini aedes intercidfere]"). Cf. generally Hausmaninger, Lex Aquilia, pp. 23 sq.; for modern law Limpens/Kruithof/Meinertzhagen-Limpens, op. cit.,

note 6, nn. 181 sqq.; Boberg. Delict, pp. 771 sqq. 35 Ulp. D. 9, 2, 29, 7.

3(1 Ulp. D. 9, 2, 29, 7.

37 Ulp. D. 9, 2, 7, 4. On this text cf.-Pernice, Labeo, op. cit., note 10, pp. 82 sqq.; Schipani, Lex Aquilia, pp. 319 sqq.; Wittmann, Korperverletzung, pp. 95 sqq.; Andreas Wacke, "Accidents in sport and games in Roman and modern German law", (1979) 42 THRHR 282 sq.

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a kick in the stomach, all kinds of neck-holds {including strangling), breaking one's opponent's arm or fingers, and the like.38 And although biting and gouging were forbidden, there was an obvious risk that one of the fighters might not survive this somewhat rough engagement. If a slave was entered for it, his owner could be taken to have waived, to a certain extent, the Aquilian protection that his property normally enjoyed. As long as he kept within the rules of the game,39 the slave's opponent no longer had to observe the general precept of "alterum non laedere" and could inflict all kinds of injuries. Since the owner had given his consent, these injuries were not "iniuria datum" and did, therefore, not give rise to a claim for damages.40

2.The relationship between iniuria and culpa

(a)The new interpretation: damnum culpa datum

We have been trying to isolate a variety of situations where the act of causing death or damage could not be said to have been "non hire factum"; where the defendant had not acted "without right" or, in modern parlance, wrongfully. But this was only one aspect (for us possibly the more obvious one) of the complex notion of iniuria. For the Roman lawyers, Aquilian liability was based on fault (culpa in the broadest sense of the word), and it was the term "iniuria" that provided the obvious point of departure for this remarkable interpretive refinement of the requirements of the lex Aquilia. Only if the defendant could be "blamed" for death or damage were the Roman lawyers of the classical (and even of the Republican) period prepared to attach the label "iniuria" to his act and to make him thus accountable for the damage caused. "[I]d est si culpa quis occiderit" was the phrase that Ulpian appended to his explanation of iniuria,41 and Gaius stated boldly: "Iniuria autem occidere intellegitur, cuius dolo aut culpa id accident."42 Damnuni iniuria datum was taken to imply damnum culpa datum.43

-w F.A. Wright, in: The Oxford Classical Dictionary (2nd ed., 1970), p. 775; H.A. Harris, Greek Athletes and Athletics (1964), pp. 105 sqq.; O. W. Reinmuth, in: Kleiner Pauly, vol. IV, col. 460; Wacke, (1979) 42 THRHR 282 sq.; Ingomar Weiler, Der Sport bei den Volkern der Alien Welt (2nd ed., 1988), pp. 183 sqq.

34 Such as there were; according to Wright, loc. at., they were strictly enforced by umpires, who closely watched the combatants.

On consent in modern law cf. Limpens/Kruithof/Meinertzhagen-Limpens, op. at,, note 6, nn. 184 sqq.; Fleming, Tor/5, pp. 72 sqq.; Dcutsch, op. cit., note 6, pp. 226 sqq.; Boberg, Delict, pp. 724 sqq. The problem of consent is particularly topical in medical malpractice cases: cf. the comprehensive discussion by Dieter Giesen. International Medical Malpractice Law (1988), pp. 252 sqq.

41D. 9, 2. 5. 1.

42III, 211.

43 Ulp. D . 47, 10, 1 pr.; U lp. D . 47, 6. 1, 2; U lp. D . 47, 10, 15, 46; Pa ul . D . 44, 7, 34 pr.

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(b) "Occidere", "were frangere rumpere" iniuria

How precisely one arrived at this kind of interpretation is a matter of speculation.44 It is likely, though, that originally (both before and at the time of the enactment of the lex Aquilia) "occidere" and "urere frangere rumpere" were used to describe certain acts that could typically only be committed intentionally. If a slave is stabbed to death or if a lighted torch is thrust into his face, this is not only prima facie wrongful, but can normally only have been done dolo. In a way, therefore, one can say that this ancient type of liability was strict, or absolute: the wrongdoer was liable irrespective of whether or not he, in this specific case, had been at fault. But the (objective) requirements of the delict were such that it was rather unlikely that he had caused the death or damage without intention. Inclusion of the term "iniuria" in chapters one and three of the lex Aquilia was an acknowledgement of the fact that certain exceptional situations existed where the defendant ought to escape liability (though he had committed "occidere" or "urere frangere rumpere"). If the slave had attacked the defendant, the latter did not act non iure when he singed or stabbed him. It was still quite natural that his action had been wilful, but he was now allowed to assert that he had acted in pursuance of a right which justified infliction of the damnum (the wrongfulness aspect of iniuria).

(c) From (typical) dolus to fault at large

But then cases may have arisen where the injury had still been caused directly and where the defendant could not be said to have acted "iure", but where it was nevertheless deemed unreasonable to impose liability. Somebody burns stubble on his fields; it is a quiet day, and he watches the fire most diligently. A sudden and entirely unforeseeable gust of wind makes the fire flare up and spread to the neighbour's field.45 Or take the example of a ship ramming another vessel coming towards it, not as a result of a steering mistake, but because it was thrown about by a tempest in such a manner that it could no longer be controlled.4(l These kinds of cases must have come up for consideration increasingly frequently, once the requirement of the use of force in chapter one was no longer taken very seriously,47 the "urere frangere rumpere" of chapter three had been replaced by the much less descriptive term "corrumpere"48 and Aquilian-type liability was generally extended by actiones in factum. And even if the requirement of "corpore damnum datum" was retained, as far as the actio legis Aquiliae (directa) was

On the relationship between iniuria and culpa and on the historical development, cf. Beinart, Studi Arcitigio-Rniz, vol. I, pp. 279 sqq.; von Lubtow, Lex Aquilia, pp. 83 sqq.; Lawson/Markesinis, pp. 19 sqq., 22 sqq.; Honscll/ Mayer-Maly/Selb, pp. 229 sqq.

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concerned, it can hardly be denied that there is some element of indirectness in the situations mentioned. The stubble case was in fact much disputed; Celsus was in favour of granting an actio in factum rather than the actio legis Aquiliae.49 In any event, we are dealing here with borderline cases, where it was no longer possible to infer from the factual situation that the damage must—typically—have been caused intentionally. Thus, not unlike the courts in England many centuries later, the Roman lawyers may have recognized a defence of (inevitable) accident.50 It was new in that it did not fit in with the "non iure" interpretation of iniuria; but it was perfectly possible to maintain that wherever death or damage constituted casus, the defendant had not acted iniuria. All that was involved was a reinterpretation, or perhaps rather an interpretative extension, of the concept of iniuria. The next step was, obviously, to formulate positively what had so far been recognized by way of exception: if the defendant was not liable for casus, that meant as much as that he was liable for fault.5' His fault could, of course, but did not necessarily have to, take the form of dolus.

(d)Wrongfulness and fault

As a result of these developments, one had overcome the archaic form of strict liability and had adopted a flexible and ethically more satisfactory approach that turned on the inquiry of whether or not the defendant had in fact behaved as he should have behaved. This more refined criterion must soon have superseded or swallowed the older concept of iniuria:52 damnum iniuria datum was replaced, for all practical purposes, by damnum culpa datum. And, indeed, as long as the notion of culpa was not converted into the equivalent of our modern idea of negligence,53 it was perfectly possible to make it cover the same ground as the earlier "iniuria" concept. If the aedil (by smashing the beds) had done what the law permitted him to do, how could one say that he had been at fault? Or if the sailors cut the anchor

49 Ccls. Coll. XII, VII, 5.

э0 Lawson/Markcsinis, pp. 19 sq. In England, this has become the generally accepted view since the end of the 19th century (!), as a result of the decision of Stanley v. Powell [1891] 1 QB 86 (per DcnmanJ; the defendant, while firing at a pheasant, had shot the plaintiff (who was employed to carry cartridges) with a pellet which ricochetced from a tree at a considerable angle. Since the injury was held to have been accidental, the action tor tresspass was unsuccessful).

51 For the development in England cf. Salmond and Heitston on the Law of Torts (18th ed., 1981), p. 128: "In so far as Stanley v, Powell decided that inevitable accident was a good defence to an action of tresspass it probably cannot now be questioned. But in recent years a series of decisions . . . have extended Stanley v. Powell so far as to hold that a plaintiff in an action of tresspass for injuries to the person must always prove intention or negligence on the part of the defendant."

5- Beinart, Studi Arangio-Ruiz. vol. I, pp. 284 sqq.; Lawson/Markcsinis, p. 25. Contra: MacCorrnack, (1975) 41 SDH! 56 (according to whom iniuria was probably understood by the jurists, from the time of the enactment of the lex, as expressing the requirement of fault). x That that was not the case in classical law has been emphasized by Geoffrey

MacCormack, "Aquilian Culpa", in: Daube Noster (1974), pp. 201 sqq.

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ropes of the ship into which their own vessel had been blown: how could one refer to this act as damnum culpa datum? After all, they had done what they were allowed to do under the circumstances.54 Culpa, in other words, became the all-embracing criterion upon which the liability of whoever had committed "occidere" or "corrumpere" depended.55 Iniuria, in the sense of "non hire", was submerged, and thus we find the Roman jurists thinking mainly in terms of dolus and culpa, even in what we would regard as the proper province of wrongfulness.56 The modern systematic distinction between wrongfulness and fault as two separate elements of delictual liability is alien to our classical sources. Its foundations were laid by Justinian. In his Institutes he states that "iniuria occidere" means "nullo iure occidere" and he illustrates the meaning of "non iure" with the example of selfdefence.57 He then turns to the concept of culpa, without referring to the term "iniuria" or to problems of wrongfulness any longer.58 But by his time the notion of culpa had acquired the more specialized and technical meaning of "negligence"54 (did the defendant exercise the care of a bonus paterfamilias?—hardly a meaningful test question to determine issues of wrongfulness).

3. Aquilian culpa in classical Roman law

As with regard to the operative verbs in chapters one and three, we find a whole range of interesting cases dealing with the culpa requirement and specifying it for individual situations.60 A pruner lops off the branch of a tree, which falls and kills a passer-by. The pruner is liable, if he had done the job over a public thoroughfare and had failed to shout a warning.61 A farmer is liable for the damage to his neighbour's crops if he burns stubble on a windy day and is therefore unable to control the fire.62 A person who is throwing a javelin by way of sport, but outside a proper sports field, is held responsible under the lex Aquilia if he hits and kills a slave who happens to be passing by.63 A barber is accountable for the death of his customer, if, having set up his business in close proximity to a playing ground, his hand is hit by a ball, the razor thereby jerked against the customer's throat and the throat, in

61Paul. D. 9. 2. 31.

62Paul . D . 9, 2, 30, 3.

f i 3 U lp. D. 9, 2, 9 , 4. On jave lins and javelin throwing in the Ancie nt World, se c Harris, op. cit ., note 38, pp. 92 sqq.; ide m, A thle tic s in Ancient G reec e ( 1976), pp. 196 sqq.

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turn, cut rather than shaved.64 In all these cases careful attempts are made to draw the line: no fault is attributable to the primer if he either shouted a warning or threw the branch down on to private land and in a place where there was no path; to the farmer if he selected a still day and took all reasonable precautions to prevent the fire from spreading; to thejavclin-thrower if he exercised in a campus iaculatorius; or to the barber if he did not shave at a place "ubi ex consuetudine ludebatur vel ubi transitus frequens erat". It is apparent from these and other texts that the Roman lawyers approached the question of culpa in a casuistic manner. They did not try to subsume the facts of the individual case under a standardized test or formula/'5 More particularly, they did not ask in each case whether the defendant ought to have foreseen the damage.6'' Foreseeability or carelessness could be important issues67 but they did not necessarily and conclusively determine the question of liability. The crucial issue was whether, more generally, the defendant had been at fault; whether, in other words, he had behaved as he should not have behaved;68 and that, in turn, depended on an evaluation of all the circumstances of the case and tended to be determined from an objective point of view.69 Only in some respects does a certain degree

fl4Mela/Proc./Ulp. D. 9, 2, tl pr.

fl5 Cf. abo Pcrnicc. Siichbvschadiyuuqett, p. 51; von LCibtow. Lev Aquilia, pp. 87, 105. '"' MacCormack, Danbc Noster.'pp. 202, 204.

67 As, for instance, they were in Paul. D. 9. 2, 31.

('8 MacCormack, Daube \'oster, p. 202. Neither furiosus nor infans can be made liable under the lex Aquilia; reason: "quac enim in eo culpa sit, cum suae mentis поп sit" (Pegasus/Ulp. D. 9. 2, 5, 2). On the delictual liability of an impubes infantia maior, see Lab./Ulp. D. 9, 2, 5, 2; Lab./Iul./Ulp. D. 47, 2, 23; Bernard Pcrrin, "Le caractere subjectif de I'lniuria Aquilicnne a Fepoque classiquc". in: Stndi in oiwre di Pietro de Francisci, vol. IV (1956), pp. 271 sqq.; MacCormack, Daube Nosier, pp. 2!8 sq.; Schipani, Lex Aquilia. pp. 219 sqq., 270 sqq.; Hausmaninger, Lev Aquilia, p. 26.

'' Cf. von Lubtow, Lex Aquilia, pp. 83 sqq.; Schipani. Lev Aquilia, passim, e.g. pp. 131 sqq., 192 sqq.; MacCormack, Daube \oster, pp. 201 sqq.; Honsell/Maycr-Maly/Selb, p. 366; Hausmaningcr, Lex Aquilia, p. 25. That culpa was seen in an objective light is also apparent, for instance, from the one (apparently) more generalizing statement on culpa that we possess: " . . . culpam autem essc, quod cum a dihgente provider! potent, поп ent provisum" (Paul. D. У, 2, 31; attributed by Paul to Quintus Mucius). This phrase has often been regarded as spurious (cf. e.g. Arangio-Ruiz. Responsabilita, pp. 234 sqq.; von Lubtow, Lex Aquilia, pp. 99 sq.), but see. for example, Schipani, Lex Aquilia, pp. 141 sqq., 371 sqq. It should, however, not be seen as providing a general definition of culpa (in terms of foreseeability); the remark was probably related by Quintus Mucius more directly to the circumstances of the case than appears from I). 9, 2, 31: MacCormack, Daube Nosier, pp. 203 sqq. For a different evaluation, cf. Okko Hehrends, "Die Rechtsformen der romischen

Handwcrks". (1981) 22 Ahhandlnngeu der Akadenrie der Wissemchaften in Goltingen 145. It should also be noted that the problem of fault was not considered in isolation. The Roman lawyers did not go through a list of specific requirements, defined and categorized as neatly as in a modern textbook, when they tried to establish whether a particular plaintiff was liable under the lex Aquilia. Just as fault and unlawfulness were not neatly separated, so the issue of fault was frequently merged with causal questions: a higher degree of fault could, for instance, "compensate" for a certain lack of directness in the infliction of the injury. The point has been emphasized and illustrated by Geoffrey MacCormack, "Juristic Interpretation of the Lex Aquilia", in: Studi in onore di Cesarc Sanfilippo, vol. I (1982), pp. 270 sqq. The bonus (or diligens) paterfamilias as a general model of the standard by which the issue of

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of generality appear to have been achieved. Thus the notion of imperitia culpae adnumeratur was applied to Aquilian liability as it was to liability arising under a contract of locatio conductio operis or operarum.7" Nobody who had undertaken a particular job could escape liability by claiming that he did not possess the necessary skill to carry out that job. If a doctor operated unskilfully71 or if he caused damage by making the wrong use of a drug,72 he was liable under the lex Aquilia as well as ex locato. The same applied if a muleteer was so inexperienced that he was unable to control his mules and to stop them from running over somebody's slave.73 Imperitia liability, incidentally, provides a good example of the objective approach adopted by the Roman lawyers.74 Doctor and muleteer were not judged in relation to their experience or according to whether they could have foreseen the harm; what mattered was whether they possessed the skills that could reasonably be expected of a man of their profession.

culpa. or negligence, is determined (and as such, i.e. as a general standard, of Justinianic vintage; cf. Kaser, RPr II, pp. 351) sqq.) lives on in modern South African law. Representing "an embodiment of all the qualities which we require of a good citizen" (Van der Walt, Delict, § 39), he displays neither "the foresight of a Hebrew prophet" in anticipating harm nor "the ability of an acrobat" in avoiding it {Broom v. Administrator, Natal 1966 (3) SA 505

(D) at 516G-H. Or, as Holmes JA put it (5 i'. Burger 1975 (4) SA 877 (A) at 879D-E): "One does not expect of a diligens paterfamilias any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short, a diligens paterfamilias treads life's pathway with moderation and prudent common sense." His English counterpart is the famous reasonable man, an "excellent but odious character" (A.P. Herbert, Uncommon Law (1982), p. 4 (Is there a reasonable woman?)) who is "free both from over-apprehension and from overconfidence" (Glasgow Corporation v. Mitir f 19431 AC 448 (HL) at 457). He is variously described as "the man in the street", "the man in the Clapham omnibus" or "the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves" {Hall v. Brooklands Auto Racing Club [1933] 1 KB 205 (CA) at 224; for details, see Fleming.

Torts, pp. 97 sqq.; Andre Tune, "Introduction", in: International Encyclopedia of Comparative

Law, vol. XI, I (1983), nn. 133 sqq.; cf. also Holmes, The Common Law, p. 1(18: "[The law] does not attempt to see men as God sees them"). 7(1 Cf. supra, pp. 386 sq., 397 sq.

71Proc./Ulp. D. 9, 2, 7. 8.

72Gai. D 9, 2, 8 pr.

71 Gai. 15. 9, 2, 8, 1. The position was the same if the muleteer did not possess the (physical) strength required to hold back the mules. Cf. further Ulp. D. 9, 2, 27, 29, where a diatretarius is held liable if he breaks a calix meant for diatrcting because of a lack of skill; on this text cf. Peter Birks, "Other Men's Meat: Aquilian Liability for Proper User", (1981) 16 The Irish Jurist 163 sqq., but also von Lubtow, Lev Aquilia, pp. 100 sqq. On imperitia culpae adnumeratur and Aquilian liability in genera!, sec Schipani. Lex Aquilia, pp. 246 sqq. (D. 9, 2, 8, 1), 324 sqq. (D. 9, 2. 7, 8); von Lubtow, Lex Aquilia. pp. 103 sqq.; MacCormack, Daubc \oster, pp. 210 sqq.; T.J. Scott, "Die reel imperitia culpae adnumeratur as grondslag vir die nalatigheidstoets vir deskundiges in die deliktereg", in: Petere Fontes, L.C. Steyn—Gedenkbundel (n. d.), pp. 124 sqq. (especially on Roman law: pp. 130 sqq.); Van der Walt, Delict, § 41; cC also Behrends, op. cit., note 69, pp. 144 sqq. The position is the same in the English common law. " 'Imperitia culpae adnumeratur' says the Digest. 'Spondet peritiam artis', says Story on Bailments": Buckland/McNair. pp. 259 sq. "Those who undertake work calling for special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession" (Fleming, Torts, p. 104); cf. also Scott, op. cit., pp. 140 sqq.

74 But see Lawson/Markesinis, p. 28.

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4."Contributory negligence" in Roman law

(a)The Roman all-or-nothing approach

If fault was the relevant criterion to determine whether a person who had committed occidere or corrumpere was liable under the lex Aquilia, the modern lawyer will be inclined to imagine that considerations of fault determined also the extent to which that person could be held responsible. Not rarely does it happen that some fault of the victim has contributed to the injury, and it would appear to be unreasonable completely to overlook this contributory factor when it comes to the assessment of damages. In particular, one might be disposed to compare the relative contributions of tortfeasor and victim and to reduce the extent of the compensation accordingly. Most modern legal systems do, in fact, know rules about contributory negligence and recognize the possibility of an apportionment of damages.75 Not so the Roman lawyers.76 If somebody suffered harm through his own fault, he was denied recovery, unless the tortfeasor had acted intentionally (in which case he could recover his full damages77). This strict principle of all-or-nothing was predetermined by the procedural formula. The judge only had the alternative to condemn in the full amount or to absolve the defendant—tertium non datur. Translated into the terms of substantive law, this meant that the judge had to determine whether the act of the defendant satisfied all the requirements of the lex Aquilia or not. If he came to the conclusion that there had been damnum culpa datum, he had to condemn, otherwise to absolve. The Roman lawyers thus approached the question of "contributory negligence" under a very specific perspective. They did not ask (as we do): was there fault on both sides?; they merely enquired whether the injury was due to the fault of either the tortfeasor or the victim. A pruner who dropped a branch on a public road without having shouted a warning was liable if the branch killed a slave who happened to be passing by. According to Quintus Mucius, he was even liable if the incident occurred on the putator's private ground, also, of course, if he had shouted out too late. But if the branch was dropped on a private ground, and there was no path underneath the tree (so that it was entirely unlikely that people would be passing by), he could not be

75 For a comparative survey, cf. A.M. Honore, "Causation and Remoteness of Damage", in: International Encyclopedia of Comparative Law, vol. XI, 7 (1983), nn. 144 sqq.; additionally (for South African law) Boberg, Delict, pp. 652 sq.

76 Cf., for example, Pernicc, Labeo, op. cit., note 10, pp. 97 sqq.; Buckland/ McNair, pp. 370 sqq.; Mcdicus, Id quod interest, pp. 322 sqq.; Buckland/Stein, p. 587; Peter Aumann,

Das mitwirkendc Verschulden in der neueren juristischen Dogmengeschichte, (unpublished Dr. iur. thesis, Hamburg, 1964), pp. 4 sqq.; Klaus Luig, "Uberwiegendes Mitverschuldcn", (1968) 2 his Commune 192 sqq.; von Liibtow, Lex Aquilia. pp. 106 sqq.; Christian Wollschiager, "Das eigenc Verschulden des Verletzten lm romischen Recht", (1976) 93 ZSS 115 sqq.; Lawson/Markesinis, pp. 33 sq.; Hausmaninger, Lex Aquilia, pp. 26 sqq.

77 Cf". Uip. 9, 2, 9, 4 in fine; Paul. D. 9, 2, 31 ("quod si nullam itcr ent, dolum dumtaxat praestare debet, nc immittat in cum, quem videril transeuntem").

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