!!Экзамен зачет 2023 год / The Law of Obligations

held responsible.78 If a slave was hit under these circumstances, it was due to his own fault, not to that of the pruner. A very similar solution was arrived at in the case of the hunter who dug pits to catch deer:7y if the pits were on a private ground and if an adequate warning had been put up, any injury sustained by third parties was not attributable to the hunter. If, on the other hand, he had dug the pits on public ground, or on a private ground but without any warning, he was liable to the full extent.

(b) Of javelin-throwers and itinerant barbers

The two cases that have featured most prominently in subsequent discussions about "contributory negligence", were that of the javelinthrower80 and that of the barber putting his shaving-chair next to a playing ground.81 In the former instance the Aquilian action was held to lie "si per lusum iaculantibus servus fuerit occisus"; but there was no liability if the javelin was thrown in a field set aside for that purpose. Reason: "quia non debuit [sc: servus] per campum iaculatorium iter intempestive facere." If a slave crosses a sports field while people are busy practisingjavelin-throwing and if he is pierced by a javelin as a result thereof, it is entirely his own fault. It is, in any event, not the javelin-thrower who can be blamed for the incident.82 More complex was the barber case. It was much discussed in Roman law,83 and at least three different solutions were proposed. None of the lawyers dealing with the case advocated an apportionment of damages, however. Mela isolated the relevant criterion: "in quocumque eorum culpa sit, eum lege Aquilia teneri." That could either be the person who had hit the ball (after all, he had hit it "vehementius")84 or the barber (he had set up his chair "ubi ex consuetudine ludebatur vel ubi transitus frequens erat"). Proculus argued in favour of the latter alternative. But the argument that it was dangerous to shave in the immediate vicinity of a playing ground could just as well be turned against the customer. He was by no means forced to have his beard shaved in such a

™ Paul. IX 9, 2. 31.

14 Paul. IX 9, 2, 28.

m Ulp. IX 9, 2, 9. 4 (cf. supra, note 63).

Ml Mela/Proc./Ulp. D- 9, 2, 11 pr. (cf. supra, note 64).

82 Cf. further Wollschlager, (1976) 93 ZSS 128 sqq., who draws attention to a Greek parallel (or rather: model) for the case of" the javelin-thrower.

нз "[A] stock . . . case in classical jurisprudence": MacCormack, Daube Noster, p. 215.

84 But, on the other hand, he could hardly be thought to have caused the damage directly (damnum corpori datum). Did Mela, therefore, only contemplate an actio in factum? What kind of game were the players busy playing? Wackc, (197У) 42 THRHR 277 thinks it was a game similar to hockey (where the ball was hit); according to Wollschlager, (1976) 93 ZSS 132, the ball had been thrown by hand; the text merely says "pila percussa". On Roman ball games generally, see H.A. Harris, Sport in Greece and Rome (1972), pp. 75 sqq.; Weiler, op. cit., note 38, pp. 265 sqq.

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precarious place. The barber might have chosen a more suitable spot85 to offer his services, but, in the last resort, it was the slave who had himself to blame for having availed himself of such an offer. This argument was advanced with the words "si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere",86 and Ulpian regarded it as absolutely tenable ("nee illud male dicetur").

(c) Balancing of fault, preponderant negligence or assumption of risk?

Did this involve a balancing of fault which was seen to exist on the part of both the barber and his "victim"? This is quite possible; and since nothing at all is said about the gravity of the respective faults, one may come to the conclusion that, in the opinion of the Roman lawyers—or at any rate of some of them—any form of contributory negligence cost the victim/plaintiff his remedy.87 Alternatively, one might argue that implicit in the view reported by Ulpian was the assumption that the victim's fault was much graver; compared with that of the barber, it made the latter pale into insignificance. The Roman rule may then have been that preponderant negligence on the part of the victim excluded the plaintiff's liability.88 Or did the Roman lawyers solve these cases by applying a theory of causation?89 It was the barber's customer who had had the last opportunity of avoiding the "accident" by exercising reasonable care, and it is for that reason that he ought to be liable. His intervention, in a way, "broke" the chain of causation linking barber's fault and injury. The Roman approach would then have been very similar to that adopted by the English common law.90

~ People of lower rank were shaved by itinerant barbers in the open air; for the wealthier Romans, elegant barbershops were available; for details, see e.g. Carcopino, pp. 175 sqq.

Я6 Genuine? No, says von Liibtow, Lex Aquitia, p. 107 ("naive Ghsse"). Contra: Theo Mayer-Maly, "Пе se queri debere, offida erga se und Verschulden gegen sich selbst", in:

Festschrift fur Max Kaser (1976), p. 248.

87 The idea of compensatio culpac; cf. infra, pp. 1030, 1047.

HM Cf, in particular, Luig, (1968) 2 his Commune pp. 193 sqej. Wacke, (1979) 42 THRHR 276 explains the decision in D. 9, 2, 9, 4 (javelin-thrower) on this basis.

*9 Cf. Buckland/McNair, pp. 370 sqq., but also Pcrnice, Sachbeschadigmigen, p. 60. Contra, in particular, MacCormack, Studi Sanfilippo, vol. I, pp. 277 sqq. ("In a sense one can say that the jurists reduced the question of causation to one of fault").

" Originally, the common law treated contributory negligence as a complete defence: it not only impaired but completely barred recovery except against an intentional wrongdoer. "fl]f there is blame causing the accident on both sides, however small the blame may be on one side, the loss lies where it falls" was the principle, as formulated by Lord Blackburn, in Cayzer, Irvine & Co. i>. Canon Co. [1884] 9 AC 873 (HL) at 881. It wasjustified on the basis that, in a practical sense, the plaintiff was the author of his own wrong (Butterjield v. Forrester (1809) 11 East 60 at 61) and therefore the only effective cause of his injury (Fleming, Torts, p. 243, who criticizes this argument as being "a hollow pretence" and "hypocritical"). Subsequently, this harsh rule was mitigated by the "proximate cause", or "last opportunity", test. As a result of it, the entire blame was now thrown on whoever had had the last opportunity of avoiding the harm. "Not surprisingly", writes Fleming, p. 244, "the result [which was still all or nothing] was again explained in the abracadabra of causation,"

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But D. 9, 2, 11 pr. in fine can also be explained in an entirely different manner.91 By availing himself of the services of this specific barber, the customer voluntarily exposed himself to the risk that the shaving process might be rather awkwardly disrupted or interfered with, and it is this aspect of the assumption of a risk92 which made it appear unreasonable to grant a claim for damages to the plaintiff. Neither barber nor customer had therefore been "at fault"; both engaged in a somewhat risky kind of activity and therefore had to bear the consequences.93 Since this explanation accords much better with our other sources (which do not evidence any recognition of the notion of a concurrence of faults — that is, of "contributory" negligence in the true sense of the word94), it is the one to be preferred.

possibly still under the influence ot the canonical distinction between causa proxima and causa remota (Luig, (1968) 2 lus Commune 223). On the "last opportunity" rule in South African law, cf. Boberg, Delict, pp. 653 sqq.

9' Wollschlager, (1976) 93 ZSS 131 sqq.

4" Cf. also Mayer-Maly, (1974) 226 Gottingische Gelehrte Anzeigm 130; Hausmaninger, Lex Aquilia, p. 27. The idea of an exclusion of delictual liability on the grounds of an assumption of risk ("Handetn aufeigene Gefahr") has also been advanced with regard to Alf. D. 9, 2, 52, 4 ("Cum pila complures luderent, quidam ex his servulum, cum pila percipere conaretur, impulit. servus cecidit et crus frcgit: quaercbatur, an dominus servuli lege Aquilia cum eo, cuius impulsu ceciderat, agere potest"): von Lubtow, Lex Aquilia. pp. 108 sq.; Wacke, (1979) 42 THRHR 278 sq. Alfenus, however, rather appears to have stressed the fact that there was no fault involved ("respondi non posse, cum casu magis quam culpa videretur factum"). But, of course, all disputes about whether the exclusion of liability in a specific situation depended on "wrongfulness" or "fault" are, as far as Roman law is concerned, of a somewhat academic nature. That the Roman lawyers took account of the special circumstances obtaining in combative sport is apparent from Ulp. D. 9, 2, 7, 4 (a case dealing with wrestling, boxing and pancratium): "cessat flex] Aquilia, quia gloriae causa et virtutis, non iniuriae gratia videtur damnum datum." Generally on liability for accidents in sport and games in Roman law, see Wacke, (1979) 42 THRHR 273—specifically on Ulp. 1). 9, 2, 7, 4 cf pp. 281 sqq.

In modern law, the opinion tends to prevail that the crucial issue is one of wrongfulness, not of fault; as long as the rules of the game are not infringed, participants in any form of contact sport do not act unlawfully if they injure each other. The appropriate dogmatic tool to achieve this result is, however, in dispute; consent (volenti non fit iniuria), assumption of risk, application of special standards of behaviour (i.e. modification of the usual "alterum non laedere" precept for contact sport)? For details, see Reinhard Zimmcrmann, "Verletzungserfolg, Spielregeln und allgemeines Sporlrisiko", 1980 Versicherungsrecht 497 sqq. These special considerations are, however, justifiable for injuries inflicted only while the game (or fight) is in progress. For the time before (knocking up) and after (final whistle has been blown, towel has been thrown in) the normal rules apply, and any injury is (prima facie) unlawful. For Roman law cf, along similar lines, Ulp. D. 9, 2, 7, 4 (". . .

plane si ccdentem vulneraverii, erit Aquiliae locus").

93On the meaning of "de se queri debet" in this context, see Wollschlager, (1976) 93 ZSS

132sqq.; generally, cf. Mayer-Maly, festschrift Kaser, pp. 236 sqq.

94Aumann, op. cit., note 76, pp. 6 sq., 1 b; Wollschlager, (1976) 93 ZSS 115 sqq.; cf. also Schipani, Lex Aquilia, pp. 420 sqq.; contra, for example, Medicus, Id quod interest, pp. 322 sqq.; Luig, (1968) 2 Ins Commune 192 sqq.; Honsell/Mayer-Maly/Selb, p. 232.

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1014 The Law of Obligations

II. THE PROTECTION OF A FREEMAN'S BODILY INTEGRITY

1. Damage to property

We have been dealing in the previous pages with a range of issues in respect of which the original scope of the lex Aquilia came to be gradually extended. "Urere frangere rumpere" was superseded by the all-embracing term "corrumpere";95 remedies were granted in cases of indirect causation96 and even in situations where the substance of the object concerned was not at all affected;97 fault in the broadest sense of the word became a sufficient basis for liability;9" the injured party could recover his full quod interest;99 and the role of plaintiff was no longer confined to the owner of the object killed or damaged.100 All this had been achieved by Republican and classical jurisprudence. But by the end of classical law one further, very significant development had taken place. Essentially, the lex Aquilia was intended to deal with damage to property: slaves, grazing animals, res se moventes other than grazing animals, and inanimate objects,101 Damage to freemen was not covered by its provisions: "Liber homo . . . enim [Aquiliae] non habet [actionem], quoniam dominus membrorum suorum nemo videtur."102 If a slave lost his limb, his owner's property was damaged; but if the same thing happened to a freeman, nobody's property had been interfered with: the limb can hardly be said to "belong" to the person whose body it makes up. In the case of the lex Aquilia it was the erus (dominus) who was entitled to sue;103 and even if Aquilian protection was extended to certain non-owners,104 the fact remained that the lex drew a distinction between the object damaged and the person who could bring the action. But was this not a strange result? Generous protection was provided with regard to damage to property—but when it came to personal injuries we find only a somewhat patchy assortment of remedies: the actio iniuriarum dealt with situations that were typically characterized by the presence of dolus,105 and the

'J5 Supra, pp. 984 sq. 'J<> Supra, pp. 978 sqq. 97 Supra, pp. 986 sq.

9H Supra, pp. 10(15 sqq.; cf. also Ulp. D. 9, 2, 44 pr. ("In lege Aquilia et levissima culpa venit").

99 Supra, pp. 969 sqq., 973 sq.

1Ш Supra, pp. 994 sqq.

101Supra, pp. 965 sqq.. 976, 983 sqq.

102Ulp. D. 9, 2, 13 pr. ( a te xt, incide ntally, which is fre quently re fe rre d to in discussions

conce rnin g the question who o wns the bod y of a de ce ase d pe rson; this, in turn, is re le vant when a re quest is made to disse ct that body or to use it for transplant purposes. Cf. e. g. 1979

Neue Juristische Wochenschrift 570).

11)3 Cf. supra, p. 959, note 48.

104Supra, p. 995.

105Cf. infra, pp. 1059 sqq.

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actiones de effusis vel deiectis, de pauperie and de feris pertained to very special situations.106

2. Liberum corpus nullam recipit aestimationem

Nevertheless, for the Romans this result was much less disturbing than it appears to us. For what did the judge have to assess under chapters one and three of the lex Aquilia? Originally only either the full value of the object killed (chapter one) or the diminution in value that had occurred as a result of the injury (chapter three); and even at a time when the full interest had become recoverable, aestimatio corporis or aestimatio vulneris remained the starting point and cornerstone for its assessment.107 Under both chapters one and three, therefore, a specific pecuniary value had to be assigned to the object in question. Exactly this, however, was impossible as far as the body of a freeman was concerned. "fL]iberum corpus nullam recipit aestimationem"108 was the principle of Roman law: the value of a freeman's body cannot be expressed in pecuniary terms.

3. Injury to sons in power

But once one was prepared to go beyond the mere aestimatio corporis or vulneris in the case of slaves, there was no reason not to contemplate some form of compensation when, say, a filius familias was injured. It can hardly have been comprehensible to a Roman paterfamilias why he should be able to recover medical expenses as well as loss of earnings when a slave of his was injured, but not when it came to his son in power. The jurists did not find that comprehensible either, and thus

they started granting actiones legis Aquiliae utiles, where filii familias had been injured.104 Our main source110 is Iul./Ulp. D. 9, 2, 5, 3, the

famous case of the shoemaker's apprentice:

106 For details, see Wittmann, Korperverletzun^, pp. 62 sqq.; cf. also Lawson/Markesinis, p.

11.

1117 For details cf. supra, pp. 970, 972.

1(1H Gai. D. 9, 3, 7; cf. also Gai. D. 9, 1, 3; Ulp. D. 9, 3, 1, 5; Wittmann, Korperverletzung, pp. 66 sqq.; N.J.J. Olivier, Die aksie weens die nalatige veroorsaking van pyn en lyding (unpublished Dr. iur. thesis, Leiden, 1978), pp. 21 sqq.

1 ч All texts inferring that an actio utilis was granted in cases of damage to freemen have often been regarded as interpolated; cf., most recently, von Liibtow, Lex Aquilia, pp. 116 sqq. Cf. also Schulz, CRL, p. 591 ("It is . . . hardly credible that an actio utilis was ever granted in classical times when a free person had suffered injury") and many others.

"" But cf. also Ulp. D. 9, 2, 7, 4 (the wrestling, boxing and pancration case); our only source dealing with the applicability of the lex Aquilia where a freeman had been killed. It is very widely held, however, that the actio legis Aquiliae utilis was not available in classical Roman law in the case of death of freemen; cf. e.g. Thomas, TRL, p. 368; but cf. Robert Feenstra, "Die Glossatoren und die actio legis Aquiliae utilis bei Totung eines freien Menschen", in: Eltjo J.H. Schrage, Das romische Recht im Mittelalter (1987), pp. 205 sqq.; Bernhard Schebitz, Berechmmg des Ersatzes nach der Sex Aquilia (unpublished Dr. iur. thesis, Berlin, 1987), p. 100. As far as Byzantine law is concerned, see Stephan Brassloff, "Zur Lehre von den Rcchtsfolgen der schuldhaften Totung eincr Person im byzantinischen Recht", (1911) 25 Zeitsclirift fitr vergleichende Rechtswissenschaft 378 sqq.

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"[SJutor . . . puero discenti ingcnuo filio familias, parum bcnc facicnti quod demonstravcrit, forma calcei cervicem pcrcusserit, ut oculus puero perfunderetur."111

The shoemaker obviously became impatient because his apprentice (a freeborn youngster) did not grasp what he was being taught. He thus resorted to a somewhat rough and ready teaching tool: a last, with which he struck at the neck of the boy. As a result of this, something rather unforeseen and unfortunate happened: the boy's eye was knocked out."2 According to Julian, the actio iniuriarum did not lie "quia non faciendae iniuriae causa percusserit, sed monendi et docendi causa"; and whether the actio locati could be brought was rather doubtful.* I3 There was, however, no doubt in Julian's mind that Aquilian protection was available to the paterfamilias;114 and as far as the content of the claim was concerned, he referred to "quod minus ex operis filii sui propter vitiatum oculum sit habiturus, et impendia, quae pro curatione fecerit."115

4. T he liber hom o bona fide serviens

The actio legis Aquiliae utilis was granted in a second type of situation by the classical lawyers: where a freeman had been injured, who did not know about his status and served in good faith as someone else's slave (liber homo bona fide serviens). Ulpian must have referred to him when he said: "Liber homo suo nomine utilem Aquiliae habet actionem."'16 Extension of Aquilian protection to the injury of sons in power could still be explained on the basis that the position of the paterfamilias was not altogether dissimilar to that of the erus (dominus)

111 The same incident is discussed in Iul./Ulp. D. 19, 2, 13, 4 and on a parchment discovered in Egypt: cf (1957) 14 Papiri delta Societa Italians, n. 1449; Vincenzo Arangio-Ruiz, "Frammenti di Ulpiano, libro 32 ad edictum, in una pergamena di provenienza egiziana", (1957) 153 Archivio Giuridico Filippo Serafitii 140 sqq.; idem, "Di nuovo sul frammento di Ulpiano in PSI. 1449 R.", (1960) 2 RIDR 281 sqq.

"~ How was this possible? Can a stroke at the neck make an eye pop out? This is, indeed, what Arangio-Ruiz, (1960) 2 BIDR 292 (and before him Cuiacius and other humanists) maintained. Or did the stroke at the neck push the apprentice's head against an awl which he held in his hand at that particular moment (cf. Schulz, Ein0inm$, p. 56; Maycr-Maly, Locatio conductio, p. 187; Wittmann, Korperverletzuttg, p. 84). More recently, it has been argued that due to the specific shape of a Roman shoe-last, eye and neck may well have been hit with one and the same stroke: cf. Max Schubert, "Dcr Schlag des Schusters", (1975) 92 ZSS 267 sqq.

113 The question depended on how severely an instructor was allowed to punish his apprentices. Julian says: ". . . levis dumtaxat castigatio concessa est doccnti." For a discussion, see Maycr-Maly, Locatio conductio, pp. 186 sqq; Friedhelm Harting, Die "positive»

Vertragsverletztingeti"iti der neueren detitschen Privatrechtsgeschichte (unpublished Dr. iur. thesis,

Hamburg, 1967), pp. 29 sqq.

114"Sed legc Aquilia posse agi non dubito." The text is, however, corrupt, in so far as neither Julian nor Ulpian can have granted the actio directa (cf. Wittmann, Korpervertetzung, p. 89); but d. also Schebitz, op. cit., note 110, p. 91.

115Iul./Ulp. D. 9, 2, 7 pr.

116D. 9, 2, 13 pr.; Jors/Kunkel/Wengcr, p. 257; Wittmann, Korperverletzung, pp. 76 sqq.; Kaser, RPr I. p. 622; Olivier, op. cit., note 108, pp. 28 sqq.; Schebitz, op. cit., note 110, pp. 82 sqq.

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as contemplated by the lex Aquilia. In the case of Ulp. D. 9, 2, 13 pr. we are, however, for the first time dealing with a situation where the injured person was allowed to bring the action himself ("suo nomine"). This was another significant advance, justified, probably, on the ground that, since this person had so far been treated as a slave, it would have been inequitable to withhold the specific protection accorded to a slave from him.117 Of course, the liber homo bona fide serviens was not able to claim what his dominus would have been able to claim had he been his slave, particularly not his diminution in value; this was prevented by the principle of "liberum corpus nullam recepit aestimationem". Again, however, the action could be brought to recover medical expenses and the loss of earnings that resulted from his injury.

Was this breakthrough further exploited by the Roman lawyers, in that they made the actio utilis available in other cases of injuries to persons sui iuris? The Digest contains a certain number of texts where any reference to the status of the injured person is lacking: the cases concerning the theft of the shopkeeper's lantern,118 the dog who is made to bite "aliquem"119 and the fatal fall from the bridge120 belong to this category. But it may well have been taken for granted that the injured person was a slave, and any argument based merely on an occasional generalizing "quidam" or "aliquis", is far too tenuous. D. 9, 2, 13 pr., as it stands, would of course provide a much more solid basis, but it is virtually certain that the text was generalized by the compilers.121 They, rather than the classical lawyers, appear to have been responsible for taking the final step and extending the ambit of Aquilian protection to damage to freemen in general.122

III.THE USUS M ODERNUS LEGIS AQUIUAE

1.Introduction

"Tituli praesentis usus amplissimus est, cum omnium damnorum reparatio ex hoc petatur, si modo ulla alterius culpa doceri possit": this is how Samuel Stryk123 introduced his discussion of the usus modernus legis Aquiliae. Even in Roman law, the lex Aquilia had been extended, adapted and modernized in so many ways that a jurist from the time of

117Wittmann, Korperi>erietzun<>, p. 104.

118Alf. D. 9, 2, 52, 1; cf. supra, p. 1000.

119Ргос./Ulp. D. 9, 2, 11, 5; cf. supra, p. 980 (notes 189, 190).

120Ccls./Ulp. D. 9, 2, 7, 7; cf. supra, p. 980 (note 187).

121Cf. the authors mentioned supra, note 116.

122Cf. e.g. Wieacker, (1975) 92 ZSS 357; Kascr, RPr 11, p. 438; Schebitz, op. cit., note

110, pp. 79 sqq.; but cf. Brassloff, (1911) 25 Zeitschrift fur vergleichende Rechtswissenschaft, pp. 378 sqq.; Wittmann, Ko'rpervertetzimg, pp. 98 sqq.; undecided is Hausmaningcr, Lex

Aquilia, p. 32.

Usus modernus pandectamm. Lib. IX, Tit. I I, § 1.

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its enactment would hardly have recognized the late classical (or Justinianic124) delict of damnum culpa datum as specifically Aquilian; and any legal advice based merely on the wording of the lex would have been hopelessly inadequate. This process of extension, adaptation and modernization was carried on by courts and writers of the ius commune: almost imperceptibly at first, and with small and hesitating steps, but leading, eventually, to the far-ranging popular ("usus amplissimus")125 and comprehensive remedy described by Stryk. This transformation was, first and foremost, the work of legal practice.126 Very little of it can be gauged from the writings of glossators and commentators127 (nor, of course, from authors of the subsequent humanist school). Even many of the writers of the (Dutch and German) usus modernus were reluctant to deviate from Roman law. But by their time the transformation of the actio legis Aquiliae was so firmly entrenched in practice that further doctrinal resistance must have appeared rather futile. One by one the changes came to be accepted, or at least acknowledged: rather haltingly and not always very consistently, but in the end the "mores hodiernae" triumphed all along the line. Andjust as the Aquilian delict of the Corpus Juris Civilis was a far cry from the one contemplated by those who had, in the 3rd century B.C., set out to draft the lex Aquilia, so it had become manifest, by the end of the 17th century, that the modern law in action no longer reflected the Aquilian delict of the Corpus Juris. The famous enlightenment lawyer, Christian Thomasius, even argued that "actio nostra, qua utimur, ab actione legis Aquiliae magis differat, quam avis a quadrupede", and he thus decided to put an end to the kind of mummery that was going on. "Larva legis Aquiliae detracta actioni de damno dato"128 was the programmatic title of his polemical treatise: the Aquilian mask torn away from the action concerning damage done. What was the basis of his argument?

124 On the lex Aquilia in post-classical law and under Justinian, cf. the clear and instructive exposition in Inst. IV, 3; Giovanni Rotondi, "Teorie postclassichc sull' 'actio legis Aquiliae' ", in: Scrittigiuridici, vol. II (1922), pp. 411 sqq.; idem, "Dalla 'lex Aquilia' all'art 1151 Cod. Civ., in: Scritti, op. cit., pp. 468 sqq.; Levy, Obligationenrecht, pp. 335 sqq.; Schipani, Lex Aquilia, pp. 387 sqq., 439 sqq.; Kaser, RPr II, pp. 437 sqq.

12э Cf. also Molinaeus, Commentatius in Codicem, Lib. II, Tit. XXXV (Opera omnia, vol. HI (Parisiis, 1681), p. 625): ". . . in omnibus iudiciis nulla actio (est) frequentior ilia."

l~e For a comprehensive analysis of the usus modernus of the actio legis Aquiliae, cf. Kaufmann, Lex Aquilia, passim; cf. also Rotondi, Scritli, vol. II, pp. 501 sqq.; Going, pp. 509 sqq.; Thomas Kiefer, Die Aquilische Haftung im "AUgememen Landrecht fur die Preussischen Staaten" von 1794 (1989), pp. 58 sqq.; as far as France is concerned, cf Coing, pp. 506 sq.

127 Cf., in particular, Rudolf Konig, Das allgemeine Schadensersetzrecht im AUttelalwr im Anschluss an die lex Aquilia (unpublished Dr. iur. thesis, Frankfurt, 1954), passim; most recently, c(. Kiefer, op. cit,, note 126, pp. 29 sqq.; cf. also Charles Fried, "The Lex Aquilia as a Source of Law For Bartolus and Baldus", (1960) 4 American Journal of Legal History 142 sqq.; Harvey Chalmers, "The Concurrence of Criminal and Civil Actions in Medieval Law", (1973) 39 SDHI 385 sqq.

12K Ic appeared in 1703; I have used the edition Halae Magdeburgicae, 1750. The quotation ("actio nostra . . .") is taken from § I of this treatise.

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2. The assessment clauses and litiscrescence

One of the peculiar features of the Roman lex Aquilia that never appears to have been received in Europe was the retrospective (or prospective) assessment of the value of the object killed or damaged, as required by the "quanti in eo anno plurimi fuit" and "quanti ea res erit in diebus triginta proximis" clauses of chapters one and three respectively.129 While legal writers tried to puzzle out the reasons for these strange provisions,130 the courts simply assessed the plaintiff's interest "secundum statum praesentem in quo (res) fuit tempore damni dati".131 Johann Sichard and Johannes Brunnemann still opposed this deviation from the Roman sources,132 but a mere generation later it was more or less universally accepted. Stryk, Brunnemann's son-in-law, reported " . . . quod usum fori attinet, communiter . . . approbata est [haec] sententia", and he justified it on the basis that in that respect the old Germanic customary law had not been superseded by the Roman rule "recepto jure romano, pristinae Germanorum consuetudines non penitus sublatae".133

The rule of lis infitiando crescit in duplum134 proved somewhat more long-lived. Although it was tied up with certain niceties of Roman civil procedure, it had still become part of the ius commune as a convenient means of preventing parties to a lawsuit from lying: *'. . . jus civile in judicia hoc casu reducendum est, quo coercerentur eo melius publica ilia injudicio prolata mendacia", as the matter was put by Stryk.135 But by his time the tide had turned in practice136 and Stryk himself acknowledged that "usu fori hoc duplum cessare plerique censent". In the course of the 18th century, this opinion came to prevail in legal literature, too.137

3. The penal nature of the remedy

As a result of the odd assessment clauses, it could happen that the award in Roman times went far beyond the plaintiff's interest. It was this surplus which in Justinian's view contributed the penal element inherent in the sctio legis Aquiliae.138 Apart from that, only

129Cf. supra, pp. 961 sqq.

130Cf., for example, Konig, op. cit., note 127, p. 38.

131 Cf. Kaufmann, Lex Aquilia, pp. 85 sq.; the quotation is taken from Stryk, Usus modemus pandectarum, Lib. IX, Tit. II, § 2.

132Cf. Kaufmann, Lex Aquilia, p, 86.

133Usus modemus pandectarum, Lib. IX, Tit. II, §§ 2 sq.; cf. also Struve, Syntagma, Exerc. XIV, Lib. IX, Tit. II, XXV; Lauterbach, Collegium theoretico-practicum, Lib. IX, Tit. II,

XXIV.

134Cf. supra, p. 974.

135Vsus modemus pandectarum, Lib. IX, Tit. II, § 20.

136Kaufmann, Lex Aquilia, p. 88,

137Gliick, vol. 10, p. 385. For the 19th century, cf. Windscheid/Kipp, §§ 263, 455, 5 in

fine.

138Inst. IV, 3, 9; cf. supra, pp. 974 sq.

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litiscrescence could possibly (if somewhat vaguely) be taken to constitute a non-compensatory component of the remedy, justifying its classification as actio mixta.139 Once it had lost these two features, the Aquilian action was bound to change its character. This was widely recognized by the authors of the (later) usus modernus, "Actio legis Aquiliae hodie non poenalis est, sed rei persecutoria" was the principle enunciated by Groenewegen,140 and it was approved of even by some of those who continued to apply infitiando lis crescit in duplum:'41 ".

. . per accidens fit mixta [sc: non sua natura]", as was explained by Lauterbach.

4. Cumulative liability

As in a game of dominoes, this change of character entailed further consequences. Where several persons had caused the damage, the injured party was able, in Roman law, to claim the full amount from all of them.142 This form of cumulative liability was squarely based upon the penal nature of the lex Aquilia. Once it had become a purely reipersecutory remedy, however, cumulation could no longer be rationalized.143 "Nam quae ab Ulpiano subjicitur ratio . . . hodie falsa est",144 and the consequence was: liability of the several delinquents in solidum, but if one of them paid, all the others were released from their obligation (". . . quia actio tendit tantum ad reparationem damni, hoc ab uno ex illis refuso, liberantur reliqui, cum nihil amplius intersit"145).

5.Passive intransmissibility

(a)Canonist doctrine

Another domino was bound to fall sooner or later: the Roman rule that the Aquilian action was passively intransmissible.146 Unless legal proceedings against the wrongdoer had already reached the stage of litis contestatio (in which case the wrongdoer's death no longer affected the

139Gai. IV, 9; cf. supra, p. 970.

140De legibus abrogatis, Inst., Lib. IV, Tit. Ill, § 15. For further details on the development, see Tobias Johannes Scott, Die Geskiedetiis van die Oorerfiikheid van Aksies op grond van Onregmatige Daad in die Suid-Afrikaanse Reg (unpublished Dr. iur. thesis, Leiden, 1976), pp. 48 sqq., 154 sqq.

141 Cf. e.g. Stryk, Usus modernus pandectarum. Lib. IX, Tit. II, §§ 4, 21; Lauterbach,

Collegium theoretico-practimtn. Lib. IX, Tit. II, XXIV.

142Cf. supra, pp. 916, 973.

143The medieval lawyers (who still regarded the actio legis Aquiliae as both reipersecutoria and poenalis) had confined the cumulation to the amount by which the award exceeded che plaintiff's interessc, i.e. the duplum (in the case of litiscrescence) or any surplus on account of the assessment clauses: cf. Konig, op. cit., note 127, pp. 46 sq.; Lange.

Schddensersatz und Privatstrafe, pp. 135 sq., 138.

144Stryk, Usus modernus pandectarum. Lib. IX, Tit. II, § 21.

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