Lex Aquilia Research Articles

The politics of the lex Aquilia

Summary Centuries of interpretation by sophisticated Roman jurists developed a comprehensive and nuanced law of damage to personal property, based on the republican lex Aquilia. This lex originated from a plebiscite and the plebeians must have pursued a comprehensible political purpose. That purpose is to be found in the ‘access to justice’ problem inherent in the legis actio per sacramentum procedure, which hindered cash-poor plebeians from engaging in adversarial trials. This grievance became pressing in the aftermath of the last secessio plebis (ca. 287 BCE) when vast amounts of property damage and destruction awaited judicial redress. For the most heinous deeds, the killing of slaves and cattle, a manus iniectio procedure was instituted that incentivised uncontested payment of reparations based on a confessio in iure. In the context of this reform, other elements of the lex Aquilia can be reconsidered, inter alia the reliance on a price from the preceding year and the mysterious Chapter II.

Servus non in omnibus rebus sine poena domino dicto audiens esse solet… (Glosa do Alfeni lib. secundo digestorum, D. 44.7.20)

<p>In the text the author analyzes the excerpt of the work of late republican lawyer Alfenus Varus on the responsibility of slaves for the actions taken on the owner’s order. Text of Alfenus is preserved in D. 44.7.20. Its interpretation indicates that the discussed question was the private liability on the ground of <em>lex Aquilia de damno</em> and the perpetrator was manumitted after committing the wrongful act. The rule quoted by Alfenus, that the manumitted slaves should not be released from responsibility for the actions taken on the order of their masters, could refer to liability on the ground of the private and public law.</p>

Professional Liability and Forensic Science in the Context of the Lex Aquilia

ABSTRACTThis article examines the emergence of professional liability and forensic science in the context of the Lex Aquilia. The interpretations of jurists, found in the sections of the Digest discussing the Lex Aquilia, subjected professionals to a higher standard of responsibility and liability, both in the context of locatio-conductio contracts and outside of it. At the same time, the Roman legal system increased its reliance on professionals for determining factual issues in legal disputes. The examples of public physicians, who were dispatched to examine suspicious acts of violence; midwives, who were appointed by the court to determine contested paternity or maternity; and land-surveyors, who presided over boundary disputes, are amongst the most common. This article examines the inter-relation between legislation originating in the Lex Aquilia and the emergence of professional liability on the one hand, and the evolution of forensic science on the other hand.

The History of Foreseeability

Abstract The factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Interrogation of the foreseeability principle in its original setting shows, however, that its role there was rather circumscribed. Derived perhaps from the account of wrongdoing offered by Aristotle, for whom the fact that harm had occurred contrary to expectation (paralogos) served to demonstrate that it had been unintentionally inflicted, in the context of Roman culpa foreseeability functioned as a technique for determining the avoidability of the harm—essentially a causal inquiry. This historical insight serves to illuminate the limits of foreseeability in the context of the modern test for duty of care. As a principle which generates liability, it may be that reasonable foreseeability cannot bear the normative weight assigned to it. Thus the history of foreseeability furnishes the material for a further critique of the duty concept, adding an historical dimension to contemporary calls to abandon the factual component of the duty of care entirely.

Die aestimatio damni der Lex Aquilia nach dem Verständnis der Juristen des Usus Modernus Pandectarum

Abstract The aestimatio damni under the lex Aquilia in Early Modern German Jurisprudence. Early-Modern German jurisprudence thus interpreted the estimation clauses of the lex Aquilia, that it was the damaged object which had to be valued, not the plaintiff's loss (unless his damage exceeded the thing's value). Thus derives from the way killed and injured lifestock were cal-culated.

Residual value and assessement of damages under the lex Aquilia

Summary Nowadays it is generally held, that the owner who brought an actio legis Aquiliae usually claimed no more than his loss, perhaps already in Ulpian’s time, for certain in Justinian’s. For the sum of condemnation based upon the estimation-clauses of the lex Aquilia would only then exceed his damages, if either the injured object’s value had decreased in the last year or 30 days (Inst. 4,3,9) or the wrongdoer had denied having caused the damage (C. 3,35,4). There is, however, a third reason, which the Roman texts fail to mention: a possible residual value of killed lifestock, wounded slaves, and damaged objects, which benefitted the owner. Only a few later jurists took this into account: in medieval times Jacques de Révigny and Pierre Jacobi, Johann Oldendorp in the Early Modern era. The notion prevailed that the lex Aquilia obliged to pay at least the object’s full value.

Akvilijev zakon u srpskovizantijskim kompilacijama

The author, studying the reception of Roman law in medieval Serbia, examines the case of famous lex Aquilia. First, Roman legal sources were analysed, then their transformation through Byzantine law and finally their reception in the Serbian medieval law. Lex Aquilia and its interpretation by Roman iurists is present in the medieval Serbian law in the very modest way. It is reduced down to only two or three fragments respectively, from the Justinian's Codex and the Digest title 9.2. Ad legem Aquiliam. The fragments are concerned with the cases of damage caused by killing pecora C.3.35.5 and by burning - urere: D.9.2.30.3 (Paulus libro 22 ad edictum), D.9.2.49.1 (Ulpianus libro nono disputationum). The above mentioned fragments first found their place in the Byzantine compilations (Ekloga, Proheiros Nomos, and the Syntagm of Matthew Blastares). Then they became part of the Serbo-Byzantine compilations: the Nomocanon of Saint Sava (ca. 1219), chapter 55 called City-statute (translation of Proheiros Nomos), the Syntagm of Matthew Blastares (14. century) translated into Serbo-Slavonic language (E-7). The abridged version of the Syntagm of Matthew Blastares (E-4) was made in medieval Serbia by reducing ecclesiastical law and preserving civil and criminal provisions. The compilation entitled Constantine Justinian's Law is based mainly on the Syntagm of Matthew Blastares. The way of reception shows decay and vulgarisation of the Justinianic tradition. For example, above mentioned texts were associated with criminal law and merged with the fragments from the Digest' book 47, title 9 (De incendio ruina naufragio rate nave expugnata), and the cases of incendium - D.47.9.9 Gaius libro quarto ad legem duodecim tabularum, D.47.9.11 Marcianus libro 14 institutionum. The fragments of Roman iurists were abridged by dropping out all teorethical issues. Only pure casuistry is preserved.

To isolate the law: the activity of the jurist in Digest 9.2.27.12 and Digest 45.3.18.2

ABSTRACTWhat use does the jurist have for rules and principles? What relation does he or she have to the articulation of facts? This paper considers the position of facts and rules in the casuistry of the Roman jurists. Two textual analyses of the Digest of Justinian are presented: a reading of Digest 9.2.27.12 (a statement by Ulpian on the application of the lex Aquilia to the situation of the burning of some bees) and Digest 45.3.18.2 (a consideration by Papinian of a difficult case concerning the fate of a contract made by a slave while his owner was in captivity). The paper argues that these fragments reveal the craft of the jurist in unexpected ways. What at first appears as the awkwardness of expression in them turns out to disclose a remarkable lucidity. Framed through a reading of the work of Yan Thomas, these fragments provide two nodal points for unveiling the nature of an art that does not ask what law is but seeks to isolate it in its cases.

Treatment of Damages and Remuneration Practice in Compulsory Insurance Contract in Transport Sector

Due to the dangerous nature of having and using motor vehicles, due to the frequency and intensity of damages caused by them, considered as source of danger, taking account the need to protect the interests of the thirds frequently threatened by road accidents, regarding the value, procedures and the reasonable necessary time to indemnify them, and in order not to impede the free movement of people and goods unreasonably because of road accidents, the legislator has approved a special legislation for insurance of civil responsibility of holders of motor vehicles towards the thirds. One of the fundamental principles of cohabitation in human society is the prevention to cause damage to someone else (alterum non laedere ose neminem laedere). Its application is provided in Civil Code, and especially in the provisions on civil extra-contractual damages, provided by articles 608 and its followings. Basing on this responsibility, known as “akuilian responsibility” (lex Aquilia de damno), “each one who violates the legal rights and interests of another one, has to indemnify him. Through indemnity it is exactly aimed to establish the injured one back (restitutio in integrum) to his previous situation (status quo ante), where he would be if the illegitimate fact did not happen. The unifying Sentence of United Colleges of Supreme Court of 12.09.2007, gave to the non-pecuniary damage category a new dimension, placing along with the moral damage part (non pecuniary nature of which is already consolidated) the existential damage part as well and the biological damage too. In function of security guarantee, of stability and uniformity of trial, to determine the grade of health harm and the respective extent of indemnity, in principle, the courts and experts refer to the table technical requirements, provided for this purpose, or for similar situations, in normative acts. The purpose of this paperwork is analyzing and treatment of damages coming from insurance contract of compulsory insurance in transport sector, the profiting subjects and the subjects obliged by law and the way of indemnification and the calculation of any damage caused because of an illicit fact. DOI: 10.5901/ajis.2015.v4n2s2p72

V. Dormiens comparatur furioso: Les origines canoniques de l’irresponsabilité pénale du dormeur

Article V. Dormiens comparatur furioso: Les origines canoniques de l’irresponsabilité pénale du dormeur was published on August 1, 2014 in the journal Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung (volume 100, issue 1).

Noxa caput sequitur

Generally it is assumed that caput in the phrase noxa caput sequitur refers to the delinquent slave or filius familias. The liability for the delict is attached to his person. It is argued, however, that caput refers to the pater familias of the delinquent. The Twelve Tables contained a rule on their direct and personal liability (with surrender to the autorities). The introduction of the edicts on furtum and the lex Aquilia, with the direct and exclusive liability of the pater familias for the wrongdoings of those, subjected to his potestas, led to a correction: the pater could now refuse to defend them and surrender them to the authorities, or engage in the process, with afterwards still the possibility to surrender, now to the plaintiff. The phrase as such refers then to the inclusion of the decemviral rule on liability of persons subjected to patria potestas, into the formulas for the delicts.

MEDICAL NEGLIGENCE IN ANCIENT LEGAL CODES

In Roman Law the Lex Aquilia provided a regulation relating to loss or damage. The first chapter specified punishment for the killing of another’s slaves and four-footed animals used in an agricultural community – animals that could collectively be referred to as “livestock”. The third chapter covered all cases of loss caused by burning, breaking or destroying property (usserit, frangerit, rumperit). This article discusses the interpretation of the Lex Aquilia by Roman jurists with special reference to texts dealing with liability in terms of negligent medical treatment in comparison with similar texts from the ancient Mesopotamian legal codes.

The slave who was slain twice: causality and the lex Aquilia (Iulian. 86 dig. D. 9,2,51)

AbstractD. 9,2,51, in which a slave is slain twice and dies, and where Julian considers both assailants equally liable for killing, has been interpreted in the context of causa superveniens. In that case Julian's opinion becomes contradictory. It is argued that the text should be read in the context of the Stoic theories on causality as current among the jurists in the first centuries AD. In these theories there existed no causa superveniens as of the modern causality theory. As such its application is ill at place here. Instead, in applying these Stoic theories Julian's view can be explained as his attributing a causa antecedens to the first assailant, with full imputation of the effect of the subsequent causa principalis to him, and attributing a causa adiuvans to the second assailant, while valuing at the same time the latter not just as a reinforcing cause but also as a causa mortis and a full effective cause. For other jurists the latter evidently went too far.

The delictual origin, penal nature and reipersecutory object of the actio damni iniuriae legis Aquiliae

AbstractIt is commonly assumed that the litis aestimatio of the actio legis Aquiliae was a penalty which, in practice, was set at the loss suffered by the victim of the wrong and therefore functioned as compensation. This assumption is based on the nature of the action as founding in a delict and characterised by the Romans as a penal action. It also shares the elements of penal actions. But this is at odds with other texts which treat the action as directed purely at compensation. It is suggested that in order to understand this we have to distinguish between the origin of the penal actions, which is penal and which carries certain common features such as the fundamental impossibility to sue heirs or descendants of the wrongdoer, and their purpose or object. It is possible to distinguish two groups, one aiming at a penalty, the other aiming at compensation. Only in the latter group the action can be exercised against the heir of the wrongdoer and only restrictedly: it is the compensatory aim which allows for this. Further, the lex Aquilia and its chapters are examined whether a compensatory purpose is distinguishable here as well.

La Actio Legis Aquiliae: concepto, características y desarollo decretal posterior. Lecturas desde el capítulo tercero

The article consists of two clearly distinct but interrelated parts. The first one analyzes the concept and main features of the action of lex Aquilia, stressing the criminal nature of it and the interpretations derived from the different thesis ofthe third chapter. The second part explores the develop ment of the legal action by means of decrees, through the in factum and useful actions, to review in detail the civil law concept that the Roman doctrine maintains of its, without looking into those cases in which the legal action developed.

Assumption of medical risks and the problem of medical liability in the ancient Roman law

The claim of an individual to assure his health and life, to assume and compensate the damage from diseases and accidents, had already appeared in the system of the ancient Roman law in the form of many singular legal institutions. In lack of a unified archetype of regulation, we have to analyse the damages caused in the health or corporal integrity of different personal groups: we have to mention the legal interpretation of the diseases or injuries suffered by serves, people under manus or patria potestas and free Roman citizens. The fragments from the Digest od Justinian do not only demonstrate concrete legal problems, but they can serve as a starting point for further theoretical analyses. For example: if death is the consequence of a medical failure, does the doctor have any kind of liability? Was after-care part of the healing process according to the Roman law? Examining these questions, we should not forget to talk about the complex liability system of the Roman law, the compensation of the damages caused in a contractual or delictual context and about the lex Aquilia. Although these conclusions have no direct relation with the present legal regulation of risk assumption, we have to see that analysing the examples of the Roman law can be useful for developing our view of a certain theoretical problem, like that of the modern liability concept in medicine as well.

The limits of culpa levissima

AbstractIn D. 9,2,44pr., Ulpian states that, under the lex Aquilia, even the slightest fault (levissima culpa) counts. Since the time of the glossators, this phrase has been regarded as a general rule. Only one Romanist, MacCormack, has interpreted the phrase in a narrow sense: in his view, culpa levissima only referred to the case of scientia domini mentioned in section 1 of Ulpian's text. Later, Gimenez-Candela has argued that scientia domini led to direct liability only in case of damnum iniuria datum. The author aims to prove that culpa levissima only referred to scientia domini but that, on the other hand, scientia domini led to direct liability in all delicts.

The Limits of Culpa Levissima

In D. 9.2.44 pr., Ulpian states that under the lex Aquilia even the slightest fault (levissima culpa) counts. Since the time of the glossators, this phrase has been regarded as a general rule. Recently, one Romanist has limited its purport: in his view, culpa levissima only referred to the case of scientia domini mentioned in section 1 of Ulpian's text. Another Romanist has argued that scientia domini led to direct liability only in case of damnum iniuria datum. The author aims to prove that culpa levissima only referred to scientia domini but that, on the other hand, scientia domini led to direct liability in all delicts.

Law Out of Context

Law is out of context much of the time, even perhaps most of the time. A society makes law: the society changes, politically or economically, hut the law remains the same or little changed. Often this has astonishing consequences. This paper takes a number of striking examples that have been generally unremarked or underemphasised to indicate some of the dimensions of the problem of the relationship between law and society. Justinian's Digest and Institutes provide numerous instances, while classical Roman jurists never present law as it was in reality and Roman rhetoricians present legal arguments without law. Modern South African cases on delict often proceed on arguments drawn from the Roman lex Aquilia of 287 BC, though it is accepted on all sides that the basic principles of that law had been rejected very much earlier. German law professors in the nineteenth century present German law for a modernised industrial state on the basis of an interpretation of misinterpreted Roman law. Today's American law professors present American law as it never was, is not, and never will be. What is startling about these arguments and conclusions is that the legislators, judges, legal writers and law professors had, and have, no intention to deceive or mislead.

“Occidere” and the Lex Aquilia

This paper is concerned with the way in which the verb occidere was treated in the Lex Aquilia and with the explanation for this.Professor Dieter Nörr appears to have offered the most recent explanation of the narrow scope given to the verb in the first chapter of the statute. He makes two points. First, he traces the distinction between direct killing (occidere) and indirectly causing death (mortis causam praestare or praebere) to early Greek law and speculates that this distinction was transmitted into Roman law through the Greek schools of rhetoric. Secondly, he suggests that the Lex Cornelia de sicarüs et veneficis included the phrase mortis causam praestare. If true, this second point would show how firmly the distinction had become established. The phrase would also have provided an obvious parallel for the jurists when engaged in interpreting the Lex Aquilia.