CASE 142: Wrongs against Children-in-Powerstyle='font-weight:bold'>
D. 47.10.30.1 (Ulpianus libro quadragensimo secundo ad Sabinum)
Si filio iniuria facta sit, cum utrique tam filio quam patri adquisita actio sit, non eadem utique facienda aestimatio est,
D.
47.10.31 (Paulus libro decimo ad Sabinum)cum possit propter filii dignitatem maior ipsi quam patri iniuria facta esse.
(Ulpian in the forty-second book on Sabinus)
If an affront is inflicted on a son, although both father and son are allowed to bring suit, the estimate of damages should not be precisely the same,
(Paul in the tenth book on Sabinus)
since it is possible that because of the son’s social position a greater affront was inflicted on him than on his father.
1. Wrongs Done to Sons. How does a man suffer affront (iniuria) when his son is insulted? Does the rule in this Case apply to daughters or wives as well? See Case 44 (yes). As Gaius notes, an affront to a woman might result in three lawsuits: her own, her paters, and her husbands. In Ulpian's view, a man could also sue on an affront inflicted through his betrothed bride-to-be (Case 27). What justifies this proliferation of lawsuits from a single act? Note that an insult to a pater familias is not normally an insult to his wife and children as well (Justinian, Inst. 4.4.2; for an exceptional case, see Ulpian, D. 47.10.1.6-7). Why is this so? Paul (D. 47.10.2) says, with regard to wives, that “it is right that wives be defended by their husbands, not husbands by their wives.” Pure sexism?
2. Assessing Damages.
Where multiple lawsuits were brought on the basis of a single act, this Case indicates that damages were assessed independently in each, depending on the relative social position of each plaintiff. Although this Case indicates that a son might occasionally have higher social position than his father (what sort of a situation would result in this?), the reverse would be more usual.3. Intent. The offender must have dolus, that is, he must intend to affront his victim. Are Ulpian and Paul assuming that the offender was intentionally seeking to affront the son's pater? What if the offender didn't know the son was in another persons power? What if he was mistaken about whose power the son was in? See Paul, D. 47.10.18.3-5.