Existing interpretations

The facts stated in the text are quickly summarised. A slave who had falsified his owner’s accounts was killed just when his owner was intend­ing to have him tortured to uncover the names of his accomplices.

Parts of the text are unsatisfactory. Beseler^[15] rightly sees that the opening words (‘sed et si’) are an inappropriate link with the preceding sentence - presumably a sign that material has been cut out. The most glaring defect perhaps is that ‘servi’ and ‘per eum conunissas’ cannot both have occurred side by side in the original. Mommsen^[16] deletes ‘servi’ while Lenel^[17] removes ‘per eum conunissas’. Subject to what is said below,^[18] for our purposes it does not particularly matter which solution is adopted, since the point being made in the text would remain the same: the measure of value is related to detecting the frauds of the slave who has been killed. The last clause beginning ‘non quanti’ is generally regarded as very obscure. Beseler¹⁰ and others delete it. In the final section of this chapter I hope to show that it is substantially genuine, but for the moment we can concentrate on the previous clause, which gives us the measure of damages which Labeo adopted.

The facts of the problem as set out in the text refer to the plaintiff’s intention to torture the slave in order to discover the identity of his accomplices.

Beseler eventually concluded that the discussion in the text is probably almost completely spurious, since, by including an element of value peculiar to the plaintiff, it did not conform to his theory that under chapter 1 a plaintiff could recover only the highest value which the slave would have had for any owner in the last year.¹³ Beseler’s general thesis has not found favour, and his radical approach to this text has not been followed.¹⁴ Instead, later writers have rightly pointed out that the text gives us at best a truncated version of the original discussion in which the differing views of various jurists would have been canvassed. Perhaps because he feels that the opinion attributed to Labeo would have been too radical for a jurist of his time, Medicus¹⁵ suggests that in the original text he may have held the opposite opinion. Even although such false attri­butions are known to occur, there seems little reason to follow the approach of Medicus.

The underlying reason why modem scholars are uneasy with the text is that the plaintiff’s claim for damages appears to run up against a diffi­culty which has puzzled lawyers since the time of the glossators.

¹¹       H. Ankum, ‘L’Actio de pauperie et V actio legis Aquiliae dans le droit remain classique’, in

Studi in onore di Cesare Sanfilippo, vol. II (Milan, 1982), 11, 49 n. 82.

¹²       Id Quod Interest, 241 n. 36.           ¹³ 50 Z.S.S. 27.

¹⁴        See, for example, Th. J. Gerke, ‘Geschichtliche Entwicklung der Bemessung der An­sprüche aus der “Lex Aquilia”’ (1957) 23 S.D.H.I. 61.

¹⁵        Id Quod Interest, 242.

names of his accomplices. He would then, it is assumed, have sued the accomplices or, if they too were slaves, their owners in some kind of action to recover what he had lost because of their fraud. So in the Aquilian action he would sue for a sum representing what he might have been able to recover in those actions. Now even if you approach the problem in this way and even if you assume that the plaintiff knows the sum which he lost through the fraud, his claim seems to face an insuper­able objection. In order to demonstrate his loss from the death of his slave, the plaintiff would have to show what names the torture would have revealed and so what actions he would have brought and what damages he would have won. But if he could prove this in an Aquilian action, then equally he could prove the same matters in proceedings against the accomplices or their owners, and so he should still be able to sue them for the frauds in spite of his slave being killed. On that basis he has lost nothing, and should be able to recover nothing, under this head.

This insoluble riddle confronts any scholar who maintains that Labeo favoured awarding damages to the plaintiff on the basis of his lost opportunity to sue the accomplices. But Beseler,¹⁶ who realises that the text does not actually say this, states the position accurately when he says that the ‘problem posed’ in the text (Problemstellung) contains what he regards as a vicious circle. He rightly does not suggest that the vicious circle is found in Labeo’s answer. What Labeo’s answer actually says is that Labeo measured the plaintiffs recovery by reference to what it was worth to him to have the slave’s frauds detected. That is to say, Labeo looked to the discovery of the frauds of the dead slave and not to any discoveries about the accomplices. Moreover, despite what Medicus and the others say, Labeo does not even mention the sum of which the plaintiff has been defrauded. His reasoning is quite different. Of course, Beseler thinks the reasoning is nonsense, but this does not matter for now. The important thing is that it is the problem and not Labeo’s answer which seems to give rise to the logical impasse. As we shall see in due course, Labeo’s answer is really directed at a slightly different point.

It is none the less useful to look more closely at the route by which modem scholars try to escape from their self-imposed logical dilemma. We may take Medicus’ treatment as typical since it has found favour with subsequent writers. Medicus says^[19] - perhaps correctly, perhaps incorrec­tly - that we can assume that the plaintiff knew how much he had lost through the frauds. What he did not know was the identity of his slave’s accomplices. Had he been able to find this out, the argument runs, he

¹⁶ 50 Z.S.S.

would have been able to sue the accomplices and recover his loss - in an actio furti according to Wolff,^[20] in an actio doli according to Ankum.^[21] Of course, for various reasons the plaintiff might not have discovered any accomplices. For instance, the slave might not have spoken up under torture - older writers get round this difficulty by saying that in the light of experience with torture the jurist assumed that the slave would not have been able to withstand the pain of the rack.^[22] Even if the slave had named an accomplice, the accomplice might have been another of the slaves of the plaintiff himself or he might not have been worth suing. One can easily devise circumstances in which the plaintiff would have lost nothing under this head through the death of his slave. But, says Medicus, Labeo or Ulpian argued that the defendant should not be able to take advantage of any difficulty which such arguments posed for the plaintiff in establishing his loss, precisely because that very difficulty was caused by the defendant’s wrongful act. So, on this view, the jurist allows the plaintiff to recover his loss from the frauds even though he cannot actually prove that by killing the slave the defendant deprived him of any real prospect of recovering that loss from anyone else.

Not surprisingly, perhaps, Ankum^[23] characterises this supposed approach of Labeo as ‘audacious’. At all events it is difficult to accept, not least because, as we have seen, it does not fit at all with the wording of the text, especially on the measure of recovery. But in substance also this interpretation is very problematic. Its proponents are really saying that Labeo swept aside the usual requirements and allowed the plaintiff to recover a loss which he could not prove. Of course, as a legal innovator^[24] Labeo might have suspended all the usual rules, but there is no sign of anything similar in other damages texts.