Information about accomplices
When we say that under chapter 1 the plaintiff is entitled to recover the highest value of his slave in the last year,[30] we mean that in practice in an action a plaintiff will try to establish what the highest value of his slave was during that time.
When he does this, as is shown by the example of the artist whose thumb had been cut off, the plaintiff will not necessarily be saying that he lost all of that highest value. So in this respect he will not be trying to establish his ‘loss’ in the same way as a plaintiff would in a modern system. Once he has established the highest value, the plaintiff can point to the terms of chapter 1 and say that he should be awarded that amount - plus any loss which he has suffered through his slave being killed. He will, moreover, resist any suggestion that he should recover less than the slave’s highest value, simply because he has actually lost rather less.We saw above that 23.4 deals with the highest value of the slave. It follows that it concerns an owner who would have been trying to establish his highest value in the last year; he would not have been trying to establish what he had lost through his slave being killed. The owner would therefore have argued that immediately before his death the slave was particularly valuable to him, because under torture he would have revealed the name of his accomplices and the owner could have obtained some recompense from them. Put shortly, the plaintiff was arguing that the value of the slave was increased because of certain knowledge which he had.
In one way the owner was on strong ground: just before the slave was killed, his owner would indeed have thought that his value was increased because of this factor and might well have acted on that assumption.
So, for instance, if someone had offered to buy the slave for the going rate in the market, his owner would presumably have refused to sell him, on the basis that he wanted to discover who had been his accomplices in the fraud. If the slave had lived long enough to be tortured, then the owner’s belief that he was more valuable on this account might well have been proved correct. But in fact, precisely because he was killed, with the benefit of hindsight we can see that the owner was wrong. The slave was worth nothing more to his owner on account of any knowledge which he had about his accomplices, since he took that knowledge with him to the grave without revealing it.The importance of the distinction can be seen if we change the facts of the case a little. Suppose that the slave had indeed been tortured and had revealed accomplices from whom his owner had then got back some of the proceeds of the fraud. Within the next twelve months the slave is killed and his owner brings an action under chapter 1. In this case also the plaintiff would have argued that during the last year the highest value of his slave included the value of his knowledge of his accomplices. But on these facts the plaintiff could establish that this knowledge had actually made the slave more valuable to him at one stage by pointing to the sum which he received from the accomplices as a result of torturing the slave. If we think only in terms of the highest value of the slave, then it seems that in this example the plaintiff would have succeeded in his claim. The difference between the cases is that in this example the slave was indeed more valuable to the plaintiff because of his knowledge, whereas in h.t. 23.4, although his owner could not see this at the time, the slave was not in fact more valuable, because he was going to be killed before anyone could find out what he knew. In assessing the slave’s highest value, the judge looks back, perhaps from the time of his decision, but at least from the moment when the slave has been killed, and uses hindsight to determine what the value of the slave was at any particular period, in the light of events which have occurred since that time. This is what Ulpian means when he tells us of the slave in 23.2 that ‘retrorsum quanti plurimi fuit inspicitur’.[31]
This second example is also useful in highlighting the difference between an approach based on the highest value of the slave in the last year and our modern concept of damages as compensation for loss.
We have difficulty in accepting that under the lex Aquilia the slave’s owner could claim a sum which includes money which he has already obtained from the slave’s accomplices. Yet if you once concede that the slave’s value can include his value as a source of information, the rest follows: that will be the slave’s highest value and the plaintiff can claim that value under chapter 1. To avoid that result, you would need to invoke a further principle, viz. that the plaintiff must make allowances for any element in the value which he has not actually lost. In other words you would have to adopt an approach which had moved away from concentrating on the highest value of the slave to the plaintiff and towards focusing on what loss the plaintiff had suffered as a result of the death of the slave.But the two approaches are very different and, while the jurists may have moved towards an actual assessment of loss, that development appears to have been a slow and uneven process, especially in chapter 1 cases.[32] It has often been pointed out[33] that there is no general statement in the sources that the highest value was to be reduced; and the general view among scholars is that no reductions were made under chapter 1,[34] In other words once the judge determined what the highest value to the particular plaintiff was, that sum should be awarded. Indeed we know from Gaius and elsewhere that from time to time a plaintiff would receive more than he had actually lost.[35] Awarding the plaintiff an amount which included the value of sums which he had already recovered would simply be a more extreme example of the anomalies which could arise. The anomalies are perhaps more disturbing to us today than they would have been to Roman jurists, for whom the penal element in delictual actions was not at all strange.
If we now go back to h.t.
23.4, we are in a better position to appreciate the kind of discussion which would have occurred at this point. It seems likely that Ulpian would have mentioned a case similar to that of the slave who had been killed after he had revealed the names of his accomplices. Ulpian may well have reported the views of jurists who thought that in such circumstances the plaintiff was entitled to claim a value for his slave which included the value of the information given by the slave even though this might mean that the plaintiff was over-compensated. Equally there may have been others who felt that by their time the notion of interesse had developed to such an extent that the plaintiff should not be allowed to claim the value of the knowledge if indeed he had actually lost less than that sum. As a refinement on that case Ulpian would have introduced the problem which is narrated in 23.4, where the slave is killed before he can be tortured. Here again the plaintiff would have argued that the highest value of the slave included something for the value of his knowledge. The defendant would presumably have replied that on these facts he should not have to pay anything for this element. Again there may have been discussion among the jurists about what the correct approach should be, but it seems likely that the predominant view would have been against the plaintiff. Looking at the matter in retrospect, the judge should reject the argument that the value to the plaintiff of his slave had been increased by the slave’s knowledge about his accomplices, since in fact as a result of his death that knowledge had proved to be of no value to the plaintiff.