Information about the slave’s frauds
In assessing the value of the slave, Labeo attached importance to the discovery that he had committed frauds. Indeed, to judge from the text, he linked the measure of recovery to it: ‘quanti mea intererat fraudes servi per eum commissas detegi’. We can therefore proceed on the basis that Labeo is somehow or other prepared to increase the value of the slave by a sum representing the plaintiff’s interest in detecting his frauds. Since both the slave’s role in the frauds and the frauds themselves had already been discovered before his death, an assessment of the slave’s value based on the discovery of those frauds would refer back to an earlier point in the year.
At first sight it seems perverse to suggest that the discovery of the frauds could somehow or other increase the slave’s value.
After all, in reality, the discovery that a slave had been falsifying his master’s accounts would immediately reduce his market value. If, for instance, his owner wished to sell the slave, he would need to tell prospective purchasers what the slave had done.44 This would make him less attractive and so lower his price. But that factor would not necessarily matter in a claim for damages for the slave’s death. Under chapter 1 any such reduction in the slave’s value might have been disregarded if he were killed within a year, since his owner was entitled to recover the slave’s highest value, i.e. his value before the frauds were uncovered. But even here we must be cautious, since, if the frauds had occurred some time before, the defendant could well argue to some effect that uncovering them simply showed that the slave had been a crook and as such worthless throughout the year. None the less the jurists would still have to decide whether the discovery of the frauds pointed to some other element which should be included in the slave’s value.The only guide to Labeo’s decision can be what the text actually says, and since it links the value of the slave and the discovery of the frauds, we may not be too rash if we assume that Labeo’s reasoning must also have been based on a link between the slave and the discovery of the frauds. Especially in the light of the discussion in the previous section of this chapter, the most obvious link would be that the slave was somehow or other responsible for the frauds being discovered. This link does not actually appear in the text itself, although some scholars, for example Ankum,45 might be prepared to interpret ‘per eum’ and ‘detegi’ together
44 See O. Lenel, Das Edictum Perpetuum, 3rd edn (Leipzig, 1927), 555.
45 Studi Sanfilippo, vol.
II, 49f., especially at n. 82. so as to make it say that the frauds were uncovered through the slave. This is to strain the existing text but it is conceivable that the rather unsatisfactory Latin at this point (‘servi per eum commissas’) has come about because of the compilers abbreviating an original in which Ulpian had explained that the plaintiff discovered the frauds through the slave. Most obviously the frauds might have come to light because the slave decided to confess - though in that event he might have been expected to reveal who his accomplices had been. Or else some act of the slave might have alerted his owner, and then, whether under torture or not, he admitted what he had done.We can therefore usefully identify three factual situations, although elements of more than one could be combined in a particular problem:
Case 1 A slave is killed just when his owner is about to torture him to try to discover who his accomplices were in a fraud.
Case 2 A slave is killed after he has been tortured and has told his owner who his accomplices were in a fraud.
Case 3 A slave is killed after he has told his owner that he had been committing fraud on his owner.
It is suggested that in 23.4 Labeo was asked to consider a problem of the following kind. During the year before a slave was killed, his owner had discovered through him that he had committed various frauds and, just before he was killed, the owner was intending to torture him to find out who his accomplices had been. What was the value of the slave to the plaintiff for the purposes of chapter 1? The problem is a combination of case 3 and case 1. For the reasons given in the previous section, on the case 1 point Labeo would have held that the slave’s value was not increased by the slave’s knowledge about his accomplices.
But in answering the question Labeo made an additional point. He observed - and we can probably assume that he was the first to do so46 - that at one stage the slave’s value to the plaintiff had in fact been increased by his knowledge of his own frauds and that the plaintiff was therefore entitled to recover, as part of the slave’s value, what it was worth to him to discover those frauds.Labeo’s decision is really based on the same principle as the decision in case 2, where the slave had in fact been tortured and had revealed the names of the accomplices. Just as in that case at one stage the value of the slave to his owner included the value of the information which he revealed about his accomplices, so here on the case 3 point Labeo saw that at one 46 To this extent correctly: A. A. Schiller, ‘Trade Secrets and the Roman Law’, in Studi in onore di Salvatore Riccobono, vol. IV (Palermo, 1936), 98 n. 145. stage the value of the slave to his owner had included the value of the information which he had revealed about his own frauds. The fact that in case 2 the slave has been tortured and has revealed information about his accomplices’ actings whereas in case 3 he has spoken without torture and has revealed information about his own actings can make no difference to the underlying legal position - as Labeo spotted and as Ulpian or the compilers acknowledged by saying that he ‘rectissime scribit’. Labeo was really saying that if the judge looked back over the year, he could see that, at any time after the slave had committed the frauds and before he revealed them, he was carrying about in his head this information which was of value to his owner. If the slave eventually revealed that information, then the judge could see that the information in the slave’s head had been of value to his owner and so it had actually formed part of the slave’s overall value to his owner.
None the less case 3 does differ subtly from case 2, and Labeo’s decision is properly regarded as breaking new ground.
In case 2 the owner knows or at least correctly believes that his slave has the information; in case 3, on the other hand, the owner is not aware at the time that the slave has the information, since, of course, the existence of this information does not come to light unless the slave actually speaks about the frauds. Indeed the information forms part of his value to his owner only if the slave reveals it. So in case 3 we have a situation where at one point in the year, after the slave has committed the frauds but before he reveals them, his actual value to his owner is higher than the owner realises at the time.We can also compare this claim in case 3 with the claim in case 1 for the knowledge which the slave has, but which he does not reveal because he is killed. In case 3 the slave is in actual fact more valuable to the owner because of knowledge about the frauds which the owner does not realise the slave has until he speaks up. By contrast in case 1 the owner knows, or rightly believes, that the slave has certain knowledge and therefore considers that he is more valuable to him. But in actual fact the slave is not more valuable on this account, since he will be killed before the knowledge can be extracted from him. Doubtless a variant of case 1 may have been discussed. Suppose that the slave has committed frauds and intends to reveal them, but before he can do so, someone else tells his owner. The slave is then killed. In such a case it would seem that a judge looking back would hold that the slave’s information never in fact formed any part of his value, because in the event the owner discovered the frauds from another source. A judge making a retrospective assessment of value has plenty of opportunities to indulge a taste for dramatic irony.
It is also important to notice that a reference to the decision of Labeo on the case 3 point would have fitted well into this particular part of Ulpian’s commentary.
As we saw, in the segments which the compilers have selected Ulpian is mentioning cases where the slave’s value for the purposes of the assessment under chapter 1 is not his value at the time he was killed but his value at some other time during the year. On Labeo’s approach to case 3 the slave’s value to his owner would include his knowledge about the frauds, and his role in them, only up to the moment when he revealed what had happened. Once the frauds are known to his owner, the slave’s knowledge of them and of his role in them ceases to be any part of his value to his owner. It follows that, where the slave is killed after he has admitted the frauds, that knowledge does not form part of his value to his owner at the time of his death.Labeo is prepared to include the value of this information in the value of the slave, but he is careful to say that the value of the claim is the value of discovering the frauds. Again this is something which is concealed in the usual interpretation of the text, which maintains that the sum to be recovered is the sum of which the plaintiff was defrauded. Labeo’s version is much less crude than this modem formulation, and, what is more important, it makes excellent sense. He realises that, if the discovery of the fraud had not led to any money or property being recovered by the plaintiff, then the discovery as such had not in fact been worth anything to the plaintiff. Suppose the slave had told the plaintiff about the frauds. The plaintiff would then have been able to investigate them and discover what he had lost. He might have found, for instance, that the slave had taken 10,000 sesterces by falsifying the accounts, In itself that discovery would not be worth anything to the plaintiff at least as far as past frauds (fraudes... commissas) are concerned - though it might have prevented any further depredations. After all, the owner is no better off just because he has discovered that he has lost 10,000 sesterces and that the slave has spent that sum on riotous living. On the other hand the discovery would lead to a positive financial return if, for instance, the plaintiff then searched the slave’s quarters and found 5,000 of the missing 10,000 sesterces hidden under his bed. Then one could say that discovering the slave’s frauds had been worth 5,000 sesterces to the plaintiff. Labeo therefore thought that in such a case the slave’s value included this element and the plaintiff should be allowed to recover it in the Aquilian action.
This is precisely the distinction which is being made in the text if we read the account of Labeo’s decision as a whole, including the part at the end of the text in the clause ‘non quanti noxa eius servi valeat’. No particular criticism has been directed at the grammar or language of the clause. Scholars have just been unable to fathom what it means, because they have not understood the point which Labeo was considering. We can adopt the straightforward translation of Kolbert, which gives noxa its well-established meaning and treats it as referring to the wrong[36] committed by the slave. Labeo is then saying that the true measure of the slave’s value includes the interest of the plaintiff in uncovering the slave’s delict (‘quanti mea intererat fraudes servi per eum commissas detegi’) rather than the value of the slave’s delict itself (‘non quanti noxa eius servi valeat’). In other words the plaintiff cannot simply add to the slave’s value the sum which the slave took; but the plaintiff can argue that his value should include the amount which the plaintiff got back as a result of what the slave had told him.
Of course, the result of giving the plaintiff even this additional amount would be that he would be rather over-compensated, since in the example given above he would already have recovered the 5,000 sesterces and would obtain a corresponding sum of 5,000 sesterces in the Aquilian action. As we saw when discussing case 2, that is not in itself a reason for thinking that Labeo could not have held this view. On the other hand such an approach to the plaintiff’s claim in a delictual action has not commended itself to later ages - and this may help to explain why Labeo’s view, which was so appreciated by Ulpian, has been so misunderstood and disparaged by more modern jurists.[37]