Requirements for Liability

(1) Loss

Both chapter 1 and chapter 3 of the lex Aquilia clearly envisage that the pursuer will have suffered loss, and this is indeed a requirement. As we have seen, the pursuer's loss was measured somewhat differently depending on which chapter it fell under.

In both cases, damages were based on the financial loss only, not any sentimental loss.^[2403] Equally, speculative losses were excluded. For example, if a fisherman’s nets were damaged, ‘no account is to be taken of the fish which were not caught because of the damage, as it is so uncertain whether they would have been caught’.^[2404]

Damages, however, were not limited strictly to the valuation of the physical dam­age. Consequential losses (called damnum emergens) were also included. For example, if a slave had been named in someone’s will as that person’s heir, and that slave was then killed by another’s fault, the loss to the master of the inheritance would be recoverable.^[2405] Where a slave had embezzled from the master, and the slave’s death had denied the master power to interrogate the slave to discover his accom­plices, this additional loss would be recoverable.^[2406] If I had agreed to sell a slave, and became liable to pay the purchaser a penalty as a result of the slave’s death, I would be able to recover that penalty from the wrongdoer who caused the slave’s death.^[2407] The same might also even be true of the value of other property belonging to the same owner, if its value was reduced. Paul, for instance, gives the example of the case where one of a troupe of actors or musicians or one of a pair of mules is killed. If the slaves or animals had been trained to work together, that would raise the value of all of them. Damages would therefore be recoverable for the reduction in value of the survivors.^[2408] One thing that is less clear, however, is how or whether account was taken of any residual value of the damaged property.

(2) Fault

The lex Aquilia did not hold a person liable for damage unless he or she was at fault.^[2410] It is not completely clear how much fault was required — Ulpian says that ‘even the slightest degree of fault’ counts,^[2411] but more commonly only reasonable diligence was said to be required^[2412] — but on any view there had to be at least something that could be described as fault. Thus, there was no liability where the damage was accidental. For example:

When some people were playing ball, one of them pushed a slave boy when he was trying to pick up the ball, and the slave fell and broke his leg. It was asked, whether the slave’s master could sue the one by whose push he had fallen under the lex Aquilia. I answered that he could not, because the thing seemed to have happened more by accident than wrongfully.⁴⁹

Equally, self-defence was a complete defence to an action under the lex Aquilia.⁵ Again, someone who committed damage under great necessity was not consid­ered to be at fault. Thus, Ulpian reports: ‘Celsus writes about the one who, to prevent a fire reaching his own house, pulled down his neighbour’s house’,⁵¹ and was not held liable under the lex Aquilia.⁵²

What none of this tells us, however, is what fault actually means. It seems certain that the meaning of fault developed over time.⁵³ In the classical law, there was no single, clear definition of fault.⁵⁴ The test for fault, whatever else it may be, is however an objective one. A person cannot plead in defence his or her own weakness or inexperience:

⁴⁹ D.9.2.52.4 (Alfenus). There was a general view that injuries incurred in sporting contests were not action­able.

⁵⁰ D.9.2.4. See also D.43.16.1.27. The right to self-defence did not extend beyond what was necessary to pro­tect oneself and did not exclude liability to a bystander who was accidentally struck: D.9.2.45.4.

⁵¹ D.9.2.49.1.

⁵² See also D.9.2.29.3 (freeing of a ship entangled with another’s ropes by cutting those ropes, where there was no other way of releasing it). It is interesting to compare the US case Vincent v Lake Erie Transportation Company (1910) 109 Minn. 456, 124 N.W 221. In this case, a storm arose while the defendants’ ship was unloading at the plaintiffs’ dock, of such severity that the ship could not safely leave. Accordingly, the ship’s master kept the ship moored at the dock until the storm abated, with the result that the dock was damaged by being repeatedly struck by the ship. It was held that the master’s actions had been entirely appropriate in the circumstances but that, nonetheless, the defendants were liable for the damage. O’Brien J said (at para 17): ‘having thus preserved the ship at the expense of the dock, it seems to us that her owners are respon­sible to the dock owners to the extent of the injury inflicted’. Again, at para 20, he said: ‘Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so.’ In other words, the decision proceeds on the basis that a person who does what is necessary does nothing wrong, but is nonetheless obliged to make good any loss resulting from that. Perhaps the difficulty Ulpian and Celsus have here is the quasi-penal nature of the lex Aquilia, and the idea of moral wrongdoing at the heart of the idea of fault that this entails.

⁵³ See e.g. G MacCormack, ‘Aquilian Culpa' in A Watson ed, Daube Noster: Essays in Legal Historyfor David Daube (Scottish Academic Press 1974); M Floriana Cursi, ‘What Did Occidere Iniuria in the Lex Aquilia Actually Mean?’ (2011) 7 Roman Legal Tradition 16.

⁵⁴ H Scott, ‘Pits and Pruners: Culpa and Social Practice in Digest 9.2’ in Judge and Jurist.

Also if a mule-driver is not able to control his mules because of inexperience, with the result that they run over someone else’s slave, he is generally held to be liable for fault. The same is true if he cannot control the mules because of physical weakness: nor does it seem unfair if weakness is counted as fault, for nobody ought to undertake what he knows or ought to know his weakness will cause to be a danger to others.^[2413]

One test that is found in the texts is based on the idea that a person is liable if damage arises when that person is doing something he or she is not entitled to do. Consider this passage, from Ulpian:

But if a slave is killed by people throwing javelins for sport, the Aquilian action lies. But if when others were throwing javelins in a field, and a slave crossed that place, the Aquilian action does not lie, because he should not have crossed the jav­elin practice field at an inopportune moment. However, if someone deliberately aims at him, he is liable under the lex Aquilia.^[2414]

Justinian expands this case somewhat with the additional detail that the per­son throwing thejavelin is a soldier, doing so in a designated practice field.^[2415] Because the soldier is doing what he has the right to do, he is only liable if he intentionally aims at the slave.^[2416] We see the same test in another case, in which a man has hired out his mules for the carrying of a fixed maximum weight.

it does not necessarily follow that a person acting outside the terms of his con­tract is negligent or fraudulent. The mules may well, wrongly, appear to a diligens paterfamilias able to carry a particular burden which exceeds the limit fixed in the contract.^[2418]

In other words, the reason that the hirer is held liable is not that he has been careless. Rather, he is liable because he did something that he was not entitled to do, and damage resulted. It may be that this was the original requirement. After all, the part of the phrase damnum iniuria datum that relates to fault is the word iniuria, which is related to the word ius (‘law’ or ‘right’). Something that is iniuria is, therefore, something that is not lawful or is not right.

In other cases, a different test is applied. Paul gives the following case:

If a pruner threw a branch down from a tree... and killed a slave passing under­neath, he is liable if it happened in a public place, unless he shouted a warning so that the accident could have been avoided. But Mucius says that, even if it hap­pened on private land, he could be pursued if at fault. He thinks that there is fault when what would have been foreseen by a careful person was not foreseen, or the warning was too late for the accident to be avoided. According to that reasoning, it does not matter much whether the deceased was going through a public or a private place, as people often go through private places. But if there is no path, the defender should only be held liable for deliberate wrongdoing, for he should not throw anything at someone he sees passing by. But he is not to be considered at fault when he could not have predicted that someone was about to pass through that place.^[2419]

The test here seems to be: was the damage a reasonably foreseeable result of what the defender did? If so, he or she is liable. As we shall see below, this is very similar to the modern test for negligence, and may well have played a role in its development.

(3) Causation

Finally, for there to be liability for the loss, it had to be shown that the defender’s misconduct was the cause of the pursuer’s loss. This is an idea that is familiar in modern law: regardless of whether I have been careless, I will not be liable if you would have suffered the same loss either way.^[2420] As in modern law,^[2421] it was not necessary for the seriousness of the damage to have been foreseeable, as opposed to the occurrence of the accident being foreseeable. For example, suppose that I attack your slave. Unknown to me, the slave is a haemophiliac, and dies from his injuries. I am liable for the death, even though most people would not have died from those injuries: I must take my victim as I find him or her.^[2422]

The defender’s misconduct would usually be a positive action, such as throw­ing a javelin or a branch that hits someone, but could be an omission where the defender had some form of duty to act but did not do so.^[2423] For example, a doctor who neglected a patient’s aftercare would be liable,^[2424] as would someone whose

job it was to watch a furnace but failed to do so, with the result that the house caught fire.^[2425]

There could be evidential difficulties in determining causation. The jurist Paul gives the example of two slavesjumping over some burning straw. They bump into each other and fall into the fire, and one of the slaves is burned to death. If it cannot be determined which slave knocked the other over, liability under the lex Aquilia cannot be established.^[2426]

In earlier law, the requirement for causation was very strict: the damage had to be caused corpore corpori, ‘by the body to the body'. In other words, the damage had to be inflicted by direct physical force.^[2427] However, by juristic interpretation and the grant of actiones in factum (it is not always clear which is in play in a par­ticular case), the requirement came to be considerably relaxed. For example, the damage might have been caused to the body but not by the body, in other words the property might have been damaged without direct infliction of physical force. Into this category would fall cases where someone shuts up another's slave or animal so that it dies of starvation, overworks a draught animal so that is injured, or induces someone else's slave to climb up a tree, from which the slave falls and is injured or killed.^[2428] Likewise, if I startled your horse while your slave was riding it, with the result that the slave was thrown off and killed, or I caused your cattle to stampede and run off a cliff, you would have an actio in factum against me.^[2429] In some cases, the Romans made a distinction between killing and furnishing the cause of death.^[2430] For example, suppose a midwife provided a drug to a woman in her care, from which the woman died. If the drug was directly administered by the midwife, the midwife was liable for having killed. If, however, the midwife only gave the drug to the woman for her to take it herself, the midwife had only furnished the cause of death and was liable only through an actio infactum.^[2431] The distinction made here may appear artificial, but the issue is a real one. All legal systems have to face eventually the problem of when the victim's own voluntary acts should be held to interrupt the chain of causation.^[2432]

There were also cases where liability was imposed for loss caused by the body but not to the body, in other words where there is direct infliction of bodily force, but the property is not actually physically damaged. Ulpian reports such a case:

If someone knocks coins from my hand, Sabinus thinks that the action under the lex Aquilia applies if they are lost without coming into someone else’s hands, for example if they fall into a river or the sea or a drain.^[2433]

The coins themselves are not damaged here, but they are nonetheless irretriev­ably lost. It is therefore appropriate to hold the person who has caused that loss liable for it.

Finally — and this category was certainly the last one to be recognised — there might sometimes be liability where there was neither direct infliction of force nor physical harm, that is the loss was neither by the body nor to the body. We have already seen two examples of this above, when we considered the scope of the third section of the lex Aquilia. These were the release of an animal from a trap, so that it escapes, and the causing of animals to stampede and come into the hands of thieves. Another example would be releasing a slave from his chains and letting him escape.^[2434]

Situations could arise where there were multiple causes of the same injury. This was straightforward enough where there were two or more assailants acting together: each would be held liable unless it could be clearly determined which of them had caused death.^{[2435] [2436] [2437] Suppose, though, that a wound is inflicted that is likely to prove fatal but, while the victim is dying, another person independently comes onto the scene and finishes off the job. Ulpian reports the following:}

Celsus writes that, if someone inflicts a mortal wound, and another finishes the victim off, the first of them will not be held liable for having killed, but for having wounded, because he died from the other’s wound. The other will be held liable, because he killed. That is how it seems to Marcellus, and it is the more likely opinion.

Compare, though, the following passage from Julian:

A slave had been injured, such that it was certain that he would die of the wound. In the meantime, he was instituted as someone’s heir and then died from another wound. The question was whether both attackers can be pursued under the lex Aquilia for having killed him. He [the jurist] answered: he is generally said to have killed if he has furnished the cause of death in any way. But under the lex Aquilia he is only held liable if he has caused death by the application of force and, so to speak with his own hand... On the other hand, under the lex Aquilia not only those who have wounded so as to deprive of life immediately, but also those who inflict a wound that is certain to be fatal, are held liable. Therefore, if someone mortally wounds a slave, and then later another wounds him so that he dies ear­lier than he otherwise would have done, it is settled that both attackers are liable for killing. This is supported by the authority of the ancient jurists who, when a slave had been wounded by a number of people, such that it was not clear which wound killed him, held all of the attackers to be liable under the lex Aquilia⁷

Julian goes on to tell us that the measure of damages will (or at least may) be different for the two attackers. The reason for this is that damages for killing a slave are, as we have seen, based on the highest value the slave had in the year preceding the injury. If the two injuries happened a significant amount of time apart, that may lead to a different valuation. For example, in the specific facts discussed by Julian, only in the case of the second attacker would the value of the inheritance be included. There is, though, a clear conflict between these two texts. According to the opinion reported by Ulpian, only the second attacker will be liable for killing, and the first only for wounding. According toJulian, both are liable for killing. There is no obvious way of resolving the conflict, and both approaches are defensible on different grounds. On the one hand, the first attacker has simply not, as a matter of fact, caused the death. Ulpian’s opinion is therefore preferable from the point of view of strict logic. Equally,Julian’s analogy with the case where attackers are acting in concert is far from convinc­ing. Again, there is the difficulty of knowing whether either wound would in fact have proved fatal on its own. On the other hand, if the penal approach of the lex Aquilla is borne in mind, it makes sense to hold a person responsible for the natural consequences of his or her actions, and not to excuse that person of those consequences just because a third party has fortuitously intervened.^[2438]

Another situation that caused difficulty was the case where the injured party’s own fault contributed to the loss. Ulpian reports the following case:

Mela writes that, when some people were playing with a ball, one of them hit it hard and it hit the hand of a barber, such that the throat of a slave that the barber was shaving was cut by the jerking of the razor. On which of them does fault lie, such that he is subject to the lex Aquilia? Proculus says that the barber is at fault, and surely it will be imputed to him if he was shaving there, where it was the cus­tom to play or where many were going to and fro. But it is not said badly in reply that, if someone entrusts himself to a barber who has his chair in a dangerous place, he has only himself to blame.^[2439]

This is a complex case. No clear answer to the question posed is possible, and none is given. It becomes even more difficult if the possibility is added that the person who struck the ball might be liable, as that brings in issues of multiple causes. The approach taken in the quoted passage is the jurists’ typical, casuistic style,^[2440] and in practice everything would depend on the analysis of the facts of the specific case.^[2441] The point for the present, though, is that the conduct of the injured party is seen as simply part of the causal background of the injury.

The question is to be answered by asking whose fault caused the injury: the barber's or the slave's? We saw the same approach above, in the case of the slave hit by a javelin while crossing the practice field. There was no liability there to a slave who caused the accident himself, by crossing the field at an inopportune moment.^[2442] Unlike modern law,^[2443] what the Romans did not have was a concept of contributory negligence, by which damages could be reduced to reflect the pursuer's contribution to the incident.

D.