The context
The principal objection to all the existing interpretations of the text is that they really ignore its context in the Digest.
Of course, Wolff[26] remarks that the paragraph comes in the middle of decisions which are based on something other than the pure value of the object, and Zimmermann[27] says that 23.4 shows the practical consequences of adopting the principle stated by Ulpian in 21.2: ‘hoc iure utimur, ut eius quod interest fiat aestimatio’. But while that may be the wider setting of our passage, the immediate context is much more narrowly drawn.H.t. 23.4 comes from a group of texts which deal in some detail with the provision in chapter 1 that the plaintiff is entitled to recover the slave’s highest value in the last year.[28] The discussion begins at 23.3 with a statement of the rule, apparently culled from Julian. Beseler[29] rightly remarks that we hardly need Julian to tell us the rule since it is in the statute, but this reference may have been part of Julian’s reasoning for the decision in the example of a valuable slave artist whose thumb had been cut off at some time during the year before he was killed. His owner recovers the slave’s highest value - his value before his thumb was cut off. Then follows our text, which is in its turn followed in 23.5 by the case of a slave who became vicious during the year before his death - the plaintiff recovers the value of the slave before his character changed for the worse. Finally in 23.6 we are told that all the advantages which made the slave more valuable during the year are to be added to his value.
Even if we allow for the possibility of some interpolation,32 the general position seems to be clear.
Our text occurs in a section of commentary where Ulpian is writing about cases in which the value of the slave is to be calculated by reference to a particular time during the preceding year when he had a higher value than at other times. Our text must raise the same kind of issue.It is astonishing to notice just how consistently this aspect of 23.4 has been ignored by writers. Going back no further than Voet, we find that, when he states the rule that the value was to be calculated by reference to the highest value in the last year, he refers to 23.3, 23.5 and 23.6, but jumps over 23.4 in silence.33 We find exactly the same phenomenon in Windscheid,34 and more recently, for instance, in Jolowicz35 and Law- son.36 None of the writers try to explain why 23.4 occurs at this point if they are interpreting it correctly and if, as they seem to think, it has nothing to do with the subject-matter of the surrounding texts. Only Beseler’s radical view37 that 23.4 is a marginal gloss could even begin to account for the phenomenon of the text occurring here, and even he would have to explain why the gloss was written at this point in the first place.
The exact place of 23.4 in this stretch of Ulpian’s commentary is therefore the single most important clue to its proper interpretation and it points to the fact that the text concerns the assessment of the highest value of the slave in the past year. In h.t. 23.3-23.6 all Ulpian’s remarks are directed specifically at the calculation of the highest value of the slave. He mentions factors in the slave himself which affect his value. So in 23.3 the value of a slave who is an artist is increased by this talent which he possesses, but apparently assessing that value would not always be straightforward. Presumably, some other skills at least, for example musical ability, would have been thought to increase a slave’s value.
In 23.5 Ulpian mentions a slave of good character who becomes vicious. The slave’s character affects his value, but again complications are being envisaged. When we look at 23.4 in the context of these texts, we see that here also Ulpian is considering whether the plaintiff should be entitled to recover an element in the slave’s value which would have been of value to his owner. The element in question is the information which he possessed. That is the real significance of the text, and it has been somewhat overlooked by scholars who have concentrated instead on the supposed illogicality of Labeo’s decision.Certain forms of knowledge must frequently have been relevant to a slave’s value. The talent of an artist will often be a combination of skill and knowledge which he has been taught. The slave who teaches Greek
55 J. Voet, Commentarius ad Pandectas (Lugduni Batavorum, 1698), 9.2.4.
34 B. Windscheid, Lehrbuch des Pandektenrechts, 9th edn by Th. Kipp (Frankfurt-on-Main, 1906), vol. II, 455 n. 20.
size=1 color=black face="Times New Roman">55 H. F. Jolowicz, ‘The Original Scope of the Lex Aquilia and the Question of Damages’ (1922) 38 L.Q.R. 220, 227-8. The article as a whole had the misfortune to suffer the honour of a magisterial review by Lenel: (1922) 43 Z.S.S. 575.
36 F. H. Lawson, Negligence in the Civil Law (Oxford, 1950), 59 n. 2 and 140, note to Gaius 3.214; F. Lawson and B. Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, vol. I (Cambridge, 1982), 4 n. 25 at 189 and 35 n. 244 at 197.
37 See in particular Ankum, Studi Sanfilippo, vol.
II, 47f. will be valued for his knowledge of the language as well as for any skill he has in imparting it to his pupils. The doctor will be valued for his medical knowledge as well as for his skill in tending his patients. H.t. 23.4 takes the argument a significant step further, since in these other cases the slave’s knowledge would be of use to any purchaser and so would be reflected in his value on the market. Here, on the other hand, Ulpian is discussing the slave’s knowledge of his accomplices in a fraud - knowledge which would be of use, and hence of value, only to his owner who had been defrauded. The extent to which such personal elements should be allowed in calculating the value of a slave under chapter 1 seems to have been the subject of discussion among the jurists. While in h.t. 33 pr. (Paul, 2 ad Plautium) Paul quotes an opinion from Sextus Pedius, who seems to have held that nothing other than the ordinary value of any object should be recovered, that narrow view of Sextus Pedius did not go unchallenged, since in h.t. 22 pr. (Paul, 22 ad edictum) and h.t. 55 (Paul, 22 quaestionum) we find indications that the judge should take account of the value of a slave to the individual plaintiff. H.t. 23.4 is simply another facet of that general discussion, and Ulpian is concerned with the problem of the value of knowledge which the slave possessed and which would be of interest principally at least to his owner. Since the idea that a slave’s value could be increased by this kind of knowledge may seem strange at first sight, it is worth noting that, even on the existing interpretation of the text, scholars like Medicus contemplate that a claim could lie for knowledge which the slave had, since they argue that the plaintiff can recover for the loss which he suffers through not being able to extract that knowledge by torturing the slave. But the context indicates that Ulpian regarded the slave’s knowledge of the events surrounding the frauds as having a possible bearing on the value of the slave himself; he did not treat the loss of that knowledge as a separate loss which the plaintiff suffered as a result of the death of the slave. We must therefore follow Ulpian and consider whether any part of the slave’s knowledge of the frauds could be said to increase his value to his owner.