The Interdictum quod vi aut clam (Interpretation of the Edict)

This interdict is the most comprehensive legal remedy available for asserting rights against a neighbor. It serves to defend a wide range of disturbances to possession, and it can be invoked not only by the owner but by anyone who can establish a valid claim of legal interest.

The interdict reads as follows:

quod vi aut clam factum est, qua de re agitur, id, si non plus quam annus est, cum experiendi potestas est, restituas.

Translation:

What by force or stealth has been done, concerning the matter at issue in this action, you must restore, if not more than one year has passed from the time when the possibility of suing occurred.

To “restore” here means putting the plaintiff in the position that he would be in if his possession had not been disturbed. The exceptio annua [defense of one- year limitation] in the interdict also appears in the interdictum unde vi, among other places, and it demonstrates the penal character of the remedy (temporal limitation of the “revenge,” non-inheritability of the claim, reckoning damages as of the time of the act).

D 43.24.2.5-6 (Ulpianus libro septuagensimo primo ad edictum)

(5)     Quid sit vi factum vel clam factum, videamus.

(6)     Sed et si quis iactu vel minimi lapilli prohibitus facere perseveravit facere, hunc quoque vi fecisse videri Pedius et Pomponius scribunt, eoque iure utimur.

D 43.24.20.1 (Paulus libro tertio decimo ad Sabinum)

Prohibitus autem intellegitur quolibet prohibentis actu, id est vel dicentis se prohibere vel manum opponentis lapillumve iactantis prohibendi gratia.

Translation: (Ulpian in the 71st book of his Commentary on the Praetor’s Edict)^[315]

(5)     Let us examine what vi factum [“done by force”] or clam factum [“done by stealth”] means. Quintus Mucius wrote that it counts as vi factum if someone has acted in a way that he has been forbidden to act. I consider this opinion of Quintus Mucius to be comprehensive (very broadly expressed).

(6)     But also if someone, who has been forbidden by the throw of even a pebble, goes ahead and acts, Paul and Pedius write that he too has acted vi [with force”], and that is valid law.

(Paul in the 13th book of his Commentary on the Ius Civile of Sabinus)

Any act of the person prohibiting—e.g., a verbal instruction forbidding something, or the lifting of the hand, or the throwing a stone—counts as a prohibition.

Notes on the Text:

The iactus lapilli [“throwing of a stone”] was customarily employed especially as an operis novi (de)nuntiatio (a formal objection to the construction of new work, employed by a neighbor who feels he will be harmed by the unauthorized comple­tion of the construction).

Discussion Questions:

1)      To what might Ulpian's qualification sed et [“but also if...”] (D 3.24.1.6) refer?

2)      Does the pronouncement of Quintus Mucius recognize a development of the concept of vis [“force/violence”]?

3)      Is it a case of vis, if someone digs a pit on another's land and, when the owner appears, runs off before the owner can issue a prohibition, but he later returns and resumes digging?

D 43.24.3.7 (Ulpianus libro septuagensimo primo ad edictum)

Clam facere videri Cassius scribit eum, qui celavit adversarium neque ei denuntiavit, si modo timuit eius controversiam aut debuit timere.

Translation: (Ulpian in the 71st book of his Commentary on the Praetor’s Edict)“^[316]

Cassius writes that anyone will be considered as acting clam (“by stealth”), if he conceals his action from his opponent and does not inform him, because he fears opposition or ought to fear it.

Note on the Text:

On videri [“will be considered”] see on Case 72.

Discussion Questions:

1)      What might have motivated the Roman jurists to develop broad definitions of vi [“with force”] and clam [“with stealth”]?

2)      Does someone act clam, if he drives his flock of sheep across his neighbor’s land in an openly visible manner but without prior notice?

3)      Imagine some examples of actions on a neighbor’s land that are neither vi nor clam.

D 43.24.7.5-7 (Ulpianus libro septuagensimo primo ad edictum)

(5)     Notavimus supra, quod, quamvis verba interdicti late pateant, tamen ad ea sola opera pertinere interdictum placere, quaecumque fiant in solo. eum enim, qui fructum tangit, non teneri interdicto quod vi aut clam: nullum enim opus in solo facit.

(6)"Times New Roman"'>     Si quis acervum stercoris circa agrum pinguem disiecerit, cum eo ‘quod vi aut clam factum est’ agi potest: et hoc verum est, quia solo vitium adhibitum sit.

(7)     Plane si quid agri colendi causa factum sit, interdictum quod vi aut clam locum non habet, si melior causa facta sit agri, quamvis prohibitus quis vi vel clam fecerit.

Translation: (Ulpian in the 71st book of his Commentary on the Praetor’s Edict)'^[317]

(5)     We have remarked above that according to established doctrine, despite the admittedly broad interpretation of the words of the interdict, the inter­dict applies only to those works that involve the ground. So, someone who handles the fruit is not liable under the interdict quod vi aut clam, because he has done nothing involving the ground.

(6)     If someone has spread a dung-heap onto fertile land, one can proceed against him with the interdict “what was done by force or stealth.” And that is correct, since harm has been done to the ground.

(7)     Obviously if something is done for the cultivation of the land, the interdic­tum quod vi aut clam is not available, assuming the condition of the land is improved thereby, even though the actor has acted vi aut clam, despite having been prohibited to do so.

Discussion Questions:

1)      Is the definition of vis by Quintus Mucius in D 43.24.1.5 (Case 136) limited by these decisions of Ulpian?

2)      What legal remedies are available to the landowner who finds in his veg­etable garden an outsider who immediately:

—        intends to pluck an apple?

—        lifts an apple from the ground?

D 43.24.22.1 (Venuleius libro secundo interdictorum)

Si quis vi aut clam araverit, puto eum teneri hoc interdicto perinde atque si fossam fecisset: non enim ex qualitate operis huic interdicto locus est, sed ex opere facto, quod cohaeret solo.

Translation: (Venuleius in the second book of his On the Interdicts)^[318]

If someone has plowed vi or clam, I think that he is liable under this interdict, just as if he had made a ditch.

Discussion Questions:

style='font-size:8.0pt;line-height:120%'>Explain the relationship of this decision with Ulp. D 43.24.7.7 (Case 138) and of both decisions with the language of the edict (above, preceding Case 136).

D 43.24.22.3 (Venuleius libro secundo interdictorum)

Si stercus per fundum meum tuleris, cum id te facere vetuissem, quamquam nihil damni feceris mihi nec fundi mei mutaveris, tamen teneri te quod vi aut clam Trebatius ait. Labeo contra, ne etiam is, qui dumtaxat iter per fundum meum fecerit aut ovem egerit venatusve fuerit sine ullo opere, hoc interdicto teneatur.

Translation: (Venuleius in the second book of his On the Interdicts)^[319]

If you have carried manure over my land after I forbade you to do so, Trebatius says that you are liable under the interdict quod vi aut clam, even if you have caused me no harm and have made no alteration to my land. Labeo is of the contrary view: that someone would have no liability under the interdict, even if he merely went over my land, or drove his sheep, or hunted, without building or doing anything [else].

Discussion Questions:

1)      Is the interpretation of Trebatius covered by the language of the interdict? (See the introduction to Cases 136 ff.)

2)      Evaluate the weight of the Labeo's argumentum ad absurdum (see Case 34 on this).

3)      What is the purpose of the interdict according to Trebatius? What purpose according to Labeo?

4)   How would Venuleius have probably decided [on the facts of this case]?

D 43.24.11 pr.

Is qui in puteum vicini aliquid effuderit, ut hoc facto aquam corrumperet, ait Labeo inter­dicto quod vi aut clam eum teneri: portio enim agri videtur aqua viva, quemadmodum si quid operis in aqua fecisset.

Translation: (Ulpian in the 71st book of his Commentary on the Praetor’s Edict)“^[320]

According to Labeo, someone who has poured something into his neighbor’s well in order to foul the water thereby is liable under the interdict quod vi aut clam, for spring water counts as part of the land, whatever the nature of the work he did to the water.

Discussion Questions:

Analyze this opinion of Labeo with reference to the Labeo citation in D 43.24.22.3 (Case 140).