THE LEX AQUILIA
The lex Aquilia was enacted by the plebeian assembly (see Chapter 2) during the Republic, with a traditional date of 287 bc. The first and third of its three sections, or “chapters”, imposed delictual liability in certain circumstances.
For a long time, the content of the second section was lost, and was the subject of much scholarly debate. However, the rediscovery of Gaius’s Institutes revealed that the second section was concerned with liability of an entirely different type, long since obsolete by Justinian’s time, the liability of an adstipulator (a person appointed by the promisee in a stipulatio to recover what was owed by the promisor) who wrongfully discharged the debt. We are not concerned with the second chapter here.The basis of liability under the first and third sections of the lex Aquilia was damnum iniuria datum (loss caused by wrongful conduct). Thus liability arose where (i) a party had suffered loss, which had been (ii) caused by (iii) another’s wrongful act. If these criteria were met, liability was established, provided that the loss that had arisen fell within the terms of the legislation. The starting point, then, is the wording of the lex Aquilia itself. It should be noted, however, that juristic interpretation extended the lex Aquilia beyond its original scope. The praetors also extended the scope of Aquilian liability, by being prepared to grant an action in appropriate circumstances, by analogy with Aquilian liability, called an actio utilis or actio in factum.
After considering the terms of the first and the third sections, we shall look at the general requirements for establishing liability under the lex Aquilia, namely loss, wrongful conduct and causation.
The first section
According to Gaius, the first section of the lex Aquilia ran as follows:
“If anyone kills unlawfully a slave or servant-girl belonging to someone else or a four-footed beast of the class of cattle, let him be condemned to pay the owner the highest value that the property had attained in the preceding year.” (D.9.2.2pr)
This section is therefore concerned with the killing of slaves and livestock, and not with any other type of damage or any other type of property.
The types of animal covered by the section are those which graze. Thus sheep and cows are included, but not dogs and wild animals. The category of grazing animals is taken to include pigs. Justinian justifies this (at J.4.3.1) by reference to the Greek poet Homer, who refers in his Odyssey to pigs grazing.The killing of the animal or slave fell within the section if there was deliberate violence, but also in any other case where death resulted from fault. Thus, if A carelessly slipped and fell, crushing slave B to death, that would come within the first section.
It will be noted here that there is potentially a penal aspect in any action under the first section. The measure of damages is the highest value the slave or animal had in the previous year, even if it subsequently lost value. Thus, if a slave for example had lost a limb within the previous year, damages for the slave’s death would nonetheless be based on the value the slave had had before the loss of the limb. The damages payable could thus be considerably higher than the actual loss resulting from the offending party’s fault.
The third section
The third section is concerned with cases where the damage caused or the type of property concerned does not fall within the first section. Thus, non-fatal injuries to slaves or livestock, or damage to other types of property, would be considered under this section. Ulpian reports the terms of the third section as follows:
“In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking or rending his property, let him be condemned to pay to the owner whatever the damage shall prove to be worth in the next thirty days.” (D.9.2.27.5)
As a preliminary point, it should be noted that it cannot be said with complete confidence that this reflects what the third section actually stated. It is sometimes said that the damages were to be measured according to the maximum value the property had in the previous thirty days, not according to the diminution in value measured at the end of thirty days.
It is also unclear whether it was only the owner’s loss for which the wrongdoer was liable, or whether he had to pay the full value of the property. The latter would not be unreasonable if the damage was as serious as is suggested by the words “burning, breaking or rending”. However, the type of damage covered was in fact broader than this:“... For ifanything is burned or rent or broken, an action is established by this chapter; but the term ‘rent’ could suffice for all these cases. For a thing is construed as ‘rent’ (ruptum) when it is ‘spoiled’ (corruptum) in any way. Hence this word includes not only things burned or rent or broken, but also things torn and dashed and poured out and in any way harmed or destroyed and so diminished in value.” (Gaius, G.3.217)
Thus, in the classical law, any type of damage to property was covered by the lex Aquilia. This might be the case even where the property was not actually physically harmed, but where the owner was deprived of its use. One example given in the texts is of wine poured out. The wine is thereby lost, and liability under the lex Aquilia established, without necessarily any physical damage. Another example was where A knocked coins from B’s hand, with the result that they fell into a river or down a sewer. Although the coins are physically unharmed, A is in this example deprived of their use and has an action under the lex Aquilia.
Loss
The first of the three requirements for liability under the lex Aquilia was that loss had to be shown. Even if there had been wrongful conduct, there was no liability if this had not in fact caused loss. Thus, suppose that a slave had been injured. If the slave’s value had been reduced by the injury, this requirement would be satisfied. Again, if the slave was unable on account of the injury to perform his normal duties, the person who wrongfully caused the injury would be liable. However, if the injury was one from which there were no such adverse consequences to the master, there would be no liability under the lex Aquilia.
The measure of damages would depend on which section of the lex Aquilia applied to the case, as we saw above. By juristic interpretation, the damages would also include any consequential loss. An example of such loss is the case where one of a team of horses is killed, or a slave dies who is one of a troupe of actors. The damages payable would take into account the reduction in value of the surviving horses or actors resulting from the loss of one of the team. Again, a slave might be appointed heir to a person who then dies. When the slave accepted the estate, it would pass to the master. However, if the slave was killed before accepting the estate, the benefit to the master would be lost. This loss would be counted towards the amount payable in the action under the lex Aquilia.
Wrongful conduct
Pure omissions did not give rise to any liability. The possibility of an action under the lex Aquilia normally arose only if loss had been caused by some positive action. However, even if a person’s actions caused loss, there was no liability under the lex Aquilia if there was no culpa (fault). Purely accidental injuries did not give rise to any liability:
“While several persons were playing ball, one of them pushed a slave boy when he tried to catch the ball; the slave fell and broke his leg. Question was raised whether the slave boy’s owner can bring suit under the lex Aquilia against the person through whose push he fell. I responded that this is not possible, since the event is held to have occurred more by accident than by culpa.” (Alfenus, D.9.2.52.4)
The Roman texts do not, however, disclose a single, clear test of what is meant by “fault”; nor did they have any developed concept of contributory negligence, whereby responsibility for the injury is divided between the wrongdoer and the injured party. Characteristically, the jurists proceeded on a case-by-case basis to determine who, in the circumstances, could be said to be responsible for the loss:
“But if, when persons were throwing javelins in sport, a slave was killed, the Aquilian action lies.
However if, while others were throwing javelins in a field, the slave crossed through this area, the Aquilian action fails, since he ought not to have passed inopportunely through a field reserved for javelin-throwing.” (Ulpian, D.9.2.9.4)In some cases, the question of fault appears to depend at least partially on whether there was a legal right to perform the actions complained of, or whether the injured party had any right to be where he was. Thus, where a slave was injured by a javelin, there would be liability if the javelin was thrown by a soldier in a practice field, but anyone else using the practice field would be liable, as would a soldier throwing a javelin elsewhere. Again, where a person pruning a tree threw down branches, there would be no liability where the injured party was on private land where he had no right to be. If the tree was next to a public road, on the other hand, the party throwing the branches down would be liable to anyone who was injured while walking on the road, unless a warning had been shouted.
In other cases, liability was imposed because of a failure to meet some expected standard of behaviour. Thus, a doctor would be liable for the death of a slave in his care if that care was inadequate. Lack of skill or ability was for these purposes counted as fault.
Conduct was not considered wrongful if it was done with justification. Thus, where a robber was killed in self-defence, there would be no liability unless escape had been possible.
Causation
A person was liable for his wrongful acts only if he could be said to be the cause of the loss suffered. In the earlier law, only direct physical injuries were actionable on this basis. This was expressed by saying that the injury had to be corpore corpori (by the body, to the body). By “to the body” is meant the body of the property which was damaged, including inanimate property. Thus, if I directly struck your horse with a weapon, I would be liable for the resulting injury. If, however, I merely frightened your horse into bolting off a cliff, I would not be liable, the injury not being corpore corpori.
This requirement was, however, gradually abandoned. The main vehicle for this development was the willingness of the praetor to allow an action in factum where justice demanded it. For example, if A struck B, causing B to fall on and kill C, A would be liable on an action in factum for C’s death even though there was no direct injury. Again, where an abortifacient was supplied to a pregnant woman who died as a result of taking it, the supplier would be liable on an action in factum.
As with the modern law of delict, a “thin skull rule” was applied. One had to take one’s victim as one found him. What this meant was that it was no defence, for example, that a slave had had a latent weakness causing him to die of an injury that would not have killed a healthy person.