The Lex Aquilia
(1) Introduction
The lex Aquilia was a statute[2375] on the basis of which there was liability for wrongÂful damage to the property of another. It is not possible to date the lex Aquilia with complete certainty,[2376] but the traditionally accepted date is around 287 BC.
Even if the true date is somewhat later than this, though, it is well before the classical period of Roman law, and extremely early for a statute making major reforms to private law. In its developed form, at any rate, Aquilian liability (as we may call liability under the lex Aquilia) provided a broad basis for liability for propÂerty damage. Thus, as Ulpian explains, it superseded earlier delictual remedies concerned with such damage: ‘The lex Aquilia derogated from all previous laws concerned with wrongful loss, whether in the Twelve Tables or otherwise. It is not now necessary to refer to these laws.'[2377]A pursuer seeking damages under the lex Aquilia would sue using the action called the actio legis Aquiliae.[2378] This had a special rule that the defender had to pay double damages if he or she denied liability, but was found liable.[2379] As we shall see below, the lex Aquilia was originally narrower in scope than it came to be. Much of this development came through juristic interpretation, but much also came from the praetor allowing, on special cause shown, an actio in factum or actio utilis[2380] where justice demanded a remedy but the facts did not quite fall within the statutory action on the lex Aquilia itself. In time, particular types of fact situation came to be seen as entitling a pursuer to an actio infactum, and the practical differÂence was probably simply that the double damages rule did not apply to an actio in factum. It was therefore preferable to use the statutory action where possible.
We are concerned here with the delict that Justinian, above, calls ‘loss wrongÂfully caused' (damnum iniuria datum), because it consists of these three elements:
• loss (damnum) on the part of the pursuer;
• wrongful conduct on the part of the defender (iniuria; sometimes the term culpa (fault) is used);
• the loss was caused (datum) by that conduct of the defender.
We shall see each of these in more detail below. First, though, we need to take a closer look at the wording of the lex Aquilia.
(2) Contents
The lex Aquilia was divided into three sections, or ‘chapters'.[2381] Only the first and third are relevant here. The content of the second chapter was unknown until 1816, when Gaius' Institutes were rediscovered, putting to an end centuries of (as it turned out, wildly erroneous) scholarly speculation. The second chapter was concerned with the case of an adstipulator1 who wrongfully released a creditor, and therefore has nothing at all to do with the subject matter we are concerned with here.
(a) First Chapter
As it is reported by Gaius, the first chapter of the lex Aquilia provided as follows:
If anyone wrongfully kills a male or female slave belonging to another, or a fourÂfooted animal of the class of cattle, let him be condemned to pay the most that it was worth in the previous year.[2382] [2383] Chapter 1, then, is fairly narrow in scope. It is concerned specifically with the killÂing of a slave or of an animal of a certain class. There seems to have been some debate as to exactly what kinds of animal were included. The settled position was that chapter 1 only included in its scope domestic grazing animals. Thus, bears, lions and panthers were wild, and so were not covered.[2384] Gaius considers elephants and camels to be of a problematic ‘mixed’ nature: they are naturally wild, but are nonetheless used as draught animals. His conclusion is that they are within the scope of chapter 1. A notable feature of the first chapter is the requirement for the wrongdoer to pay ‘the most that [the property] was worth in the previous year’.[2388] The jurists consider this as a penal provision of the lex Aquilia, sometimes giving the pursuer more than he or she has actually lost. Anything that made the slave or animal more valuable could be included. Various examples are given.[2389] For instance, a skilled painter who had lost a thumb in the previous year would be valued as if he still had the thumb. Where a slave had previously had a good character, but his or her character had deteriorated in the previous year, the slave would be valued on the basis of the previous good character. It is more likely, though, that the purÂpose of this rule was to take into account fluctuations in value over the course of a year. It is likely, for example, that demand pushed up the market value of slaves for agricultural labour at harvest time. By contrast, in the winter, when there is less work needing done, such a slave's market value would likely be lower.[2390] (b) Third Chapter As reported by Ulpian, the third chapter of the lex Aquilia said: In the case of all other things other than slaves or cattle that have been killed, if anyone causes loss to another, by wrongfully burning, breaking or rending his property, let him be condemned to pay as much as that thing will be worth in the nearest thirty days.[2391] There are uncertainties as to the scope and meaning of this provision. First, in the form in which we have it, the third chapter extends to all property damage that does not fall within the first chapter. Second, the verbs used for the damage caused — ‘burning, breaking or rending' — are quite strong, and perhaps suggest an intention that chapter 3 should only cover quite serious damage, amounting to destruction or near-destruction of the property. By juristic interpretation, however, the scope of the third chapter was broadened substantially. As Gaius says: ‘by rending [ruptum] we understand spoilÂing [corruptum] in any way'.[2393] For example, if I spill your wine on the floor, it is spoiled for human consumption even though it is not physically damaged, and so this falls within the third chapter. Again, Ulpian tells us that, if corn is wrongÂfully mixed up with something else, such as sand, with the result that separation is difficult, the owner of the corn can recover damages under the third chapter.[2394] Indeed, the praetor might be willing to go even further, and grant an actio in facÂtum, by analogy with the third chapter, when loss had occurred without anything that could be described as damage to the property. For example, suppose that there is a wild boar caught in my trap. You release the boar with the result that it ceases to be mine.[2395] Proculus says that I have an actio in factum against you for my loss.[2396] Again, suppose that you startle my cattle into running off. As a result of this, the cattle fall into the hands of thieves and so are lost to me. Ulpian says that I can have an actio in factum against you.[2397] Third, there are difficulties with the reference to the ‘nearest thirty days'.[2398] [2399] Does the word translated here as ‘nearest' (proximis) mean ‘next' or ‘previous'? In other words, are damages to be calculated by reference to the next thirty days or the previous thirty days? On one view, which makes particular sense if the third chapter originally only applied to living things, this is a reference to the next thirty days and links to the first chapter of the lex Aquilia.55 Suppose that I own a slave. An alternative view of the ‘thirty-day' rule is that it was intended to refer to the thirty days preceding the damage.[2400] In other words, on this view, the thirty- day rule in the third chapter worked in the same way as the one-year rule in the first chapter, except that the highest value in the previous thirty days was taken rather than the highest in the previous year. This was the approach of the classical[2401] and Justinianic[2402] law, in terms of which damages payable were to be based on the diminution in the property's value from the highest point that it had reached in the previous thirty days. C.