Things Poured or Thrown

If the late first/early second century writer Juvenal is to be believed, merely to walk in the streets of Rome was a risky business:

What extreme height to the lofty roofs from which a piece of pot falls down on my head, how often a broken vessel is shot from the upper windows, with what a force it strikes and dints the cobblestones! If you go out to dinner without long since having made a will, you’ll be thought a fool, reckless of fate and sudden disaster; for as many sure deaths are lying in wait in the night as the open windows you pass in the street.

The pictureJuvenal paints is no doubt exaggerated. Nonetheless, it is also true that a great many Romans lived in high tenement buildings, without direct access to sewerage or means of waste disposal. For many, the easy option of disposal via the window would have been much more tempting than the long trip downstairs for proper disposal.

In this context, it is easy to understand why the occupier of premises was made quasi-delictually liable when anything caused damage by being poured or thrown from those premises. This was the case whether the premises were the defender’s own, they were rented, or they had been provided gratuitously to the defender.^[2735] It was not necessary to prove that the occupier was responsible for the pouring or throwing: this was an example of vicarious liability, meaning liability for another person’s acts. Accordingly, the victim might have a choice: either sue the actual thrower in delict or, if that person could not be identified, sue the occupier of the premises in quasi-delict.^[2736] Where property (including slaves) was damaged, liability was for double the value of the damage. Where a free man was killed,Justinian stated a fixed penalty of 50 aurei.^[2737] If a free man was injured, damages were in accordance with the judge’s discretion, taking into account medical expenses and lost earnings.^[2738]

As noted, it was the occupier of the premises who was liable. Difficulties could arise with houses in multiple occupancy. Certainly, a guest was not liable under this quasi-delict, even if something was poured or thrown from the part of the house occupied by that guest.^[2739] A lodger might, however, be liable. Depending on the circumstances, the lodger, the owner or both might be liable.^[2740]

The status of this quasi-delict in modern Scots law is uncertain.^[2741] The insti­tutional writer Bankton indeed tells us that it was received.^[2742] There is, however, a lack of modern authority.

D.