Value and loss
None of the solutions proposed up till now is satisfactory,[25] and in fact the text has been misinterpreted.
To understand it we must recall the basic facts about a plaintiff’s claim under chapter 1.24 In Institutes 3.212 Gaius tells us that in an action under chapter 1 you do not only estimate the worth of the corpus, but you also take into account the additional loss which the owner suffers through the death of the slave. The loss caused by the death is therefore regarded as separate from the value of the slave. As one of his examples of this separate loss Gaius mentions the owner whose slave has been instituted heir under someone’s will but is killed before he enters the estate. The owner loses the estate and can recover not only the value of the slave but in addition this loss which has been caused by the slave being killed. Justinian explains that the inclusion of such losses was due to the interpretation of the jurists rather than to the wording of the statute itself.25 Gaius does not mention the calculation of the highest value of the slave (‘quanti in eo anno plurimi ea res fuit’) until Institutes 3.214. It is this calculation, rather than the assessment of loss, which is sometimes said to lead to the owner recovering more than the slave was worth at the time of his death. This is still reflected in the treatment in Justinian’s Institutes.26So a plaintiff’s claim may comprise two elements: the highest value of the slave in the previous year and the loss which the owner suffers as a result of the slave being killed. As long as the notion of value is confined to the market value of the slave, the two ideas are obviously very different. But if the idea of value is widened so as to include value to the plaintiff himself, rather than simply market value, the line between them becomes blurred. In particular both the idea of the value of the slave to the actual plaintiff and the idea of the loss caused to the actual plaintiff by the killing of his slave will tend to be thought of as the interest of the plaintiff in not having his slave killed.
Yet, as his Institutes show, the two elements in fact remained distinct even in the time of Justinian. The reason must have been that, whereas you could recover the highest value of the slave in the last year, even if you had not actually lost all of that value, you could recover only those consequential losses which you had actually suffered. So it would matter into which category any element was placed. If, for instance, the jurists had said that an inheritance formed part of the value of a slave, then the slave’s owner would have been entitled to recover the value of the slave, including the value of the inheritance, even if the owner had not actually lost the inheritance.27 But, as we saw, Gaius 3.212 makes it plain that an inheritance was not included in the slave’s value and the plaintiff could claim for the loss of the inheritance only if he had actually lost it because of the slave being killed.24 Gerke, 23 S.D.H.I. 61 contains a very full citation and discussion of the literature on the matter.
New Roman">25 J.Inst. 4.3.10. 2« J.Inst. 4.3.9. 27 Cf. Beseler, 50 Z.S.S. 25f.
If we now return to 23.4 we find that it is the remains of part of Ulpian’s commentary on what elements made up the highest value of a slave for this purpose. The context of the text in the Digest, to which we now turn, makes this clear.