4. Wrongful Loss (Damnum Iniuria)
In comparison with other ancient laws, the attention paid to wrongful loss, the delict dealt with by the lex Aquilia, is remarkable. There had been regal laws on killing, and there had been special rules in the XII Tables on killing and damaging (see above, 247), but the origins of the lex Aquilia have always been sought in a few specific XII Tables wrongs (such as table 8.2: ‘If he has maimed a part (of a body), unless he settles with him, there is to be talion’; table 8.3: ‘If he has broken a bone of a free man, 300, if of a slave, 150 (asses) are to be the penalty’).
The lex itself, probably a comprehensive compilation of several individual rules,60 was on the other hand surprisingly wide, and it would widen further in the course of time. Its aim was to cover loss as suffered by the victim.The statute was enacted by a plebiscite and, since it was always called a lex, it is assumed that it was enacted after the lex Hortensia of 287 BC, which made plebiscites equivalent to statutes. It is likely that it was enacted before 217 BC. Some think it is of a later date but accept in any case that it dates from before the first century BC. The delict it regulates is damnum iniuria, which is to be translated as ‘loss in the context of/caused by a wrong’, albeit essentially the loss had to be caused by physical injury.61 As Ulpian relates, it (partially?) took the place of several older rules, by which he may have meant the XII Tables and subsequent rules. The statute had three chapters. Chapter 1 provided, for the killing (occidere) of a slave or four-footed animal of the category of livestock, compensation of the highest value the killed slave or animal had had in the year prior to the killing. Cardascia argues that this was a rough method in order to avoid loss by price fluctuations.62 Chapter 2 condemned an adstipulator (that is, a co-promisee) who had fraudulently released the common debtor to pay compensation.
Chapter 3 ruled that, where somebody had burned, broken, or smashed (urere frangere rumpere) another’s property, he had to pay compensation for what it was worth in the nearest 30 days. Later Sabinus in the first century AD interpreted this as the highest value in that period. It is unclear whether the period was the 30 days before or after the damaging. Perhaps this was intentional. The costs of wounding could only be established afterwards, but the loss caused by destruction of an object could be assessed from the previous period. The statute provided for compensation of the loss suffered. The delict was, notwithstanding its compensatory goal, penal in the sense that it could not be raised against the heirs of the delinquent (except for enrichment); but it could be raised by the heirs of the victim.The definition of Chapter i was strictly maintained: it had to be a direct violent act of killing like clubbing. That of Chapter 3 was extended, first by fiction (‘as if he had broken’), and later by grammatical extension to all kinds of deterioration (corrumpere).
The ambit of the statute was further extended in several ways to cover cases which did not fall directly under its wording and therefore could not be granted an actio directa. Reconstructions of the actio directa have been put forward. The most recent suggestion is that of Norr,63 namely that the formula contained an intentio (a description of the event in terms of the statute) and then as sequel ‘whatever it appears that the defendant should give the plaintiff under the lex Aquilia, the judge must condemn him to give to him; or else exonerate him’. In other cases — for example, where a usufructuary had suffered a loss, or loss had been caused indirectly - an adapted action was granted, either an actio utilis or an action on the case (actio in factum). In the latter case the situation was described in the demonstratio of the action, and, if the description proved to be right, the judge was directed to apply the lex Aquilia.
Such a simple reference to the statute would explain, as already suggested by Rodger, the extensive attention which is given to the statute itself in the commentaries.64 As for requiring damage to property, in the end even pure patrimonial loss could be claimed by an actio infactum.65 Further, by an actio utilis a free person could claim medical expenses,66 while a paterfamilias could claim medical expenses and loss of income for wounding and mutilation of a son in power.67 These situations are reminiscent of the XII Tables (table 8.3).Causation
The real extension of the statute was achieved by introducing or developing legal concepts. The wording of the law dealt with some specific cases, chiefly de fined by a verb. Occidere (to slay to death) is direct and presumes killing by one’s own hand, most likely with a club or other blunt instrument. What if the killing is by poisoning? By starving? The Romans solved this by distinguishing a philosophical concept underlying this: causation. Occidere was a case of directly causing death, whereas poisoning and starving were doing this by providing an (indirect) cause of death (mortis causa). For these cases, actions in factum were used. So if somebody gave someone poison by his own hand, it would be a direct action, but if he let the victim drink it himself, it would be an action in factum because a cause of death was provided.68 If somebody was thrown from a bridge and drowned because he could not swim, in the second half of the first century AD Celsus considered this direct killing, presumably because the victim did not bring about his own death but simply succumbed passively.
But by moving away from the immediate and direct killing, the Romans got into more complicated questions of causality. What if a slave was wounded, but died a week later? The question became whether his owner could sue for the wounding alone under chapter 3 or for killing under chapter 1, or even for both? Was it possible to see death as a consequence of the wounding? If not, death could not be attributed to the defendant.
Celsus said it could not, but in the middle of the second century AD Julian - and apparently all jurists by some 50 years later - assumed that it could, taking the moment of wounding as the moment of killing. The reason may be - by application of Stoic theories of causation - that if a wound was mortal (the outcome would prove this), the body would at that moment already be mortally wounded and equivalent to being dead.69Here is another school example: a mortally wounded slave takes refuge in a house, which collapses over him: is the assailant liable for killing? Ulpian (around AD 200) thought that he was only liable for wounding. Stoic theories give an explanation for this. The wound is an antecedent cause which makes the body mortally wounded. The quality of being mortally wounded is only a statement of truth if death follows from it. The collapse prevented verification of this, and therefore the only true statement was that he was wounded: ‘the collapse of the house did not allow it to emerge whether or not he was killed’.70 The same reasoning was applied if a slave was mortally wounded but somebody else killed him.71 Starving a slave to death was a cause of death, not killing, and so an action in factum was applicable.72 If two people together killed a slave - one holding him, the other killing him - then both were liable, the first by an action in factum: this was a case of joint causes.73 But what was a mortal wound? ‘But if someone gives a light blow to a sickly slave and he dies from it, Labeo rightly says that he is liable under the lex Aquilia; for different things are lethal for different people.’74 Thus early in the first century AD the adage ‘you take your victim as you find him’ already applied. Justinian schematized all of this: the actio directa applied in case of damage caused corpore corpori, ‘by a body to a body’; the actio utilis where it was caused by a body but not to a body (corpore but not corpori); and the actio in factum if caused neither corpore nor corpori.75
A true school example brings several questions together:
Further, Mela writes, when some people were playing with a ball, and one of them hit it hard and it knocked the hands of a barber with the result that the throat of a slave whom the barber was shaving was cut by the jerking of the razor, that the person in whom the fault [culpa] lies is liable under the lex Aquilia.
Proculus says the fault [culpa] is the barber’s, and surely, if he was carrying on shaving in a place where people customarily played games or where there was much going to and fro, it will be imputed to him; but it is a fair point that if someone entrusts himself to a barber who has his chair in a dangerous place he has only himself to blame.76Mela, early in the first century AD, speaks of culpa, but the case is about both causality and fault. The causality is multiple: the person who hits the ball causes the ball to hit the arm of the barber, the arm of the barber involuntarily (we assume) cuts the throat of the slave. Hence the barber did kill, but involuntarily and rather as an instrument. From that point of view the hitter of the ball indirectly caused death (actio in factum). The barber killed, but in principle did not act unlawfully - he was pushed - so the statute does not apply, as Proculus said of a similar case in the first half of the first century AD.77 At that point the question turns to iniuria: there was iniuria, which is now understood more broadly as negligence (see below, 262). If the barber worked at a dangerous place, says Proculus, he will have acted unlawfully because he was negligent in choosing the place to work. And Ulpian adds that the slave may have been the cause himself. As with the slave who walked through a field where people were practising throwing javelins and was hit,78 he placed himself in a dangerous place and was the cause of his own death. From that perspective only one cause can bring liability and indeed, in Roman law a contributory cause set aside any other liability.
Iniuria
As appears from this example, the element of iniuria was refined. The statute itself contained the word, and its probable meaning was ‘a wrong’, causing a wrongful loss intentionally (with dolus).
It is assumed that originally ‘wrong’ meant an act done non iure, ‘without right’ or ‘against the law’. The law allowed you to kill a thief in case offurtum manifestum at night, so that was done iure (lawfully). Similarly, a slave caught in adultery could be killed by the husband.79 Self-defence also meant that what was done was not done non iure, although in the Principate this applied only if the assailant could not be arrested; otherwise one was guilty of murder.81 Theoretically the statute imposed liability for killing negligently or accidentally. Perhaps the verb occidere implied only a deliberate act. However, since the XII Tables (table 8.24) considered negligent killing reprehensible, we may assume that this too, being clearly non iure, fell directly under the lex Aquilia. In this respect this delict differed from other delicts where intention (dolus) was always required. It would be in line with this that the concept of culpa began to fill out the element of iniuria. ‘Wrong’ could now mean negligence, fault, recklessness, carelessness, all in an objectivised sense. Where the perpetrator was a craftsman, culpa could also mean lack of skill (imperitia). And, as we saw before, it was linked with causality. This is because the act which was the cause was either voluntary (dolus) or it was involuntary (casus) - ‘Throwing a weapon is an act of the will, to wound somebody you do not want to is an accident’82 - or else it was still an act of the will but could have been avoided (negligence): ‘Agitations of the mind fall also into the category of unwittingness and imprudence. Though they are voluntary (they can be restrained by reproach and admonishment), still they have so much impulse of their own, that they are considered to be sometimes compelled or certainly unwitting (acts).’83This is all neatly summarized in a famous text of Paul, from around AD 200:
If a pruner threw down a branch from a tree and killed a slave passing underneath (the same applies to a man working on a scaffold), he is liable only if it falls down in a public place and he failed to shout a warning so that the accident could be avoided. But Mucius says that even if the accident occurred in a private place, an action can be brought on account of his fault [culpa]; and he thinks there is fault [culpa] when what could have been foreseen by a diligent man was not foreseen or when a warning was shouted too late for the danger to be avoided. Following the same reasoning, it does not matter much whether the deceased was making his way through a public or a private place, as the general public often make their way through private places. But if there is no path, the defendant should be liable only for intentional wrongdoing [dolus].84
Since Mucius Scaevola (around 100 BC) introduced foreseeability as an element of negligence, culpa was standard from quite an early date. It included even the slightest degree of fault.85 The earlier view was more restricted: throwing down branches on private land did not make you liable at all, since it was iure to do what you wanted on your land, and consequently the cause was imputed to the victim himself. Causality and iniuria were connected. Hence Proculus could say that a man who was pushed and killed did not act with iniuria: he did not do it intentionally or negligently, although he was the direct cause.
Negligence could also indirectly lead to causing and so to liability:
In the action which arises under this title, both intentional wrongdoing [dolus] and fault [culpa] are punished; and so, if a man sets fire to stubble or thorns in order to burn them up and the fire escapes further afield and spreads and burns another’s crops or vineyard, we shall ask whether this occurred through his inexperience [imperitia] or negligence [neglegentia]. If he did it on a windy day, he is guilty of a fault [culpa] (for even he who provides the opportunity [occasionem praestare] is deemed to have caused the loss); and he who did not see to it that the fire did not spread stands in the same position. But if he saw to everything that he should have done or it was a sudden squall of wind that extended the fire, he is free of fault [culpa].86
In this case somebody does what is allowed (iure), but if he is to do it, he must be experienced or, if he is inexperienced, be careful. If this is the case, we may expect the fire to be contained. An external cause like a squall of wind is then considered vis maior (force majeure). However, if he is careless or inexperienced, he creates an opportunity for external causes which otherwise would not have effect. Burning on a windy day is not diligent. Although he did not intend this and everything happened involuntarily, he did intend at the outset to do something which was able to set this chain of causation in motion.
The role of negligence may be explained by a Stoic refinement of the antecedent cause. A cause did not under all circumstances unavoidably lead to its consequences but could be conditional. ‘If a slave is wounded, but not mortally, and he dies of neglect, the action will be for wounding, not for killing.’87 The antecedent cause was conditional: the wound was not mortal if proper care was provided, so the absence of this additional cause, owing to negligence, prevented its fulfilment.88 Likewise shaving on the street is not dangerous as long as one takes care not to do it in a busy place (or, if it is being done there, the customer should avoid this barber).
size=1 color=black face="Book Antiqua">A loss could be caused by more than one person, in which case all were liable; and payment by one did not release the others: it was after all a penal action.89
Compensation
Another issue was compensation. The word plurimi (‘the highest’) could be interpreted in more than one way and so respond to complicated situations. It could refer to the object itself and would then refer to its highest market value in the preceding year (in the case of chapter 1) or in the nearest 30 days (for chapter 3). Sentimental values were not taken into account: ‘If you kill my slave, I think that personal feelings should not be taken into account (as where someone kills your natural son whom you would be prepared to buy for a great price), but only what he would be worth to the world at large.’90
But plurimi could also be interpreted differently. It could cover what we now call consequential losses. Where a child in paternal power was wounded, his pater had a claim for the medical costs, but also for what he lost in income by his son’s services.91 ‘For under the lex Aquilia, we sue for the amount of the loss suffered, and we are said to have lost either whatever we could have gained or what we are obliged to pay out.’92 In short, lost gains and incurred costs were indemnifiable.
Another case: What if your slave had been instituted heir but was killed before you as his owner could accept the inheritance? This was not so difficult: the value of the slave was increased by the inheritance, he could be sold for that price, and that was the value of the compensation.93 What if your horse was one of a four-in-hand and killed? It takes a great deal of time to train horses to do this. Here the value of the horse was its value as such, but the loss in value of the four-in-hand was added to this. In this example probably another criterion for loss was applied, which Ulpian formulated: ‘But are we assessing only his body, how much it was worth when he was killed, or rather how much it was worth to us that he should not be killed? We use this rule, that the assessment should be what he was worth to the plaintiff.’94 This different method, ‘the worth of not being killed’, which we also see applied for injury (see above, 258-9), was accepted alongside the old one, and the plaintiff was free to choose. It provided a solution to the question raised by the example of the four-in- hand. Further, destroying a will, or a chirograph which proved a claim for money, involved liability for the amount the plaintiff could claim.95
So far as procedure is concerned, the statute originally allowed only the owner to raise a claim, but this was extended to those with an interest similar to the owner, such as the usufructuary.96 The plaintiff raised a claim with the magistrate, who would then ask the defendant whether he denied it or not. If he denied it, the lex Aquilia doubled the estimate of the compensation claimed (‘litiscrescence’: it did not apply to the praetorian actions utilis and in factum). Denial (infitiatio) related to the facts of the case. Suppose somebody acknowledges the wounding or killing of a slave and later discovers that the slave was not wounded or killed or had died a natural death: then the procedure comes to an end.97 Perhaps it also extended to denying that the statute applied; we do not know. It might be that the parties agreed on all the facts but not about the amount of compensation; in that case the judge merely decided that point.98
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