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date: 25 October 2020

lex Aquilia on wrongful damage to property

The lex Aquilia was the statutory foundation for the institutional delict damnum iniuria, relating to wrongful loss and damage to property. A plebiscite referred to as lex, its enactment is often dated just after lex Hortensia (287 bce), which gave the enactments of the concilium plebis the force of lex without senatorial approval. However, its origins have also been linked to economic instability associated with the Second Punic War.1 The earliest surviving commentary is attributed to Brutus, in the late 2nd century bce (Dig. 9.2.27.22). Two of its provisions survive into Justinian’s codification: chapters 1 and 3. They have distinct harm elements and methods of quantifying damages, but share a fault element. Chapter 2, ostensibly concerning co-promises, survives only in Gaius’s Institutes (G. 3.215-216) and was apparently in disuse by high classical law (Dig. 9.2.27.4).2

Chapter 1 concerned the killing of slaves and pecudes, a category of four-footed grazing animals that came to include pigs, elephants, and camels (Dig. 9.2.2.2). The verb indicating the harm proscribed by chapter 1, occidere, was interpreted strictly as referring to a particular type of killing in classical law, though it was perhaps interpreted to refer to all killings of slaves and pecudes before.3 Occidere, often translated generically as “killing,” has strong connotations of violence and directness (Dig. 9.2.7.1). Gaius held that only death caused “by the body to the body” (corpore corpori) fell within the meaning of occidere and so was actionable under chapter 1 (Gai. Inst. 3.219); indirect killings were not actionable by the actio legis Aquiliae, but instead by an actio utilis or actio in factum (Dig. 9.2.7.6), actions issued by praetorian decree rather than based on the edict. The remedial differences between direct and decretal actions are opaque; it seems unlikely that a claimant would obtain a substantially different remedy depending on whether the slave was stabbed or starved to death.4

By classical law, chapter 3 was reinterpreted to capture any property damage not covered by chapter 1, though its original scope was likely narrower.5 This development was produced by juristic interpretation of the chapter’s harm clause “si quis alteri damnum faxit, quod usserit fregerit ruperit . . .” (Dig. 9.2.27.5): (“if anyone caused loss to another by burning, breaking or smashing”). The verbs urere, frangere, and rumpere connote catastrophic property damage but, by the late Republic, jurists interpreted rumpere (smashing) as corrumpere (spoiling), significantly widening the scope of liability (Dig. 9.2.27.11).6 Corrumpere does not appear to have had a settled scope, though Gaius applies the same corpore corpori test adopted for chapter 1. There does not appear to have been a lower limit to the damage required: staining (Dig. 9.2.27.18) or even depriving the owner of the use of property without damaging it (Dig. 9.2.27.21) could result in an action. So long as property was damaged, however trivially, the actio legis Aquiliae would lie. Where patrimonial loss was caused without property damage, the appropriate remedy was a decretal action.

Both chapters required iniuria, which was understood as the absence of a lawful basis for causing the harm. It was lawful, for example, to kill a slave caught in the act of theft (Dig. 9.2.4.1, Gaius), or to kill in self-defence (Dig. 9.2.5.pr). By classical law, iniuria was interpreted to include dolus (intentional wrongdoing) and culpa (unintentional but blameworthy wrongdoing) rather than casus (G. 3.211), though the unlawfulness notion also survived. Dolus signified intentionally causing damage and would entail liability, unless justified by legal entitlement (e.g., intentionally killing a slave if the slave attacked first). The meaning of culpa is less clear. The tight conceptualisation of culpa in Roman contract law was not carried over to the lex Aquilia (excepting Dig. 9.2.31). Culpa in the lex Aquilia appears to connote fault, considered by reference to the causal significance of the defendant’s conduct in relation to typified situations.7 Several texts on culpa depict complicated scenarios without offering a resolution (e.g., Dig. 9.2.9.4, Dig. 9.2.11.pr), instead illustrating considerations relevant to attributing responsibility (e.g., creation of risk, contributory fault, consent, foreseeability, and holding out of relevant skills).

Damages under chapter one were calculated according to the highest value of the killed slave or pecus in the preceding year (Dig. 9.2.2.pr), perhaps originally to take account of seasonal fluctuations in the price of slaves and pecudes in an agricultural context.8 Value was understood as economic, and excluded sentimental factors (Dig. 9.2.33.pr). However, factors enhancing the economic value of the thing to its particular owner could be taken into account (Dig. 9.2.23.6). This caused difficulties where a slave’s value to his owner was higher earlier in the year than at the time of killing, creating tension between the ostensibly objective measure of damages and the slave’s economic worth to his particular owner (Dig. 9.2.23.1, Dig. 9.2.23.4).9 There was also disagreement about the moment from which the year was reckoned. Celsus (Ulpian apparently agreeing) reckoned backwards from the moment of death but Julian reportedly reckoned backwards from the infliction of a mortal wound (Dig. 9.2.21.1, Dig. 9.2.51.2).10

Damages under chapter 3 were for “quanti id in eo anno plurimi fuit in diebus triginta proximis” (Dig. 9.2.2.pr). In his Institutes, Gaius interprets this to parallel chapter 1, awarding the highest value of the damaged property in the preceding thirty days (G.3.218). Noting that absurdity would follow if damages for chipping paintwork on a building were set at the highest value of the building in the preceding thirty days, Daube argued that chapter 3 damages corresponded to the claimant’s patrimonial loss (damnum).11 This view is supported by texts where damages appear to relate to the loss actually suffered, rather than the value of the damaged property (e.g., Dig. 9.2.27.28, Dig. 9.2.41.pr).

Primary Texts

The Institutes of Gaius, eDig. Paul Krueger.

The Institutes of Justinian, eDig. Paul Krueger.

The Digest, edited by Paul Krueger and Theodor Mommsen.

Bibliography

John Barton. “The lex Aquilia and Decretal Actions.” In Daube Noster: Essays in Legal History for David Daube. eDig. Alan Watson. Edinburgh: Scottish Academic Press, 1974.Find this resource:

Peter Birks. “Wrongful Loss by Co-Promisees.” Index 22 (1994): 181–188.Find this resource:

Guillaume Cardascia. “La Portée Primitive de la Loi Aquilia” in Daube Noster: Essays in Legal History for David Daube. eDig. Alan Watson, 53. Edinburgh: Scottish Academic Press, 1974.Find this resource:

Alessandro Corbino. Il danno qualificato e la lex Aquilia, 2nd eDig. Padua: Cedam, 2008.Find this resource:

Maria Cursi. Iniuria cum damno. Milan: Giuffrѐ, 2002.Find this resource:

David Daube. “On the Third Chapter of the lex Aquilia.” Law Quarterly Review 52 (1936): 253.Find this resource:

David Daube. “On the Use of the Term damnum.” In Studi in Onore di Siro Solazzi nel Cinquantesimo Anniversario del Suo Insegnamento Universitario, 1899–1948. eDig. Vincenzo Arangio-Ruiz. Naples: Jovene, 1948.Find this resource:

Tony Honoré. “Linguistic and Social Context of the lex Aquilia.” Irish Jurist 7 (1972): 138.Find this resource:

David Ibbetson. “The Dating of the lex Aquilia.” In Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry. Edited by Andrew Burrows, David Johnston, and Reinhard Zimmermann. Oxford: Oxford University Press, 2013.Find this resource:

Herbert Jolowicz. “The Original Scope of the lex Aquilia and the Question of Damages.” Law Quarterly Review 38 (1922): 220.Find this resource:

Neil MacCormack. “Culpa.” Studia et Documenta Historiae et Juris 38 (1972): 123.Find this resource:

Dieter Nörr. “Causam mortis praebere.” In The Legal Mind. Edited by Neil MacCormick and Peter Birks, 203. Oxford: Clarendon Press, 1986.Find this resource:

Alan Rodger. “Labeo, Proculus, and the Ones that Got Away.” Law Quarterly Review 88 (1972): 402.Find this resource:

Alan Rodger. “What Did damnum iniuria Actually Mean?” In Mapping the Law: Essays in Memory of Peter Birks. Edited by Andrew Burrows and Alan Rodger. Oxford: Oxford University Press, 2006.Find this resource:

Giovanni Rotondi. “Dalla lex Aquilia all’art. 1151 CoDig. Civ: Ricerche storico-dogmatiche.” In Scritti Giuridici, eDig. Giovanni Rotondi. Pavia, Italy: Tipografia e legatoria cooperativa, 1922.Find this resource:

Sandro Schipani. Responsabilitá ‘ex lege Aquilia.’ Turin: G. Giappichelli, 1969.Find this resource:

Boudewijn Sirks. “The Slave Who Was Slain Twice: Causality and the lex Aquilia.” Tijdschrift voor Rechtsgeschiedenis 79 (2011): 313.Find this resource:

Giuseppe Valditara. Dall’aestimatio rei all’id quod interest: Evoluzione del criterio di stima del danno aquiliano. Pavia, Italy: G. Iuculano, 1995.Find this resource:

Notes:

(1.) Tony Honoré, “Linguistic and Social Context of the lex AquiliaIrish Jurist 7 (1972): 138; and David Ibbetson, “The Dating of the lex Aquilia,” in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, ed. Andrew Burrows, David Johnston, and Reinhard Zimmermann (Oxford: Oxford University Press, 2013).

(2.) Peter Birks, “Wrongful Loss by Co-Promisees,” Index 22 (1994): 181.

(3.) Dieter Nörr, “Causam mortis praebere,” in The Legal Mind, ed. Neil MacCormick and Peter Birks (Oxford: Clarendon Press, 1986), 203.

(4.) John Barton, “The lex Aquilia and Decretal Actions,” in Daube Noster: Essays in Legal History for David Daube, eDig. Alan Watson (Edinburgh: Scottish Academic Press, 1974).

(5.) David Daube, “On the Third Chapter of the lex Aquilia,” Law Quarterly Review 52 (1936): 253; and Herbert Jolowicz, “The Original Scope of the lex Aquilia and the Question of Damages,” Law Quarterly Review 38 (1922): 220.

(6.) Although corrumpere is said to encompass urere and frangere (DIG.9.2.27.15), significant tracts of Ulpian on urere are preserved in the collatio legum Mosaicarum et Romanarum, suggesting the term continued to be independently significant into high classical law (Coll. 12.7).

(7.) Neil MacCormack, “Culpa,” Studia et Documenta Historiae et Juris 38 (1972): 123; and Maria Cursi, Iniuria cum damno (Milan: Giuffrѐ, 2002).

(8.) Guillaume Cardascia, “La Portée Primitive de la Loi Aquilia,” in Daube Noster: Essays in Legal History for David Daube, eDig. Alan Watson (Edinburgh: Scottish Academic Press, 1974) 53.

(9.) Giuseppe Valditara, Dall’aestimatio rei all’id quod interest: Evoluzione del criterio di stima del danno aquiliano (Pavia: G. Iuculano, 1995).

(10.) Boudewijn Sirks, “The Slave Who Was Slain Twice: Causality and the lex Aquilia,” Tijdschrift voor Rechtsgeschiedenis 79 (2011): 313.

(11.) David Daube, “On the Use Of The Term Damnum,” in Studi in Onore di Siro Solazzi nel Cinquantesimo Anniversario del Suo Insegnamento Universitario, 1899–1948, eDig. Vincenzo Arangio-Ruiz (Naples: Jovene, 1948).

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