Justinian's Digest 9.2.51 in the Western Legal Canon Chapter 2 - The Evidence
Published online by Cambridge University Press: 09 November 2019
Summary
SETTING THE STAGE
ACCURSIUS'S ORDINARY GLOSS
In Accursius's Ordinary Gloss (Glossa Ordinaria), the gloss ‘teneri’ on D.9.2.51 tries to explain the tension between this fragment on the one hand and D.9.2.15.1/D.9.2.11.3 on the other:
Being liable - as for killing. Because each of the two is liable for the closest year's maximum value, calculated from the moment he was wounded, as here submitted, lex aestimatio autem [= D.9.2.51.2], below de dam. infect. lexfluminum § idem Servius [=D.39.2.24.5] at the end, above lex ait [= D.9.2.21]. With regard to a [slave] wounded [only], the damages are assessed within 30 days according to the third chapter. No argument against this can be taken from above lex huic § si servus [=D.9.2.15.1] or lex item Mela § Celsus [= D.9.2.11.3], where he says that the first is liable because of the wounding, although the wound was deadly, because it was not certain that he would die from this wound.
This has a counterpart in the gloss ‘mortifere’ to D.9.2.15:
Mortal - as it was believed to be, and yet it was not certain & hence this is not in conflict with D.9.2.51.
Another gloss to l.51.2 (gloss ‘disputandi’) comments upon the ratio stricta-passage:
Of that which is to be discussed - This is against the strictness of the law, since by strictness of the law neither is liable. The first not, since he did not slay, the second not, since he [the slave] was to die regardless of the wound [inflicted] by him.
This was the ‘solution’ adopted by Accursius (ca 1182-1263): in the case of an absolutely mortal first wounding, both wrongdoers incur liability for killing, whereas a first wounding that could lead to the slave's death, but does not necessarily have to, allows a Chapter III liability only, leaving the second wrongdoer as the only one liable for killing. The strategy of the Gloss was once aptly described thus: ’One does not try to resolve the contradictions found through a higher-level principle, but each statement and each opinion gets its own limited range of application which lets it co-exist with the other text.
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- Justinian's Digest 9.2.51 in the Western Legal CanonRoman Legal Thought and Modern Causality Concepts, pp. 11 - 102Publisher: IntersentiaPrint publication year: 2019