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6 - Reflections on the Quantification of Damnum
- Edited by Paul J. du Plessis, University of Edinburgh
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- Book:
- Wrongful Damage to Property in Roman Law
- Published by:
- Edinburgh University Press
- Published online:
- 28 April 2021
- Print publication:
- 15 May 2018, pp 183-210
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- Chapter
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Summary
INTRODUCTION
The lex Aquilia is a plebiscite traditionally dated to 286 (or 287) BCE. It consists of three capita. The first deals with the unlawful killing of a slave or a pecus belonging to someone else. The second chapter is concerned with the contract of adstipulatio and imposes ‘liability on a secondary creditor who wrongfully released the debtor as against the principal creditor’. The third chapter focuses on wrongful damage to property generally by means of burning, breaking or breaking apart.
The wording of the first chapter is preserved in D.9.2.2.pr, a fragment of the second-century jurist Gaius's commentary on the provincial edict: ‘Lege Aquilia capite primo cavetur: “Ut qui servum servamve alienum alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto”’. The wording of the second chapter is less clear. In D.9.2.27.4 Ulpian reveals ‘Huius legis secundum quidem capitulum in desuetudinem abiit’, while the compilers of Justinian's Institutes settle the matter in eight words (Inst. 4.3.12): ‘Caput secundum legis Aquiliae in usu non est’. Gaius, in his Institutiones, comes closest to the actual wording of Chapter 2. In Gai.Inst. 3.215, we read: ‘Capite secundo aduersus adstipulatorem, qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur’. Finally, the content of the third chapter is reported in D.9.2.27.5 where Ulpian reports: ‘Tertio autem capite ait eadem lex Aquilia: “Ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto”’.
This contribution will focus on the first and third chapters, since the second chapter had already fallen into desuetude by the start of the classical period. In keeping with the general theme of this volume, I will approach the sources without any preconceptions, an approach typical of Anglo-Saxon academia, with a view to offering a critique of Continental scholarship on the question of the quantification of damnum.
Traditionally, according to Continental scholarship, the third chapter of the lex Aquilia provided that, irrespective of the extent of the damage caused to the object, the wrongdoer was obliged to pay the highest value of the object in the previous thirty days to its owner (hereafter referred to as ‘the traditional view/interpretation’).
Preface
- Edited by Paul J. du Plessis, University of Edinburgh
-
- Book:
- Wrongful Damage to Property in Roman Law
- Published by:
- Edinburgh University Press
- Published online:
- 28 April 2021
- Print publication:
- 15 May 2018, pp vii-viii
-
- Chapter
- Export citation
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Summary
Few topics have had a more profound impact on the study of Roman law in Britain than the lex Aquilia, a Roman statute enacted c. 287/286 BCE to reform the law on wrongful damage to property. Writing an article on this topic has become a proverbial rite of passage for nearly all British Romanists. A brief survey of modern Roman law literature demonstrates that British Romanists have made a substantial contribution to the study of this topic. The relevant titles in Justinian's compilation have been translated into English more than once and, judging by recent Festschriften for Alan Rodger and Boudewijn Sirks, the lex Aquilia continues to be studied in great depth by a number of British Romanists. And yet, the British fascination with the lex Aquilia is not immediately apparent to anyone outside these circles, nor has it been explored systematically.
The aim of this volume is to investigate the reasons for the peculiarly British fixation with wrongful damage to property in Roman law against the backdrop of the teaching of Roman law in Britain during the last century. This necessarily involves an investigation of certain broader themes. First, the significance of the lex Aquilia for the Oxford, Cambridge and Edinburgh legal curricula (as an ever-present topic in the advanced course in Roman law at all these universities) will be assessed. Within this theme, specific topics such as how the subject was taught, what materials were used and what impact the teaching of this topic had on subsequent generations of legal academics who studied at these universities (even if they did not proceed to further study and specialisation in Roman law – since the lex Aquilia clearly also had an impact on legal scholars working on modern tort/delict) will be investigated.
In second place, and related to the first (especially the issue of teaching materials), the impact of Frederick Henry Lawson's work on tort liability will be contextualised. This work, first published in 1950 and appearing in a number of subsequent editions, not only contained a thorough exposition of law in subsequent periods of European legal development, but undoubtedly also exercised a significant influence upon the teaching of wrongful damage to property in Roman law in the above-mentioned universities.