Caput IV. Lex Aquilia and the Duty of Care

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cura facit canos

Care brings grey hairs 

                                    Said of those who worry

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The Background

This chapter looks at Roman law and civis prudens civis, the citizen is prudent to his fellow citizen. He has an officium curae, a duty of care

When Aquilian jurists cite liability, they use the phrase damnum iniuria datum, a loss wrongfully inflicted. Originally, iniuria meant without legal right. A defendant is liable if he inflicts loss on the plaintiff, with no offsetting defence

Under jurists, iniuria acquires the sense of wrongfulness but, with time; includes the broader sense of unlawful. The defendant is liable for loss without right, on two points; the act is improper, and the defendant can be legally reproached. Under Roman law, unless the defendant has acted wrongfully; he is not liable. Therefore, the burden is on the plaintiff to prove the wrongfulness of the defendant’s act. This interpretation limits the range of Aquilian liability

Jurists rarely cite the concept of wrongfulness. Wrongfulness implies legal rules with expected behaviour. lex Aquilia says little; and where and when such rules exist, they are the creation of jurists

The Roman citizen had no obligation to avoid material loss towards another. Nevertheless, the citizen is required to act with care such that his act does not cause loss to another.  Roman law cites the word culpa, with the literal translation of fault or responsibility. A citizen who acts with deliberate intent to inflict harm on another is said to be dolus, again; a literal translation being, intentional fault

Jurists tended to look at culpa, without dolus, subjectively versus objectively. Not what the defendant was capable of, but whether the person’s behaviour is in accord with social expectations. Thus, a defendant is not held to a lower standard because he is less skillful nor to a higher standard because he is more skillful. By example: neglegentia, carelessness is a very common human behaviour. Carelessness may be small, a simple lapse of attention. It may be the failure to quickly and accurately anticipate the end-result of one’s act. But it is always the source of legal liability if others suffer loss. From Ulpianus, he says: sub lex Aquilia, vel levissimam culpae comites, Under the lex Aquilia, even the slightest culpa counts

neglegentia plerumque culpae, Carelessness is the most common form of culpa. Jurists were fond of defendants who act as a professional. The defendant who does not know what he should know or is inexperienced or is weak for the demands of the work. Carelessness is not in the act itself, but in the defendant’s doing the act

Jurists understood the limit of liability of those who could not understand the consequences of their act, such as a young child or a person deemed: non compos mentis, not of sound mind. To these persons the jurists attached no moral blame, even under the most extreme condition. In the absence of moral blame, the jurists also deny legal liability

Roman jurisprudence, neglegentia is punitive. In answer to the question, why do men sue? The answer is as follows:

Agimus autem interdum ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam… Rem vero et poenam persequimur velut ex his causis ex quibus adversus infitiantem in duplum agimus, quod accidit per actionem…damni iniuriae legis Aquiliae…

We sue sometimes just to obtain our property (res), sometimes to obtain a penalty, sometimes to obtain both our property and a penalty (rem et poenam) … We obtain our property and a penalty in those cases where we sue for double against a person who denies liability, this happens in the action…for wrongful loss under the Lex Aquilia…

Though said above, Roman citizens have no obligation to their fellow citizen, over time; a sense of obligation evolves.  Jurists cite a duty of care in a casuistic manner, to the extent citizens are obliged towards others. Duty of care is more extensive in some circumstances than in others. The cases cited below determine the limits of care. At times the defendant is liable for acts characterized by culpa, includes dolus; other times the defendant’s act is characterized by dolus

This paper discusses the evolution of case law concerning cupla and dolus, meandering towards a duty of Care

Aquilian liability philosophy is summarized as: no loss, no fault

Fourteen juristic cases are discussed below: XVIII to XXXI

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Case XVIII 

This Case XVIII and XIX, Ulpianus and Gaius cite and interpret the word iniuria, the First Section of the Lex Aquilia. They discuss the original sense of iniuria, its excuses of defence therefrom

Roman jurisprudence allows a defendant to argue an act does not result in Aquilian liability, although it ordinarily would do so. Roman jurists have no formal theory of defence. Jurists often treat a defence obliquely, by blandly asserting under the circumstances the defendant’s act is not blameworthy. Therefore, there is an absence of culpa. The basis of this reasoning is original wording of Lex Aquilia: iniuria means “without legal right”

Concerning the slave who attempts to rob me, the defendant excuses their conduct by asserting the plaintiff or the plaintiff’s slave had brought the loss on themselves. The defendant asserts naturalis ratio, “natural reason”: the plaintiff accepts the risk the loss incurs or accepts causing the loss or accepts their slave provokes the loss, thereby; the slave’s behaviour justifies the defendant’s act

The jurists in similar cases assert the defence of culpa-equivalence. The defendant’s culpa and the plaintiff’s culpa cancel each other, therefore; the plaintiff cannot recover the loss. Balancing is insidious, particularly when one party’s fault is deliberate dolus

The defendant can escape liability for deliberate destruction of the plaintiff’s property by asserting the circumstance compels him to damage the plaintiff’s property. This argument is scrutinized

The final argument is to assert the law gives one party the legal right to act as one had. This argument is restricted 

In summary, iniuria resembles current-era tort of negligence

Case XX

Gaius states statutory Aquilian law requires iniuria, the defendant must be at fault to cause the loss. Further, Gaius asserts culpa is punitive in nature

The case of the medicus, the “medical doctor” illustrates iniuria

The medicus is the defendant doctor to the patient. The paterfamilias is the plaintiff for the patient

For the past year, the medicus has visited the patient twice a week, plus countless visits during the night. The patient receives potions to cure his fever. All persons describe the medicus as solicitous. The patient dies in his sleep. Still, the paterfamilias feels the medicus should have given additional potions to cure the fever

Nota bene. The paterfamilias is the senior male by descent of the genus, the “clan”. Since the paterfamilias is the senior male, he is the plaintiff by custom

culpa and dolus are not in the act itself, but the defendant doing the act

Case XXI

Ulpianus tries a different approach to derive the requirement of culpa form Aquilian statute law. The Ulpian argument is subjective fault rather than an objective breach of a duty of care

actio iniuriarum, the “action on outrage” covers deliberate offenses to the personality of the person insulted. Roman examples of defamation of character include interference with normal rights, assault and battery, and so forth. The person insulted is permitted to claim personal distress caused by the defendant’s antisocial behaviour

Ulpianus notes the meaning of iniuria is different within Lex Aquilia. Outrage, iniuria is an “injury” to the person’s feelings

Case XXII

The obiter dictum illustrates the ambiguous nature of culpa and Aquilian liability. One side, the defendant is “punished” if he is “guilty of culpa” (strong and moral language that may imply a subjective concept of culpa). On the other side, Paulus specifies general rules and allows the defendant to escape if: At si omnia quae oportuit observavit, “But if he observed all that was necessary” is a general and rule-orientated approach that suggests an objective concept of culpa

Paulus says a person who sets a bushfire on a windy day is guilty of culpa. The Paulian interpretation implies a broad duty of care

Case XXIII

Mucius says there is a duty of care, culpa; concerning a path: a public path beneath a tree-trimmer or a man on a scaffold, respectively throwing down either branches or bricks to the ground (where a person-present may be struck)

Roman jurisprudence defines delict as a fault with an inherent reflexive obligation from defendant to plaintiff. Therefore, under lex Aquilia, certain acts in themselves have an implied Duty of Care, these acts may result in pecuniary compensation

Over time jurists expanded the scope of Aquilian liability, they considered limitations, since they were unwilling to hold that all loss caused by wrongful behaviour will result in the defendant being liable. Jurists found it easier to impose a duty of care for physical injury but, were hesitant to extend care for emotional injury or purely economic loss

Nota bene. The original Paulian comment was amended by an unknown person. The amendment may have been inserted during the compilation of the juristic commentaries under either Theodosius II or Justinian I, Byzantine emperors. The added phrase is underlined in the obiter dictum and repeated here: cum quod a diligente provideri… The intent may be in accord with the following propositio maxima, the “most important proposition”, verba posteriora, propter certitudinem addita, ad priora, quae certitudine indigent, sunt referenda, “subsequent words, added for the purpose of certainty, are to be referred to preceding words which need certainty”

Case XXIV

Paulus is clear on the placement of an animal pit. If the pit is on a path, you are liable under lex Aquilia

Bears and stags do not walk along human paths, they walk along animal trails. Pits are placed where animals are likely to forage. Paulus qualifies his warning: if the victim neither knew nor was able to foresee…if he could avoid the danger, contributary negligence

The luckless wanderer, who falls into a pit; chooses to pursue a statutory versus an in factum claim

Case XXV

Domestic animals and legal issues are present from earliest antiquity (prior to the publication of the lex Duodecim Tabularum, the Twelve Tables in written form, 449 BCE)

Roman jurisprudence prior to 449 BCE holds, if a pregnant slave woman or a pregnant mare miscarries due to striking, then the thing struck is considered “rent”. The plaintiff can sue under statute law for pecuniary compensation.

Q. Mucius and Pomponius refer to acts involving physical contact, that is, striking the mare. They appear to support dolus; a deliberate act to inflict harm. If “yes”, the jurists support the legal action of in factum action for pecuniary compensation

The jurists establish a Duty of Care, in that: …aut tractant pecus quasi proprium tuum aut dominum appellatus ut veniant et colligant pecudem suum, “…either treat the animal as if it were your own or call the owner to come and collect their animal stock”

Case XXVI

Case XXVII

This Case XXVI and XXVII sets forth the difference between liability for aiding and abetting a theft and liability for wrongful damage

The premise of the Case rests on the defendant aware herd cattle may stampede when a red flag is waved. Further, is the defendant liable if he knew the cattle would stampede, but thought that he owned them? If the answer to both assertions is “yes’, which appears to be the circumstance, then to what extent does the defendant’s duty of care include a duty to know “common” facts about the society he lives in, as well as who owns the property

Is the defendant liable if the cattle stampeded, but no physical harm accrued to the herd? 

Is the defendant liable if the owner of the cattle rounded the stampeded herd, but the rounding expense is borne by the owner?

The action is in factum

Case XXVIII

This Case XXXVIII and XXIX, extends Aquilian liability, the Third Section of Aquilian statute law. Statute law only permits suit for property damage to a “thing”, that is; to herd animals and slaves. Actual physical harm must be committed

The son is “free born” and is under the power of the father (in accord with Roman kinship social structure). He is an apprentice to a cobbler, respectively plaintiff and defendant. The son allegedly performs his apprenticeship duties in a manner such that the cobbler strikes the son on the neck by throwing a shoe last. The strike results in the son losing the sight of one eye. The cobbler states the strike was “corrective”

Julian states the cobbler is not liable for iniuria, since his strike is not intentionally insulting therefore, no outrage, no dolus

Paulus also cites the case. He asserts culpa, a fault; is present. In addition to the remunerative award, the case has an additional significance. A standard of Duty of Care is stated. A person in legal authority of another may only punish lightly; levis dumtaxat castigatio, ¹ “the extent of punishment is light”

Nota bene: The Case of the Cobbler’s Apprentice extends Aquilian liability. The Court now recognizes an actual physical harm against a civis Romanus, a Roman citizen

Nota bene. See Case XLIII, the Cobbler’s Apprentice, Settlement

Case XXX

Case XXXI

This Case XXX and XXXI, cites the imposition of an obligation on the attending physician to perform his medical duties completely and competently

Ulpianus in another case says the doctor is liable in factum for all types of treatment. This includes the practising defendant doctor who claims to be trained, when he is not qualified

Juristic writing enhances the Duty of Care and its attendant liability under either contract law or lex Aquilia 

Conclusion

Case XX, the grieved family urges the paterfamilias to take an action against the medicus and, Case XXVIII and XXIX provide the answer the paterfamilias is seeking, the civis Romanus has a responsibility towards another citizen

Of all the cases, XXVIII and XXIX, the Cobbler’s Apprentice illustrates the maturing of Roman jurisprudence, from the strictures of statute law to case law. This maturation is evident in the case. The case recognizes redress and pecuniary compensation apply to the free person 

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dixerunt quod futurum esse, futurum esse; sed non erat

They said whatever would be would be, but it wasn’t 

                                                                                           Said of those who parse legal writings

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