Caput II. Lex Aquilia and Property Law

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quid est lex?

What is the law?

                                               Asked by the loosing defendant                                                   

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The Background

Caput I, the first chapter in this six-part series, Roman Law and the Citizen, introduced the Third Section of lex Aquilia by discussing the development and evolution of case law, when statute law offers no remedy

Caput II continues examining the maturation of Roman jurisprudence: including cases grappling with the definition of the Latin verb rumpere, to rend and its relationship with property: the adulteration of crops, faulty workmanship on a cistern, the thin line between property damage and property theft and other shenanigans on the road to the Forum. The focus is the Third Section of lex Aquilia. The Romans did not cite the Second Section of lex Aquilia. The Second Section is not discussed

A Brief Discussion of Roman Social Values Regarding Property

Roman jurisprudence is present in all aspects of life, its successes and failures

Discussed below are broad Roman foundational values regarding property

Roman jurists focused on res privata, private property over other types of property such as res divini iuris, things under divine law such as burial grounds. The Romans recognize res publicae, public property such as a harbour and other matters being res extra patrimonium, things outside ownership, the sea

Ulpianus, a leading jurist, says res, things comprise both legal relations and rights. Even freedom is considered a thing, with autonomy being res inaestimabilis, an invaluable thing

Property concerns itself with res, things. The feminine noun res is a well-met lady, she is encountered in the marketplace or in the counting house or in the law court. Her gad-about nature is vague and ambiguous. Examples of res are the things of a deceased person’s estate. Roman contract law refers not only to the object in question res, but also to its re contrahere, physical delivery to the other party. Then there is privately held property: res in patrimonio being the thing in the wine jug held by a swaying Saturnus Salubrious at the taberna, the inn

Property may be res mobiles, things movable or res immobiles, things immovable. Of the two categories the former applied to personal property, the latter to land and buildings, the real estate. Ownership is entitlement. Possession is fact

The jurists contend that property fulfills two conditions: dominium, ownership and possessio, possession

Under Roman law, dominus, the property owner has full power with no limitations than those established by legislation or imposed by the nature of the thing itself. Ownership encompasses the right to have, hold, use, enjoy, and alienate a thing, as well to bring an action to recover it when necessary. The owner can give up or lose some of these rights. Ownership is the strongest legal title bestowed by law, but it is not absolute. Title is not restricted, but public order and the interests of the community did justify some limits to private ownership. Special restrictions on use of res immobiles are accepted

 Five juristic cases are discussed below: Cases VIII to XII

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Case VIII

lex Aquilia, the Third Section; focuses on property law and compensation. The jurists give the Third Section a broader usage than statute law allows

Central to the Third Section is the verb: rumpere, to rend. A usage example of the verb is: cum nullis nec gladio nec cultro laceram per manum rumpebam, “With none, neither sword nor knife, by hand, I rend my cloak.” That is to say: to destroy by tearing the cloak into several pieces, therefore: by rending my cloak, I am neither able to wear it nor realize its economic worth. The jurists give rumpere a wider sense than statute law allows, including: to burn, break, spoil, dash, pour out something; in such a manner as to physically destroy the item and to destroy its economic value

For the plaintiff to be successful, the defendant must physically damage the item, an act of commission. Also, the damage must be sufficient to result economic loss

The plaintiff owns an orchard. He hires a driver with wagon to take the fruit to market. On market day the hired driver is absent. The orchard owner still has the fruit, with lost worth, id est: since the res is not transported to market, there is no sale of the res

Jurists allow an in factum action. Though no physical damage is suffered, not taking the fruit to market is equivalent to a physical loss since the economic consequence is the same

Case IX

The plaintiff’s field of durum wheat is sown by the defendant with darnel, a species of ryegrass. The defendant sows the darnel at night. The plaintiff is absent when the defendant sows. On harvesting, it is impossible to separate the two types of grain. The wheat crop is ruined, with concomitant financial loss. The plaintiff alleges “force and stealth”

The plaintiff has two possible courses of action

The first course of action is statute law, lex Aquilia: the defendant’s direct physical contact with the plaintiff’s property. A successful statute action allows for award of double damages

The alternate action is in factum. The plaintiff cites the Praetor Urbanus, his special “prohibition” concerning res immobiles, that is, land. interdictum, quod vi aut clam, an “interdict as for force or stealth” for wrongful damage

Nota bene: The following is plaintiff’s “suggested” cause for action

Sowing darnel is malicious. The defendant’s intent may have been to prove the plaintiff should not be awarded a provisioning wheat contract for the Roman Army

Guy de la Bédoyère in this work Gladius. The World of the Roman Soldier. The University of Chicago Press, 2020, Page 131 cites the following numbers to feed 10,200 soldiers for one, 45-day period. The assumed allowance per diem, per militem; “by day”, “by soldier” is 64 lb or 29 kg, equates to 441 tons or 448 metric tonnes. Rome’s budget per annum, “by year” for all wheat contracts is several million denarii

Nota bene: Ulpianus, a second time, later in life, is asked to comment on spoiled grain supplies. In this instance the additive is sand not darnel. It is difficult to separate sand and grain. The grain is ruined. The obiter dictum states the plaintiff has an action under statute law, lex Aquilia

Case X

The defendant plasterer fails to correctly mend a cistern full of wine. The wine runs out. The defendant fails to act in the correct manner, id est; stopping the loss of wine through the hole, with resulting physical and economic loss

The case is more subtle than it appears. The plaintiff suffers double depletion: the lost wine and an unusable cistern. Statute law, lex Aquilia addresses the defendant’s direct physical contact, the poorly repaired cistern. But statute law is mute regarding the defendant’s indirect contact, the lost wine. Accordingly, Labeo recommends an in factum action to claim pecuniary compensation for both deficits

The plaintiff is a shipowner. The defendant sailor fails to correctly moor the ship. The ship slips the mooring and drifts onto rocks. The ship is holed and sinks. An in factum action is recommended

Case XI

There is a thin line between property damage and property theft

The plaintiff and defendant are standing beside each other. The plaintiff has his hand outward with coins in his palm. By chance, the defendant knocks the plaintiff’s hand. The coins fall into the Tiber River. The coins are not retrieved

Here are three similar examples of property loss

Two friends are sitting in a boat, one of the two takes the other’s cup and throws the cup into the sea, lost forever

Your neighbour unchains your boar. The boar dashes into the forest, never to be seen

Your neighbour unchains your slave. The slave runs down the road, never to be found

Regarding the lost coins. The action is in factum not statute law. No one gained economic advantage of the coins, that is; no theft occurred. The defendant must pay the plaintiff a sum equal to the value of the lost coins. Property law compensation is cash payment: praemia rei pecuniariae, “a monetary reward for things”

Concerning the cup. The action is in factum not statute law. No one gained economic advantage of the cup. The defendant must pay the plaintiff a sum equal to the value of the lost cup

Regarding the unchained boar and the unchained slave, under statute law the defendant must pay compensatory value for the loss: pretium magni ex prior anno, “the highest price from the previous year”

Case XII

A Roman public office holder, regarding property damage; observes two principles in performance of his duties:

si, qui publicum ius agendi habet, hic actus nullam inuriam habet, “A person who has a public right to act, this act has no outrage”

magistratus aliquam immunitatem a litibus iniuriam damno habent, “Magistrates have some immunity from lawsuits of wrongful damage”

The obiter dictum states, if the magistrate collects debt, then; it is his duty to collect the debt. Debt collecting is not an outrage

The same obiter dictum issues a caveat, a “warning”. Herd cattle are held in payment guarantee of debt, the magistrate is obliged to care for the animals, that is; to provide fodder and water. Failure to care for the animals may result in diminished worth. The herd owner may sue for pecuniary compensation

Of the two principles cited in the opening, the second principle exercises the juristic mind, that of magistrate’s immunity from property damage suit while in the performance of duty. Is the case of the seized herd as “straight” forward as it appears?

Another duty the magistrate performs is a “fire service”. Specifically, the prevention of catastrophic fire spread, that is, the destruction of an area by flame

The magistrate has the duty to demolish a building or buildings to create a firebreak, to prevent further spread

Ulpianus wrote the obiter dictum concerning property damage in the performance of duty. Three jurists not cited comment

Gallus, a jurist; says the magistrate is liable if the knock-down of the plaintiff’s house violates the Praetor Urbanus prohibition:  interdictum, quod vi aut clam, an “interdict as for force or stealth” for wrongful damage

The magistrate’s reply is: exceptio  

Nota bene: exceptio is a defence admitting the general allegations of the claim but denying its applicability in the case based on a fact or provision of law that excludes the defendant’s liability

Servius, a second jurist; supports the magistrate if he, the magistrate, acts, “…to avert a fire”. Servius further argues, if the plaintiff suffers damages, then recovery is for simple damage (“simple”, the sense of single as opposed to double damage), since inflicted damage is: nullam iniuriam aut damnum, “no damage or injury”

Labeo, a third jurist; writes, if the house is demolished when there is no fire, but later a fire is present; property damage is assessed not in hindsight but present circumstance

Conclusion

lex Aquilia is ancient, statute law, known for poor wording and archaic vocabulary. To circumvent statute law’s shortcoming, the verb: rumpere, to rend; the Praetor Urbanus and the jurists give rumpere a wider sense

To receive a judgement for pecuniary compensation for property damage statute law has two conditions: firstly; the defendant must have direct physical contact with the plaintiff’s property and secondly; the defendant must cause sufficient physical damage such that the plaintiff’s property is reduced in worth

Nota bene: “worth” is the anticipated economic return before sale, “value” is the actual economic return after sale

Case VIII, the Court grants an in factum damage to the orchard owner whose crop was not taken to market on market day. No physical damage occurs, but not taking the fruit to market is equivalent to “damage”, therefore; reduced worth

Concerning the field sown with darnel, the plaintiff invokes the Praetor Urbanus instrument citing: interdictum quod vi aut clam, an “interdict as for force or stealth”. The defendant’s covert behaviour allows the plaintiff to claim double damages

The case of the coins struck from the palm and the cup thrown overboard are similar in that the court rules out theft. No person gains economic advantage from the loss. Concerning the two run-away cases, unchaining is equivalent to “damage”

The Court cites pecuniary compensation in accordance with statute law’s formula: pretium magni ex prior anno, “the highest price from the previous year”

The magistrate has many duties. One duty is the demolition of a building to create a firebreak. The jurists argue finely the magistrate’s immunity. Equally, if the plaintiff has a claim for property damage, his claim is for simple damage

The sole jurist cited for Case XII is Ulpianus. Yet Gallus, Servius and, Labeo each publish own obiter dictum. Two cases, IX and XII cite the Praetor Urbanus. In all, Roman case law is evolving. The law court is lively.

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quibus etiam est lex?

Who’s the law for anyway?

                                              Said by those who do not win

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