Caput III. Lex Aquilia and Personal Liability
by Michael Lambert
March 2025
Caput III. Lex Aquilia and Personal Liability
by Michael Lambert
March 2025
Caput III. Lex Aquilia and Personal Liability
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Roman Law and the Citizen A six-part series presented in two, three-month segments January-March and July-September It is recommended you read the January introduction
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Quis fecit istud?
Who dunnit?
Said of those who seek a defendant
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The Background
This chapter continues to examine the Third Section of lex Aquilia
A Brief Discussion on Personal Liability
lex Aquilia is poorly worded and worse; word selection is often archaic. The jurists struggle to understand the intent of Aquilian statute law, as Roman society evolves from village to empire
Central to Aquilian statute law is iniuria, a wrong. Therefore, delict is the shown harm of the iniuria, with its inherent reflexive obligation of sanctioned liability from the defendant to the plaintiff
Unlike current era jurisprudence, sanctioned-orientated law of antiquity is not focused on compensation for a loss. The law does not aim to correct a distribution of loss to either an individual or society. Rather, delict limits an individual’s responsibility to another, that is, the sanctioned liability refers to assessing the poena, penalty; not achieving a fair distribution of loss between the parties
It is from this perspective you should read the cases cited below regarding personal liability
Nota bene. Roman jurisprudence has extensive legislation and case law addressing personal liability within contract law. This paper highlights law only as it effects daily Roman life
Nota bene. Current era Common Law says much regarding personal liability. Broadly, an admission of liability refers to the acceptance of responsibility for an act either commission or omission by the individual. Admission is more than acknowledging a harm, it includes the consequence of the admission either legal or financial or both legal and financial. Understanding the concept of admission is essential within a dispute, as there may be an implication
Five juristic cases are discussed below: Cases XIII to XVII
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Case XIII
Gaius. 4.6.9. institutiones. obiter dictum. The Quasi-punitive Nature of Actions. lex Aquilia | |
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Agimus autem interdum ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam… Raa,,em 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 (rem), 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… |
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Why do people sue is a perpetual question? One possible answer is self gain!
Gaius provides clarification to the opening question: sue for wrongful damage to property, “our property” means receiving monetary compensation for damage, while “to obtain a penalty” means punishing the defendant
In Rome and in our era, regarding property damage: what should the plaintiff be able to recover? Should the legislative assembly that passes legislation limit the plaintiff’s recovery to actual damages received? Why do private citizens have the ability to impose a penalty on the defendant, is not a penalty the prerogative of the state?
The action for wrongful loss is often punitive, what effect does such an action have on the defendant?
The action for double damages is available under lex Aquilia, but it is also available in an in factum action. Gaius in his writing says, “…we sue for double against a person who denies liability”
Double payment emphasises the distinction between statutory and an in factum action
Case XIV
Ulpianus. D.9.2.25.2. libro XVIII ad Edictum. obiter dictum. The Judicial Effect of Admitting Liability. lex Aquilia | |
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Notandum, quod in hac actione, quae, adversus confitentem datur, iudex non rei iudicandae, sed aestimandae datur, nam nullae partes sunt iudicandi in confitentes | It should be noted that when an action is given against someone who admits liability, the judge (iudex) is appointed not to decide the issue (of liability), but to evaluate the loss, for there is no room for deciding (the issue of liability) against persons who admit liability |
Paulus. D.9.2.26. libro XXII ad Edictum. obiter dictum. The Judicial Effect of Admitting Liability. lex Aquilia | |
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Puta enim, quod qui convenitur fateatur se occidisse et paratus sit aestimationem solvere, et adversarius magni litem aestimat | For suppose that the defendant admits having slain and is ready to pay the evaluation, and his adversary evaluates the claim at an amount that is (excessively) high |
This Case XIV and XV discusses Roman law of delict, how it limits an individual’s responsibility to another, not compensation for loss but poena, for penalty
Ulpianus states the iudex does not decide liability, he evaluates the loss. What if the defendant admits liability regarding
some of the losses but not of all the material lost
Admitting liability opens the defendant to plaintiff’s punitive behaviour. Gaius in Case XIII cites the award of a double penalty to the man who denies liability. The double penalty is coercive, it forces the defendant to admit guilt in the hope of a lesser financial penalty. To wit, Paulus in Case XV offers the caveat, “beware”, even if the defendant admits liability up front the poena may be excessive
adversarius magni litem aestimat, “the action against the opponent is very great”
Case XVI
Ulpianus. D.9.2.23.11.25pr. libro XVIII ad Edictum. obiter dictum. Falsely Admitting Liability. Slaying. lex Aquilia | |||
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Si quis hominem vivum falso confiteatur occidisse et post-ea paratus sit ostendere hominem vivum esse, Iulianus 1 scribit cessare Aquiliam, quamvis confessus sit se occidisse, hoc enim solum remittere actori confessoriam actionem. ne necesse habeat docere eum occidisse, ceterum occisum esse hominem a quocumque oportet. Proinde si occisus quidem non sit, mortuus autem sit, magis est ut non teneatur in mortuo, licet fassus sit | If someone falsely admits having slain a slave who is (actually) alive, and later he is ready to show that the slave is alive, Julian writes that the Aquilian action fails even though he admitted having slain (the slave), for the action on a confession only relieves the plaintiff from having to prove that the defendant slew, but it is still required that the slave has been slain by someone. Therefore, if he is dead but was not in fact slain, the better view is that despite his confession the defendant is not liable for the dead slave | ||
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1 | Ulpianus cites Iulianus, a jurist not mentioned in the lex Citationum | ||
Read carefully the obiter dictum
delict limits an individual’s responsibility to another, not compensation for loss but poena, penalty
There are three propositions. They are:
First proposition. The slave is slain, when the slave is alive
Second proposition. The slave is slain, when the slave is dead by other means
Third proposition. The slave is slain, but is slain by someone else
Admitting liability opens the defendant to the poena, in fact; admitting may result in double penalty
In all instances, the defendant places himself in jeopardy by admitting liability, for delict looks at the act, not the actor
Case XVII
Paulus. D.9.2.24. libro XVIII ad Edictum. obiter dictum. Confession to a Harm not Committed. lex Aquilia | |||||
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hoc apertius est circa vulneratum hominem, nam si confessus sit vulnerasse nec sit vulneratus, aestimationem cuius vulneris faciemus? vel ad quod tempus recurramus? | The point is more obvious still in the case of a wounded slave. For if he (the defendant) has admitted having wounded, but the slave was not wounded, what wound will we evaluate? Or to what time period should we go back? | ||||
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Footnote. | 1 | Paulus cites Ulpianus and Iulianus, the former cited in the lex Citationum, the latter not mentioned | |||
A confession to a “harm” not committed. Paulus cites Ulpianus and Iulianus
Ulpianus in his obiter dictum said damages, if the slave was wounded and later died. Iulianus, in a similar case of a wounded slave, the plaintiff claims twice for damages, for the wounding and secondly for the death
Statute law awards double payment for property damages if the defendant denies his wrongdoing when in fact, he did do the act
The Court does not award the plaintiff double damages for double payment for denial rests in the act, not denial of the actor
Conclusion
The Roman court was aware of human behaviour, “Why does a man sue another?”
This paper, admitting liability; illustrates the Roman court encountered “chancers”, persons who sue for the prospect of gain
puto, illum interfectorem esse
I think, he is the killer
Said of those who finger point…
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