Caput V. Lex Aquilia and Damnum
by Michael Lambert
August 2025
Caput V. Lex Aquilia and Damnum
by Michael Lambert
August 2025
Caput V. Lex Aquilia and Damnum
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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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insula locus non idoneus adultero
An island is not a suitable place for an adulterer
Said of those who’s deceit clouds judgement
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The Background
An act which is deemed culpa, a fault or even dolus, a deceit may not result in Aquilian liability. For a wrongful act to result in liability the plaintiff must suffer a measurable loss, damnum. The cynic’s question is: hoc lucre quantum ei damni aportet? How much does he gain in damages?
lex Aquilia, in the First Section of statute law, envisages liability restricted to the plaintiff’s physical property. While the Third Section allows the plaintiff to recover quantum pecuniae res valet, as much money as the thing is worth, that is; the highest price from the previous year
damnum evolves from physical loss to include a wrongful act, in that; the act is wrong, therefore; there is loss. As a result of this forementioned extension of damnum, the plaintiff acquires interesse, the interest (in someone or something). In time, this extension evolves to be applied to actions under the First Section
Still, jurists insist measurable physical loss must be sustained if the defendant is to be held liable. Where physical loss has not occurred, there is no Aquilian liability even if the defendant has altered the plaintiff’s property in a manner such that the plaintiff had neither contemplated nor desired. The jurists argue the defendant’s act must affect the plaintiff’s physical property, even if the property had not depreciated in economic value
The Cases below demonstrate calculating loss. Over time, the jurists allow plaintiffs to recover economic value of physical damage due to defendant’s act, the damnum emergens, the apparent damage and the lucrum cessans, the forfeited profit
By the 3rd Century CE, jurists still do not recognize wrongful injury or death. There is no remunerative recompense since a free person is not property. Yet, if a defendant’s behaviour causes harm, medical expenses and lost income may now be claimed
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vitae narrator fabulas scribit, viri fortes et Domitius Ulpianus, obiter dictum, the biographer writes stories of brave men and Ulpian, to do that which is said in passing. Case XXVIII, Cobbler’s Apprentice, one of the earliest recorded cases awarding a free man pecuniary compensation for a measurable, physical harm. His working life spans the years before and during the reign of Alexander Severus. His writings are equal to those of Iulius Paulus, the leading jurist of the era. Ulpian composition is distinguished by its comprehensiveness and a readiness to accept the opinions of others. Ulpianus is slain during the Praetorian Guard riot that overthrows Alexander Severus in 235 CE. See Case XLIII, the Coppler’s Apprentice, the denouement
The Roman Empire at its zenith has an estimated population of 40 to 45 million persons. We rarely hear their voice. The cases, cited below give insight into the lives lead by the plebeius, the civis Romanus
Reading an obiter dictum is dry, thirst inducing! Stop and think, cited below is Case XXXIV, the Natural Son. Read the case and construct own narrative, hear the father’s opening words, mi fili…, My son…
Thirteen juristic cases are discussed below: XXXII to XLIV
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Case XXXII
Alfenus 1 D.19.5.23. libro III Didestorum a Paulo Epitomatorum. obiter dictum. Dropping a Ring. lex Aqualia damnum | |||
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Duo secundum Tiberim cum ambularent, alter eorum ei, qui secum ambulat, rogatus anulum ostendit, ut respiceret, illi excidit anulus et in Tiberim devolutus est. respondit posse agi cum eo in factum actione | While two men were walking by the Tiber (River), one of them, at his companion’s request, held out a ring for him to see, the ring slipped away from the other man and rolled into the Tiber. The man can be sued by an action in factum | ||
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Footnote. | 1 | Alfenus is a jurist not cited in the lex Citatiorum | |
The ring slips between two sets of fingers, falls onto the ground and rolls into the Tiber River. The ring is never found. Neither person is at blame for the loss. Neither person gains from the lose. The ring was dropped by accident, is there culpa?
Who drops the ring? Is the plaintiff’s grasp loose? Is the defendant’s grasp loose?
The action meets neither culpa nor dolus of statute law, lex Aquilia for loss
Under statute law, lex Aquilia there is no act of iniuria, no wrongfulness
Case XXXIII
Ulpianus. D.9.2.21pr-1. Libro XVIII ad Edictum. obiter dictum. Calculating Worth of a Dead Slave. lex Aquilia damnum | |||
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Ait lex, ‘quanti is homo in eo anno plurimi fuisset’, quae clausula aestimationem habet damni, quod datum est. Annus autem retrorsus computatur, ex quo quis occisus est, quod si mortifere fuerit vulneratus et postea post longum intervallum mortuus sit, inde annum numerabimus secundum lulianum 1, ex quo vulneratus est, licet Celsus 2 contra srcibit | The statute says, “as much money as the maximum the human was worth in that year”. This clause tells how to evaluate the loss (damnum) that was inflicted. The year is counted backwards from when someone was slain. But if he was mortally wounded and then died after a long interval, then according to Julius we will count backward from when the wounding occurred, although Celsus writes the opposite | ||
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Footnote. | 1 | Ulpianus cites Iulius, a jurist not mentioned in the lex Citatiorum | |
| 2 | Ulpianus cites Celsus, a jurist not mentioned in the lex Citatiorum | |
The clause, quanti is homo in eo anno plurimi fuisset, “as much money as the maximum the human was worth in that year”
Statute law, lex Aquilia permits pecuniary compensation for herd animals and slaves. Pecuniary compensation is for actual physical loss
The first case. The slave loses a thumb. The slave is employed painting frescos. The lost thumb compromises the slave’s ability to paint. A year later the same slave is slain. The owner can claim double property damages, having twice suffered actual physical loss
The second case. The slave steals. Since the slave is a thief, therefore; the slave’s worth is devalued. lex Aquilia is based on actual physical loss. The owner still owns the slave: no loss, no claim
Case XXXIV
This Case refers to the natural son and his worth at death (as a slain slave). The son is the issue of the union between the father, a freeman and the mother, a slave. Regardless the parentage the father has deep affection for his son, born a slave
Sextus Pedius, a noted jurist, says that the price or value of property is not based on: pedius ait pretia rerum nonex affectione nec utilitate singulorum, “personal feelings and individual needs”
Imagine the following scene. It is late afternoon; the father stands and addresses the Court. In the first-person, vocative case his opening words are mi fili…, “My son…”
The father is denied claiming damages based on personal feeling. He is permitted damages for: damnum emergens, the “apparent damage” and the lucrum cessans, the “forfeited profit”. Always, the juristic comment is a pragmatic statement
Case XXXV
Ulpianus. D.9.2.27.17. libro XVIII ad Edictum. obiter dictum. Actual Loss Versus Ensuing Loss. lex Aquilia damnum | |||
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Rupisse 1 eum utique accipiemus, qui vulneraverit, vel virgis vel loris vel pugnis cecidit, vel telo vel quo alio, ut scinderet alicui corpus, vel tumorem fecerit, sed ita demum, si damnum iniuria datum est, ceterum si nullo servum pretio viliorem deterioremve fecerit, Aquilia cessat iniuriarumque erit agendum dumtaxat: Aquilia enim eas ruptiones, quae damna dant, persequitur. ergo etsi pretio quidem non sit deterior servus factus, verum sumptus in salutem eius et sanitatem 2 facti sunt, in haec mihi viderit damnum datum, atque ideoque lege Aquilia agi posse | We will certainly understand a person to have rent (rupisse) if he wounded, or struck, with rods or lashes or blows, or with a weapon or elsewise so as to cut a person’s body, or made a bruise, but so only if loss was wrongfully inflicted. But if he does not make the slave less in price or usefulness, the Aquilian action fails and only the action on outrage (iniuria) can be brought, for by the Aquilian action one claims only those rendings (ruptiones) that inflict loss. Therefore (quidem), even if the slave was not lowered in price, but there were expenses for his health and safety, to this extent I think that loss was inflicted, and so action can be brought under the Lex Aquilia | ||
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Footnote. | 1 | rupisse is the perfect active infinitive of the verb: rumpo, rumpere, rupi, ruptum. 3rd conjugation. To rend (to tear something into two or more pieces) | |
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| 2 | The key health and safety phrase:…in salute eius et sanitatem, …to keep him safe and in health… | |
The slave is injured by the defendant. After a long period of medical recovery which includes multiple bandages, administering potions and consulting a medicus, a “medical doctor” the slave recovers
The slave can perform to the same level of competence post-harm as pre-harm. Therefore, there is no actual physical loss
Nota bene. The original Ulpian comment did not have the adverb quidem. In Latin, quidem, in this instance, has the sense of “in fact” or “therefore”. Re-read the obiter dictum omitting quidem
The plaintiff can claim medical expenses
Case XXXVI
Statute Aquilian law states the plaintiff must suffer actual physical harm
The defendant picks unripe olives, unripe grain, unripe grapes there is a statute claim, for the living plant is physically damaged. The defendant incurs the cost of labour
If the defendant takes – removes from your property – a mature crop, a ripe crop has market value, therefore the defendant commits theft
Nota bene. An in factum action is a creation of the Praetor Urbanus. An in factum action is a form of action in which the defendant’s liability is not from existing law, but from a “fact” the Praetor Urbanus recognizes as a basis of liability
For the plaintiff to be successful, argues future market value. A mature crop has market value, then the argument is: pretium magni ex prior anno, “the highest price from the previous year”
Paulus, a jurist cites in the lex Citationum; an action which parallels the present Case. An uninvited guest crashes your dinner-party. He drinks and eats your wine and food. You sue for damages. Statute law does not allow the action. Cooked food is meant to be consumed, which it is by the errant guest, no loss. But the Praetor Urbanus allows an in factum action, namely; an analogous action, actio utilis
Case XXXVII
This Case is about property law. The Case is also about marital relations
The obiter dictum states the husband gives single pearls to his wife. She accepts his gift and asks the obvious question: quid cum singulis margaritis faciam. “What will I do with single pearls?” The wife accepts the pearls and has them pierced to be wearable jewellery, such as a necklace or a bracelet
Aquilian statute law is against the wife, for when she pierces the pearls, the act of piercing results in actual physical harm
Nota bene. To understand this Case, it is necessary to understand Roman social norms and marriage
Emperor Valentinian III in 426 CE, passes the first lex Citationum, the “Law of Citations”. The law states judges can only cite approved juristic writers as legal authorities. Valentinian, and subsequent Byzantine emperors, such as Theodosius II and Justinian I compile own codices, the compilations include all topics. Regarding marriage, little is found for matrimony is a private contractual agreement, therefore; Roman jurisprudence has little formal guidance concerning matters within a marriage between a husband and a wife
What jurisprudence exists concerning marriage commences with the lex Duodecim Tabularum, the “Laws of the Twelve Tables”, published in 449 BCE. Specifically, Tabula Quintus, the “Fifth Table” states: neminem, qui sub dicione sit Romani nominis, binas uxores habere posse vulgo patet, cum et in edicto praetoris huiusmodi viri infamia notati sint. “It is common knowledge that no one who is under the rule of the name of Rome can have two wives, since in the edict of the praetor such men are marked with infamy”
Roman marriage was monogamous. Beyond the custom of one-man and one-woman, Roman marriage allows for re-marriage due to either divorce or death. Marriage was more than: nuptias non concubitus, sed consensus facit. “Not sharing a bed, but consent makes a marriage.” The Romans emphasize consent as the basis for entering matrimony
Roman jurisprudence recognizes women retain legal control of own property throughout the marriage. If a marriage ends in divorce, the wife retains control of own property, that is; either property brought into the marriage on the wedding day or property inherited in her own right during the marriage
The husband brings own property into the marriage. The same legal recognition accorded to the wife is granted the husband
Roman law asserts the estates of spouses are kept separate. Spouses are not allowed to co-mingle their estates by giving gifts of value. When the husband gives the pearls to the wife, the wife has possession. Does the gift grant title to act as one pleases?
Paulus in Case, D.9.2.56. states the following: si uxor viro rem suam laedat, tenetur iuxta legem Aquiliae. “If a wife damages her husband’s property, she is liable in accord with the lex Aquilia”
Nota bene. The compilers of the codices found little regarding matrimonial affairs. Case XXXVII is the sole instant of a husband suing a wife. No case is recorded of a wife suing a husband
A plausible response from the wife is an in factum action
Nota bene. Roman society is patriarchal. Yet, women enjoy social and economic status from the early Republic through to the end of Empire. Circumscribed comportment commences with the introduction of Christianity
If you have damnum, damage; then you have alienum, debt
The following cases address the issue of debt and debt collection
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Case XXXVIII
A party wall divides the building. The defendant builds an oven against the party wall. The plaintiff on the other side of the wall is worried the oven’s heat may result in burning the wall and possibly the entire building. At the time of the action the wall remains as built, undamaged by fire
The issue is cautio damni infecti, “threatened damage”
Roman law allows persons to formally promise: promissoris dabit promissionis damna, “the promisor will pay to the promisee damages”. If the neighbour fears future damage, he can demand receipt of the cautio, the “caution”. If actual damage by burning occurs, the cautio is cited for costs
The cautio allows getting-around statute law, lex Aquilia. There is no statute law for failing to maintain property. Therefore, the alternate action is in factum citing iniuria for “wrongful conduct”
The cautio gives security for future performance of a legal obligation
Roman courts cite cautio to address a diverse range of issues. The cautio takes many forms, such as: nuda cautio, which is a “bare” caution. The nuda cautio provides no legal protection. It is a non enforceable “caution”
Therefore, for the cautio to be effective, it must have satisdatio, “sureties” for legal protection. A surety is the person who takes responsibility for another’s performance of an undertaking, in most instances; the representative person is the defendant’s lawyer. The defendant is required to give iudicatum solvi, “that the judgement will be paid”. To ensure compliance the court states ratam rem dominum habiturum, “that his principal (the defendant’s lawyer) is bound by his acts”
Other areas where a cautio action is cited, include: the stipulationes iudiciales de dolo, “judicial actions concerning fraud”. An action concerning: de persequendo servo, “pursuing an action (against) a slave”
The cautio concerning the deed-title to a property, the stipulatio dupli, to “promise the purchaser twice”, the purchase-money if the property is recovered from him by someone having a better title
Finally, a cautio for persons providing a guardianship service for children. The cautio lists a range of duties including escorting the child through the streets to attend classes, the rem pupilli salvam fore, the “matter of keeping the pupil safe”
Most, if not all; cautio actions are hard-fought proceedings of obligation and performance, forced compliance with full payment
Roman jurisprudence is accommodating. The civis Romanus receives a remedy which is imaginative and original for the perfunctory procedure of a cautio, a “fire insurance” policy
Ulpianus. D.9.2.21.2. libro XVIII ad Edictum. obiter dictum. Determining what the Defendant Must Pay. lex Aquilia damnum | |
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Sed utrum corpus eius solum aestimamus, quanti fuerit cum occideretur, an potius quanti interfuit nostra non esse occisum? Et hoc iure utimur, ut eius quod interest fiat aestimatio | But do we evaluate only the physical worth of him (a dead slave) when he was, or rather the extent of our interest in his not being slain? Our law is that evaluation is made of the interest |
Case XL
This Case XXXIX and XL, Ulipanus and Paulus respectively approach lex Aquilia from opposite sides of the same coin,
interest fiat aestimatio, “the evaluation made of the interest”. Ulpianus cites statute law. Paulus cites case law. The question is determining the true sum for compensation. Two standards are cited in parallel to assess the worth of a slain slave
Case XXXIX, Ulpianus cites dicit pretia rerum non ex affectionibus sensae aut singula egestates, sed ex communi usu venire. “He says that the prices of things stem not from personal feelings or individual want, but from general usage”
Nota bene. See Case XXXIV, the Natural Son and compare
Case XL, Paulus cites: ut eius quod interest fiat aestimatio, “our law is that evaluation is made of the interest”
Ulpianus, as per previous cases asks, what we either could gain, lucrum cessans, “lost profit” or were forced to pay out, damnum emergens, “ensuing loss”?
This action focuses on the individual interest concerning damaged property. They are the guide used to set the sum for compensatory liability by the iudex: pretium magni ex prior anno, “the highest price from the previous year”
Case XLI
Ulpianus. D.2.23.4. libro XVIII ad Edictum. obiter dictum. Slain Slave’s Worth, Committed Fraud. lex Aquilia damnum | |||
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Sed et si servus, qui magnus fraudes in meis rationibus commiserate, fuerit occisus, de quo quaestionem (in tormentis) habere destinaveram, ut fraudium participes eruerentur, rec- tissime Labeo 1 scribit tanti aestimandum, quanti mea intererat fraudes servi per eum commissas detegi, non quanti noxa eius servi valeat | But likewise, if a slave was killed who had made great falsifications in my account books and whom I had intended to question (under torture) in order to discover his accomplices in deceit, Labeo writes quite correctly that the evaluation should be of my interest in detecting the slave’s falsifications, not of the value of the harm the slave did | ||
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Footnote. | 1 | Ulpianus cites Labeo, a jurist not mentioned in the lex Citatiorum | |
Labeo and Ulpianus think of the owner’s interest in detecting the slave’s falsifications as either “lost profit” or “ensuing loss”
Nota bene. The original text contains the phrase, in tormentis, “under torture”. The phrase was added after entry in the Edict, by an unknown person
Paulus. D.9.2.40. libro III ad Edictum. obiter dictum. Slave Erases Proof of Debt. lex Aquilia damnum | |
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In lege Aquilia, si deletum chirographum mihi esse dicam, in quo sub condicione mihi pecunia debita fuerit, et interim testibus quoque id probare possim, qui testes possunt non esse eo tempore, quo condicio extitit, et si summatim re exposita ad suspicionem iudicem adducam, debeam vincere, sed tunc condemnationis exactio competit, cum debiti condicio extiterit, quod si defecerit, condemnation nullas vires habebit | Under the Le Aquilia, if I allege that a handwritten receipt was erased that recorded money owed to me under a condition. And I can now prove this debt through witnesses who cannot be available when the condition is fulfilled, and if, in sum, by setting out the facts I persuade the judge (iudex) to believe me, I should win. But the execution of the judgement is available when the debt’s condition is fulfilled. If the condition fails, the judgement has no force |
The action is one of legal documents, debt receipts and their erasure that are missing
Roman jurisprudence is clear: a debt with a condition remains owning, until the condition is fulfilled
The missing receipt may be greater than the physical damage. The plaintiff has a dilemma: either other proofs are available, in which circumstance the missing document is superfluous or they are not available, therefore he is not able to prove the value and loss
The plaintiff may not be able to collect the debt, but he may be able to act against the person who lost the receipt
Case XLIII
Ulpianus. D.9.2.7pr. libro XVIII ad Edictum. obiter dictum. Cobbler’s Apprentice. Settlement. lex Aquilia damnum | |||
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Qua actione patrem consecuturum ait Iulianus, quod minus ex operis filii sui propter vitiatum oculum sit habiturus, et impendia, quae pro eius curatione fecerit | In this action Julian says: that the father will obtain what he lost from his son’s services because of the eye being harmed, as well as his expenses in caring for him | ||
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Footnote. | 1 | Ulpianus cites Iulianus, a jurist not mentioned in the lex Citatiorum | |
This Case is the settlement for Case XXVIII and XXIX, the Cobbler’s Apprentice
The Case 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 background to the Case. 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”
A last is a wooden form in the shape of a foot. The last’s dimensions are the same as the actual foot. To manufacture the shoe; leather is placed, stretched and stitched over the last. On completion of the shoe, the last is removed
The son’s income and debts accrue to the father (in accord with Roman kinship social structure)
No recovery is given for perdere valore, the “lost value” of the son on the principle that the corpus liberum non aestimationem recipit, a “freeman’s body does not allow evaluation”. While damnum emergens, the “apparent damage” is not allowed, lucrum cessans, the “forfeited profit” is permitted
Nota bene. The father may recover medical expenses and his son’s prospective lost wage, but the court does not grant compensation for actual physical damage experienced by the son, the loss of sight in one eye. The issue is the lingering influence of statue law versus case law
The exact date of Case XXVIII and XXIX, and now Case XLIII is presumed to occur in the first half of the 3rd Century CE, the beginning of the late-Empire era. Case law has a significant effect on statute law, the recognition of damnum emergens, the “apparent damage” and lucrum cessans, the “forfeited profit”. Still, recognition of physical harm, that is “actual bodily damage”, in this circumstance, the lost sight of one eye; is not granted due to the lingering prohibition of corpus liberum non aestimationem recipit, a “freeman’s body does not allow evaluation”. A “free born” person is homo sapiens
A slave is a thing. If the son were a slave, as a thing, the father is awarded pecuniary compensation for the actual physical damage incurred by the thing’s loss of sight
Case XLIV
Ulpianus. D.9.2.13pr. liber XVIII ad Edictum. obiter dictum. Injury to a Freeman. lex Aquilia damnum | |||
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Liber homo suo nominee utilem Aquiliae habet actionem, directam enim non habet, quoniam dominus membrorum suorum nemo videtur. fugitivi autem nominee dominus habet | A freeman has the analogous form of Aquilian action in his own name; for he does not have the statutory action, since no one is regarded as owning his own limbs. However, the owner has (an action) in the name of a fugitive slave | ||
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Footnote. | 1 | Ulpianus cites Iulianus, a jurist not mentioned in the lex Citatiorum | |
This Case is interesting for several reasons
Ulpianus extends Roman law from property to person, a liber homo, a “free man” may seek and receive pecuniary compensatory for personal harm through actiones utiles, an “analogous action”
Nota bene. An actiones utiles is an action based on utility rather than strict right. The action is not covered by existing law. It is a legal remedy
The cited action below was initiated by a veteran of the Roman Army. The soldier is called-to-arms for a second time. Before proceeding on military service, he asks the question concerning the collection of a debt, securing payment due to military service necessitated absence. The action is the first recorded instance of an actiones utiles
In the name of the Emperor Alexander Severus, the Imperial Chancery replies on the pridie Kalendas Martias, the “day before the Calens of March” in 225 CE
Imperator Alexander A. … evocato. Nomen quoque debitoris pignerari et generaliter et specialiter posse pridem placuit. quare si debitor is satis non facit, cui tu credidisti, ille, cuius nomen tibi pignori datum est, nisi ei cui debuit solvit nondum certior a te de obligatione tua factus, utilibus actionibus satis tibi facere usque ad id, quod tibi deberi a creditore eius probaveris, compelletur, quatenus tamen ipse debet | The Emperor Alexander, to …, a veteran again called to service. A claim can also be pledged both generally and specifically, as was long ago decided. If the debtor to whom you extended credit does not give you satisfaction, the debtor of the claim pledged is compelled – unless he paid his creditor while he was not yet informed by you of your claim – with actiones utiles to give satisfaction to you, up to what you prove is owed to you by his creditor, as far as he himself still is indebted the said amount |
The actiones utiles is granted to the pledgee, a demand performance from the debtor of the claimed pledge. The claim is for money. The pledgee is only able to collect the amount of his debt, the pledgor, is due under the claim that has been secured by the pledge. The pledgee has to set off the received amount of money against the claim secured by the pledge. If the object of the claim pledged was not a sum of money, but a tangible, then the pledgee obtain the tangible pignoris loco, a “pledge”. Therefore, the pledge claims entailment of a future right of pledge on a tangible
The juristic closing sentence appears unrelated with the text. Many feel the original Ulpian text is altered. The following is advanced. Ulpian discussed not “freemen” but a specific event: a freeman, due to injury, is held as if he where a slave. If this is true, then an in factum Aquilian action is correct
Conclusion
To claim compensatory liability for damages under Aquilian statute law, the plaintiff must be able to demonstrate actual physical harm by the defendant’s hand
Aquilian law continues to confront and confound the jurist. Statute law fits a narrow range of problems with few solutions. Yet, Roman jurisprudence evolves – matures, under the guidance of the various office holders of the Praetor Urbanus
Case XXXII, “Dropping a Ring” through two sets of hands into the Tiber River establishes a foundation. The dropped ring lacks culpa and dolus, since neither person gains, there is no inuria, wrongfulness present
Case XXXVIII, “Threatened Damage. An Oven Against a Party Wall” establishes a new branch of jurisprudence, the cautio. The cautio is a legal remedy which guarantees the plaintiff compensation if the defendant’s behaviour results in anticipated harm. Not exciting, but it is exciting if you the plaintiff have “fire insurance” courtesy of the defendant in advance of the event
Case XLIV, the jurists are worldly enough to suggest an in factum action if statute law does not grant redress. The case is the first instance of the actio utilis
Roman jurisprudence adapts – from statute law to case law – remedies that meet legal and social expectation
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dexterum habes, sinistrum habes; tertium etiam habes neutrum: ergo triquetrus es
You have a right, you have a left; you have a third that is neither: therefore, you are three-cornered
Said of those who are evasive
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