Book IV Obligationes Arising From Delicta.
As we have treated in the preceding book of obligationes arising ex contractu and quasi ex contractu, we have now to treat of obligationes arising ex maleficio. Of the obligationes treated of in the last book, there were, as we have said, four kinds; of those we are now to treat of, there is but one kind, for they all arise from the thing, that is, from the delictum, as, for example, from theft, from robbery, or damage, or injury.
1. Theft is the fraudulent dealing with a thing itself, with its use, or its possession; an act which is prohibited by natural law.
2. The word furtum comes either from furvum, which means "black," because it is committed secretly, and often in the night; or from fraus; or from ferre, that is "taking away," or from the Greek word phor meaning a thief, which again comes from pherin, to carry away.
3. Of theft there are two kinds, theft manifest and theft not manifest; for the thefts termed conceptum and oblatum are rather kinds of actiones attaching to theft than kinds of theft, as will appear below. A manifest theft is one whom the Greek term ep= autophors, being not only, one taken in the fact, but also one taken in the place where the theft is committed; as, for example, before he has passed through the door of the house where he has committed a theft, or in a plantation of olives, or a vineyard where he has been stealing. We must also extend manifest theft to the case of a thief seen or seized by the owner or any one else in a public or private place, while still holding the thing he has stolen, before he has reached the place where he meant to take and deposit it. But if he once reaches his destination, although he is afterwards taken with the thing stolen on him, he is not a manifest thief. What we mean by a not manifest thief may be gathered from what we have said, for a theft which is not a manifest theft is a not manifest theft.
4. There is what is termed conceptum furtum, when a thing stolen has been sought and found in the presence of witnesses in any one's house; for although this person may not be the actual thief, he is liable to a special actio termed concepti. There is what is termed furtum oblatum, if a thing stolen has been placed in your hands and then seized in your house; that is, if the person who placed it in yours hands did so, that it might be found rather in your house than in his. For you, in whose house it had been seized, would have against him who placed it in your hands, although he were not the actual thief, a special actio termed oblati. There is also the actio prohibiti furti against a person who prevents another who wishes to seek in the presence of witnesses for a thing stolen; there is, too, by means of the actio furti non exhibiti, a penalty provided by the edict of the praetor against a person who has not produced a thing stolen which has been searched for and found in his possession. But these actiones, concepti, oblati, furti, prohibitii and furti non exhibiti, have fallen into disuse; for search for things stolen is not now made according to the ancient practice, and therefore these actiones have naturally ceased to be in use, as all who knowingly have received and concealed a thing stolen are liable to the actio furti nec manifesti.
5. The penalty for manifest theft is quadruple the value of the thing stolen, whether the thief be a slave or a freeman; that for theft not manifest is double.
6. It is theft, not only when anyone takes away a thing belonging to another, in order to appropriate it, but generally when anyone deals with the property of another contrary to the wishes of its owner. Thus, if the creditor uses the thing pledged or the depository the thing deposited, or the usuary employs the thing for another purpose than that for which it is given, it is a theft; for example, if anyone borrows plate on the pretense of intending to invite friends to supper, and then carries it away with him to a distance, or if anyone borrows a horse, as for a ride, and takes it much farther than suits such a purpose, or, as we find supposed in the writings of the ancients, takes it into battle.
7. A person, however, who borrows a thing, and applies it to a purpose other than that for which it was lent, only commits theft, if he knows that he is acting against the wishes of the owner, and that the owner, if he were informed, would not permit it; for if he really thinks the owner would permit it, he does not commit a crime; and this is a very proper distinction, for there is no theft without the intention to commit theft.
8. And even if the borrower thinks he is applying the thing borrowed contrary to the wishes of the owner, yet if the owner as a matter of fact approves of the application, there is, it is said, no theft. Whence the following question arises: Titius has urged the slave of Maevius to steal from his master certain things, and to bring them to him; the slave informs his master, who, wishing to seize Titius in the act, permits his slave to take certain things to Titius; is Titius liable to an actio furti, or to one servi corrupti, or to neither? This doubtful question was submitted to us, and we examined the conflicting opinions of the ancient jurists on the subject, some of whom thought Titius was liable to both these actiones, while others thought he was only liable to the actio of theft; and to prevent subtleties, we have decided that in this case both these actiones may be brought. For, although the slave has not been corrupted, and the case does not seem therefore within the rules of the actio servi corrupti, yet the intention to corrupt the slave is indisputable, and he is therefore to be punished exactly as if the slave had been really corrupted, lest his impunity should incite others to act in the same criminal way towards a slave more easy to corrupt.
9. Sometimes there may be a theft of free persons, as if one of our children in our power is carried away.
10. A man may even commit a theft of his own property, as, if a debtor takes from a creditor a thing he has pledged to him.
11. A person may be liable to an actio of theft, although he has not himself committed a theft, as for instance, a person who has lent his aid and planned the crime. Among such is one who makes your money fall from your hand that another may seize upon it; or has placed himself in your way that another may carry off something belonging to you; or has driven your sheep or oxen that another may make away with them, or, to take an instance given by the old advocati, frightens the herd with a piece of scarlet cloth. But if such acts are only the fruits of reckless folly, with no design of assisting in the commission of a theft, the proper actio is one in factum. But if Maevius assists Titius to commit a robbery, both are liable to an actio of theft. A person, again, assists in a theft who places ladders under a window, or breaks a window or a door, that another may commit a theft; or who lends tools to break a door, or ladders to place under a window, knowing the purpose to which they are to be applied. But a person who does not actually assist, but only advises and urges the commission of a theft, is not liable to an actio of theft.
12. Those who are in the power of a parent or master, if they steal anything belonging to the person in whose power they are, commit a theft. The thing stolen, in such a case, is considered to be furtiva, and therefore no right in it can be acquired by usucapion before it has returned into the hands of the owner; but no actio of theft can be brought, because the relation of the parties is such that no actio whatever can arise between them. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the actio of theft as a theft is undoubtedly committed through his means.
13. An actio may be brought by any one who is interested in the safety of the thing, although he is not the owner; and the proprietor, consequently, cannot bring this actio unless he is interested in the thing not perishing.
14. Hence, a creditor may bring this actio if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advantageous to him to rely upon his pledge than to bring an actio against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an actio of theft.
15. So, too, if a fuller receives clothes to clcan, or a tailor receives them to mend for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an actio of theft, for the owner is not considered as interested in their safety, having an actio locati, by which he may recover the thing stolen against the fuller or tailor. But if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an actio of theft, although he is not the proprietor. But an actio of theft is not maintainable by the fuller or tailor unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an actio of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent.
16. What we have said of the fuller and tailor is applied by the ancients to the borrower. For, as the fuller by accepting a sum for his labor makes himself answerable for the safe-keeping of the thing, so does a borrower by accepting the use of the thing he borrows. But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an actio commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other actio. If he elects to sue the thief, the borrower is quite freed; if he elects to sue the borrower, he cannot bring an actio of theft against the thief, but the borrower may, that is, provided that the owner elects to sue the borrower knowing that the thing has been stolen. If he is ignorant or uncertain of this, and therefore sues the borrower, and then subsequently learns the true state of the case, and wishes to have recourse to an actio of theft, he will be permitted to sue the thief without any difficulty being thrown in his way, for it was in ignorance of the real fact that he sued the borrower; unless, indeed, his claim has been satisfied by the borrower, for then the thief is quite free from any actio of theft on the part of the owner, but the borrower takes the place of the owner in the power of bringing this actio. On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him.
17. A depository is not answerable for the safe-keeping of the thing deposited, but is only answerable for wilful wrong; therefore, if the thing is stolen from him, as he is not bound by the contract of deposit to restore it, and has no interest in its safety, he cannot bring an actio of theft, but it is the owner alone who can bring this actio.
18. It should be observed that the question has been asked whether, if a person under the age of puberty, takes away the property of another, he commits a theft. The answer is that it is the intention that makes the theft; such a person is only bound by the obligation springing from the delictum if he is near the age of puberty, and consequently understands that he commits a crime.
19. The actio of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or anyone else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.
1. Theft is the fraudulent dealing with a thing itself, with its use, or its possession; an act which is prohibited by natural law.
2. The word furtum comes either from furvum, which means "black," because it is committed secretly, and often in the night; or from fraus; or from ferre, that is "taking away," or from the Greek word phor meaning a thief, which again comes from pherin, to carry away.
3. Of theft there are two kinds, theft manifest and theft not manifest; for the thefts termed conceptum and oblatum are rather kinds of actiones attaching to theft than kinds of theft, as will appear below. A manifest theft is one whom the Greek term ep= autophors, being not only, one taken in the fact, but also one taken in the place where the theft is committed; as, for example, before he has passed through the door of the house where he has committed a theft, or in a plantation of olives, or a vineyard where he has been stealing. We must also extend manifest theft to the case of a thief seen or seized by the owner or any one else in a public or private place, while still holding the thing he has stolen, before he has reached the place where he meant to take and deposit it. But if he once reaches his destination, although he is afterwards taken with the thing stolen on him, he is not a manifest thief. What we mean by a not manifest thief may be gathered from what we have said, for a theft which is not a manifest theft is a not manifest theft.
4. There is what is termed conceptum furtum, when a thing stolen has been sought and found in the presence of witnesses in any one's house; for although this person may not be the actual thief, he is liable to a special actio termed concepti. There is what is termed furtum oblatum, if a thing stolen has been placed in your hands and then seized in your house; that is, if the person who placed it in yours hands did so, that it might be found rather in your house than in his. For you, in whose house it had been seized, would have against him who placed it in your hands, although he were not the actual thief, a special actio termed oblati. There is also the actio prohibiti furti against a person who prevents another who wishes to seek in the presence of witnesses for a thing stolen; there is, too, by means of the actio furti non exhibiti, a penalty provided by the edict of the praetor against a person who has not produced a thing stolen which has been searched for and found in his possession. But these actiones, concepti, oblati, furti, prohibitii and furti non exhibiti, have fallen into disuse; for search for things stolen is not now made according to the ancient practice, and therefore these actiones have naturally ceased to be in use, as all who knowingly have received and concealed a thing stolen are liable to the actio furti nec manifesti.
5. The penalty for manifest theft is quadruple the value of the thing stolen, whether the thief be a slave or a freeman; that for theft not manifest is double.
6. It is theft, not only when anyone takes away a thing belonging to another, in order to appropriate it, but generally when anyone deals with the property of another contrary to the wishes of its owner. Thus, if the creditor uses the thing pledged or the depository the thing deposited, or the usuary employs the thing for another purpose than that for which it is given, it is a theft; for example, if anyone borrows plate on the pretense of intending to invite friends to supper, and then carries it away with him to a distance, or if anyone borrows a horse, as for a ride, and takes it much farther than suits such a purpose, or, as we find supposed in the writings of the ancients, takes it into battle.
7. A person, however, who borrows a thing, and applies it to a purpose other than that for which it was lent, only commits theft, if he knows that he is acting against the wishes of the owner, and that the owner, if he were informed, would not permit it; for if he really thinks the owner would permit it, he does not commit a crime; and this is a very proper distinction, for there is no theft without the intention to commit theft.
8. And even if the borrower thinks he is applying the thing borrowed contrary to the wishes of the owner, yet if the owner as a matter of fact approves of the application, there is, it is said, no theft. Whence the following question arises: Titius has urged the slave of Maevius to steal from his master certain things, and to bring them to him; the slave informs his master, who, wishing to seize Titius in the act, permits his slave to take certain things to Titius; is Titius liable to an actio furti, or to one servi corrupti, or to neither? This doubtful question was submitted to us, and we examined the conflicting opinions of the ancient jurists on the subject, some of whom thought Titius was liable to both these actiones, while others thought he was only liable to the actio of theft; and to prevent subtleties, we have decided that in this case both these actiones may be brought. For, although the slave has not been corrupted, and the case does not seem therefore within the rules of the actio servi corrupti, yet the intention to corrupt the slave is indisputable, and he is therefore to be punished exactly as if the slave had been really corrupted, lest his impunity should incite others to act in the same criminal way towards a slave more easy to corrupt.
9. Sometimes there may be a theft of free persons, as if one of our children in our power is carried away.
10. A man may even commit a theft of his own property, as, if a debtor takes from a creditor a thing he has pledged to him.
11. A person may be liable to an actio of theft, although he has not himself committed a theft, as for instance, a person who has lent his aid and planned the crime. Among such is one who makes your money fall from your hand that another may seize upon it; or has placed himself in your way that another may carry off something belonging to you; or has driven your sheep or oxen that another may make away with them, or, to take an instance given by the old advocati, frightens the herd with a piece of scarlet cloth. But if such acts are only the fruits of reckless folly, with no design of assisting in the commission of a theft, the proper actio is one in factum. But if Maevius assists Titius to commit a robbery, both are liable to an actio of theft. A person, again, assists in a theft who places ladders under a window, or breaks a window or a door, that another may commit a theft; or who lends tools to break a door, or ladders to place under a window, knowing the purpose to which they are to be applied. But a person who does not actually assist, but only advises and urges the commission of a theft, is not liable to an actio of theft.
12. Those who are in the power of a parent or master, if they steal anything belonging to the person in whose power they are, commit a theft. The thing stolen, in such a case, is considered to be furtiva, and therefore no right in it can be acquired by usucapion before it has returned into the hands of the owner; but no actio of theft can be brought, because the relation of the parties is such that no actio whatever can arise between them. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the actio of theft as a theft is undoubtedly committed through his means.
13. An actio may be brought by any one who is interested in the safety of the thing, although he is not the owner; and the proprietor, consequently, cannot bring this actio unless he is interested in the thing not perishing.
14. Hence, a creditor may bring this actio if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advantageous to him to rely upon his pledge than to bring an actio against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an actio of theft.
15. So, too, if a fuller receives clothes to clcan, or a tailor receives them to mend for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an actio of theft, for the owner is not considered as interested in their safety, having an actio locati, by which he may recover the thing stolen against the fuller or tailor. But if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an actio of theft, although he is not the proprietor. But an actio of theft is not maintainable by the fuller or tailor unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an actio of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent.
16. What we have said of the fuller and tailor is applied by the ancients to the borrower. For, as the fuller by accepting a sum for his labor makes himself answerable for the safe-keeping of the thing, so does a borrower by accepting the use of the thing he borrows. But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an actio commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other actio. If he elects to sue the thief, the borrower is quite freed; if he elects to sue the borrower, he cannot bring an actio of theft against the thief, but the borrower may, that is, provided that the owner elects to sue the borrower knowing that the thing has been stolen. If he is ignorant or uncertain of this, and therefore sues the borrower, and then subsequently learns the true state of the case, and wishes to have recourse to an actio of theft, he will be permitted to sue the thief without any difficulty being thrown in his way, for it was in ignorance of the real fact that he sued the borrower; unless, indeed, his claim has been satisfied by the borrower, for then the thief is quite free from any actio of theft on the part of the owner, but the borrower takes the place of the owner in the power of bringing this actio. On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him.
17. A depository is not answerable for the safe-keeping of the thing deposited, but is only answerable for wilful wrong; therefore, if the thing is stolen from him, as he is not bound by the contract of deposit to restore it, and has no interest in its safety, he cannot bring an actio of theft, but it is the owner alone who can bring this actio.
18. It should be observed that the question has been asked whether, if a person under the age of puberty, takes away the property of another, he commits a theft. The answer is that it is the intention that makes the theft; such a person is only bound by the obligation springing from the delictum if he is near the age of puberty, and consequently understands that he commits a crime.
19. The actio of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or anyone else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.
II. Goods Taken by Force.
A person who takes a thing belonging to another by force is liable to an actio of theft, for who can be said to take the property of another more against his will than he who takes it by force? And he is therefore rightly said to be an improbus fur. The praetor, however, has introduced a peculiar actio in this case, called vi bonorum raptorum; by which, if brought within a year after the robbery, quadruple the value of the thing taken may be recovered; but if brought after the expiration of a year, then the single value only may be brought even against a person who has only taken by force a single thing, and one of the most trifling value. But this quadruple of the value is not altogether a penalty, as in the actio furtum manifestum; for the thing itself is included, so that, strictly, the penalty is only three times the value. And it is the same, whether the robber was or was not taken in the actual commission of the crime. For it would be ridiculous that a person who uses force should be in a better condition than he who secretly commits a theft.
1. As, however, this actio can only be brought against a person who robs with the intention of committing a wilful wrong, if anyone takes by force a thing, thinking himself, by a mistake, to be the owner, and, in ignorance of the law, believing it permitted an owner to take away, even by force, a thing belonging to himself from persons in whose possession it is, he ought to be held discharged of this actio, nor in such a case would he be liable to an actio of theft. But lest robbers, under cover of such an excuse, find means of gratifying their avarice with impunity, the imperial constitutiones have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. If any one acts contrary to these constitutiones, he, if the thing is his, ceases to be owner of it; if it is not, he is not only to restore the thing taken, but also to pay its value. The constitutiones have declared these rules applicable, not only in the case of moveables of a nature to be carried off by force, but also to the forcible entries made upon immovables, in order that every kind of violent robbery may be prevented.
2. In this actio it is not necessary that the thing should have been a part of the goods of the plaintiff; for whether it has been a part of his goods or not, yet if it has been taken from among his goods, the actio may be brought. Consequently, if anything has been let, lent or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufructus of it, or has any other legal interest in its not being taken away by force, this actio may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away from out of his goods, that is, from out of his property. And generally, we may say, that the same causes which would give rise to an actio of theft, if the theft is committed secretly, will give rise to this actio, if it is committed with force.
1. As, however, this actio can only be brought against a person who robs with the intention of committing a wilful wrong, if anyone takes by force a thing, thinking himself, by a mistake, to be the owner, and, in ignorance of the law, believing it permitted an owner to take away, even by force, a thing belonging to himself from persons in whose possession it is, he ought to be held discharged of this actio, nor in such a case would he be liable to an actio of theft. But lest robbers, under cover of such an excuse, find means of gratifying their avarice with impunity, the imperial constitutiones have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. If any one acts contrary to these constitutiones, he, if the thing is his, ceases to be owner of it; if it is not, he is not only to restore the thing taken, but also to pay its value. The constitutiones have declared these rules applicable, not only in the case of moveables of a nature to be carried off by force, but also to the forcible entries made upon immovables, in order that every kind of violent robbery may be prevented.
2. In this actio it is not necessary that the thing should have been a part of the goods of the plaintiff; for whether it has been a part of his goods or not, yet if it has been taken from among his goods, the actio may be brought. Consequently, if anything has been let, lent or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufructus of it, or has any other legal interest in its not being taken away by force, this actio may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away from out of his goods, that is, from out of his property. And generally, we may say, that the same causes which would give rise to an actio of theft, if the theft is committed secretly, will give rise to this actio, if it is committed with force.
III. The Lex Aquilia.
The actio damni iniuriae is established by the lex Aquilia, of which the first head provides that if anyone shall have wrongfully killed a slave, or a four-footed beast, being one of those reckoned among cattle belonging to another, he shall be condemned to pay the owner the greatest value which the thing has possessed at any time within a year previous.
1. As the law does not speak generally of four-footed beasts, but only of those which are reckoned among cattle, we may consider its provision as not applying to dogs or wild animals, but only to animals which may be properly said to feed in herds, as horses, mules, asses, sheep, oxen, goats, and also swine, for they are included in the term "cattle," for they feed in herds. Thus Homer says, as Laelius Marcianus quotes in his Institutes:
You will find him seated by his swine,
and they are feeding by the rock of Corax,
near the spring Arethusa.
2. To kill wrongfully is to kill without any right: consequently, a person who kills a thief is not liable to this actio, that is, if he could not otherwise avoid the danger with which he was threatened.
3. Nor is a person made liable by this law who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong-doing.
4. Consequently, if anyone playing or practicing with a javelin pierces with it your slave as he goes by, there is a distinction made; if the accident befalls a soldier while in the camp, or other places appropriated to military exercises, there is no fault in the soldier, but there would be in anyone else besides a soldier, and the soldier himself would be in fault if he inflicted such an injury in any other place than one appropriated to military exercises.
5. If, again, anyone, in pruning a tree, by letting a bough fall, kills your slave who is passing, and this takes place near a public way, or a way belonging to a neighbor, and he has not cried out to make persons take care, he is in fault; but if he has called out, and the passer-by would not take care, he is not to blame. He is also equally free from blame if he was cutting far from any public way, or in the middle of a field, even though he has not called out, for by such a place no stranger has a right to pass.
6. So, again, a physician who has performed an operation on your slave, and then neglected to attend to his cure, so that the slave dies, is guilty of a fault.
7. Unskillfulness is also a fault, as, if a physician kills your slave by unskillfully performing an operation on him, or by giving him wrong medicines.
8. So, too, if a muleteer, through his want of skill, cannot manage his mules, and runs over your slave, he is guilty of a fault. As, also, he would be if he could not hold them on account of his weakness, provided that a stronger man could have held them in. The same decisions apply to an unskillful or infirm horseman, unable to manage his horse.
9. The words above quoted "the greatest value the thing has possessed at any time within a year previously," mean that if your slave is killed, being at the time of his death lame, maimed, or one-eyed, but having been within a year quite sound and of considerable value, the person who kills him is bound to pay not his actual value, but the greatest value he ever possessed within the year. Hence, this actio may be said to be penal, as a person is bound under it not only for the damage he has done, but for much more; and, therefore, the actio does not pass against his heir, as it would have done if the condemnation had not exceeded the amount of the actual damage.
10. It has been decided not by virtue of the actual wording of the law, but by interpretation, that not only is the value of the thing perishing to be estimated as we have said, but also the loss which in any way we incur by its perishing; as, for instance, if your slave having been instituted heir by some one is killed before he enters at your command on the inheritance, the loss of the inheritance should be taken account of. So, too, if one pair of mules, or a set of four horses, or one slave of a band of comedians, is killed, account is to be taken not only of the value of the thing killed, but also of the diminished value of what remains.
11. The master of a slave who is killed may bring a private actio for the damages given by the lex Aquilia, and also bring a capital actio against the murderer.
12. The second head of the lex Aquilia is not now in use.
13. The third head provides for every kind of damage; and therefore, if a slave, or a four-footed beast, of those reckoned among cattle, is wounded, or a four-footed beast of those not reckoned among cattle, as a dog or wild beast, is wounded or killed, an actio may be brought under the third head. Compensation may also be obtained under it for all wrongful injury to animals or inanimate things, and, in fact, for anything burnt, broken, or fractured, although the word broken ("ruptum") would have sufficed for all these cases; for a thing is ruptum which in any way is spoilt ("corruptum"), so that not only things fractured or burnt, but also things cut, bruised, split, or in any way destroyed or deteriorated may be said to be rupta. It has also been decided that any one who mixes anything with the oil or wine of another, so as to spoil the goodness of the wine or oil, is liable under this head of the lex Aquilia.
14. It is evident that as a person is liable under the first head, if by wilful injury or by his fault he kills a slave or a four-footed beast, so by this head a person is liable for every other damage if there is wrongful injury or fault in what he does. But in this case the offender is bound to pay the greatest value the thing has possessed, not within the year next preceding, but the thirty days next preceding.
15. Even the word plurimi, i. e., of the greatest value, is not expressed in this case. But Sabinus was rightly of opinion that the estimation ought to be made as if this word was in the law, since it must have been that the plebeians, who were the authors of this law on the motion of the tribune Aquilius, thought it sufficient to have used the word in the first head of the law.
16. But the direct actio under this law cannot be brought if anyone has, with his own body, done damage, and consequently utiles actiones are given against the person who does damage in any other way, as, for instance, a utilis actio is given against one who shuts up a slave or a beast, so as to produce death by hunger; who drives a horse so fast as to knock him to pieces, or drives cattle over a precipice, or persuades another man's slave to climb a tree, or go down in a well, and the slave in climbing or descending is killed or maimed. But if any one has flung the slave of another from a bridge or a bank into a river, and the slave is drowned, then, as he has actually flung him down, there can be no difficulty in deciding that he has caused the damage with his own body, and consequently he is directly liable under the lex Aquilia. But if no damage has been done by the body, nor to the body, but damage has been done in some other way, the actio directa and the actio utilis are both inapplicable, and an actio in factum is given against the wrongdoer; for instance, if any one through compassion has loosed the fetters of a slave, to enable him to escape.
1. As the law does not speak generally of four-footed beasts, but only of those which are reckoned among cattle, we may consider its provision as not applying to dogs or wild animals, but only to animals which may be properly said to feed in herds, as horses, mules, asses, sheep, oxen, goats, and also swine, for they are included in the term "cattle," for they feed in herds. Thus Homer says, as Laelius Marcianus quotes in his Institutes:
You will find him seated by his swine,
and they are feeding by the rock of Corax,
near the spring Arethusa.
2. To kill wrongfully is to kill without any right: consequently, a person who kills a thief is not liable to this actio, that is, if he could not otherwise avoid the danger with which he was threatened.
3. Nor is a person made liable by this law who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong-doing.
4. Consequently, if anyone playing or practicing with a javelin pierces with it your slave as he goes by, there is a distinction made; if the accident befalls a soldier while in the camp, or other places appropriated to military exercises, there is no fault in the soldier, but there would be in anyone else besides a soldier, and the soldier himself would be in fault if he inflicted such an injury in any other place than one appropriated to military exercises.
5. If, again, anyone, in pruning a tree, by letting a bough fall, kills your slave who is passing, and this takes place near a public way, or a way belonging to a neighbor, and he has not cried out to make persons take care, he is in fault; but if he has called out, and the passer-by would not take care, he is not to blame. He is also equally free from blame if he was cutting far from any public way, or in the middle of a field, even though he has not called out, for by such a place no stranger has a right to pass.
6. So, again, a physician who has performed an operation on your slave, and then neglected to attend to his cure, so that the slave dies, is guilty of a fault.
7. Unskillfulness is also a fault, as, if a physician kills your slave by unskillfully performing an operation on him, or by giving him wrong medicines.
8. So, too, if a muleteer, through his want of skill, cannot manage his mules, and runs over your slave, he is guilty of a fault. As, also, he would be if he could not hold them on account of his weakness, provided that a stronger man could have held them in. The same decisions apply to an unskillful or infirm horseman, unable to manage his horse.
9. The words above quoted "the greatest value the thing has possessed at any time within a year previously," mean that if your slave is killed, being at the time of his death lame, maimed, or one-eyed, but having been within a year quite sound and of considerable value, the person who kills him is bound to pay not his actual value, but the greatest value he ever possessed within the year. Hence, this actio may be said to be penal, as a person is bound under it not only for the damage he has done, but for much more; and, therefore, the actio does not pass against his heir, as it would have done if the condemnation had not exceeded the amount of the actual damage.
10. It has been decided not by virtue of the actual wording of the law, but by interpretation, that not only is the value of the thing perishing to be estimated as we have said, but also the loss which in any way we incur by its perishing; as, for instance, if your slave having been instituted heir by some one is killed before he enters at your command on the inheritance, the loss of the inheritance should be taken account of. So, too, if one pair of mules, or a set of four horses, or one slave of a band of comedians, is killed, account is to be taken not only of the value of the thing killed, but also of the diminished value of what remains.
11. The master of a slave who is killed may bring a private actio for the damages given by the lex Aquilia, and also bring a capital actio against the murderer.
12. The second head of the lex Aquilia is not now in use.
13. The third head provides for every kind of damage; and therefore, if a slave, or a four-footed beast, of those reckoned among cattle, is wounded, or a four-footed beast of those not reckoned among cattle, as a dog or wild beast, is wounded or killed, an actio may be brought under the third head. Compensation may also be obtained under it for all wrongful injury to animals or inanimate things, and, in fact, for anything burnt, broken, or fractured, although the word broken ("ruptum") would have sufficed for all these cases; for a thing is ruptum which in any way is spoilt ("corruptum"), so that not only things fractured or burnt, but also things cut, bruised, split, or in any way destroyed or deteriorated may be said to be rupta. It has also been decided that any one who mixes anything with the oil or wine of another, so as to spoil the goodness of the wine or oil, is liable under this head of the lex Aquilia.
14. It is evident that as a person is liable under the first head, if by wilful injury or by his fault he kills a slave or a four-footed beast, so by this head a person is liable for every other damage if there is wrongful injury or fault in what he does. But in this case the offender is bound to pay the greatest value the thing has possessed, not within the year next preceding, but the thirty days next preceding.
15. Even the word plurimi, i. e., of the greatest value, is not expressed in this case. But Sabinus was rightly of opinion that the estimation ought to be made as if this word was in the law, since it must have been that the plebeians, who were the authors of this law on the motion of the tribune Aquilius, thought it sufficient to have used the word in the first head of the law.
16. But the direct actio under this law cannot be brought if anyone has, with his own body, done damage, and consequently utiles actiones are given against the person who does damage in any other way, as, for instance, a utilis actio is given against one who shuts up a slave or a beast, so as to produce death by hunger; who drives a horse so fast as to knock him to pieces, or drives cattle over a precipice, or persuades another man's slave to climb a tree, or go down in a well, and the slave in climbing or descending is killed or maimed. But if any one has flung the slave of another from a bridge or a bank into a river, and the slave is drowned, then, as he has actually flung him down, there can be no difficulty in deciding that he has caused the damage with his own body, and consequently he is directly liable under the lex Aquilia. But if no damage has been done by the body, nor to the body, but damage has been done in some other way, the actio directa and the actio utilis are both inapplicable, and an actio in factum is given against the wrongdoer; for instance, if any one through compassion has loosed the fetters of a slave, to enable him to escape.
IV. Injuria.
Injuria, in its general sense, signifies every action contrary to law; in a special sense, it means, sometimes, the same as contumelia ("outrage"), which is derived from contemnere, the Greek ubris; sometimes the same as culpa ("fault"), in Greek adikama as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek adikia; for a person against whom the praetor or judge pronounces an unjust sentence is said to have received an injuria.
1. An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.
2. A man may receive an injuria, not only in his own person, but in that of his children in his power, and even in that of his wife, according to the opinion that has prevailed. If, therefore, you injure a daughter in the power of her father, but married to Titius, the actio for the injury may be brought not only in the name of the daughter herself, but also in that of the father or. husband. But, if a husband has sustained an injuria, the wife cannot bring the actio injuriarum, for the husband is the protector of the wife, not the wife of the husband. The father-in-law may also bring this actio in the name of his daughter-in-law, if her husband is in his power.
3. An injuria cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master, as if a person has flogged severely the slave of another, in which case this actio is given against him. But a master cannot bring an actio against a person who has collected a crowd round his slave, or struck him with his fist.
4. If an injuria has been done to a slave held in common, equity demands that it shall be estimated not according to their respective shares in him, but according to their respective position, for it is the masters who are injured.
5. If Titius has the usufructus, and Maevius the property in a slave, the injuria is considered to be done rather to Maevius than to Titius.
6. If the injury has been done to a free man, who serves you bona fide, you have no actio, but he can bring an actio in his own name, unless he has been injured merely to insult you, for, in that case, you may bring the actio injuriarum. So, too, with regard to a slave of another who serves you bona fide, you may bring this actio whenever the slave is injured for the purpose of insulting you.
7. The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation being exacted proportionate to the great poverty of the times. Afterwards, the praetor permitted the injured parties themselves to estimate the injury, so that the iudex should condemn the defendants to pay the sum estimated, or less, as he may think proper. The penalty appointed by the Twelve Tables has fallen into desuetude, but that introduced by the praetors, and termed honorary, is adopted in the administration of justice. For, according to the rank and character of the person injured, the estimate is greater or less; and a similar gradation is observed, not improperly, even with regard to a slave, one amount being paid in the case of a slave who is a steward, a second in that of a slave holding an office of the intermediate class, and a third in that of one of the lowest rank, or one condemned to wear fetters.
8. The lex Cornelia also speaks of injuriae, and introduced an actio injuriarum, which may be brought when anyone alleges that he has been struck or beaten, or that his house has been broken into. And the term "his house" includes one which belongs to him and in which he lives, or one he hires, or one in which he is received gratuitously or as a guest.
9. An injuria is said to be of a grave character, either from the nature of the act, as if any one is wounded or beaten with clubs by another, or from the nature of the place, as when an injury is done in a theater, a forum, or in the presence of the praetor; sometimes from the quality of the person, as when it is a magistrate that has received the injuria, or a senator has sustained it at the hands of a person of low condition, or a parent or patron at the hands of a child or freedman. For the injuria done to a senator a parent or a patron is estimated differently from an injury done to a person of low condition or to a stranger. Sometimes it is the part of the body injured that gives the character to the injuria as if any one had been struck in the eye. Nor does it make any difference whether such an injuria has been done to a paterfamilias or a filiusfamilius, it being in either case considered of a grave character.
10. Lastly, it must be observed that in every case of injuria he who has received it may bring either a criminal or a civil actio. In the latter, it is a sum estimated, as we have said, that constitutes the penalty; in the former, the iudex, in the exercise of his duty, inflicts on the offender an extraordinary punishment. We must, however, remark that a constitutio of Zeno permits men of the rank of illustris, or any higher rank, to bring or defend the actio injuriarum if brought criminally by a procurator, as may be seen more clearly by reading the constitutio itself.
11. Not only is he liable to the actio injuriarum who has inflicted the injury, as, for instance, the person who has struck the blow; but he also who has maliciously caused or contrived that any one should be struck in the face with the fist.
12. This actio is extinguished by a person dissembling to have received the injury; and therefore, a person who has taken no account of the injury, that is, who immediately on receiving it has shown no resentment at it, cannot afterwards change his mind and resuscitate the injury he has allowed to rest.
1. An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.
2. A man may receive an injuria, not only in his own person, but in that of his children in his power, and even in that of his wife, according to the opinion that has prevailed. If, therefore, you injure a daughter in the power of her father, but married to Titius, the actio for the injury may be brought not only in the name of the daughter herself, but also in that of the father or. husband. But, if a husband has sustained an injuria, the wife cannot bring the actio injuriarum, for the husband is the protector of the wife, not the wife of the husband. The father-in-law may also bring this actio in the name of his daughter-in-law, if her husband is in his power.
3. An injuria cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master, as if a person has flogged severely the slave of another, in which case this actio is given against him. But a master cannot bring an actio against a person who has collected a crowd round his slave, or struck him with his fist.
4. If an injuria has been done to a slave held in common, equity demands that it shall be estimated not according to their respective shares in him, but according to their respective position, for it is the masters who are injured.
5. If Titius has the usufructus, and Maevius the property in a slave, the injuria is considered to be done rather to Maevius than to Titius.
6. If the injury has been done to a free man, who serves you bona fide, you have no actio, but he can bring an actio in his own name, unless he has been injured merely to insult you, for, in that case, you may bring the actio injuriarum. So, too, with regard to a slave of another who serves you bona fide, you may bring this actio whenever the slave is injured for the purpose of insulting you.
7. The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation being exacted proportionate to the great poverty of the times. Afterwards, the praetor permitted the injured parties themselves to estimate the injury, so that the iudex should condemn the defendants to pay the sum estimated, or less, as he may think proper. The penalty appointed by the Twelve Tables has fallen into desuetude, but that introduced by the praetors, and termed honorary, is adopted in the administration of justice. For, according to the rank and character of the person injured, the estimate is greater or less; and a similar gradation is observed, not improperly, even with regard to a slave, one amount being paid in the case of a slave who is a steward, a second in that of a slave holding an office of the intermediate class, and a third in that of one of the lowest rank, or one condemned to wear fetters.
8. The lex Cornelia also speaks of injuriae, and introduced an actio injuriarum, which may be brought when anyone alleges that he has been struck or beaten, or that his house has been broken into. And the term "his house" includes one which belongs to him and in which he lives, or one he hires, or one in which he is received gratuitously or as a guest.
9. An injuria is said to be of a grave character, either from the nature of the act, as if any one is wounded or beaten with clubs by another, or from the nature of the place, as when an injury is done in a theater, a forum, or in the presence of the praetor; sometimes from the quality of the person, as when it is a magistrate that has received the injuria, or a senator has sustained it at the hands of a person of low condition, or a parent or patron at the hands of a child or freedman. For the injuria done to a senator a parent or a patron is estimated differently from an injury done to a person of low condition or to a stranger. Sometimes it is the part of the body injured that gives the character to the injuria as if any one had been struck in the eye. Nor does it make any difference whether such an injuria has been done to a paterfamilias or a filiusfamilius, it being in either case considered of a grave character.
10. Lastly, it must be observed that in every case of injuria he who has received it may bring either a criminal or a civil actio. In the latter, it is a sum estimated, as we have said, that constitutes the penalty; in the former, the iudex, in the exercise of his duty, inflicts on the offender an extraordinary punishment. We must, however, remark that a constitutio of Zeno permits men of the rank of illustris, or any higher rank, to bring or defend the actio injuriarum if brought criminally by a procurator, as may be seen more clearly by reading the constitutio itself.
11. Not only is he liable to the actio injuriarum who has inflicted the injury, as, for instance, the person who has struck the blow; but he also who has maliciously caused or contrived that any one should be struck in the face with the fist.
12. This actio is extinguished by a person dissembling to have received the injury; and therefore, a person who has taken no account of the injury, that is, who immediately on receiving it has shown no resentment at it, cannot afterwards change his mind and resuscitate the injury he has allowed to rest.