Lex Aquilia

Torts = Delicts

Date: 286 to 195 B.C.

P.71  Chapter 1

p. 83   Chapter 2

p. 83   Chapter 3

p. 96 Self-Defense

p. 72-73 Mens insanus, Children, and Animals

p. 73-74 Iniuria and Negligence

p. 96 Nonfeasance

p. 97 Necessity

p. 97 Natural Law

p. 98-99 Reason v. Positive Law

Culpa et Dolus

p. 76  Barber

p. 91  Homo constans; pruning branches, working

p. 73-74 Muleteer

p. 99-100  Wagons on the Capitoline

Page numbers refer to Justinian, The Digest of Roman Law: Theft, Rapine, Damage and Insult (Penguin Books).

1. Ulpianus, On the Edict, Book XVIII.

The Lex Aquilia annulled all laws previously enacted with reference to the reparation of unlawful damage, whether these were the Twelve Tables or any others; which laws it is not necessary to specify at present.  § The Lex Aquilia is a plebiscite; whose enactment Aquilius, a tribune of the people, proposed to the populace.

Dig. 9.2.1pr.

Ulpianus 18 ad ed.

Lex Aquilia omnibus legibus, quae ante se de damno iniuria locutae sunt, derogavit, sive duodecim tabulis, sive alia quae fuit: quas leges nunc referre non est necesse.  § Quae lex Aquilia plebiscitum est, cum eam aquilius tribunus plebis a plebe rogaverit.

It is provided by the first section of the Lex Aquilia that, "Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year". §  And then the law further provides that, "An action for double damages may be brought against a person who makes a denial". §  It therefore appears that the law places in the same category with slaves animals which are included under the head of cattle, and are kept in herds, as, for instance, sheep, goats, oxen, horses, mules, and asses. The question arises whether hogs are included under the designation of cattle, and it is very properly decided by Labeo that they are. Dogs, however, do not come under this head; and wild beasts are far from being included, as for instance, bears, lions, and panthers. Elephants and camels are, as it were, mixed, for they perform the labor of beasts of burden, and yet their nature is wild, and therefore they must be included in the first Section.

Lege Aquilia capite primo cavetur: "ut qui servum servamve alienum alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto":

 § Et infra deinde cavetur, ut adversus infitiantem in duplum actio esset.  

§ Ut igitur apparet, servis nostris exaequat quadrupedes, quae pecudum numero sunt et gregatim habentur, veluti oves caprae boves equi muli asini. sed an sues pecudum appellatione continentur, quaeritur: et recte labeoni placet contineri. sed canis inter pecudes non est. longe magis bestiae in numero non sunt, veluti ursi leones pantherae. Elefanti autem et cameli quasi mixti sunt ( nam et iumentorum operam praestant et natura eorum fera est) et ideo primo capite contineri eas oportet.

Where a male or a female slave has been unlawfully killed, the Lex Aquilia is applicable. It is added with reason that it must be unlawfully killed, as it is not sufficient for it to be merely killed, but this must be done in violation of law.

Si servus servave iniuria occisus occisave fuerit, lex Aquilia locum habet. iniuria occisum esse merito adicitur: non enim sufficit occisum, sed oportet iniuria id esse factum.

Therefore, if I kill your slave who is a thief and is attacking me at the time, I shall be free from liability, "For natural reason permits a man to protect himself from danger". §  The Law of the Twelve Tables permits anyone to kill a thief who is caught at night, provided, however, that he gives warning by an outcry; and it permits him to kill the thief in the day-time, if he is caught and defends himself with a weapon, provided always, that he calls others to witness with an outcry.

Itaque si servum tuum latronem insidiantem mihi occidero, securus ero: nam adversus periculum naturalis ratio permittit se defendere. § Lex duodecim tabularum furem noctu deprehensum occidere permittit, ut tamen id ipsum cum clamore testificetur: interdiu autem deprehensum ita permittit occidere, si is se telo defendat, ut tamen aeque cum clamore testificetur.

Where, however, anyone kills another who is attacking him with a weapon, he is not held to have killed him unlawfully; and where anyone kills a thief through fear of death, there is no doubt that he is not liable under the Lex Aquilia. But if he is able to seize him, and prefers to kill him, the better opinion is that he commits an unlawful act, and therefore he will also be liable under the Lex Cornelia.  § We must here understand the term "injury" to mean not some insult, as we do with reference to an action for injury, but something done illegally, that is to say contrary to the law; for instance, where anyone kills by negligence, and hence sometimes both actions can be brought, namely, that under the Lex Aquilia, and that for injury; but, in this case there will be two assessments, one for damage, and the other for insult. Consequently, we must here understand the term "injury" to signify damage given through fault, even when the person did not intend to do wrong.  

§ Therefore we ask whether an action under the Lex Aquilia will lie where an insane person causes damage? Pegasus denies that it will, for how can anyone be negligent who is not in his right mind? This is perfectly true. Hence an action under the Lex Aquilia will not lie; just as where an animal causes the damage, or where a tile falls from a roof.  § Again, if a child causes any damage the same rule applies. If, however, a boy who has not reached puberty causes it, Labeo says that he is liable under the Lex Aquilia, because he would be liable for theft; and I think this opinion is correct if he is capable of knowing right from wrong.  

§ Where a teacher wounds or kills a slave while instructing him, will he be liable under the Lex Aquilia on the ground that he committed unlawful damage? Julianus says that a person was held liable under the Lex Aquilia, who blinded a pupil in one eye while instructing him; and much more would he have been liable, if he had killed him. He supposes the following case. A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boy's eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him. Still, he is in doubt as to whether an action on a contract will lie, because only moderate punishment is conceded to a person who imparts instruction. I do not doubt, however, that an action can be brought under the Lex Aquilia;

Sed et si quemcumque alium ferro se petentem quis occiderit, non videbitur iniuria occidisse: et si metu quis mortis furem occiderit, non dubitabitur, quin lege Aquilia non teneatur. sin autem cum posset adprehendere, maluit occidere, magis est ut iniuria fecisse videatur: ergo et Cornelia tenebitur.

§ Iniuriam autem hic accipere nos oportet non quemadmodum circa iniuriarum actionem contumeliam quandam, sed quod non iure factum est, hoc est contra ius, id est si culpa quis occiderit: et ideo interdum utraque actio concurrit et legis Aquiliae et iniuriarum, sed duae erunt aestimationes, alia damni, alia contumeliae. Igitur iniuriam hic damnum accipiemus culpa datum etiam ab eo, qui nocere noluit.

§ Et ideo quaerimus, si furiosus damnum dederit, an legis Aquiliae actio sit? et Pegasus negavit: quae enim in eo culpa sit, cum suae mentis non sit? et hoc est verissimum. Cessabit igitur Aquiliae actio, quemadmodum, si quadrupes damnum dederit, Aquilia cessat, aut si tegula ceciderit. Sed et si infans damnum dederit, idem erit dicendum. Quodsi impubes id fecerit, Labeo ait, quia furti tenetur, teneri et Aquilia eum: et hoc puto verum, si sit iam iniuriae capax.

§ Si magister in disciplina vulneraverit servum vel occiderit, an Aquilia teneatur, quasi damnum iniuria dederit? et Iulianus scribit Aquilia teneri eum, qui eluscaverat discipulum in disciplina: multo magis igitur in occiso idem erit dicendum. proponitur autem apud eum species talis: sutor, inquit, puero discenti ingenuo filiofamilias, parum bene facienti quod demonstraverit, forma calcei cervicem percussit, ut oculus puero perfunderetur.

Dicit igitur Iulianus iniuriarum quidem actionem non competere, quia non faciendae iniuriae causa percusserit, sed monendi et docendi causa: an ex locato, dubitat, quia levis dumtaxat castigatio concessa est docenti: sed lege Aquilia posse agi non dubito:

As extreme severity on the part of an instructor is attributed to negligence.

Praeceptoris enim nimia saevitia culpae adsignatur.

By this action the father will obtain damages to the amount of the value of the services of his son which he lost on account of the destruction of his eye, as well as the expenses he incurred for his medical treatment. § We must understand the term "kill" to mean where this was done either with a sword, a club, or some other weapon, or with the hands if strangulation was used, or with a kick, or by striking him on the head, or in any other way whatsoever. § The Lex Aquilia will apply where anyone who has been too heavily laden throws down his load and kills a slave; for it was in his power not to be overloaded in this manner. Pegasus says that if anyone should slip and crush with his load a slave belonging to another, he will be liable under the Lex Aquilia, if he loaded himself more heavily than he should have done, or walked carelessly over a slippery place.  § In like manner, where anyone injures another because of someone pushing him, Proculus holds that neither he who gave the push is liable, because he did not kill him, nor he who was pushed either, because he did not commit wrongful injury; according to which opinion an action in factum should be granted against the party who gave the push. § Where anyone in a wrestling match or in a wrestling and boxing contest or where two boxers are engaged, kills another; and he does so in a public exhibition, the Lex Aquilia will not apply, because the damage must be considered to have been committed for the sake of renown and courage, and not with the intent to cause injury. This, however, is not applicable to the case of a slave, since freeborn persons are accustomed to take part in such contests, but it does apply where the son of a family is wounded. It is evident that if one party inflicts a wound while the other was retiring, the Lex Aquilia will be applicable; or if he kills a slave where there is no contest, unless this is done at the instigation of the master; for then the Lex Aquilia will not apply. § Where anyone lightly strikes a slave who is sick, and he dies; Labeo justly holds that he will be liable under the Lex Aquilia, for a blow that is mortal to one man, often will not be so to another.  § Celsus says that it makes a great deal of difference whether the party actually kills, or provides the cause of death, as he who provides the cause of death is not liable under the Lex Aquilia, but is to an action in factum. With reference to this, he cites the case of a party who administered poison as medicine, and who he says provided the cause of death; just as one who places a sword in the hands of an insane person, for the latter would not be liable under the Lex Aquilia, but would be to an action in factum. § But where anyone throws another from a bridge, whether he is killed by the blow which he received, or is submerged and drowned, or, overcome by the force of the current, dies exhausted; the culprit, Celsus says, is liable under the Lex Aquilia, just as if he had dashed a boy against a rock.   §  Proculus holds that if a physician should operate upon a slave unskillfully, an action will lie either on the contract, or under the Lex Aquilia.

Qua actione patrem consecuturum ait, quod minus ex operis filii sui propter vitiatum oculum sit habiturus, et impendia, quae pro eius curatione fecerit.  

§  "Occisum" autem accipere debemus, sive gladio sive etiam fuste vel alio telo vel manibus ( si forte strangulavit eum) vel calce petiit vel capite vel qualiter qualiter.

§ Sed si quis plus iusto oneratus deiecerit onus et servum occiderit, Aquilia locum habet: fuit enim in ipsius arbitrio ita se non onerare. nam et si lapsus aliquis servum alienum onere presserit, Pegasus ait lege Aquilia eum teneri ita demum, si vel plus iusto se oneraverit vel neglegentius

 Proinde si quis alterius impulsu damnum dederit, proculus scribit neque eum qui impulit teneri, quia non occidit, neque eum qui impulsus est, quia damnum iniuria non dedit: secundum quod in factum actio erit danda in eum qui impulit.

§  Si quis in colluctatione vel in pancratio, vel pugiles dum inter se exercentur alius alium occiderit, si quidem in publico certamine alius alium occiderit, cessat Aquilia, quia gloriae causa et virtutis, non iniuriae gratia videtur damnum datum. hoc autem in servo non procedit, quoniam ingenui solent certare: in filio familias vulnerato procedit. plane si cedentem vulneraverit, erit Aquiliae locus, aut si non in certamine servum occidit, nisi si domino committente hoc factum sit: tunc enim Aquilia cessat.

§   Sed si quis servum aegrotum leviter percusserit et is obierit, recte labeo dicit lege Aquilia eum teneri, quia aliud alii mortiferum esse solet.

§  Celsus autem multum interesse dicit, occiderit an mortis causam praestiterit, ut qui mortis causam praestitit, non Aquilia, sed in factum actione teneatur. unde adfert eum qui venenum pro medicamento dedit et ait causam mortis praestitisse, quemadmodum eum qui furenti gladium porrexit: nam nec hunc lege Aquilia teneri, sed in factum.

§  Sed si quis de ponte aliquem praecipitavit, celsus ait, sive ipso ictu perierit aut continuo submersus est aut lassatus vi fluminis victus perierit, lege Aquilia teneri, quemadmodum si quis puerum saxo inlisisset.

§  Proculus ait, si medicus servum imperite secuerit, vel ex locato vel ex lege Aquilia competere actionem.

8. Gaius, On the Provincial Edict, Book VII.

The same rule is applicable where he wrongfully makes use of a drug; but if a surgeon operates properly, and does not employ any further curative measures, he will not be free from responsibility, but is considered to be guilty of negligence.

§  Moreover, where a muleteer, through want of skill, is unable to restrain the course of his mules, and they crush a slave belonging to another, it is ordinarily said that the driver is liable on account of negligence. The same view is held if he cannot control his mules because of want of strength; nor does it seem to be unjust that want of strength should furnish ground for negligence, because no one ought to undertake anything which he knows, or ought to know, will be dangerous to others on account of his weakness.

§ The law is the same in the case of a person who, through want of skill or want of strength, cannot manage the horse on which he is riding.

Idem iuris est, si medicamento perperam usus fuerit. sed et qui bene secuerit et dereliquit curationem, securus non erit, sed culpae reus intellegitur.

§  Mulionem quoque, si per imperitiam impetum mularum retinere non potuerit, si eae alienum hominem obtriverint, volgo dicitur culpae nomine teneri.  Idem dicitur et si propter infirmitatem sustinere mularum impetum non potuerit: nec videtur iniquum, si infirmitas culpae adnumeretur, cum affectare quisque non debeat, in quo vel intellegit vel intellegere debet infirmitatem suam alii periculosam futuram.

§  Idem iuris est in persona eius, qui impetum equi, quo vehebatur, propter imperitiam vel infirmitatem retinere non poterit.

Moreover, where a midwife administers a drug to a woman and she dies in consequence, Labeo makes a distinction, namely: that if she administered it with her own hands she is held to have killed the woman, but if she gave it to the latter in order that she might take it, an action in factum should be granted, and this opinion is correct; for she rather provided the cause of death, than actually killed the woman.

§ Where anyone, either by force of persuasion, administers a drug to another, either by the mouth, or by injection, or anoints him with some poisonous substance; he will be liable under the Lex Aquilia, just as the midwife who administers a drug is liable.

§ Where anyone kills a slave by starvation, Neratius says he is liable to an action in factum.

§ If my slave is riding on horseback, and by frightening the horse you cause the slave to be thrown into a river, and he loses his life in consequence, Ofilius writes that an action in factum should be granted; just as if my slave had been drawn into ambush by one man and killed by another.

§ Again, where a slave is killed by parties who are practicing with javelins for amusement, the Lex Aquilia is applicable; but where others are practicing with javelins, and a slave crosses the place the Lex Aquilia will not apply, because he should not have rashly crossed the field where this practice was going on; but still, if anyone intentionally casts a javelin at him, he will be liable under the Lex Aquilia.

Item si obstetrix medicamentum dederit et inde mulier perierit, labeo distinguit, ut, si quidem suis manibus supposuit, videatur occidisse: sin vero dedit, ut sibi mulier offerret, in factum actionem dandam, quae sententia vera est: magis enim causam mortis praestitit quam occidit.

§ Si quis per vim vel suasum medicamentum alicui infundit vel ore vel clystere vel si eum unxit malo veneno, lege Aquilia eum teneri, quemadmodum obstetrix supponens tenetur.

§ Si quis hominem fame necaverit, in factum actione teneri Neratius ait.

§ Si servum meum equitantem concitato equo effeceris in flumen praecipitari atque ideo homo perierit, in factum esse dandam actionem ofilius scribit: quemadmodum si servus meus ab alio in insidias deductus, ab alio esset occisus.

§ Sed si per lusum iaculantibus servus fuerit occisus, Aquiliae locus est: sed si cum alii in campo iacularentur, servus per eum locum transierit, Aquilia cessat, quia non debuit per campum iaculatorium iter intempestive facere. qui tamen data opera in eum iaculatus est, utique Aquilia tenebitur:

For a dangerous game should be classed as an act of negligence,

Paulus 22 ad ed.

Nam lusus quoque noxius in culpa est.

Mela also says that if, while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he had the habit of shaving persons in a place where it is customary to play ball, or where there was much travel, he is in a certain degree responsible; although it may not improperly be held that where anyone seats himself in a barber's chair in a dangerous place, he has only himself to blame.  §  Where one party holds a slave and another kills him, the party who held him is liable to an action in factum, since he provided the cause of death.  § But where several persons struck the slave, let us consider whether all of them will be liable, just as if they had all killed him? And, if it is known by whose blow he lost his life, the former will be liable for having killed him; but if this is not known, Julianus says all of them can be held liable for his death, and if proceedings are instituted against only one, the others cannot be discharged; for under the Lex Aquilia, where one man pays he does not release another, as the action is a penal one.  § Celsus states that where anyone strikes a slave a mortal blow, and another deprives him of life, the former will not be held liable for having killed him, but only for having wounded him, for the reason that he died from a wound inflicted by another, but the latter will be liable because he killed him; and this opinion is held by Marcellus, and is the more probable solution.   § It was decided by the ancient authorities that where several persons throw down a beam which crushes a slave, all are equally liable to an action under the Lex Aquilia. § Proculus also gave it as his opinion that a party who provoked a dog, and caused him to bite some one, would be liable to an action under the Lex Aquilia, even though he did not have hold of the dog. Julianus, however, says that, in this instance, he is liable under the Lex Aquilia only if he held the dog, and caused him to bite the other party; but if he did not hold him, an action in factum should be brought against him.  § An action under the Lex Aquilia can be brought by the erus, that is, by the owner.  § Where wrongful damage is done to a slave that I was about to return to you on delivery of the price, Julianus says that I have a right to an action under the Lex Aquilia, and that when I begin to return the slave I must assign it to you. § But if the slave is serving in good faith some person who is not his owner, will the latter have a right of action under the Lex Aquilia? The better opinion is that an action in factum should be granted. § Julianus says that where clothing is loaned to anyone and it is torn, the latter cannot bring an action under the Lex Aquilia, but the owner of the clothing can do so. § Julianus discussed the point whether an usufructuary or a party entitled to the use of property has a right of action under the Lex Aquilia? I think the better opinion is that in a case of this kind, a prętorian action should be granted.

Item Mela scribit, si, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus eam deiecerit et sic servi, quem tonsor habebat, gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri.  Proculus in tonsore esse culpam: et sane si ibi tondebat, ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur: quamvis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.

§ Si alius tenuit, alius interemit, is qui tenuit, quasi causam mortis praebuit, in factum actione tenetur.

§ Sed si plures servum percusserint, utrum omnes quasi occiderint teneantur, videamus. et si quidem apparet cuius ictu perierit, ille quasi occiderit tenetur: quod si non apparet, omnes quasi occiderint teneri iulianus ait, et si cum uno agatur, ceteri non liberantur: nam ex lege Aquilia quod alius praestitit, alium non relevat, cum sit poena.

§ Celsus scribit, si alius mortifero vulnere percusserit, alius postea exanimaverit, priorem quidem non teneri quasi occiderit, sed quasi vulneraverit, quia ex alio vulnere periit, posteriorem teneri, quia occidit. quod et Marcello videtur et est probabilius.

§ Si plures trabem deiecerint et hominem oppresserint, aeque veteribus placet omnes lege Aquilia teneri.

§ Item cum eo, qui canem irritaverat et effecerat, ut aliquem morderet, quamvis eum non tenuit, Proculus respondit Aquiliae actionem esse: sed Iulianus eum demum Aquilia teneri ait, qui tenuit et effecit ut aliquem morderet: ceterum si non tenuit, in factum agendum.

§ Legis autem Aquiliae actio ero competit, hoc est domino.

§ Si in eo homine, quem tibi redhibiturus essem, damnum iniuria datum esset, iulianus ait legis Aquiliae actionem mihi competere meque, cum coepero redhibere, tibi restituturum.

§ Sed si servus bona fide alicui serviat, an ei competit Aquiliae actio? et magis in factum actio erit danda.

§ Eum, cui vestimenta commodata sunt, non posse, si scissa fuerint, lege Aquilia agere iulianus ait, sed domino eam competere.

§ An fructuarius vel usuarius legis Aquiliae actionem haberet, Iulianus tractat: et ego puto melius utile iudicium ex hac causa dandum.

Where the owner with rights over a slave wounds or kills a slave in whom I also have  usufruct, an action should be granted me, as under the Lex Aquilia, for damages in proportion to the amount of my usufruct; and that portion of the year which elapsed previous to my usufruct must also be included in the assessment of said damages.

Sed et si proprietatis dominus vulneraverit servum vel occiderit, in quo usus fructus meus est, danda est mihi ad exemplum legis Aquiliae actio in eum pro portione usus fructus, ut etiam ea pars anni in aestimationem veniat, qua nondum usus fructus meus fuit.

A freeman is entitled to a prętorian action, based on the Lex Aquilia, in his own name; but he cannot bring the direct action, because no one can be held to be the owner of his own limbs. A master, however, can bring an action on account of a fugitive slave.

§  Julianus says that if a freeman serves me in good faith as a slave, he himself is liable to me under the Lex Aquilia.

§  Where a slave belonging to an estate is killed, the question arises who can bring suit under the Lex Aquilia, since there is no owner of said slave? Celsus says, that it is the intention of the law that all damages should be made good to the owner, and therefore the estate will be considered the owner; hence when the estate is entered upon, the heir can institute proceedings.§  Where a slave who was bequeathed is killed after the estate has been entered upon, the right of action under the Lex Aquilia belongs to the legatee, unless he did not accept the legacy until after the death of the slave; because if he rejected it, Julianus says that the result will be that the right of action must be said to belong to the heir.

Liber homo suo nomine utilem Aquiliae habet actionem: directam enim non habet, quoniam dominus membrorum suorum nemo videtur. fugitivi autem nomine dominus habet.

§  Iulianus scribit, si homo liber bona fide mihi serviat, ipsum lege Aquilia mihi teneri.

§ Si servus hereditarius occidatur, quaeritur, quis Aquilia agat, cum dominus nullus sit huius servi. et ait celsus legem domino damna salva esse voluisse: dominus ergo hereditas habebitur. quare adita hereditate heres poterit experiri.

§ Si servus legatus post aditam hereditatem sit occisus, competere legis Aquiliae actionem legatario, si non post mortem servi adgnovit legatum: quod si repudiavit, consequens esse ait iulianus dicere heredi competere.

But where the heir himself kills the slave, it has been established that an action against him must be granted to the legatee.

Sed si ipse heres eum occiderit, dictum est dandam in eum legatario actionem.

In consequence of what was written it must be stated that, if the slave who was bequeathed is killed before the estate is entered upon, the right of action under the Lex Aquilia must remain with the heir, on account of having been acquired through the estate. If, however, the slave was wounded before the estate was entered upon, then, in fact, the right of action remained as a portion of the assets of the estate, but the heir is obliged to assign it to the legatee.

§  Where a slave is mortally wounded and afterwards loses his life through the fall of a building, or through shipwreck, or through some blow, sooner than he otherwise would have done; an action cannot be brought on the ground of his death, but only for wounding him. If, however, he was manumitted or sold, and afterwards died of the wound, Julianus says an action can be brought as for having killed him. This difference exists because he was killed by you at the time you wounded him, although this only became apparent when he died; but in the former instances the fall of the building did not permit it to appear whether he was killed or not. Where a slave is mortally wounded and you order him to be free, and appoint him your heir, and he then dies, his heir cannot bring suit under the Lex Aquilia,

Dig. 9.2.15 Ulpianus 18 ad ed.

Huic scripturae consequens est dicere, ut, si ante aditam hereditatem occidatur legatus servus, apud heredem remaneat Aquiliae actio per hereditatem adquisita. quod si vulneratus sit ante aditam hereditatem, in hereditate quidem actio remansit, sed cedere ea legatario heredem oportet.

§ Si servus vulneratus mortifere postea ruina vel naufragio vel alio ictu maturius perierit, de occiso agi non posse, sed quasi de vulnerato, sed si manumissus vel alienatus ex vulnere periit, quasi de occiso agi posse Iulianus ait. haec ita tam varie, quia verum est eum a te occisum tunc cum vulnerabas, quod mortuo eo demum apparuit: at in superiore non est passa ruina apparere an sit occisus. sed si vulneratum mortifere liberum et heredem esse iusseris, deinde decesserit, heredem eius agere Aquilia non posse,

Because in this case matters had evolved to the point that the right to bring suit cannot arise.

Quia in eum casum res pervenit, a quo incipere non potest.

Where an owner kills his own slave, he will be liable to an action in factum brought by a bona-fide possessor or a party who held the slave in pledge.

Si dominus servum suum occiderit, bonae fidei possessori vel ei qui pignori accepit in factum actione tenebitur.

Where, however, a party who has received a slave in pledge kills or wounds him, suit can be brought against him under the Lex Aquilia and also on the pledge, but the plaintiff must be content with one or other of these actions.

Sed et si is qui pignori servum accepit occidit eum vel vulneravit, lege Aquilia et pigneraticia conveniri potest, sed alterutra contentus esse debebit actor.

But where anyone kills a slave held in common he is liable under the Lex Aquilia, so Celsus says; and the same rule applies if he wounds him:

Sed si communem servum occiderit quis, Aquilia teneri eum Celsus ait: idem est et si vulneraverit:

That is, with reference to the share for which he brings suit as plaintiff.

Scilicet pro ea parte, pro qua dominus est qui agat.

The law says: "The greatest value of the slave during that past year". This clause refers to an assessment of the amount of the damage which was inflicted.

§ The year is to be calculated back from the day on which the slave was killed; but if he was only mortally wounded and died after a long interval had elapsed, then, according to Julianus, we must compute the year from the day on which he was wounded; although Celsus holds a different opinion.

§ Must we, however, only appraise the value of the body of the slave when he was killed, or shall we not rather estimate what our interest was in his not being killed? The present rule is that an estimate shall be made of what our interest was worth.

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 iulianum, ex quo vulneratus est, licet celsus contra scribit.

§ 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.

Hence if you have killed a slave whom I had contracted to deliver to some party under a penalty, the benefit to be derived by me must be considered in the hearing of the case.

§ The personal qualities of the slave must also be taken into consideration in making the estimate, as for instance, where someone kills a slave who belonged to a troop of actors or singers; or one of twins; or one of a team of four horses; or the male or female of a pair of mules; for, under such circumstances, not only should an estimate be made of the value of the animal that is destroyed, but the depreciation of those that remain must also be taken into account.

Proinde si servum occidisti, quem sub poena tradendum promisi, utilitas venit in hoc iudicium.

§ Item causae corpori cohaerentes aestimantur, si quis ex comoedis aut symphoniacis aut gemellis aut quadriga aut ex pari mularum unum vel unam occiderit: non solum enim perempti corporis aestimatio facienda est, sed et eius ratio haberi debet, quo cetera corpora depretiata sunt.

Hence Neratius states that if a slave who has been appointed an heir is killed, the value of the estate must also be taken into consideration.  §  Julianus says that if a slave who had been liberated and appointed heir is killed, neither the substituted heir nor the heir at law can recover the appraised value of the estate by an action under the Lex Aquilia, as the slave had not yet obtained it; and this opinion is correct. Therefore, the sole estimate which can be made is that of the value of the slave, since this is held to be the only thing in which the substitute is interested; but I think that even the estimate of his value should not be made, because if he had been the heir he would also have been free.  §  Julianus further says that if I am appointed an heir under the condition that I will manumit Stichus, and Stichus is killed after the death of the testator, the appraised amount that I will be entitled to will likewise include the value of the estate; for the condition was not fulfilled on account of the death of the slave; but if the slave was killed during the lifetime of the testator, the estimated value of the estate cannot be considered, because the greatest value of the slave during the preceding year was retroactively taken into account. §  Julianus also says that the appraisement of the value of the slave who was killed can only be made with reference to the time when he was worth the most during that year; and, therefore, if the thumb of a valuable artist was cut off, and within a year of the time when this was done he was killed; his owner can bring an action under the Lex Aquilia, and his value must be estimated at the amount he was worth before he lost his skill along with his thumb.  §  Where, however, a slave is killed who had committed great frauds in my accounts, and whom I had intended to put to torture in order to extract from him the names of his accomplices in the frauds, Labeo very properly holds that the value of the slave should be estimated at the amount of the interest I had in detecting the frauds committed by him, and not on the basis of the loss caused by the slave himself.  §  If, however, a well-behaved slave should change his habits, and be killed within a year; the estimate of his value should be made upon the basis of what he was worth before the change took place.  §  In short, it must be held that whatever advantage rendered the slave more valuable at any time within the year during which he was killed, should be included in the appraisement of his actual value.  §  Where an infant slave who is not yet a year old is killed, the better opinion is that the appraisement of his value should be referred to that part of the year during which he was living.  §  It is established that this action is granted to the heir and other successors; but it will not be granted against the heir and the successors of the other party, as it is a penal one; unless the said heir should have become more wealthy through the damage which was caused.  §  Where a slave is killed through with criminal intent, it is established that his owner can also bring suit under the Lex Cornelia, and if he proceeds under the Lex Aquilia, his suit under the Lex Cornelia will not be barred.  §  This action can be brought for civil damages where the party confesses his guilt, and for double damages where he denies it. §  Where anyone confesses that he killed a slave who is still living, and afterwards is prepared to show that the said slave is still alive; Julianus says that the Lex Aquilia does not apply, even though the party confesses that he killed him; because where the suit is based on a confession the plaintiff is not required to prove that the party who killed the slave was the defendant, but it is essential that the slave should have been killed by somebody.

Inde Neratius scribit, si servus heres institutus occisus sit, etiam hereditatis aestimationem venire.

§ Iulianus ait, si servus liber et heres esse iussus occisus fuerit, neque substitutum neque legitimum actione legis Aquiliae hereditatis aestimationem consecuturum, quae servo competere non potuit: quae sententia vera est. Pretii igitur solummodo fieri aestimationem, quia hoc interesse solum substituti videretur: ego autem puto nec pretii fieri aestimationem, quia, si heres esset, et liber esset.

§  Idem Iulianus scribit, si institutus fuero sub condicione " si Stichum manumisero" et Stichus sit occisus post mortem testatoris, in aestimationem etiam hereditatis pretium me consecuturum: propter occisionem enim defecit condicio: quod si vivo testatore occisus sit, hereditatis aestimationem cessare, quia retrorsum quanti plurimi fuit inspicitur.

§ Idem Iulianus scribit aestimationem hominis occisi ad id tempus referri, quo plurimi in eo anno fuit: et ideo et si pretioso pictori pollex fuerit praecisus et intra annum, quo praecideretur, fuerit occisus, posse eum Aquilia agere pretioque eo aestimandum, quanti fuit priusquam artem cum pollice amisisset.

§ Sed et si servus, qui magnas fraudes in meis rationibus commiserat, fuerit occisus, de quo quaestionem habere destinaveram, ut fraudium participes eruerentur, rectissime Labeo scribit tanti aestimandum, quanti mea intererat fraudes servi per eum commissas detegi, non quanti noxa eius servi valeat.

§ Sed et si bonae frugi servus intra annum mutatis moribus occisus sit, pretium id aestimabitur, quanto valeret, priusquam mores mutaret.

§ In summa omnia commoda, quae intra annum, quo interfectus est, pretiosiorem servum facerent, haec accedere ad aestimationem eius dicendum est.

§ Si infans sit occisus nondum anniculus, verius est sufficere hanc actionem, ut aestimatio referatur ad id tempus, quo intra annum vixit.

§ Hanc actionem et heredi ceterisque successoribus dari constat: sed in heredem vel ceteros haec actio non dabitur, cum sit poenalis, nisi forte ex damno locupletior heres factus sit.

§ Si dolo servus occisus sit, et lege Cornelia agere dominum posse constat: et si lege Aquilia egerit, praeiudicium fieri Corneliae non debet.

§ Haec actio adversus confitentem competit in simplum, adversus negantem in duplum. Si quis hominem vivum falso confiteatur occidisse et postea paratus sit ostendere hominem vivum esse, iulianus 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.

This point is more clearly shown where a slave is said to be wounded; but if the defendant should confess that he has wounded him, and this was not the case, upon what wound are we to base the appraisement, or to what date are we to refer?

Hoc apertius est circa vulneratum hominem: nam si confessus sit vulnerasse nec sit vulneratus, aestimationem cuius vulneris faciemus? vel ad quod tempus recurramus?

Hence, if the slave was not killed, but died, the better opinion is that the defendant should not be liable for the dead slave, even though he may have confessed that he killed him.  §  Where an agent, a guardian, a curator, or anyone else confesses that his absent principal wounded a slave, a prętorian action based upon the confession should be granted against said party.  §  It should be noted that in this action which is granted against the person making a confession, the judge is appointed not for the purpose of rendering a decision, but to assess the damages; for no trial can take place for the conviction of persons who confess.

Proinde si occisus quidem non sit, mortuus autem sit, magis est, ut non teneatur in mortuo, licet fassus sit.

§ Si procurator aut tutor aut curator aut quivis alius confiteatur aut absentem vulnerasse, confessoria in eos utilis actio danda est. § Notandum, quod in hac actione, quae adversus confitentem datur, iudex non rei iudicandae, sed aestimandae datur: nam nullae partes sunt iudicandi in confitentes.

Suppose, for example, that the person against whom the action is brought should confess that he killed the slave, and be prepared to pay his appraised value, and his adversary makes a claim of a very high value.

Puta enim, quod qui convenitur fateatur se occidisse et paratus sit aestimationem solvere, et adversarius magni litem aestimat.

Where one slave carries off another belonging to a different owner, and kills him, both Julianus and Celsus hold that an action based on theft as well as one on wrongful damage will lie.  § Where a slave is owned in common, that is to say, belongs to you and me, and he kills another slave belonging to me, a suit based on the Lex Aquilia can be brought against you, if the slave acted with your consent; and Proculus also held this opinion, as Urseius asserts. But if he did not commit the act with your consent, a noxal action will not lie, lest it might be in the power of the slave to belong to you alone. I think this to be correct. § Moreover, if a slave who is held in common by you and me is killed by a slave belonging to Titius, Celsus says that if one of the owners brings suit, he will either obtain a proportionate amount of the damages assessed, or the slave must be absolutely surrendered by way of reparation, because this is a matter which is not susceptible of division. §  The owner is liable on account of the slave who committed the homicide, and he whom he is serving as a slave in good faith is not liable; but the question arises whether a party whose slave is a fugitive, is liable on his account under the Lex Aquilia? Julianus says that he is liable. This is perfectly true, and Marcellus also holds the same opinion. §  The second Section of this law has fallen into desuetude.  §  In the third Section the Lex Aquilia says, "In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking, or spoiling his property, let him be condemned to pay the owner whatever the damage shall prove to be worth in the next thirty days".  §  Hence, if a man should not kill a slave or an animal but should burn, break, or injure any other property, proceedings could undoubtedly be taken under this provision of the law. Therefore, if you throw a torch at my slave and burn him, you will be liable to me.  §  Moreover, if you set fire to my trees, or to my farmhouse, I am entitled to an action under the Lex Aquilia.  §  If anyone should intend to burn my house, and the fire spreads to the house of my neighbor, he will be liable also to the neighbor under the Lex Aquilia; and he will be not less liable to the tenants, on account of the burning of their personal property.  §  If the slave of a tenant who has charge of a furnace goes to sleep in front of it, and the house burns down; Neratius says that where an action is brought on the lease the tenant must make good the loss, if he was negligent in the selection of persons in his service; but where one person kindled the fire in the furnace, and another was negligent in looking after it, will he who kindled the fire be liable? He who had charge of the fire did nothing, and he who kindled it properly was blameless; what then is the conclusion? I think that a prętorian action will lie both against him who fell asleep before the furnace and against him who neglected to attend to it, for no one should say with reference to the one who went to sleep that his failing was only human and natural, since he should either have extinguished the fire, or have protected it in such a way that it could not spread. §  If you have an oven against a party-wall will you be liable for wrongful damage? Proculus says that no action can be brought, because none will lie against a party who has a hearth. Therefore, I think it is more just that an action should be granted in factum, of course, if the wall is burned; but if you have not yet caused me any damage, but your fire is in such a place that I am afraid that you will do so, I think that a bond providing against threatened injury will be sufficient.   §  Proculus says that where the slaves of a tenant burn down a farm-house, the tenant will be liable either under the lease or under the Lex Aquilia, so that he can surrender the slaves by way of reparation; and where the case has been decided under one of the actions, no further proceedings can be instituted under the other. This is understood only to apply where the tenant was not guilty of negligence; but if he owned slaves who were in the habit of committing criminal acts, he will be liable for wrongful damage for having slaves of this kind.  He states that the same rule must be observed with reference to persons who lodge in a building; and this opinion is reasonable.  §  If my bees fly away to yours, and you burn them, Celsus says that I have a right of action against you under the Lex Aquilia. §  The law says "break to pieces". This word almost all ancient authorities understood to mean the same as "spoil".

§ Therefore, Celsus makes the inquiry, if you sowed darnel or weeds in the wheat-field of another, the owner of the same can not only institute proceedings under the interdict Quod vi aut clam, (or if the land is leased, the tenant can do so) but he can also bring an action in factum; and if the tenant brings it he must give security that no other proceedings shall be instituted; this, of course, being done in order to prevent the owner from causing further annoyance, for it is one kind of damage to destroy or change something, for the purpose of giving cause for a suit under the Lex Aquilia; and another, when, without changing the substance of the article itself, you mingle something with it, the separation of which would be troublesome.  §  Celsus says, that it is evident that suit can be brought under the Aquilian Law where a party puts filth in wine, or spills it, or makes it sour, or spoils it in any other way; for both pouring it out and making it sour are embraced in the words "spoil".  §  And he does not deny that "break to pieces", and "burn" are also included in the word "spoil"; but that there is nothing new where certain things are especially enumerated in the law, for it usually adds a general term including those specific things. This opinion is correct.  §  We must, by all means, understand that the expression "break to pieces" is applicable where a party wounds a slave, or strikes him with a stick, or a strap, or with his fist, or with a weapon, or with anything else which would cut or raise a swelling upon the body of anyone, but only to the extent where wrongful damage is committed.  But where the act does not diminish the value of the slave or render him less useful, the Lex Aquilia, is not available, and an action for injury alone can be brought; for the Lex Aquilia only applies to such injuries as have caused loss. Therefore, if the value of the slave is not diminished, but expenses have been incurred to have him made well and sound again, it is held that I am damaged to that extent; and therefore an action can be brought under the Lex Aquilia.  § Where anyone tears, or soils the clothes of another, he is liable, just as if he had destroyed them.  §  Moreover, if anyone throws my millet or wheat into a river, the action under the Lex Aquilia will be sufficient. §  Again, where anyone mixes sand or something else with my wheat, so that it will be difficult to separate it, proceedings can be brought against him just as if he had destroyed it. §  If anyone should knock coins out of my hand, Sabinus is of the opinion that an action for wrongful injury will lie, if they are lost in such a way that they cannot come into anyone's possession, as for instance, where they have fallen into a river, the sea, or a sewer; but where they come into someone's possession, proceedings must be instituted for theft caused by aid and advice. This was the opinion of the ancient authorities. Sabinus says that an action in factum can also be granted. §  If you strike a woman with your fist or a mare receives a blow from you, and a miscarriage results, Brutus says that you are liable under the Lex Aquilia for "breaking to pieces", as it were.  §  And also, if anyone overloads a mule, and breaks one of its limbs, the Lex Aquilia will be available.  §  Where anyone pierces the hull of a vessel loaded with merchandise, Viviannus says that an action will lie under the Lex Aquilia for "breaking to pieces", as it were.  §  If a party picks olives that are not ripe, or reaps grain that is not mature, or gathers grapes that are green, he will be liable under the Lex Aquilia; but if the crops have reached maturity, the Lex Aquilia will not apply; for no wrong is committed, as the party has presented you with the expenses which would have been incurred by harvesting crops of this kind; if, however, he removes what has been gathered he will be liable for theft. Octavenus says with reference to grapes, "Unless he throws the grapes on the ground, so that they are scattered". § The same writer states with reference to cutting wood, that if what is cut is immature, the party will be liable under the Lex Aquilia; but if he takes it away after it is mature, he will be liable for theft, as well as for cutting trees by stealth. §  Where you remove mature willows in such a way as not to injure the trunks of the trees, the Lex Aquilia is not available. §  If anyone castrates a boy slave, and thereby renders him more valuable, Vivianus says that the Lex Aquilia does not apply, but that an action can be brought for injury, either under the Edict of the Ędiles, or for fourfold damages. §  If you entrust an artisan with a cup to be polished, and he breaks it through want of skill, he will be liable for wrongful damage; but if he does not break it through want of skill, but it had cracks which spoiled it, he will be excusable; and therefore artisans, when things of this description are entrusted to them, are generally accustomed to provide by an agreement that the work will not be at their risk; and this bars any right of action on the agreement, or under the Lex Aquilia. §  Where a husband gives loose pearls to his wife for her own use, and she perforates them without the consent or knowledge of her husband, in order that they may afterwards be worn upon a string, she will be liable under the Lex Aquilia, either after a divorce, or while she is still married. § Where anyone breaks down or forces open the doors of my building, or demolishes the building itself, he is liable under the Lex Aquilia. §  Where anyone demolishes my aqueduct, although the materials of which it was composed are my property, still, because the land through which I bring the water is not mine, the better opinion is to say that a prętorian action should be granted. §  Where a stone falls from a wagon and destroys or breaks anything, it is held that the driver of the wagon is liable to an action under the Lex Aquilia, if he loaded the stones insecurely and for that reason they slipped off.  §  Where anyone employs a slave to lead a mule, and places the mule in his care; and he ties the strap of the halter to his thumb, and the mule breaks loose and tears off the thumb of the slave, and then precipitates itself from a height; Mela says, that if a slave who was unskillful was hired as being skillful, an action can be brought against the owner of the slave on account of the mule which was destroyed, or disabled; but if the mule was excited by a blow, or by fright, the owner, (that is to say, the owner of the mule as well as the owner of the slave) will be entitled to an action under the Lex Aquilia, against the person who frightened the mule. It seems to me, however, that even in a case where an action on contract will lie, one also can be brought under the Lex Aquilia.  § Moreover, if you entrust a vat full of wine to be repaired by a plasterer, and he breaks a hole in it so that the wine runs out, Labeo says that an action in factum will lie.

Si servus servum alienum subripuerit et occiderit, et iulianus et celsus scribunt et furti et damni iniuriae competere actionem.

§ Si servus communis, id est meus et tuus, servum meum occiderit, legi Aquiliae locus est adversus te, si tua voluntate fecit: et ita Proculum existimasse Urseius refert. quod si non voluntate tua fecit, cessare noxalem actionem, ne sit in potestate servi, ut tibi soli serviat: quod puto verum esse.

§ Item si servus communis meus et tuus sit occisus a servo Titii, Celsus scribit alterum ex dominis agentem aut litis aestimationem consecuturum pro parte aut noxae dedi ei in solidum oportere, quia haec res divisionem non recipit.

§ Servi autem occidentis nomine dominus tenetur, is vero cui bona fide servit non tenetur. Sed an is, qui servum in fuga habet, teneatur nomine eius Aquiliae actione, quaeritur: et ait Iulianus teneri et est verissimum: cum et Marcellus consentit.

§ Huius legis secundum quidem capitulum in desuetudinem abiit.

§ Tertio autem capite ait eadem lex Aquilia: " ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit, fregerit, ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto".

§ Si quis igitur non occiderit hominem vel pecudem, sed usserit fregerit ruperit, sine dubio ex his verbis legis agendum erit. proinde si facem servo meo obieceris et eum adusseris, teneberis mihi.

§ Item si arbustum meum vel villam meam incenderis, Aquiliae actione habebo.

§ Si quis insulam voluerit meam exurere et ignis etiam ad vicini insulam pervenerit, Aquilia tenebitur etiam vicino: non minus etiam inquilinis tenebitur ob res eorum exustas.

§  Si fornicarius servus coloni ad fornacem obdormisset et villa fuerit exusta, neratius scribit ex locato conventum praestare debere, si neglegens in eligendis ministeriis fuit: ceterum si alius ignem subiecerit fornaci, alius neglegenter custodierit, an tenebitur qui subiecerit? nam qui custodit, nihil fecit, qui recte ignem subiecit, non peccavit: quid ergo est? puto utilem competere actionem tam in eum qui ad fornacem obdormivit quam in eum qui neglegenter custodit, nec quisquam dixerit in eo qui obdormivit rem eum humanam et naturalem passum, cum deberet vel ignem extinguere vel ita munire, ne evagetur.

§ Si furnum secundum parietem communem haberes, an damni iniuria tenearis? et ait proculus agi non posse, quia nec cum eo qui focum haberet: et ideo aequius puto in factum actionem dandam, scilicet si paries exustus sit: sin autem nondum mihi damnum dederis, sed ita ignem habeas, ut metuam, ne mihi damnum des, damni infecti puto sufficere cautionem.

§ Proculus ait, cum coloni servi villam exussissent, colonum vel ex locato vel lege Aquilia teneri, ita ut colonus possit servos noxae dedere, et si uno iudicio res esset iudicata, altero amplius non agendum. sed haec ita, si culpa colonus careret: ceterum si noxios servos habuit, damni eum iniuria teneri, cur tales habuit. idem servandum et circa inquilinorum insulae personas scribit: quae sententia habet rationem. § Si, cum apes meae ad tuas advolassent, tu eas exusseris, legis Aquiliae actionem competere Celsus ait. §