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A Case: Titus discovered after having manumitted his slave Eros that the man had regularly falsified the accounts entrusted to him, in this way he could.

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Presentation on theme: "A Case: Titus discovered after having manumitted his slave Eros that the man had regularly falsified the accounts entrusted to him, in this way he could."— Presentation transcript:

1 A Case: Titus discovered after having manumitted his slave Eros that the man had regularly falsified the accounts entrusted to him, in this way he could give presents to Clodia, femina famosa. What may the former owner of Eros do? (see D. 11.3.16) Would the situation differ if Eros had been well known for his dissolute ways? Let us assume for a while that Eros (still a slave responsible for the forgeries) got accidentally killed by Marcus, so his master lost the only possible way to clear his accounts. Would the situation differ if Marcus killed Eros on purpose, being outraged by his dissolute behaviour with the woman?

2 A traffic Accident D. Alfenus libro secundo digestorum: Mules were hauling two loaded wagons up the Capitoline Hill, and the drivers were pushing the first wagon which was inclined to one side in order that the mules might haul it more easily; in the meantime the upper wagon began to go back, and as the drivers were between the two wagons they withdrew, and the last wagon was struck by the first and moved back, crushing a slave boy who belonged to someone. The owner of the boy asked me against whom he ought to bring an action? I answered that it depended upon the chain of causation


4 A traffic Accident I answered that it depended upon the chain of causation, for if the drivers who had hold of the first wagon voluntarily got out of the way, and the result was that the mules could not hold the wagon and were pulled back by its weight, then no action would lie against the owner of the mules, but an action under the Lex Aquilia could be brought against the men who had hold of the wagon; for if a party, while he was supporting something, by voluntarily releasing his hold enabled it to strike someone, he, nevertheless, committed damage; as for instance, where anyone was driving an ass and did not restrain it; or where anyone were to discharge a weapon, or throw some other object out of his hand. But if the mules gave way because they were frightened, and the drivers, actuated by fear of being crushed, released their hold on the wagon, then no action can be brought against the men but one could be brought against the owner of the mules. And if neither the mules nor the men were the cause of the accident, but the mules could not hold the load, or while striving to do so slipped and fell, and this caused the wagon to go back, and the men were unable to support the weight when the wagon was inclined to one side, then no action could be brought either against the owner of the mules or the men. This, however, is certain, that no matter what the circumstances were, no action would lie against the owner of the mules which were in the rear, as they did not go back voluntarily, but because they were struck.

5 Liability for damage continued Praetorian delicts & ‘Quasi-delicts’, The Principles of Roman Law and the Roman Law of Obligations José Luis Alonso (University of the Basque Country) Jakub Urbanik (University of Warsaw)

6 Deceit & Duress ✦ Aulus threatens to burn Quintus’ house if he does not promise him 100. Quintus does so. What can he do? ✦ Condictio certi cum exceptione: ✦ Let Caius Aquilius be judge. If it appears that the Defendant ought on the basis of civil law (oportere) give (dare) to the Plaintiff 100, which is the case, unless in the case matter anything has been through duress, let the judge condemn the Defendant in favour of the Plaintiff; if it does not appear let him absolve.

7 Deceit & Duress ✦ The starting point: not relevant for ius civile ✦ Later they give rise to an exception/defence (exceptio doli/exceptio quod metus causa): ✦ Finally, on the basis of the edicts: penal actions are introduced

8 Deceit (Dolus) ✦ D. 4.3.1 pr.-1 (Ulpianus, On the Edict, Book XI. ✦ In this Edict the praetor gives relief against tricky and deceitful persons, who use artifice to the injury of others, to prevent the former from profiting by their malice, or the latter from being harmed by their simplicity. (1) The following are the terms of the Edict: “Where anything is said to have been done with fraudulent intent and no other action is applicable in the matter, I will grant an action if there seems to be good ground for it.”

9 admissibility of actio doli: no other action possible ✦ D. Ulpianus, On the Edict, Book XI. Labeo thinks that an action based on fraud should not be granted, not only where no other right of action exists, but even where it may be doubtful whether another is available, or not; and he adduces the following instance: Where a party owed me a slave on account of a sale, or a stipulation, and gives him poison, and delivers him to me, or where he owes me a tract of land, and, during the delivery, he imposes a servitude upon it; or demolishes buildings, or cuts down, or roots up trees; Labeo says that whether he gave me security against fraud or not, an action based upon it should be granted against him; since, if he did give security, it is doubtful whether a right of action founded on the stipulation exists. The better opinion is, however, that if security was given against fraud, an action based upon it will not lie, since an action on the stipulation is available; but where there is no security, then, in case an action on purchase is brought, one based upon fraud will not lie, because one based on purchase does; but where one on the stipulation is brought, an action on the ground of fraud will be necessary.

10 Dolus? ✦ D. (Ulpian, on the Edict, book XI(10) Moreover, Pomponius says that the praetor Caecidianus did not grant an action on the ground of fraud against one who had alleged that a certain person to whom money was to be lent was solvent, which is the proper view of the case; for an action on the ground of fraud should not be granted unless bad faith was flagrant and evident. ✦ D. 4.3.8 (Gaius, On the Provincial Edict, Book IV.) If, however, you knew that the person had lost his property, and, for the sake of gain, stated to me that he was solvent, and action on the ground of fraud would properly be granted against you; since you falsely recommended another with the intention of deceiving me.

11 Dolus ✦ D. Ulpianus, On the Edict, Book XI.) If, however, you persuaded me to reject the estate, under the pretext that it would not pay the creditors, or induced me to choose a certain slave because there was none better in the household; I say that an action on the ground of fraud should be granted, if you did this with malicious intent. ✦ Lucius persuades to Tititus that he should reject inheritance as it is apparently burdened with debts. when he does so, it turns out that Lucius was substitute and that the estate in fact is of a great value. what can Titius do?

12 Duress/Threat (Metus) ✦ D. 4.2.5-6 5. Ulpianus, On the Edict, Book XI. Labeo says that the term “fear” must be understood to mean not any apprehension whatever, but the dread of some extraordinary evil. ✦ 6. Gaius, On the Provincial Edict, Book IV. The fear which we say is meant by this Edict is not that experienced by an irresolute man, but that which would reasonably affect a man of very decided character.

13 ✦ Seia threatens Gaius that she will severely beat him if he does not return to her 1000 denari that Seia has lent to Gaius. Gaius succumbs. Will he be able to sue Seia with actio quod metus causa?

14 ✦ D., Ulpianus, On the Edict, Book XI.(2) Julianus says that where a creditor employs force against his debtor to obtain payment of his debt, he is not liable under this Edict, on account of the nature of the action based on duress, which requires that loss should be caused; although it cannot be denied that the party comes within the scope of the Lex Julia de vi, and has lost his right as a creditor.

15 ✦ D. 4.2.13 Callistratus, On Judicial Inquiries, Book V. There is extant a Decree of the Divine Marcus in the following terms: “The best course to pursue if you think that you have any legal claim, is to test it by an action”; and when Marcianus said, “I have employed no force”; the Emperor replied, “Do you think that there is no force employed except where men are wounded? Force is employed just as much in a case where anyone who thinks that something is owing to him and makes a demand for it, without instituting judicial proceedings; therefore, if anyone is proved before Me to have boldly, and without judicial authority obtained possession of any property of his debtor, or any money which was due to him, and which was not voluntarily paid to him by the said debtor; and who has established the law for himself in the matter, he shall not be entitled to the right of a creditor”.

16 Effusum vel deiectum ✦ Aulus Gellius, book IV, 14 A story told of Hostilius Mancinus, a curule aedile, and the courtesan Manilia; and the words of the decree of the tribunes to whom Manilia appealed. 1 As I was reading the ninth book of the Miscellany of Ateius Capito, entitled On Public Decisions, one decree of the tribunes seemed to me full of old-time dignity. 2 For that reason I remember it, and it was rendered for this reason and to this purport. Aulus Hostilius Mancinus was a curule aedile. 3 He brought suit before the people against a courtesan called Manilia, because he said that he had been struck with a stone thrown from her apartment by night, and he exhibited the wound made by the stone. 4 Manilia appealed to the tribunes of the commons. 5 Before them she declared that Mancinus had come to her house in the garb of a reveller; that it would not have been to her advantage to admit him, and that when he tried to break in by force, he had been driven off with stones. 6 The tribunes decided that the aedile had rightly been refused admission to a place to which it had not been seemly for him to go with a garland on his head; therefore they forbade the aedile to bring an action before the people.

17 Effusum vel deiectum ✦ D. 9.3.1 pr.-1. Ulpianus, On the Edict, Book XXIII. The praetor says with reference to those who throw down or pour out anything: Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. If it is alleged that a freeman has been killed by a blow from anything that fell, I will grant an action for fifty aurei. If the party is living, and it is said that he is injured, I will grant an action for an amount which would seem to be just to the judge that the party against whom suit is brought should be directed to pay. If it is alleged that a slave committed the act without the knowledge of his master, I will add to the petition in the case the words, "Or surrender the slave by way of reparation". ✦ (1) No one will deny that this Edict of the Praetor is of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger.

18 Effusum vel deiectum ✦ D. Ulpianus, On the Edict, Book XXIII. Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them, ✦ D. 9.3.2. Gaius, On the Provincial Edict, Book VI. (Since it is totally impossible to know which of them threw it down or poured it out) : ✦ D. 9.3.3. Ulpianus, On the Edict, Book XXIII. jointly and severally, but where it is brought against one of the parties the others will be discharged: ✦ D. 9.4.4. Paulus, On the Edict, Book XIX. but only at the moment of the payment not at the joinder of issue (litis contestatio). The others will be compelled by an action on partnership or by an analogous action to Lex Aquilia to pay their shares to the party who has made the settlement. ✦ 5. Ulpianus, On the Edict, Book XXIII. Where several persons occupy an apartment divided up among themselves, an action will be granted against him alone who occupied that part from which the pouring out was done.

19 Liability of the Thrower ✦ D. (Ulpianus, On the Edict, Book XXIII): (4) Where, however, a party has judgment rendered against him under the Lex Aquilia (because his guest, or anyone else, threw something down from the apartment) it is reasonable, as Labeo says that an action in factum should be granted against the party who did the throwing, and this is true. It is evident, if he had leased the room to the party who threw it down, that he will also be entitled to an action on the ground of contract.

20 An ox and Hannibal

21 An Ox and Hannibal ✦ Titus Livius, Ab urbe condita, 21.63: During this winter many portents occurred in Rome and the neighbourhood, or at all events, many were reported and easily gained credence, for when once men's minds have been excited by superstitious fears they easily believe these things. A six-months-old child, of freeborn parents, is said to have shouted "Io Triumphe" in the vegetable market, whilst in the Forum Boarium an ox is reported to have climbed up of its own accord to the third story of a house, and then, frightened by the noisy crowd which gathered, it threw itself down. A phantom navy was seen shining in the sky; the temple of Hope in the vegetable market was struck by lightning; at Lanuvium Juno's spear had moved of itself, and a crow had flown down to her temple and settled upon her couch; in the territory of Amiternum beings in human shape and clothed in white were seen at a distance, but no one came close to them; in the neighbourhood of Picenum there was a shower of stones; at Caere the oracular tablets had shrunk in size; in Gaul a wolf had snatched a sentinel's sword from its scabbard and run off with it. With regard to the other portents, the decemvirs were ordered to consult the Sacred Books,

22 ✦ On a sunny winter day a furious bull belonging to Aulus stormed the door of Quintus’ flat in the 3rd floor of a house at the Cattle Market and then it launched itself from the balcony. Having fallen it killed a goat belonging to Gaius. Who may sue whom and why?

23 ✦ On the Calends of May 175 AD Marcia rented for her daugher Lydia a flat from Gaius. A few days later Gaius - as it had been contracted - sent in his slave Primitivius to clean the flat. On the window- sill there was a little flask with purple. The careless servant threw it down. The flask broke, hitting senator Valerius Asiaticus who was just passing and obviously destroying his precious toga. who may sue whom and why?

24 ✦ Titius lived in a small rented flat at the Cattle Market. One day his slave-girl Lydia was visited by her cordial male companion, Eros, a slave belonging to Gaius. The careless Eros tossed a precious flower-pot from the balcony, killing senator Vanuleius. Who may sue whom?

25 Sailors ✦ ✦ D. 4.9.1. Ulpianus, On the Edict, Book XIV. The praetor says: "When sailors, innkeepers, and the proprietors of stables have received property for safe keeping, I will grant an action against them if they do not restore it". (1) This Edict is extremely useful, for the reason that it is very frequently necessary to place confidence in persons of this kind, and to entrust them with the care of property. No one should think that this Edict imposes any hardship upon them, for they have the choice of refusing to receive anyone; and, unless this rule was established, opportunity would be given for them to cooperate with thieves against those whom they receive as guests; since, even now, they do not abstain from fraudulent acts of this description. ✦ D. 47.5.1. Ulpianus, On the Edict, Book XXXVIII. An action is granted against those who have control of ships, inns, and other places of public entertainment, where anything is alleged to have been stolen by any one of them, or by persons in their employ; whether the theft was committed with the aid and advice of the proprietor himself, or the owner of the ship, or of those who were on board for the purpose of navigation.

26 edictum adversum nautam, cauponem & stabularium de damno aut furto

27 “hoc!” (Here!) “Non / mia est” (“No; it's mine” ). Barmaid, carrying a cup and wine jug, says “ Qui vol / sumat / Oceane / veni bibe) The man who ordered this will get it. Oceanus, come here and drink”) Man on left says “Exsi” (I’ve got it), while man on right says “Non / tria duas / est” (It’s two, not three). In the next (damaged) painting, the men come to blows and the innkeeper orders them to take their quarrel outside. Man and woman are kissing while man says: “Nolo cum Myrtale” (I don’t want to do it with Myrtale)

28 Sailors... ✦ D. 9.9.4. Paulus, On the Edict, Book XIII. But the captain of the ship himself who assumed the risk, has a right of action on the ground of theft, unless he himself stole the property, and afterwards it was stolen from him, or someone else stole it, where the captain is not solvent. ✦ D. 9.9.7. Ulpianus, On the Edict, Book XVIII. The owner of a vessel shall be responsible for the acts of all his sailors, whether they are freemen, or slaves, and not without reason, for he himself employed them at his own risk. But he is not responsible, except where the damage has been committed on board the vessel; for where it happens off the vessel, even though it was committed by the sailors, he will not be liable. Moreover, if he gives warning that every passenger must be responsible for his own property, and that he will not be liable for damage, and the passengers agree to the terms of the warning, he cannot be sued. (1) This action in factum is for double damages.

29 ✦ D. 47.5.1.(5) The owner of the ship, however, can release himself from liability incurred by the act of his slave, by surrendering the latter by way of reparation for the damage committed. Why then should not the owner be condemned, who permitted so bad a slave to remain on his ship? And why is he held liable for the entire amount for the act of a freeman, and not for that of the slave? unless when he employed a freeman, it was his duty to ascertain what his character was; but he should be excused so far as his slave is concerned, just as in the case of a bad domestic, if he is ready to surrender him by way of reparation for the damage he committed. If, however, he employed a slave belonging to another, he will be liable, as in the case of a freeman.

30 A case ✦ Aulus hired the slave Syrus from Publius and employed him as a sailor on his boat. Pulchra wanted to go to Syracuse and bought a ticket for this boat and brought in her luggage. Upon arrival in Sicily she discovered that her precious necklace was missing, after short but intensive investigation Syrus was charged with the theft. Who is liable for what happened and why?

31 The ‘System’ of Liability for Damage ✦ The core: ✦ damnum iniuria datum ex lege Aquilia ✦ Its praetorian/jurisprudential interpretation (analogous actions) ✦ servi corruptio ✦ Liability for damages inflicted by others: ✦ effusum vel deiectum/positum aut suspensum/ edictum adversum nautam, cauponem & stabularium de damno et furto ✦ noxa, pauperies ✦ Particular cases: ✦ iudex qui litem suam fecit ✦ fraus creditorum ✦ Last Resort: Metus, Dolus

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