Aquilian culpa in classical Roman law
As with regard to the operative verbs in chapters one and three, we find a whole range of interesting cases dealing with the culpa requirement and specifying it for individual situations.[5241] A pruner lops off the branch of a tree, which falls and kills a passer-by.
The pruner is liable, if he had done the job over a public thoroughfare and had failed to shout a warning.[5242] A farmer is liable for the damage to his neighbour's crops if he burns stubble on a windy day and is therefore unable to control the fire.[5243] [5244] [5245] A person who is throwing a javelin by way of sport, but outside a proper sports field, is held responsible under the lex Acjuilia if he hits and kills a slave who happens to be passing by.6 A barber is accountable for the death of his customer, if, having set up his business in close proximity to a playing ground, his hand is hit by a ball, the razor thereby jerked against the customer's throat and the throat, in turn, cut rather than shaved.64 In all these cases careful attempts are made to draw the line: no fault is attributable to the primer if he either shouted a warning or threw the branch down on to private land and in a place where there was no path; to the farmer if he selected a still day and took all reasonable precautions to prevent the fire from spreading; to thejavclin-thrower if he exercised in a campus iaculatorius; or to the barber if he did not shave at a place "ubi ex consuetudine ludebatur vel ubi transitus frequens erat". It is apparent from these and other texts that the Roman lawyers approached the question of culpa in a casuistic manner. They did not try to subsume the facts of the individual case under a standardized test or formula/'[5246] More particularly, they did not ask in each case whether the defendant ought to have foreseen the damage.[5247]" Foreseeability or carelessness could be important issues[5248] but they did not necessarily and conclusively determine the question of liability. The crucial issue was whether, more generally, the defendant had been at fault; whether, in other words, he had behaved as he should not have behaved;[5249] and that, in turn, depended on an evaluation of all the circumstances of the case and tended to be determined from an objective point of view.[5250] Only in some respects does a certain degree of generality appear to have been achieved. Thus the notion of imperitia culpae adnumeratur was applied to Aquilian liability as it was to liability arising under a contract of locatio conductio operis or operarum.7" Nobody who had undertaken a particular job could escape liability by claiming that he did not possess the necessary skill to carry out that job. If a doctor operated unskilfully[5251] or if he caused damage by making the wrong use of a drug,[5252] he was liable under the lex Aquilia as well as ex locato. The same applied if a muleteer was so inexperienced that he was unable to control his mules and to stop them from running over somebody's slave.[5253] Imperitia liability, incidentally, provides a good example of the objective approach adopted by the Roman lawyers.[5254] Doctor and muleteer were not judged in relation to their experience or according to whether they could have foreseen the harm; what mattered was whether they possessed the skills that could reasonably be expected of a man of their profession.4.
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