1. Chapter one

We have already seen that the most important change brought about by the lex Aquilia was the transition from a system of fixed penalties to a more flexible assessment of the damages suffered by the victim of the wrong.

This assessment, however, appears to have been (at least from a modern point of view) rather odd. The judge was not instructed to determine (for instance:) "quod actoris interest", but "quanti id in eo anno plurimi fuit" (chapter one) and "quanti ea res erit in diebus triginta proximis" (chapter three). Where a slave or grazing animal had been killed (first chapter), the wrongdoer thus had to pay the owner the highest value which that object had had during the "previous year". Previous to what? That was problematic (and consequently controversial) in cases where the slave or animal had first been (mortally) wounded and only died at a later date. According to Julian, the year had to be calculated from the time the wound had been inflicted, Celsus regarded the time of death as relevant/¹⁹ But what was the sense of throwing the calculation back into the past? Did those who drafted the lex Aquilia want to make up for the fact that, prices being unsteady, "the owner of the slave might not have sold him just at the time when the wrong was committed?"⁷⁰ More likely is another explanation.⁷¹ If a slave was killed, the death sometimes occurred as a result of a wound

^6H Honore, (1972) 7 The Irish Juris! 140 sq. Noir. Festgahe Kaser, p. 216, incidentally, regards even this part of the text as (substantially) genuine; so do Pugsley, 1977 Ada Inridica 302 sq. and Schebitz, op. cit., note 12, pp. 114 sqq.

Olp. D. 9, 2, 21, 1; cf. Pringsheim, Gesamnwite Abhewdhmgen. vol. II, p. 416.

⁷¹¹ Daube, (1936) 52 LQR 259; cf. also von Liibtow.

Le'x Aquiiia, p. 120; but see Pringsheim, Gesammdte Abhandhmgen. vol. f pp. 416 sq. Cardascia, Daube Nosier, pp. 63 sq. draws attention to the fact that even in an economy where prices are stable (as in Rome during the first half of the 3rd century b.c.) the value of slaves and grazing animals (that is, of the most important work tools in an agrarian society) must have been subject to seasonal fluctuations. Hence the time period of one year, to take into account the fact that the delict might have happened during the bad season, and to allow the plaintiff to make good his true loss. Cf. also F.P. van den Heever, Aquilian Damages, p. 9; but see Pugsley. 1977 Actajuridica 298 sq.; Pieter Pauw. "Once Again on the Origin of the Lex Aquilia", (1978) 95 SALI188.

⁷¹ Kaser, RPr I; p. 161; Honsell/Mayer-Maly/Selb, pp. 365 sq.; Hausmaninger, Lex Aquilia. p. 28; cf. also Lawson/Markesinis, p. 5; Schebitz, op. cit., note 12, pp. 63 sqq. that he had received some time before. At the time of his death, he would thus have considerably decreased in value and it would have been inequitable to allow the owner merely to recover the value of an ailing slave with a mortal wound in his body. Even if the slave was stabbed and died immediately, it was at least arguable that for a second or so before his death he was mortally wounded and thus, at the time of death, without much value. But quite apart from such hairsplitting, the owner may often have found it difficult to prove how much a slave was worth at a specific point in time. It was in order to facilitate this proof and to cut off the kind of arguments mentioned, that the plaintiff was simply allowed to claim the highest value during the previous year: a somewhat rough-and-ready^{^[4980]} but nevertheless fairly effective method of avoiding difficulties. Sometimes the owner of the slave (or grazing animal) thus received something over and above the compensation of his actual loss;^{^[4981]} this could occur, for instance, where the slave had already decreased in value due to a previous, unrelated injury. If a valuable painter had his thumb cut off,^{^[4982]} it was, in a way, quite fortunate for the owner, if he was subsequently killed within a year after that injury had occurred; for under chapter one of the lex Aquilia the owner received "quanti fuit priusquam artem cum pollice amisisset":^{^[4983]} not the value of a thumbless invalid, but that of a highly skilled painter.^{^[4984]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Chapter one

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