Chapter three

(a) Chapters one and three compared

The manner in which the compensation was determined in chapter one was thus reasonably straightforward. More particularly, since one was dealing with the complete destruction of an object, reference to its real value made good sense.

We can hardly expect to find a refined assessment of the concrete "quod actoris interest" in these early days, and restoration of the value of the slave (or animal) provided the plaintiff with what he was at least typically "interested" in. A good deal more mysterious is the position under chapter three. "Quanti ea res erit in diebus triginta proximis": this clause differs in three important respects from the one contained in chapter one, but appears to correspond with it regarding the very issue in which one would least expect such correspondence. First of all, the period here is not one year, but merely 30 days. Secondly, this period is not retrospective but prospective: it is the 30 days after the infliction of the wound that matter, not the month preceding this event. Thirdly, the word "plurimi" is missing in the third chapter of the lex Aquiiia. And fourthly (and perhaps most surprisingly): the principle of the real value seems to determine assessment of the compensation here, too ("quanti ea res erit"); irrespective, therefore, of whether a slave was killed (chapter one) or whether he had merely been bumped into or scratched, the owner could claim his full value. Damage worth threepence, slave worth 300 pounds: the wrongdoer had to pay 300 pounds.^[4985]

(b) "Erit" or "fuit" ("fuerit")?

Of these four propositions—the one more mystifying than the other—only the first has remained uncontested; nobody has as yet disputed that the third chapter did in fact specify a period of 30 days.

The tradition of discarding the word "erit", on the other hand, goes back to Gaius and Ulpianus. Gaius explains "[h]oc tamen capite non quanti in eo anno, sed quanti in diebus XXX proximis ea res fuerit, damnatur is qui damnum dederit",^[4986] and Ulpian (D. 9, 2, 29, 8) has "fuit" in place of "erit" (or "fuerit"). Both of them appear to read the time backwards rather than forwards. Gregor Haloander, one of the most famous philologists of the late Middle Ages, followed suit. In his edition of the Digest he replaced the "erit" of the Fiorentina by "fuit".^[4987] Many modern authors approve of this emendation;^[4988] they usually regard "erit" as a scribal error^[4989] and are thus able to explain the retrospective period in the same way as the "annus" of chapter one. Having thus (possibly) resolved one problem, the proponents of this view are, however, immediately faced with another: "quanti ea res fuit in diebus triginta proximis" does not make much sense if any moment of the last month might come into question. In other words: we would expect a reference to the highest value, as indeed it was contained in chapter one. Again, Sabinus already saw the problem and resolved it by way of interpretation: "proinde habendum ac si etiam hac parte plurimi verbum adiectum esset."^[4990] Gaius in fact attempted to provide a rationalization: the legislator had thought it sufficient to have used the word "plurimi" in the first chapter^[4991] ^{^[4992] (sc: and did not deem it necessary to repeat it in the third). (c) The meaning of "ea res"
As far as the fourth of the above-mentioned propositions is concerned, modern writers are split down the middle. The traditional, prevailing view has been indeed that the principle of the real value applied to the third as it did to the first chapter.^K4 It is relatively easy to point out the absurdities to which this approach is apt to lead and David Daube has done so with nearly irresistible panache.
"There is no child", he writes, "that docs nor at some time or other scratch a letter or two, or even four, on the wall of a house. At Rome, on the basis of the prevalent view, the father would have to pay for the entire estate—not just the house, but the grounds as well.... That in a society governed by this kind of regulation nobody will be rich or poor for long is evident... Nothing mattered when all material life became a joke through the third chapter of this statute, which equated damaging with destruction.""^[4993] ^{^[4994]}
And he concludes:
"[N]o economy could go on for a fortnight with the regulation ascribed to the Romans by the orthodox school; maybe it would not be viable for one day. "^{Hcf. also Schulz. CRL, p. 588; von Lublow. Lex Aquilia, pp. 109 sq.; Cardascia, Daube Noster, pp. 53 sqq.; Alan Watson, "Personal Injuries in the XII Tables", (1975) 43 TR 214 sqq.; Schebitz, op. cit., note 12, pp. 116 sqq.}
⁹ H.F. Jolowicz, "The Original Scope of the lex Aquilia and the Question of Damages", (1922) 38 LQR 220 sqq.; cf. also Van Warmelo, (1980) 27 RIDA 340 sqq.
^$ Cf. supra, p. 958 (note 41).
Sabinus:^[4998] ^{^[4999] ^[5000] ^[5001] not a very plausible suggestion in view of the great practical importance of this provision, which must have been constantly before the courts.^[5002] Ultimately everything that is said or written about the original scope of chapter three is based on speculation, and some of the indirect evidence advanced can be used in such a manner that it fits both views. Thus both Jolowicz and Daube try to draw support from the words which describe the type of damnum relevant for chapter three: mere, frangere, rumpere. Jolowicz interprets them as expressing damage of a total kind. An object that has been burnt, smashed or broken must be damaged to such an extent that it is virtually useless.^[5003] Daube, on the other hand, regards the three words as particularly appropriate to describe three different kinds of wounding. The terms "frangere" and "rumpere" were in fact taken over from the XII Tables ("os fractum", "membrum ruptum"), where they had also not referred to inanimate objects but only to injury to living beings.^[5004]}
(e) "Is anything...
exempt from doubt?" It may have become apparent by now that the third chapter of the lex Aquilia is like an equation with too many variables. Whatever view one embraces, it appears to be impossible to adduce the type of evidence that would exclude any possibility of alternative solutions.^[5005] Much of the evidence that we have can be explained one way or the other. Take the controversy about "erit" or "fuit" ("fuerit"). Of course, "erit" can be explained as a copyist's slip. This kind of slip can happen, and thus the explanation is not, per se, implausible. In a way, however, textual emendations always smack of an emergency solution and may therefore not appear to be entirely satisfactory. But even this challenge can be countered. If, at the time when Ulpian wrote, damages under the third chapter were assessed on the basis of the loss suffered, "quanti ea res erit" can be taken to mean "how much the affair will come to (when the items of loss have been added up)".^[5006] If one accepts this interpretation (not, however, a particularly convincing one), even the assumption of a scribal error is unnecessary. Those, on the other hand, who wish to take "erit" in D. 9, 2, 27, 5 at its face value and who are thus prepared to throw the calculation forward,^[5007] ^{^[5008] ^[5009] ^[5010] ^[5011] ^[5012] have to face the objection that Ulpian at another place uses "fuit", whereas Gaius has "fuerit".^[5013]"⁰ Of course it would hardly be acceptable to postulate two scribal mistakes. But it may be argued that the law had changed over the centuries:^[5014] while the lex Aquilia originally had "erit", it was applied in classical times as if it had "fuit". As we have seen, there are certain problems with this kind of scenario.¹⁰² Again, however, an alternative explanation for the use of "fuit" or "fuerit" is at hand.¹⁰³ The lex Aquilia itself determined the matter from the moment of the injury: the plaintiff was to receive compensation for such consequences as would appear within the next 30 days after the infliction of the wound (hence the use of "erit").}
The relevant formula of the lex Aquilia, however, which had to be applied when the plaintiff brought his suit, approached the matter, not unnaturally, from the point of view of the iudex. After all, the iudex had to be instructed to assess the damage which the plaintiff "had" suffered; at the time when he became concerned with the matter, the 30-day period lay in the past (although it was still the one following the injury). The formula of the actio legis Aquiliae, as proposed in the Edict, therefore used the past tense; and it is this phrasing that was taken up by Ulpian in D. 9, 2, 29, 8 and Gaius in III, 218 of his Institutes. All in all, I think, firstly, that in case of doubt the texts should be taken as they stand and, secondly, that D. 9, 2, 27, 5, the text where Ulpian purports to give the actual wording of the lex, should be the cardinal point of our investigation into chapter three.¹⁰⁴ It follows, therefore, that "erit" should be taken to be authentic and that the time rule has to be read forwards. If, furthermore, one accepts "ceterarum rerum" as genuine,^[5015] ^{^[5016] it is not unreasonable to attribute the same abstract, or generalizing, meaning to the word "res" in "quanti ea res erit" as in "ceterarum rerum": if in the one case we may translate "matters other than the foregoing", we can just as well read the other clause in the sense of "as much as this affair will be". In other words: the wrongdoer did not have to pay the full value (nor, probably, as yet, the full financial loss, in the sense of quod interest, of the victim) but merely the diminution in value of the object damaged. Acceptance of the "ceterarum rerum" clause also implies that the third chapter did not originally have only a limited scope of application: from the time of its enactment it comprised injury to slaves and grazing animals and damage (partial damage as well as complete destruction) to all other objects/⁰⁶ Thus it applied to all forms of damage to property, with the exception of the killing of slaves and grazing quadrupeds.
As a result of this, we can no longer maintain Daube's rationalization of the significance of the "quanti ea res erit in diebus triginta proximis" clause: with regard to inanimate objects it would not have been necessary to wait for 30 days in order to assess the damage. But an alternative explanation is available. The period of 30 days may well have been taken over from the XII Tables;^[5017] for in the olden days the condemned debtor had been granted exactly this period of time to pay or render restitution and thus to avert the harsh consequences of manus iniectio.^[5018] This kind of regime made perfect sense under the lex Aquilia too:^[5019] before thejudge could be asked to assess the damages, a period of 30 days had to elapse; within this time-span a wound might have healed, the debtor might have paid a sum that satisfied the other party, he might have repaired the sedan chair that he had damaged or he might have given his creditor a new one.^[5020] III.}}

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

Chapter three

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