IAVOLENUS ON UNDERGROUND PIPES

In two legal cases, Celsus’ contemporary Iavolenus discusses building mate­rials or accessories that are comparable to underground pipes. Though the term ruta caesa occurs in only one of these cases, both are important for reconstructing the debate that Celsus answered in D.19.1.38.

In the second case, lavolenus contemplates two examples, grain bins and roof tiles, that each suggest a partial analogy with pipes. Grain bins were classified as ruta caesa when they stood on the ground, but if they had underground foundations they should be included with the prop­erty (D.19.1.18pr (lavolen. 7 ex Cass.)). lavolenus’ approach here recalls Aquilius’ opinion about earth materials, which excluded from ruta caesa things connected with the land itself. Because Iavolenus explicitly applies the rule to buildings, his opinion provides a clear analogy for the pipes in D.19.1.38.2.

For the present discussion of ruta caesa, lavolenus’ approach adapts the law to the expectations of buyers and sellers while working within the legal tradition. lavolenus improves on Mucius’ definition, adding to the types of physical attachment that served as criteria. He also draws on the insights of Aquilius and Cassius about connection to the land, transferring this idea from natural materials to building components such as pipes and founda­tions, suitably enough because lavolenus’ opinion about grain bins comes from his commentary on Cassius. When it comes to roof tiles, lavolenus invokes physical attachment but, paradoxically, his opinion undermines the traditional function of this criterion. Traditionally, roof tiles that are no longer attached to the building should be ruta caesa, regardless of whether they were once attached or not. lavolenus, however, looks beyond strict physical attachment, arguing from a concept of the building that is at once more abstract and more practical: it is abstract in the sense that it requires a shared understanding of what parts or accessories belong to a building, and practical to the extent that the abstract idea conforms to expectations among laymen and landowners. His narrower definition of ruta caesa rec­ognises variety in materials and methods of construction. In addition, his approach depends on more than a snapshot of the building at the moment of sale; rather, it envisions the property existing over time. In narrowing the category of ruta caesa, Iavolenus limits its usefulness, and also implicitly privileges its counterpart ‘part of the property’.

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