Interpretation in the Statutory Core

One ought to separate the treatment of the two chapters but for brevity's sake they can be taken together. The measure of recovery which constitutes a major difference can be severed and dealt with later.

The matters to be considered are covered by two large questions: Has the plaintiff suffered a disaster which is prima facie within the lex? And, Is the defendant liable for that disaster? These two questions can be broken into smaller ones, so that in the end one has three for the first and two for the second. Thus: (i) Has the plaintiff suffered loss (dam­num)? (ii) Did that loss arise from a thing spoiled (res corrupta)? (iii) Did that spoiled thing belong to the plaintiff (res actoris)? If these are all answered in his favour the plaintiff has suffered a disaster within the lex. Then, (iv) Did the defendant do the spoiling with his own bodily force (corpore suo)? and (v) Did he do it wrongfully (iniuria)? If these last two are answered against the defendant then he must pay.

The form of some of these questions anticipates the discussion, but they will become clear.

i. Has the plaintiff suffered loss (damnum)?

This requirement is not mentioned expressly in ch. I. It is virtually impossible to construct a set of facts in which a plaintiff whose slave or beast is dead will not have suffered loss. In chapter III the first condition is, expressly, �If anyone causes loss to another...' Not every bump or bruise will do so. Suppose the reaction of a hypothetical buyer. A scratch on a polished table will reduce its value, the same thing on the outside wall of a house will not affect the price. Similarly with living tissue. An ordinary black eye spoils a slave's looks but unless there is some evident risk of complications will not take down his value. Ulpian reports a famous example given by Vivianus.7 Successful cas­tration of a slave-boy would actually raise his value.

All these examples assume that the verbs, bumping, bruising, scratching, amputating, would be within, and indeed they are within, the range of the statutory trilogy, urere, frangere, rumpere, one aspect of which is considered next.

ii. Did that loss arise from a thing spoiled (res corrupta)?

Under the lex itself the action described by one of four verbs had to happen. Each has an active and a passive aspect. At this point we are concerned only with the passive aspect. This means that we are not yet interested in the question whether the defendant did, say, the burning but whether the plaintiff suffered a thing burned.

Under chapter I it is evident that the plaintiff had to have suffered a slave or herd-animal killed. The words �thing spoiled' do not arise under that chapter but clearly servus etc. occisus is within the notion of res corrupta.

Under chapter III there has to be a res usta fracta or rupta, a thing burned, broken or burst. The translation of this last word as �burst' is conventional but not very good. �Damaged' would be better though the trilogy would run less well if deprived of its alliteration. �Rumpere' is a very wide word, much less specialised than �burst'. �Frangere' is rather narrower, for dry breaks as of bones, plates and pencil-leads.

Defendants would naturally try to escape by arguing that the con­sequences of their action could not be brought within one of the verbs. Suppose that I have poured out your wine onto the floor. You sue me and I say that this is certainly not within occidere, urere or frangere. It must be rumpere or nothing. And what have I smashed or damaged? Ulpian tells us that the veteres, the old jurists, put a stop to this tactic by giving rumpere its widest possible sense. The word rumpere was understood in the sense of corrumpere. Much as though we said �damage' must be taken as �spoil'. That reached the spilled wine clearly enough. One could not argue that it was not �spoiled' or �ruined'.

D.9.2.27.28 (Ulpian, 18 On the Edict).

new, he said, for a statute to follow special words with some general catch-me-all. Gaius says that the interpretation as corruptum meant that ruptum would reach not only things usta autfracta but also scissa et collisa et effusa et quoquo modo vitiata autperempta atque deteriorafacta: burned, broken, torn, crushed, spilled, vitiated in any way, destroyed or made worse.⁸

It has long been held that there could not be said to be a res corrupta where something was destroyed in the course of its proper use. It is certainly true that I cannot be liable under the lex Aquilia for eating your food or drinking your wine, but the reason is not likely to be found under this head. It is hard to say that there is no res usta when I burn your logs, just because logs are for burning. And when I eat your walnuts I must frangere their shells and rumpere the nuts within. There is no evidence that the interpretation as corrumpere did other than extend the statutory words. To exclude these cases under this head one would have to suppose it capable of restricting as well as extending.

The dynamic interpretation of rumpere had its limits. Moth, rust and wrongdoers can corrupt most things, but not all. Precious stones and metals are unaffected by immersion in the sea or in a river. Suppose I throw your silver cup into the sea or your ring into the Tiber or knock your coins down a drain. There is no res corrupta and so no liability under the lex. There is one indication that Sabinus was pre­pared to stretch this point presumably on the ground that total dis­appearance could be regarded as a type of destruction. However, that view, objectively incorrect, seems not to have prevailed.

It seems therefore that under the lex there had to be at least some corporeal deterioration, some internal change for the worse. As we shall see the praetorian actions could go further.

iii. Did the spoiled thing belong to the plaintiff (res actoris)?

In ch. I the slave is described as alienum alienamve, belonging to another. There is nothing parallel to that in ch. III so far as concerns the words which describe the delict. But in the words laying down the measure of damages, in both chapters, the plaintiff is described as �owner’. For it is to the owner, probably the lex used the old word �erus’, that the defendant must pay the value. Hence only an owner could sue, and only in respect of a res corrupta owned by him.

This restriction was inconvenient in two different ways, both of which made work for the praetor. First, there were people other than owners who suffered by the commission of the delict. The usufructu­ary, the bona fide possessor, the pawnbroker come immediately into view. Secondly, it meant that there was no Aquilian remedy for injuries to a free man. For nemo dominus est membrorum suorum: no-one owns the parts of his body. We will see that a free man could have the actio iniuriarum, but only for intentional injury. There could also be other problems. One’s family would refer to �our vault’ or �our tomb’ but if people had been buried already �our’ would be inaccurate. Such places belonged only to the gods below. Again fixtures could pose questions. If I smash down your aqueduct running over my land, �your’ will not stand up in court. The fixture is mine by accession to the land.

iv. Did the defendant do the spoiling �corpore suo'?

We now turn to the defendant’s liability. The first aspect is the active element in the verbs. He must have �killed’ the slave or animal or inflicted loss �in that he burned, broke, burst’. As a defendant seeking to escape, he will say that, though you have a dead slave or a spoiled bushel of corn, yet he did not do the killing or did not do the spoiling. The question is, When can a man be said to have �done’ something, as here �killed’ or �spoiled’? And this has to be answered not just reason­ably but in the teeth of all the unreasonableness which the defence can muster. Suppose I put poison in your slave’s bedside drink. In the middle of the night he wakes and, feeling thirsty, drains his glass. I shall say that he killed himself. I did not do the killing, even though in a sense outside the statute I did cause his death. What the lex says is �Si quis servum... accident’,^{[59] [60] not �Si quis servo... mortis causam praestiterit’.10}

This is a real problem. And there is a complicating factor. As we shall see the lex was not confined to cases of deliberate damage. Our question, Did he kill, burn and so on?, is more difficult to answer if it has to be answered without reference to the defendant’s intention. In short, it is easier to say he killed if he planned the death. In the example just given it is because I did intend to poison the slave that my defence looks very artificial. Suppose instead that the slave died of typhus. I was, innocently, a carrier of the disease. When I put his drink ready I infected it wholly without my knowledge. Unwilling cause of his death, did I kill him? Suppose again that your field of corn has burned down. I made a bonfire half a mile away and the wind carried the sparks. Did I burn the corn? I never thought about it, far away from my garden and my mind.

9

10

Because the lex was understood to create a liability even for unin­tentional harming, this problem could not be solved in terms of intent. It had to be looked at in terms only of forces, of physical causation.

The test which was adopted was this: the defendant must have brought about the damage corpore suo, by his body. Gaius, at G.3.219, says �But it has been held that the action based on that lex lies only where someone corpore suo damnum dederit, caused the loss by his body.’ Three points need to be made about this solution to the problem.

First, it is not primitive. �Primitive’ in this kind of matter is to have no answer at all, to leave the question to unpredictable intuition. To say that a man only kills or spoils when he does so corpore suo, you need both to have thought about the problem and to have mustered the authority to impose an artificial solution.

Secondly, it certainly does not mean that the defendant must have come into bodily contact with the res damaged. That would, at the most extreme interpretation, rule out even wounding with a sword, smashing with a stick. Your slave is transfixed by a javelin. I threw it from some seventy yards’ distance. Your cart is crushed by a block of marble. On a scaffolding fifty feet above, I, a mason making ready to use it, let it drop. These are clear cases, centrally within the �with his body’ test.

�Corpore suo’ is better translated with the addition of an extra word, �by his bodily force’. The idea is easy enough to capture in general terms. The passive aspect of the verb, which we have already looked at (occisum, ustum and so on), must have been the immediate result of the defendant’s bodily force. Or, the defendant’s body must have been the last kinetic force to operate, the last source of movement. It is worth remembering at once that in the ancient world gravity was not a force. That is to say, if I dropped a lump of marble or took the brake off a cart at the top of a hill it was my force which sent it into your slave’s head or over his toe, not the unseen hand of gravity.

Thirdly, even though the general idea of the test can be made out, its detailed application is inescapably difficult. There is nothing new in this. Often a test which is necessary and useful is difficult to apply to the facts. In the English case of Scott v. Shepherd¹² the defendant had thrown a firework into a market. Several stall-holders knocked it on away from themselves until when the fuse had burned it blew up in the plaintiff’s eye. The action was in trespass vi et armis. English law had reached a test remarkably similar to the Romans’ corpore suo. The question was, whether the plaintiff’s eye had been injured by a direct and unlawful act of force on the part of defendant. Agreed on the test, the court divided on its application. The majority thought that the injury had been done directly. Quite apart from the inherent uncertainty of the formula to be applied, opinions will be affected by extrinsic factors. For example, the colour of the question will be different according as the choice is between liability and no liability at all or between liability under one head and liability under another. Substantial justice may be in issue in the first case, only clarity in the other. Again, the hardship to be inflicted on a particular, and especially deserving, plaintiff may enter into the decision. Among those who decide some are willing to lean more heavily than others.

These tensions are present in the Roman texts. It is wrong to look for perfect consistency, even in the same jurist. Consistency in appli­cation, that is. It would be shocking to find different tests in play. In classical law, when the praetorian supplementary actions were regularly available, there was less pressure for a liberal interpretation of corpore suo. The main thing then was a clear line round the action under the lex itself, the statutory core of the delict.

Some cases are quite easy. I lock your slave up or impound your cow and then give no food, so that death follows by starvation. There is no bodily force involved in the death. I send your slave up a tree and he

12

3 Wils KB 403; 96 ER 525 (King’s Bench 1773).

falls, or down a well and he fails to return to the surface. Again, it would be difficult to argue that his death or injury happened corpore meo. These examples are given in Gaius, 3.219. My example of the poisoned drink is clearly outside the test. If I held the slave down and made him drink, that would be on the other side of the line. Similarly with poisoned ointments rubbed. Or hyperdermic application. If I cut a rope, I damage it corpore meo. If the boat attached to it then floats off and is driven by wind and wave onto a rock, its destruction is caused by me but not done by my bodily force. If I puncture a cistern of wine the hole is made directly. I have damaged the container within the mean­ing of ch. III. Suppose, however, that the wine pours or seeps out and spills on the ground. That happens indirectly, not corpore meo. That may be the least clear of these examples. What squeezes out the wine is gravity, and gravity is not supposed to count. But even we think of the weight of water as an independently identifiable force.

There are many more troublesome cases. The common character­istic of all difficult facts is that more than one force, or more than one body, is involved. Suppose a slave knocked into a river or into the sea. He drowns. At G.3.219 Gaius says this is outside the lex but he raises his eyebrows and admits that one might as easily say the opposite. Justin­ian, at J.4.3.16, does say the opposite. There was a dispute and, strictly but very inconveniently, the cases should have been divided. If he bobbed around and, struggling, was eventually overcome, the river killed him, not me. If he went down once and for all or, more clearly still, if he broke his neck on impact, I killed him, corpore meo. Again, suppose I set my Alsatian to bite you, adding length and strength to my arm. Have I done it? Julian said, only if I kept hold of the dog; but a more liberal view had prevailed earlier.^[61] Finally, suppose you push me and I thus injure the plaintiff's slave. For example, you kick a ball. It strikes my elbow. I, a barber, am shaving the slave. I cut his throat. Have I wounded the slave? At one point Proculus seems to have no difficulty in saying that I have;^[62] at another the mere intervention of my body seems to make it impossible for him to say that I did the injury corpore meo.^[63] That may be unfair. In this kind of issue one often needs more facts than the texts give us. In the second case perhaps your intervening body was not helplessly inert, or not to the same degree as the barber's arm struck by a flying ball.

There is nothing mysterious about this section. The statute said that a man was liable if he killed, if he burned, if he broke and so on. The jurists held that he could be said to have done these things if he had done them corpore suo, with his body. It was not to be expected that they would all agree all of the time as to what facts satisfied the test. If someone brought the action under the statute the defendant would very likely run an argument under this head. The iudex would have to decide.

v. Did the defendant do the harm wrongfully (iniuria)?

The point we have reached is this. The plaintiff has suffered a disaster within the lex. The defendant has done it. If the lex had imposed strict liability, that would be the end of it. But it did not. More accurately, it left room for argument, and the decision was that it did not. The lex did not say �If someone dolo malo kills another...' or �If someone negligenter causes loss...'. The word it used, in both chapters, was iniuria. This, in the ablative case, is the noun made from the negative particle �in-' and the word for �right' or �law' which is �ius', as though we would say �un­right'. So in the case of our defendant the question after the lex was passed was whether he had done his occidere, urere and so on �unrightfully'.

That wording is neutral on the question of the kind of fault to be required, if any. All it implies is that there are some cases which are not wrongful, some which are. The content of right and wrong is not given. We do not know exactly the steps by which that vacuum was filled but we can consider the choices.

A. �Wrongfully’ becomes �by malice or by fault' It is a natural human instinct, when faced with an accusation of damage and injury, to say, if there is room for the plea on the facts, �Oh, it was only an accident.' A child does it almost automatically when a cup is broken or milk spilled. It is meant to avert responsibility. �You cannot be cross with me' becomes in an adult and in a court �You cannot punish me or make me pay.' An accident is like the measles. As victim you must complain to God, not your fellow man. Insurance has been provided as a means of material solace. After all, it is not clear why anyone should suffer any loss if a means can conveniently be found to save them. Certainly it is not a reason against the other means of relief that no fellow human is answerable for your disaster. Because it was an accident.

There is a trace of this plea already in the Twelve Tables: �If the weapon flew from his hand rather than he threw it, let him offer a ram.' The idea is evident and familiar. In the case of accident the principal burden of responsibility is averted. But something remains, just for causing the disaster or perhaps just for being involved in it. The token offering puts the matter straight.

�Accident’ is itself a notion which requires the law to make choices. The child says, �It was an accident. I didn’t mean to do it.’ �Accident’ there is everything which happens unintentionally. But the parent may still get angry: �You are old enough to know better.’ Or, �You could at least have been more careful.’ Here �accident’ is the disaster which happens without blameworthiness or fault, the premise being that there can be fault without deliberate intent. Lines can be drawn at different places, using different words and concepts, but these two are the most easily marked. The child’s position is that liability should be for dolus only, that is, for intentional harm, with everything else classed as casus, accident. The parent’s view is that liability is for culpa, with casus covering only what happens entirely without fault.

We must get back to the statute. It said the act must be done wrongfully. Someone was bound to say sooner or later that an acci­dental occidere or rumpere could not be regarded as wrongful. These were the choices: accept the argument or reject it entirely; if accept, either on the basis of the wider or of the narrower notion of accident. The law’s choice was to accept that accident exonerated but, like the parent above, to narrow its scope to the case in which there was no fault at all.

That is a re-construction of the process by which a lex which imposed liability for what was done �wrongfully’ came to be under­stood as basing the liability on culpa. It is not easy to say how quickly this interpretation was completed. It seems to be already in place in all our sources. Alfenus Varus, pupil of Servius Sulpicius and contempor­ary of Augustus, handles Aquilian problems in terms of culpa.^{[64] [65] That is two hundred years after the lex. There is no reason to think the culpa approach was not achieved much earlier.}

The developed position is summed up by Gaius at G.3.211:

A person is understood to kill iniuria if the result is brought about by his dolus (malice) or culpa (fault). Loss which happens sine iniuria (without wrongful­ness) is not brought within any other statute. And so no liability is incurred by a person who inflicts loss without fault or malice by some mischance (sine culpa et dolo malo casu quodam damnum committit).

There is another rather different picture of the development which I will mention in section (c). For the moment it is more convenient to look at the content of iniuria understood as dolus or culpa. What facts would and would not amount to �malice or fault'?

B. The content of iniuria (= dolo aut culpa) It is safe to contemplate this in two parts. In the first the defendant's claim to be exonerated is based on casus; in the second on some other ground.

Where the defendant relies on casus, necessarily he will not have intended harm to the plaintiff's property. The question is, What exactly is an accident? We have already said that the commitment to culpa, rather than dolus alone, is acceptance of a narrow defence of accident as an event which happens without fault. At this point we have to add some detail. In judging fault a high standard is taken. One text talks of levissima culpa, the slightest fault, as being sufficient. The expression may not be classical but the thought is right.

Suppose the defendant was not conscious of any want of care on his part. As a matter of fact he did not appreciate that there was any risk, was therefore not aware of taking one. He was pruning a tree in a field. From time to time he threw down branches. Getting on with his work he forgot there was a path below. He crushed a slave. He now says that he not only did not intend harm but also took no risk that it might happen. That is no answer. He ought to have foreseen the danger. It counts as culpa under the lex Aquilia to omit precautions which might have been taken. The question is not whether he was consciously at fault but whether he did all that could have been done to avoid the harm. Suppose he burned off the stubble in his field and the fire escaped and destroyed my crops. It is not enough for him to say that he thought he had done everything necessary. The question is whether in fact he had done everything which ought to have been done. We would turn immediately to the reasonable man. What is the standard behind �ought to have done' or �ought to have foreseen'? We say that people should foresee harm which a reasonable man would foresee and take such precaution to avoid it as a reasonable man would take. The Romans do not restate culpa in that way. Yet many of their conclusions correspond to those of the reasonable man, and one text comes close to putting the matter in our way: �It is culpa not to foresee what a painstaking man (diligens) would have been able to foresee.'

Another defendant may say that not only did he not appreciate the risk but that he personally was incapable of doing so. He did his very best, but he could not measure up to the standards attainable by the best of men. He too is caught by the approach described in the preceding paragraph. Suppose his point is that he himself is not very intelligent. He cannot foresee or judge as others do. The only allowance which the law makes is for exceptional categories at so to say the extreme end of the spectrum. There are people who are relieved of all responsibility, furiosi (madmen) and young children. Everyone else is assumed to be equally capable for the purpose of legal responsibility. That does not mean that lawyers could not make moral distinctions, only that for practical reasons the law did not.

A third defendant may say that he did as well as the best man possibly could but that he lacked some special skill. His case is that people should be judged by a standard of general knowledge without assum­ing special training such as only some ever get. I ride my horse into you. I do everything that could be done by a careful man. My trouble is only that I am but a beginner in horsemanship. I bought the horse yesterday and today when I failed to hold him back I was learning to ride him. My argument is that I should not be judged as one who had acquired the special skill of riding, only by the standard of an ordinary unskilled man doing his best to avoid damage. Or, suppose your slave is bitten by a snake. I cut into him and cause a disaster. I did what the best of laymen would have done, but a doctor would have done something different. He would have known that for this kind of snake a day's rest was all that was needed. Again I want my conduct assessed from the standpoint of general knowledge, assuming an absence of special skills. I am prepared to be measured by a high standard but not as a rider or a doctor when in fact I am neither. The law's blunt answer is: imperitia (want of skill) counts as culpa (fault). If I engage in an activity which requires a special skill I must answer for loss which happens because I lack that skill. There is room for argument in cases of urgency. If the fault consists not so much in lacking the skill as in embarking without it on an activity which requires it, then I may be free of fault in cases in which there was no possibility of getting in an expert at the time when I entered on the task. If the snake-bite happened miles from anywhere and death seemed imminent, I may be free of culpa even though a layman.

This discussion has been designed to show that culpa does not require conscious risk-taking, it is not judged by the particular defendant’s own, perhaps limited, ability to appreciate the consequences of his conduct, and is not excluded by the fact that something more than general knowledge would have been needed to avert the disaster. The question is not, Did he foresee the damage? or even, Could he have foreseen it? Rather, Could he have foreseen it as a paterfamilias of sound judgement and intelligence possessing the skills necessary for the proper conduct of the operation in question?

The second part of the inquiry into the content of iniuria here, i.e. of dolus and culpa, concerns those cases in which the defendant did intend the occidere or corrumpere but claims to have been justified by the particu­lar circumstances. The word �justified’ exactly matches the word iniuria. It means �made right’. This is about cases in which the damage is done iure despite being done on purpose. Again I do not think there is any conflict between the word iniuria and the notion of culpa in these cases. What is deliberate but justified in the eye of the law is sine culpa, without blame or fault. I shall deal only with some examples.

The simplest case is this. Under the early law, by a provision of the Twelve Tables,¹⁸ it was lawful to kill a thief caught by night. It is evident that this right was whittled away by juristic interpretation so as eventually to be assimilated to self-defence. However, at all stages of its development it provides a good model of a defence by way of justifi­cation. The same is true of magisterial authority. Suppose that an official acting within his jurisdiction kills or flogs your slave. Clearly he acts iure and cannot be said to be guilty of culpa.

The most important justification is self-defence, limited to force necessary to prevent the harm anticipated to oneself. The justification does not extend to measures which exceed this limit of proportionality, as for instance blows struck in revenge. Self-defence is a species within the wider genus �necessity’. In the case of self-defence the danger is generated by the threat to one’s body. There is no need to distinguish that from danger to one’s family. But danger to property is more problematical. Am I justified in causing injury or damage in order to

18

Twelve Tables, 8.12.

protect my own property? The answer is that in appropriate circum­stances I am, but the details of the picture are not clear. If the wind blows my ship into your fishing nets so that extrication is otherwise impossible I may cut your nets. May I knock down your house to stop fire reaching mine? The answer is not clear. Perhaps the question is whether, like the nets, your house was already certainly lost.

Finally, one curiosity. If I eat your food or burn your logs I am not liable for damnum iniuria datum)⁹ The reason is that proper user is regarded as rightful. It is specifically the rumpere which must happen iniuria; and when the particular rumpere is exactly what the thing is for, the classics hold that there is no wrongful breaking etc. It may be theft and it may be a contempt-iniuria. But these other elements of wrong­fulness do not allow the actual chewing, burning or what have you to be regarded as wrongful for the purpose of this delict. One way of putting this is to say that even if there is fault there is not faulty chewing, swallowing and so on. The chewing is impeccable, despite being by the wrong person. There are other examples: wearing, and wearing out, someone else's shoes, quarrying rocks from his hillside, pressing his grapes when ripe to make wine.

There are two more sections to be considered under �the content of iniuria': (c) an alternative picture of the development, and (d) a comparison between culpa and negligence. Both of these must be done rather briskly.

C. An alternative picture The key according to what has been said in the previous section is an equivalence between iniuria and culpa: What happens �unrightfully’ is what happens blameworthily or faultily. And that equivalence is seen as something initial or, more accurately, some­thing worked out from the beginning as the interpretation of iniuria was built up. The other picture assumes that culpa was an innovation of early classical law into a picture first settled on different lines.

On this view iniuria was first interpreted on the basis that all occidere, rumpere etc. was prima facie wrongful. Within that assumption were worked out certain situations in which there was a right to do the killing or damage. And these situations were described somewhat stiffly, not with the sensitivity to particular facts which characterises the approach through culpa. Thus, it was right to kill a thief by night and right whatever his mien, whether violent or submissive. And,

208 delicts

perhaps, it was right to do whatever you wanted on your own land so that you could not be liable for dropping a branch from your tree on to my slave unless he was on a public way overhung by your branches.

The best evidence of this stiff, typified approach actually comes from the wrong end of the lex's history. Justinian’s Institutes seem to use it. Thus at J.4.3.4, if you are a soldier using a javelin on a military field and you transfix a slave then, so long as you did not do it dolo malo, you are free of culpa; otherwise if you are a civilian, or a soldier on other land. This is stiff in that it ignores the careless soldier and the careful athlete. At J.4.3.5 a similar analysis seems to be used of the pruner’s case, which is made to turn on presence of a road or path below and apparently rules out liability in any case in which there was no right to walk beneath the tree.

In such a picture the role of culpa would have been to bring flexibility, sensitivity to the particular facts, now relieving a liability (as of the careful athlete), now extending a liability (as of the careless soldier).

There are two main difficulties. First, it is a picture which can hardly accommodate the defence of accident. A typified notion of accident would have to be expressed in terms of superior force. You escape liability only if your precipitation into the plaintiff’s res was due to an overwhelming force, a whirlwind or a flood. Not an impossible approach but not one which is securely evidenced in the texts. It is an approach which has an additionally complicating element in that it runs very close to the issue of causation making �it was an accident’ almost the same as �I did not do it’. But again that is not a decisive argument against it.

The other objection is that the most convincing evidence is of the kind given in Justinian’s Institutes from the wrong end of the devel­opment. This evidence can be explained as giving an unintentionally misleading picture. It can happen that when one cites facts to illustrate a proposition which dictates a different conclusion as the facts change— that is to say, precisely when one’s aim is to illustrate the flexibility of the concepts in question—that one’s illustrations can seem to be too starkly opposed. Thus, I believe that Justinian’s Institutes fall into this trap. They intend to show the culpa conclusion varying with the facts but give the impression of excessive typification. In favour of this way of understanding them is the fact that in the Digest’s versions of these same cases there is no sign of the indiscriminate approach.^[66]

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The culpa question is, Was the defendant at fault on the particular facts? The possibility exists, though I am not convinced, that at some time the Romans dealt less sensitively with typical sets of facts, not immediately with the actual facts which happened.

D. Culpa and negligence The Roman equivalent of the modern tort of negligence is to be found within damnum iniuria datum, and in particular within the culpa interpretation of iniuria. One might say that nine times out of ten �culpa' means �negligence’ in the sense of the modern tort. However, it is dangerous to make that translation a habit. �Fault’ is better, even though the fault is nearly always negligence.

The Roman delict comprises both intended and unintended harm. That has an important impact on the meaning of culpa. Take the case of one who wounds in self-defence. We cannot explain his non-liability by saying that he is not guilty of malice (dolus) or negligence, but we can say he is not liable because neither malicious nor at fault. The point is, he is not guilty of negligence because he meant to harm and he is not guilty of dolus because he meant to harm for a good motive. So the first statement lacks explanatory force. The second says that he is free of both bases of blame, malice and fault. Suppose he exceeds the measure of proportionality. He is liable. Unless the excess is extreme I doubt whether we can say that he is guilty of dolus but we can say he is at fault. He was �unreasonable’ but not negligent. On these facts there is no question of unreasonable failure to foresee. We cannot explain his liability by saying he was negligent when he lunged with his sword. He was at fault. The difference is between unreasonableness and unreasonable failure to foresee. Suppose the case of a cruel teacher. If he flogs the slave-apprentice for bad learning and the slave dies—that is, something goes wrong and there is an unintended escalation of consequence—you might analyse his liability as based on negligence. But for the flogging itself, always supposing it is bad enough to inflict damnum, negligence will not do. The master is conceded a right to chastise. The easiest analysis of his liability is to say that his excessive punishment is unreasonable. He is guilty of �fault’, what good men condemn, even though on the facts there is no question of his failing to foresee what they foresee.

Even in cases in which culpa does refer to fault in relation to unintentional harm and where it does bear the sense of modern �negligence’ there are technical differences. First, modern law is always concerned to ask whether there was on the facts any duty of care, and Roman law does not worry about that question. The reason is that Roman law limits itself to physical damage corpori (res corrupta) corpore (done by his bodily force). Excursions beyond that are controlled by praetorian discretion. The modern duty of care is a controlling mech­anism to prevent liability running wild. It is needed because there is in principle no limitation to damage to physical property. If there were, the duty to take care to avoid such harm could be taken for granted in every case. Secondly, there is no habitual reliance on the reasonable man. Whether there was or was not culpa was a question for the iudex. He had what might be described as negative assistance from the corpus of juristic utterance. It was not an exonerating factor that one was unintelligent nor uninstructed in a skill. But the texts do not contain evidence of a positive test in habitual use. And one feels the lack. �Reasonableness’ though uncertain in content is an invaluable guide.

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