Occidere and mortis causam praebere

The real interpretive crux, however, was the term "occidere". Whether or not a slave or grazing animal was dead, could, of course, normally be established reasonably easily; but the specific problem lay in investigating whether the defendant's act, that had caused the death, could be dubbed "occidere".

¹³ D. 9, 2, 2, 2; cf. also./hsi. IV, 3, 1.

¹³ For the reason, see Wesel, Statuskhre. pp. 50 sq. Unlike the other typical grazing animals, pigs are kept for no other purpose than to provide meat. On pigs and the lex Aquilia, see also Gluck, vol. 10, pp. 354 sq.

¹³ Gai. D. 9, 2, 2, 2.

¹³ Wounding of quadrupedes pecudes and wounding and killing of all other animals was covered by chapter three; cf. Gai.

¹⁵ Cf. the cases in Ulp. D. 47, 2, 50, 4 together with Gai. D. 47, 2, 51; Nerat. D. 9, 2, 53.

® Ofilius/Ulp. D. 9, 2, 9, 3.

defendant waved the flag or scared the horse). But the lex Aquilia does, strictly speaking, not make the defendant liable for having caused the death of the animal (for "mortis causam praebere" or "praestare"), but describes the wrongful behaviour with the term "occidere". "Oc- cidere" and "mortis causam praebere" cannot simply be equated; there is a subtle difference between the two and the Roman lawyers were very conscious of it when they determined the scope of chapter one. Celsus formulated the basic proposition with characteristic boldness;

"... multum intercssc dicit, Occident an mortis causam praestiterit. ut qui mortis causam praestitit, non Aquilia, sed in factum actionc teneatur."^15y

We see, incidentally, that a defendant who had merely caused death, but not killed, did not escape liability: an analogous action modelled on the lex Aquilia was available which is described by Celsus in D. 9, 2, 7, 6 as an actio in factum. The development of these actiones in factum obviously occurred as a kind of compensation for the narrow, or literal, interpretation of occidere.

The Roman lawyers thus appear to have been faced with the necessity of broadening an originally fairly restricted form of liability. The position is exactly the opposite today. Like chapter one of the lex Aquilia, § 823 I BGB does not read "a person who... causes the death of another" but "a person who injures... the life of another". Unlike the Roman jurists, the courts and legal writers in Germany are, however, not particularly sensitive to this distinction. If a delinquent who finds himself trapped by a police squad runs away, and one of the policemen chasing him falls to his death,^[5056] the delinquent is usually taken to have "injured the policeman's life", although, strictly speaking, he has merely caused his death.^[5057] As a result of such a wide, and undifferentiated, interpretation of the objective requirements for liability, German lawyers have traditionally been engaged in lively debates about how to limit liability in a reasonable manner. After all, even the manufacturer of a knife or motorcar may be said to have caused the death of whoever may later be killed with the knife or run over by the car;^[5058] and since it is not at all improbable that these consequences may ensue from the use of dangerous instruments such as knives and cars, one could even attribute negligence to the manufac­turer. Yet it is obvious that he should not be liable under § 823 I BGB, the modern equivalent of the Roman lex Aquilia.

3.