"Contributory negligence" in Roman law
(a) The Roman all-or-nothing approach
If fault was the relevant criterion to determine whether a person who had committed occidere or corrumpere was liable under the lex Aquilia, the modern lawyer will be inclined to imagine that considerations of fault determined also the extent to which that person could be held responsible.
Not rarely does it happen that some fault of the victim has contributed to the injury, and it would appear to be unreasonable completely to overlook this contributory factor when it comes to the assessment of damages. In particular, one might be disposed to compare the relative contributions of tortfeasor and victim and to reduce the extent of the compensation accordingly. Most modern legal systems do, in fact, know rules about contributory negligence and recognize the possibility of an apportionment of damages.[5255] Not so the Roman lawyers.[5256] If somebody suffered harm through his own fault, he was denied recovery, unless the tortfeasor had acted intentionally (in which case he could recover his full damages[5257] [5258]). This strict principle of all-or-nothing was predetermined by the procedural formula. The judge only had the alternative to condemn in the full amount or to absolve the defendant—tertium non datur. Translated into the terms of substantive law, this meant that the judge had to determine whether the act of the defendant satisfied all the requirements of the lex Aquilia or not. If he came to the conclusion that there had been damnum culpa datum, he had to condemn, otherwise to absolve. The Roman lawyers thus approached the question of "contributory negligence" under a very specific perspective. They did not ask (as we do): was there fault on both sides?; they merely enquired whether the injury was due to the fault of either the tortfeasor or the victim. A pruner who dropped a branch on a public road without having shouted a warning was liable if the branch killed a slave who happened to be passing by. According to Quintus Mucius, he was even liable if the incident occurred on the putator's private ground, also, of course, if he had shouted out too late. But if the branch was dropped on a private ground, and there was no path underneath the tree (so that it was entirely unlikely that people would be passing by), he could not be held responsible.78 If a slave was hit under these circumstances, it was due to his own fault, not to that of the pruner. A very similar solution was arrived at in the case of the hunter who dug pits to catch deer:7y if the pits were on a private ground and if an adequate warning had been put up, any injury sustained by third parties was not attributable to the hunter. If, on the other hand, he had dug the pits on public ground, or on a private ground but without any warning, he was liable to the full extent.(b) Of javelin-throwers and itinerant barbers
The two cases that have featured most prominently in subsequent discussions about "contributory negligence", were that of the javelinthrower[5259] [5260] and that of the barber putting his shaving-chair next to a playing ground.[5261] In the former instance the Aquilian action was held to lie "si per lusum iaculantibus servus fuerit occisus"; but there was no liability if the javelin was thrown in a field set aside for that purpose. Reason: "quia non debuit [sc: servus] per campum iaculatorium iter intempestive facere." If a slave crosses a sports field while people are busy practising]avelin-throwing and if he is pierced by a javelin as a result thereof, it is entirely his own fault. It is, in any event, not the javelin-thrower who can be blamed for the incident.[5262] More complex was the barber case. It was much discussed in Roman law,[5263] and at least three different solutions were proposed. None of the lawyers dealing with the case advocated an apportionment of damages, however. Mela isolated the relevant criterion: "in quocumque eorum culpa sit, eum lege Aquilia teneri." That could either be the person who had hit the ball (after all, he had hit it "vehementius" )[5264] [5265] or the barber (he had set up his chair "ubi ex consuetudine ludebatur vel ubi transitus frequens erat"). Proculus argued in favour of the latter alternative. But the argument that it was dangerous to shave in the immediate vicinity of a playing ground could just as well be turned against the customer. He was by no means forced to have his beard shaved in such a precarious place. The barber might have chosen a more suitable spot85 to offer his services, but, in the last resort, it was the slave who had himself to blame for having availed himself of such an offer. This argument was advanced with the words "si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere",[5266] and Ulpian regarded it as absolutely tenable ("nee illud male dicetur"). (c) Balancing of fault, preponderant negligence or assumption of risk? Did this involve a balancing of fault which was seen to exist on the part of both the barber and his "victim"? This is quite possible; and since nothing at all is said about the gravity of the respective faults, one may come to the conclusion that, in the opinion of the Roman lawyers—or at any rate of some of them—any form of contributory negligence cost the victim/plaintiff his remedy. [5267] Alternatively, one might argue that implicit in the view reported by Ulpian was the assumption that the victim's fault was much graver; compared with that of the barber, it made the latter pale into insignificance. The Roman rule may then have been that preponderant negligence on the part of the victim excluded the plaintiffs liability.[5268] Or did the Roman lawyers solve these cases by applying a theory of causation?[5269] It was the barber's customer who had had the last opportunity of avoiding the "accident" by exercising reasonable care, and it is for that reason that he ought to be liable. But D. 9,2, 11 pr. in fine can also be explained in an entirely different manner.91 By availing himself of the services of this specific barber, the customer voluntarily exposed himself to the risk that the shaving process might be rather awkwardly disrupted or interfered with, and it is this aspect of the assumption of a risk92 which made it appear unreasonable to grant a claim for damages to the plaintiff. Neither barber nor customer had therefore been "at fault"; both engaged in a somewhat risky kind of activity and therefore had to bear the consequences.93 Since this explanation accords much better with our other sources (which do not evidence any recognition of the notion of a concurrence of faults — that is, of "contributory" negligence in the true sense of the word94), it is the one to be preferred. possibly still under the influence ot the canonical distinction between causa proxima and causa remota (Luig, (1968) 2 lus Commune 223). On the "last opportunity" rule in South African law, cf. Boberg, Delict, pp. 653 sqq. 9' Wollschlager, (1976) 93 ZSS 131 sqq. 4" Cf. also Mayer-Maly, (1974) 226 Gottingische Gelehrte Anzeigm 130; Hausmaninger, Lex Aquilia. p. 27. The idea of an exclusion of delictual liability on the grounds of an assumption of risk ("Handetn aufeigene Gefahr") has also been advanced with regard to Alf. D. 9, 2, 52, 4 ("Cum pila complures luderent, quidam ex his servulum, cum pila percipere conaretur, impulit. servus cecidit et crus frcgit: quaercbatur, an dominus servuli lege Aquilia cum eo, cuius impulsu ceciderat, agere potest"): von Lubtow, Lex Aquilia. pp. 108 sq.; Wacke, (1979) 42 THRHR 278 sq. Alfenus, however, rather appears to have stressed the fact that there was no fault involved ("respond! non posse, cum casu magis quam culpa videretur factum"). In modern law, the opinion tends to prevail that the crucial issue is one of wrongfulness, not of fault; as long as the rules of the game are not infringed, participants in any form of contact sport do not act unlawfully if they injure each other. The appropriate dogmatic tool to achieve this result is, however, in dispute; consent (volenti non fit iniuria), assumption of risk, application of special standards of behaviour (i.e. modification of the usual "alterum non laedere" precept for contact sport)? For details, see Reinhard Zimmermann, "Verletzungserfolg, Spielregeln und allgemeines Sporlrisiko", 1980 Versicherungsrecht 497 sqq. These special considerations are, however, justifiable for injuries inflicted only while the game (or fight) is in progress. For the time before (knocking up) and after (final whistle has been blown, towel has been thrown in) the normal rules apply, and any injury is (prima facie) unlawful. For Roman law cf, along similar lines, Ulp. D. 9, 2, 7, 4 ("... plane si ccdentem vulneraverii, erit Aquiliae locus"). ® On the meaning of "de se queri debet" in this context, see Wollschlager. (19761 93 ZSS 132 sqq.; generally, cf. Mayer-Maly. festschrift Kaser, pp. 236 sqq. * Aumann. op. cit.. note 76. pp. 6 sq.. 1 b; Wollschlager. (1976") 93 ZSS 115 sqq.; cf. also Schipani. Lex Aquilia, pp. 420 sqq.; contra, for example. Medicus. Id quod interest, pp. 322 sqq.; Luig. (19681 2 Ins Commune 192 sqq.; Honsell/Mayer-Maly/Selb. p. 232.
More on the topic "Contributory negligence" in Roman law:
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria
- Essential elements of Roman "labour law"
- Contributory negligence
- 2. The "natural" law of delict
- 2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"
- 1. The "weakness" of enrichment claims in German law
- "Quod metus causa gestum erit, ratum non habeo"
- 1. Restoration, damages and "Dtfferenztheorie "
- "Animus iniuriandi" and Artemus Jones
- "De facto" contracts and implied promises