Range of liability of the conductor

With regard to the objects, on the other hand, which the contractor received from his customer, there was a kind of guarantee too: for the contractor was liable for custodia. Gaius is very clear on this topic, at least as far as fullones and sarcinatores are concerned:

"Item, si fullo pohenda curandave aut sarcinator sarcienda vestimenta mercede certa acceperic eaque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest ea non periisse, cum indicio locati a fullone aut sarcinatore suum consequi possit, si modo is fullo aut sarcinator rei praestandae sufficiat.... "^H3

It is the fuller or the tailor (i.e. the conductor) and not the locator/owner who can sue for theft if the clothes are stolen. The locator/owner does not need any protection in the form of an actio furti, for, irrespective of whether or not it was due to the conductor's negligence that the clothes were stolen, as long as the conductor was solvent, he was always able to recover his damages from him. Theft, of course, was a typical instance of what we have termed "vis minor", and it fell squarely within the conductor's duty of custodiam praestare.^[2007] This duty was imposed on the conductor, even though he received his merces primarily for performing the work, not for safeguarding the locator's clothes: "[N]am et fullo et sarcinator non pro custodia, sed pro arte mercedem accipiunt, et tamen custodiae nomine ex locato tenentur.^1,85

It is likely that fullers and tailors are merely used as examples and that the custodia liability applied to other types of conductores also.⁸⁶ Yet, it is impossible to prove this suggestion, for other texts in the Digest also concentrate on those professions.

(b) Gai. D. 19, 2, 25, 7 and the problem of vicarious liability

We are now better equipped to consider the problem of the liability of the conductor for the fault of his assistants, raised in D. 19, 2, 25, 7. "... ipsius eorumque, quorum opera uteretur, culpa..." is what this text says, and the crucial question is how to translate the particle, "que". "And", we would normally be inclined to think: the conductor is liable if he and his servants were at fault. But sometimes "que" can be used disjunctively, in the sense of "or".⁸⁹ In fact, Gaius himself occasionally used it this way, as we can see from D. 26, 8, 11. Our fragment concerning the transportation of the column, in my view, provides another example: the contractor is liable if the incident was due either to his own culpa or to that of his servants. In other words, D. 19, 2, 25, 7 presents an instance of vicarious liability stricto sensu,

“ Gai. D. 4. 9. 5 pr.

^se' Cf. Ulp. D. 47, 2, 14, 17 (dealing with the liability of a nuntius) and Schulz, CRL, p. 547; Kaser, RPr I, p. 508; Molnar, ANRW, op. cit., note 6, pp. 599 sqq.; contra: Rosenthal, "Custodia und Akiivlegitimation zur Actio furti", (1951) 68 ZSS 239 sqq. Cf. further Arangio-Ruiz, Responsabititd, pp.

⁸⁷ D. 43, 10, 4; Arangio-Ruiz, Responsabiiita, p. 127.

⁸³ Maycr-Maly, Locatio conductio, pp. 207 sq.

® Cf. e.g. Heumann/Seckei, p. 486. i.e. of liability based (merely) on the fault of others?⁰ Only this interpretation would seem to fit in with the conductor's custodia liability: for it would appear odd if he were held responsible for theft and for damage done by mice, but not for the fault of his own servants whom he used in performing his obligation. Their behaviour, after all, can hardly be qualified as vis maior. Thus, we are merely dealing with yet another example of a "lesser" accident which fell within the range of custodia liability. This is confirmed in the very next sentence, for our fragment continues, after the words "culpa accident": "culpa autem abest, si omnia facta sunt, quae diligentissimus quisque observaturus fuisset." Of course, the star-pupilish figure of the diligentissimus is suspect.⁹¹ But even if we have to reckon with the possibility of an interpolation, there is nothing to suggest that the substance of this sentence does not represent good classical law. The conductor was under a very strict—in fact, under the strictest conceivable standard of liability short of an unmitigated no-fault liability, and Justinian merely tried to cast into subjective terminology what had originally been conceived of from a more objective point of view.

In the course of time, Gai. D. 19, 2, 25, 7 became the central battlefield in the dispute surrounding the question of contractual liability for the acts of others. Those, of course, who were convinced that there could be no liability without fault ("It is not the occurrence of harm which obliges one to make compensation, but fault. This is as simple as the chemical fact that what burns is not the light but the oxygen in the air"),⁹³ took "que" in "eorumque" to mean "and" and quoted the Gaius fragment in support of their culpa theory.⁹⁴ Ultimately, however, the contrary opinion⁹³ prevailed and found its way into the BGB. In the formulation of § 278 ("... and of persons whom he employs in performing his obligation") we are still able to recognize the phrase "quorum opera uteretur" of Gai. D. 19, 2, 25, 7. Thus, the code today imposes strict (contractual) liability for others,

'*' In this sense, in particular, Knutcl, (1983) 100 ZSS 419 sqq. Contra (liability based on culpa) e.g. Mayer-Maly, Locatio conductio, pp. 28 sq.; MacCormack, "Culpa in eligendo", (1971) 18 RIDA 541 sq.

Cf. supra, pp. 192 sq., 376. However, the superlative is not as objectionable here as in other texts, for in Gai. D. 19, 2, 25, 7 Gaius docs not attempt to give a definition of culpa but merely says that there is no culpa if the utmost diligence is observed, (MacCormack, (1971) 18 RIDA 542). All interpolation hypotheses (many ot them very far-reaching) relating to Gai. D. 19. 2, 25, 7 are listed by Knutcl, (1983) 100 ZSS 419 sq, (n. 335). who himself accepts the text as genuine.

⁴² Cf- further Ulp. D. 14, 3, 5, 10; Marcell./Ulp. D. 19, 2, 41 and the discussion by Knutcl, (1983) 100 ZSS 407 sqq.

® Rudolf vonjhering. Das ScUuldmoment im romischen Privatrecht (1867), p. 40 (as translated by Tony Weir, in Zweigcrt/Kotz/Wcir, p. 295).

⁹¹ Cf. e.g. Windscheid/Kipp, § 401.

⁹³ Cf. e.g. Dcrnburg, vol. II, § 38, n. 8.

the main policy reason being that a debtor who avails himself of the advantages of the distribution of labour creates additional risks for the creditor's property, for which, in turn, he must be responsible.^{[2008] [2009] He must bear the consequences for performing his obligation in the way he does.}

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