The actio legis Aquiliae and analogous remedies

997 fuerit, sed alio modo damnum alicui contigit."³⁰⁶ This scheme, of course, had little to do with the historical truth;³⁰⁷ nor did it really correspond with the sources contained in the Digest.™ Still, it was not without elegance; and since, in any event, the whole question was devoid of any practical relevance, it survived the centuries essentially unchallenged. Down to the days of the pandectists, Justinian's threefold classification was faithfully preserved,³⁰⁹ but it was noted that for all practical purposes there was no difference between the various types of,■ 310

actions.

That is, cases where the owner was deprived of the use of his object which, in turn, was, however, neither damaged nor stolen; cf. the examples supra, pp. 986 sq.

‘ ⁷ Thomas, Institutes, pp. 274 sq. writes with mild irony: "... the imperial assertion in respect of the niceties of a system of procedure several centuries out of use may be received with scepticism."

3118 ?f already Pernice, Sachbesdicidigungen. pp. 144 sqq. Von Liibtow, LexAquilia. pp. 135 sqq., 180 sqq., 202 sqq., cf. also idem, (1984) 30 Labeo 317 sqq. has, however, argued chat lint. IV, 3, 16 reflects the position in classical law. Cf, for example, Gliick, vol. 10, pp. 334 sq.

^{31But there were certain exceptional situations, where the equation occidere/urere frangere rumpere = occidere/urere frangere rumpere iniuria did not work out; situations where, as the modern lawyer would say, the injury, although it had been inflicted both directly and intentionally, was justified.9}

(b) Self-defence

Self-defence was the first of these grounds of justification.

Pernicc, Sachbeschiidi gungen. pp. 26 sqq., 34 sqq.; Schipani, Lex Aquilia. pp. 51 sqq., 296 sqq.; Peter Birks, "The Early History of iniuria", (1969) 37 TR 163 sqq.; von Lubtow, Lex Aquilia. pp. S3 sqq., 94 sqq.

^H A similar argument is usually adopted as far as the interpretation of § 823 I BGB is concerned and hence the distinction, even in the interpretatio moderna of the German statutory version of Aquilian liability, between direct injuries on the one hand, and those brought about indirectly and liability for omissions on the other. Here the wrongfulness of the defendant's behaviour has to be positively established (did he owe a duty of care to the plaintiff and did he act in breach of this duty? The enquiry is thus very similar to the one conducted in English law in order to establish "negligence" (cf., for example, infra, p. 1039, note 264); it involves the balancing of conflicting interests and is thus ultimately a matter o( public policy; cf. e.g. Fleming, Torts, pp. 125 sqq.; Boberg, Delia, pp. 33 sqq.); there the element of wrongfulness is taken to be automatically satisfied and is removed only if a specific legally recognized defence can be invoked. Cf. Ernst von Caemmerer, " Wandlungen des Deliktrechts", in: Gesammehe Schnften. vol. 1 (1968), pp. 478 sqq.; Hans Stoll, "Unrechtstypen bei Vcrletzung absoluter Rechte", (1963) 162 Archiv fur die civilistische Praxis 205 sqq.

⁴ Cf., in particular, Peruke, Sachbesdia'digungeti. pp. 34 sqq.; Ben Beinart, "The relationship of iniuria and culpa in the lex Aquilia", in: Stitdi in onore di Vincenzo Arangio-Ruiz. vol. I (1953), pp. 282 sqq.; Lawson/Markesinis, pp. 19 sqq.; Hausmaninger, Lex Aquilia. pp. 20 sqq.

^D Ulp. D. 43, 16, 1, 27; cf. also Gai. D. 9, 2, 4 pr. ("... nam adversus pericuh m naturalis ratio permittit se defendere"); Paul. D. 9, 2, 45, 4 ("vim enim vi defendere omnes leges omniaque iura pcrmittunt"); Alfred Pernice, Labeo. vol. II, 1 (2nd ed., 1895), pp. 73 sqq.; Paul van Warmelo. "Noodweer", 1967 ActaJuridica 10 sqq; Giannctto Longo, "Sulla legittima difesa e sullo stato di neccssita in diritto romano", in: Sein und Werden im Recht. Festgabefur Ulrich von Lubtow (1970), pp. 321 sqq.; Hausmaninger, Lex Aquilia. pp. 20 sq.; Andreas Wacke, "Defence and necessity in Aquilian liability", (1987) 20 Dejure 83 sqq. On the philosophical justification of defence in terms of the ius naturale and the ius gentium, cf. Stephan Kuttner. Kanonistische Sclmldtehre von Gratian bis aufdie Dekretalen Gregors IX (1935). pp. 334 sqq.

¹ Paul. D. 9, 2, 45, 4.

imminent. Use of force against a person who has already completed his attack cannot be justified, since it constitutes an act of revenge, rather than self-defence: "ilium... solum qui vim infert ferire conceditur, et hoc, si tuendi dumtaxat, non etiam ulciscendi causa factum sit."^{[5202] [5203] [5204] And finally, even if the attack was both unlawful and imminent, the prospective victim was not allowed to resort to unreasonable and excessive means in order to try to ward it off.[5205] Of course, if one's life was threatened, one was allowed to kill the attacker.[5206] But if an imminent theft could have been prevented by arresting the thief, it was not permissible quite simply to stab him to death.[5207] [5208] If somebody was hit with a whip and, in the resulting brawl, poked out one of the attacker's eyes, he had not acted iniuria;111 but if a shopkeeper, whose lantern was taken away, pursued the thief, got hold of him, tried to snatch back his lantern and, in the course of doing so, put out the thief's eye with a spiked whip[5209] which he was carrying, he was accountable for the injury inflicted.[5210]-[5211]}

(c) Necessity

If we turn our attention to the second of the above-mentioned examples, we encounter a different kind of justification. If C pulls down his neighbour's house in order to save his own, he does not act in self-defence. After all, no unlawful attack is emanating from that neighbour or his house. Nevertheless, C's action may be justified on the basis of, as a modern lawyer would say, (inevitable) necessity.^[5212] The defence of necessity involves "more obviously than any (other) a hard choice between competing values and a sacrifice of one to the other":^[5213] without having himself committed any wrong, the neighbour is made to suffer the destruction of his property. Obviously, this can be expected of him only under very special circumstances. Just how special was disputed amongst the Roman lawyers.^[5214] According to Servius,^[5215] C's interference with his neighbour's property must have been (objectively) necessary in order to avert a present danger from his own house: only if the fire did in fact reach the neighbour's piece of land was C not taken to have acted unlawfully. Celsus drew the line slightly differently. He did not make the decision dependent on an ex post facto evaluation of the situation, but looked at it from the perspective of the person whose house was threatened by the fire: he was allowed to pull down his neighbour's house, irrespective of whether the fire eventually reached that plot or not—provided only he had been moved by a reasonable fear ("iusto enim metu ductus").^[5216] Ulpian appears to have approved of this more liberal view when he said "nee enim iniuria hoc fecit, qui se tueri voluit, cum alias non posset",^[5217] But however this particular issue was settled, nobody appears to have found anything wrong with the fact that the interest protected (the security of C's house) can hardly be said to have outweighed, in principle, the interest of the neighbour not to have his property interfered with. This is rather surprising. Modern legal systems tend to require that the object saved must be considerably more valuable than the one sacrificed;²" and while one may therefore destroy one's neighbours' flowerbeds in an attempt to save one's own house, it is much less obvious that a person should be allowed to sacrifice someone else's house in order to save his own.

It would, however, be rash to generalize the solution adopted by the Roman lawyers in the fire cases. Their lack of concern for the neighbour's property may have been based on the fact that his house was (or at least: appeared to be) doomed by the fire anyway. Under those circumstances, C, in a way, did not save his own house by causing his neighbour any damage; he merely anticipated, as far as the neighbour's house was concerned, what was about to happen to it in any event.²⁷ At the same time—and that may well have been a second factor militating against imposing liability on the trespasser—C not only saved his own house, but in most cases must have made a significant contribution towards preventing the fire from spreading to other parts of the town. Fires, it will be remembered,²⁸ were a constant source of apprehension; considering the cramped living conditions in large parts of urban Rome, one was all too often unable to contain them." Once a fire was raging, any private initiative to try to stop it must have been welcome and deserved to be encouraged; and while C may merely have had the safety of his own house in his mind, he usually acted at the same time as a "public champion".³⁰

In other cases of emergency the Roman lawyers never seem to have carried the trespasser's exemption from liability that far; there are no other decisions which would have allowed him to infringe upon an interest equal to or even more valuable than the one saved.³¹ We merely

sqq. (things sacrificed must be less valuable than the things saved (France); the damage caused must be less serious in kind and quantity than the one the defendant tried to avoid (Argentina)). Only in the common-law countries does there appear to be no specific requirement of this kind; but even here, the measures which are taken must be "reasonable" (cf Winfield and Jolowicz, p. 723, cf also p. 725 (more latitude in the protection of the actor's person than of his property)). German law (§ 904, 2 BGB) as well as some other legal systems, whilst maintaining that the infringement of the third party's interest is justified, nevertheless grant a claim for compensation on equitable grounds to that third party; cf. e.g. Limpens/Kruithof/Meinertzhagen-Limpens, op. cit., note 6, nn. 179 sqq.; Fleming, Torts, pp. 88 sq.; Winfield and Jolowicz, pp. 723 sqq.

" Cf., along very similar lines, Reinhard Willvonseder, Die Verwendung der Denkflgur der "condicio sine qua non" hei den romischen Jttristen (1984), pp. 157 sqq.; Lawson/Markesinis, p. 21.

"^M Cf. supra, pp. 347 sq.

⁴ "The terrible frequency of devastating conflagrations is one of the most remarkable things in the history of Ancient Rome, and hardly less extraordinary is the apparent inadequacy of counteracting measures": P.K. Baillie Reynolds, The Vigiles of Imperial Rome (1926), p. 13. Only Augustus established the vigiles, who acted as police force as well as a fire brigade; for details, see W. Krcnkel, in: Kleiner Pauly, vol. V. col. 1270 and the work by Baillie Reynolds.

^{3D. 47. 10. 15. 46; Paul. D. 44. 7. 34 pr.}

(b) "Occidere", "were frangere rumpere" iniuria

How precisely one arrived at this kind of interpretation is a matter of speculation.^[5225] It is likely, though, that originally (both before and at the time of the enactment of the lex Aquilia) "occidere" and "mere frangere rumpere" were used to describe certain acts that could typically only be committed intentionally. If a slave is stabbed to death or if a lighted torch is thrust into his face, this is not only prima facie wrongful, but can normally only have been done dolo. In a way, therefore, one can say that this ancient type of liability was strict, or absolute: the wrongdoer was liable irrespective of whether or not he, in this specific case, had been at fault. But the (objective) requirements of the delict were such that it was rather unlikely that he had caused the death or damage without intention. Inclusion of the term "iniuria" in chapters one and three of the lex Aquilia was an acknowledgement of the fact that certain exceptional situations existed where the defendant ought to escape liability (though he had committed "occidere" or "mere frangere rumpere"). If the slave had attacked the defendant, the latter did not act non iure when he singed or stabbed him. It was still quite natural that his action had been wilful, but he was now allowed to assert that he had acted in pursuance of a right which justified infliction of the damnum (the wrongfulness aspect of iniuria).

(c) From (typical) dolus to fault at large

But then cases may have arisen where the injury had still been caused directly and where the defendant could not be said to have acted "iure", but where it was nevertheless deemed unreasonable to impose liability. Somebody burns stubble on his fields; it is a quiet day, and he watches the fire most diligently. A sudden and entirely unforeseeable gust of wind makes the fire flare up and spread to the neighbour's field.^{[5226] [5227] Or take the example of a ship ramming another vessel coming towards it, not as a result of a steering mistake, but because it was thrown about by a tempest in such a manner that it could no longer be controlled.4(1 These kinds of cases must have come up for consideration increasingly frequently, once the requirement of the use of force in chapter one was no longer taken very seriously,[5228] the "mere frangere rumpere" of chapter three had been replaced by the much less descriptive term "corrumpere"[5229] and Aquilian-type liability was generally extended by actiones in factum. And even if the requirement of "corpore damnum datum" was retained, as far as the actio legis Aquiliae (directa) was concerned, it can hardly be denied that there is some element of indirectness in the situations mentioned. The stubble case was in fact much disputed; Celsus was in favour of granting an actio in factum rather than the actio legis Aquiliae.[5230] In any event, we are dealing here with borderline cases, where it was no longer possible to infer from the factual situation that the damage must—typically—have been caused intentionally. Thus, not unlike the courts in England many centuries later, the Roman lawyers may have recognized a defence of (inevitable) accident.[5231] It was new in that it did not fit in with the "non iure" interpretation of iniuria; but it was perfectly possible to maintain that wherever death or damage constituted casus, the defendant had not acted iniuria. All that was involved was a reinterpretation, or perhaps rather an interpretative extension, of the concept of iniuria. The next step was, obviously, to formulate positively what had so far been recognized by way of exception: if the defendant was not liable for casus, that meant as much as that he was liable for fault.[5232]' His fault could, of course, but did not necessarily have to, take the form of dolus.}

(d) Wrongfulness and fault

As a result of these developments, one had overcome the archaic form of strict liability and had adopted a flexible and ethically more satisfactory approach that turned on the inquiry of whether or not the defendant had in fact behaved as he should have behaved. This more refined criterion must soon have superseded or swallowed the older concept of iniuria:^[5233] damnum iniuria datum was replaced, for all practical purposes, by damnum culpa datum. And, indeed, as long as the notion of culpa was not converted into the equivalent of our modern idea of negligence,^[5234] it was perfectly possible to make it cover the same ground as the earlier "iniuria" concept. If the aedil (by smashing the beds) had done what the law permitted him to do, how could one say that he had been at fault? Or if the sailors cut the anchor ropes of the ship into which their own vessel had been blown: how could one refer to this act as damnum culpa datum? After all, they had done what they were allowed to do under the circumstances.^[5235] Culpa, in other words, became the all-embracing criterion upon which the liability of whoever had committed "occidere" or "corrumpere" depended.^[5236] Iniuria, in the sense of "non hire", was submerged, and thus we find the Roman jurists thinking mainly in terms of dolus and culpa, even in what we would regard as the proper province of wrongfulness.^[5237] The modern systematic distinction between wrongful­ness and fault as two separate elements of delictual liability is alien to our classical sources. Its foundations were laid by Justinian. In his Institutes he states that "iniuria occidere" means "nullo iure occidere" and he illustrates the meaning of "non iure" with the example of self- defence.^[5238] He then turns to the concept of culpa, without referring to the term "iniuria" or to problems of wrongfulness any longer.^{[5239] [5240] But by his time the notion of culpa had acquired the more specialized and technical meaning of "negligence"54 (did the defendant exercise the care of a bonus paterfamilias?—hardly a meaningful test question to determine issues of wrongfulness ).}

3.