The composition of the lex Aquilia
The next of our open questions concerns the strange way in which the lex Aquilia was composed. The first chapter dealt with the wrongful killing of (male or female) slaves and of grazing animals (literally: four- footed beasts of the class of cattle), the third chapter provided a remedy for all other wrongful damage to property,[4947] inflicted by burning, breaking or tearing.
The second chapter, in turn, was concerned with a rather special situation, namely release of the debtor by an adstipulator in fraudem credit oris. It is obvious that chapters one and three belong together, and that chapter two is something of a corpus alienum in this context. True: all three chapters are, in a way, united by virtue of the fact that one person has caused another damage—damage to a specific piece of property in the first and third instances, (pure) pecuniary loss in the second one. Gaius specifically tries to demonstrate this common thread running through the provisions of the lex Aquilia ("Qua et ipsa [sc: secunda] parte legis damni nomine actionem introduci manifestum est.").3(1 But this kind of rationalization does not take us very far.[4948] [4949] It still remains to be explained why chapters one and three are separated in such a peculiar fashion; a rational legislator would hardly have structured the lex Aquilia in that manner.The idea thus suggests itself that the provisions of the lex Aquilia were not drafted at one and the same time.[4950] Ulpian, as we have seen,[4951] refers to certain provisions of the XII Tables, as well as to "some other statute",[4952] as having been replaced by the lex Aquilia. Since the XII Tables far from covered all the ground (regarding damage to res se moventes, we know only of a fine prescribed for the os fractum of a slave[4953]), it is not at all unlikely that such a "lex alia", preceding the enactment of the lex Aquilia, did in fact exist and that it dealt with the most important case of damage to two (in an agrarian society) particularly vital pieces of movable property, namely the killing of slaves or grazing quadrupeds.
This statute may have established fixed rates of compensation and was either published together with[4954] or at a later date followed by[4955] an enactment dealing with adstipulatio.[4956] These were the predecessors of chapters one and two of the lex Aquilia which, in turn, set out to reform the rules on killing and also added a general clause dealing with damage to property "praeter hominem et pecudem occisos".[4957] Chapter two could not yet be abandonded, since the actio mandati still had to be developed to provide a satisfactory solution to the problem of adstipulatio. Thus, the new provision was simply added as chapter three to the two old ones. This was practically much more convenient (though not entirely satisfactory from a systematic point of view) than altering the whole structure of the existing statute.45.
More on the topic The composition of the lex Aquilia:
- Dating the lex Aquilia
- The text of the lex Aquilia
- CHAPTER 29 Lex Aquilia 1
- I. ORIGIN AND CONTENT OF THE LEX AQUILIA
- Lex commissoria
- The lex Cincia de muneribus
- Statutory relief for non-Romans: the lex Calpurnia
- The lex Sancimus (C. 7, 47, 1)
- Lex Rhodia de iactu
- 1. Aequitas naturalis and the lex Si et me et Titium
- Condition, lex commissoria and rescission in South African law
- We have now sketched the framework within which to appreciate how the Roman jurists applied and interpreted the individual requirements for condemnation in terms of the lex Aquiiia.
- Dealing with the Abyss: The Nature and Purpose of the Rhodian Sea-law on Jettison (Lex Rhodia De Iactu, D 14.2) and the Making of Justinian's Digest
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria