THE JURISTS AND THE LAWS IN ROME

I have been told the issue was of no importance because thieves have no money. But the issue was important because if a slave committed theft, the owner was liable: either to pay the amount or deliver the slave in noxal surrender. The owner's choice would often be determined by the issue of whether the theft was manifest or non-manifest.

1 Roman partnership. I would like to discuss aspects of it in three historical stages, beginning with stage two.

ii. Around the third century BC^[12] the praetor introduced in his edict a model formula for partnership which was a partnership of all the assets of the partners.^[13] But there were two other forms of partnership existing then: partnership of one business; and partnership of one transaction. But no separate formulae for these were ever issued. That for all one's property had to do for all.

Yet partnership of all one's assets can scarcely have been the most important case when the formula was issued. It cannot have been a commercial contract. It is likely to have existed only among relatives or close friends who ran a farm together. But then why is it given the sole formula? Why is there no formula for a partnership of one business? To seek for an answer we must go to stage one.

i. At Roman law, only a free person who was not in paternal power could own property.

iii.Gai Inst 3.149 records an earlier dispute:

However, there was a great question whether a partnership could be formed on such terms that one party would take a larger share of the profit but a smaller share of loss. And Quintus Mucius thought not, because it was contrary to the nature of partnership. But Servius Sulpicius, whose view has prevailed, considered that such a partnership could be made; indeed, he went so far as to say that the contract can be entered on the terms that one party makes no contribution at all to the loss, but takes a share in any profit, so long as his services are regarded as so valuable that it is fair for him to be brought into the partnership on those terms. For it is now accepted that a partnership agree­ment can validly require one party to put up money but not the other, while still giving both parties equal shares of profit. Some people's services are often as valuable as a money contribution.”^[15]

Both Quintus Mucius, consul in 93 BC, and Servius, consul in 51 BC, were celebrated jurists. But what is the nature of the dispute? Modern commercial lawyers would have no difficulty in agreeing with Servius. It is self-evident that one partner's contribution can be so great that he should enjoy a greater share of any profit than he would suffer from any loss. Quintus Mucius' doctrine of equality seems unrealistic but it is more. It goes back beyond the edict to the old ercto non cito.

2 One further example among many, the actio aquae pluviae arcendae, from a provision of the Twelve Tables of around 451-450 BC. The general issue for consideration is: to what extent, in what ways, and with what remedies, may an owner of land be restrained by his neighbour from using his land in a way that is otherwise lawful in order to avoid causing a financial loss or reducing a financial benefit to the neighbour? I will look only at one issue concerned with water law: flow to a neighbour's land. The problem, of course, is that almost any agricultural, domestic, commercial or industrial use of water by one landowner will have an impact on other landowners.^[16]

This section as a whole points to two general conclusions. First, I argue that the starting-point in the granting of legal remedies will have a considerable impact on the unfolding of the law. Legislators, judges and jurists alike are so blinkered by the legal tradition that it is hard for them to change the thrust of the law. Second, in the absence of comprehensive, satisfactory legislation, subordinate lawmakers such as judges and jurists may well hold differing analyses of the law over a long period of time. It is not always true that one successful approach replaces another. The older approach may also continue. In this part I will consider first Roman law, then French law.

The Roman approach to the water usage problem framed above is, at first glance, deceptively simple. The Twelve Tables, the famous codifica­tion of Roman law around 451-450 BC, gave a remedy^[17] si aqua pluvia nocet - literally, “if rainwater does damage”. Precision on the original scope of the remedy is not possible,^[18] but this clause of the Twelve Tables set the scene for future development. By the first century BC at the latest, the praetor (the elected official in control of the courts) had issued a model formula for the action: “If it appear that the work was done on the estate at Capena, from which rainwater injures the estate of Aulus Agerius (plaintiff), on account of which Numerius Negidius (defendant)¹¹ ought to ward off that water from Aulus Agerius, if that matter is not restored at the discretion of the judge, etc.”^{[19] [20] This formulation of the issues remained the basis of the law even in the sixth-century reign of the Emperor Justinian.}

As was usual in Roman law, this brief formulation in the praetor's edict depended for its impact on interpretation by the jurists. Key elements of the remedy are not described. Still, the formula set the ground rules, and it must be emphasised that never again in the development of this area of the law did the Roman state intervene by legislation - though, as noted at the end of this section, three interdicts of limited significance were issued by the praetor.

Not all aspects of the water usage law need be considered here. Instead we will look at only a few of the main elements: the nature of the opus factum which would give rise to the action; the impact of the formulation si aqua pluvia nocet, “if rainwater does damage”; and the harm that was treated as actionable.

The following discussion from Ulpian, a jurist active in the early third century AD, is probably the most significant description of the requisite opus factum:

Quintus Mucius says this action is not available on account of that work which was done with a plough in order to cultivate a field. But Trebatius would make an exception not for work done with a plough to cultivate a field but only for ploughing to secure a crop of grain. 4. But Mucius said that even ditches made to drain fields were made in order to cultivate a field, but they ought not to be made so as to cause the water to flow in one channel. Thus, one ought to make one's own field better in such a way that one does not make one's neighbour's worse.

As in other areas of the law, the basic legal positions seem to have been fixed as early as the last century of the Republic. Of the three jurists mentioned in the texts, Quintus Mucius was consul in 95 BC, Trebatius was a protege of Cicero, and Ofilius belonged to Julius Caesar's inner circle.¹⁷ Even the differ­ences of opinion between them expressed in the texts seem, surprisingly, never to have been resolved.

What is striking at first glance (and remains so even after reflection) is the extremely wide scope that the jurists gave to opus factum. Almost all works done by humans on land that would increase the flow of harmful water on another's land would give rise to an action. Although Quintus Mucius would allow an exception for ploughing for agricultural purposes, Trebatius would restrict even this to the shallow ploughing needed for grain crops, and appar­ently would not even make an exception for the rather deeper ploughing needed for vines and olive trees.¹⁸ Mucius would also allow an exception for making water channels only when they were needed for planting and sowing; but even then he would permit an action against a landowner who allowed the surplus water to run onto a neighbour's land in one channel. Ofilius, however, would seem to be rather more lenient towards a landowner's using water for irrigation, even though a neighbour suffered loss from the surplus.

Alfenus, another jurist of the first century BC, is recorded as having expressed a clear view simply.¹⁹ A landowner could not be restrained from ploughing as he wished, even if by placing his furrows in a different direc­tion his neighbour would be uninjured.

16 D 39.3.1.3-5 (Ulpian, Edict 43).

17 See W Kunkel, Herkunft und soziale Stellung der römischen Juristen (1967) 18, 28.

18 See Columella, De Re Rustica 2.2.24.

19 D 39.3.24 (Alfenus, Digest 4).

20 D 39.3.24.1-2 (Alfenus, Digest 4).

21 D 39.3.1.6 (Ulpian, Edict 53).

view of unexceptional activity may have been current in the first century AD, when Labeo disallowed the action when the work was done for the gathering of fruit crops of any kind.^[24]

There is an element of ambiguity in the treatment of the subject by Ulpian, the jurist whose works were most used by the compilers of Justinian's Digest. At one point Ulpian writes that Sabinus and Cassius, both jurists of the first century AD, held that man-made works all came within the scope of the action unless they were for the purpose of cultivating a field.^[25] Almost immediately afterwards, however, Ulpian says that the same jurists wrote that the action would lie when man-made water channels caused injury by an increased or changed flow.^[26] Presumably these jurists, Labeo and Ulpian, intended that all non-agricultural work would give rise to the action where damage might result, and that some, but not all, agricultural work would be excluded from the scope of the action. Their view, then, would not represent a change from some views expressed in the preceding century.

As demonstrated by the texts so far examined on opus factum, the law remained remarkably static; the opinions expressed in the Republic in the first century BC were valid in the classical law of the third century Roman Empire as well as in sixth-century Byzantium when Justinian's Digest was published. Odder still, perhaps, is the inescapable conclusion that issues disputed in the first century BC were no nearer settlement in the sixth century AD. But the most surprising fact of all is the wide interpretation given of opus factum in this context. Virtually any operation on land, except the most basic agricultural use, that increased the flow of rainwater onto a neighbour's land, or changed its course so that the water did damage, would give rise to the actio aquae pluviae arcendae - an action whose primary purpose was the restoration of the status quo ante. No encouragement whatever was given to the improving landlord. Alternatively, one might find the surprising fact to be the very opposite: some agricultural uses of land would not give rise to the action even if a neighbour suffered loss as a result. Certainly, if the law was that a neighbour had a right to an action for loss caused by water flowing onto his land because of opus factum, there was no logical reason for refusing the action where the work done was ploughing for the cultivation of grain while granting it on account of other ploughing, or for refusing the action where the work done was making channels for the purpose of planting while granting it where the channels were for irrigation.

Law frequently develops with a logic of its own that seems independent of social and economic needs, and so it was in regard to yet another aspect of the availability of this action. The Twelve Tables' wording provided legal redress “si aqua pluvia nocet” - “if rainwater does damage” - and all subsequent juristic attention for wrongful damage by water in the country focused on this provision. But water actually injured only when it increased or flowed in a different channel, not when it was diminished or disappeared. Hence, the actio aquae pluviae arcendae did not apply when your neighbour cut off or reduced your water supply:

D 39.3.1.11 The same jurists [Sabinus and Cassius] say that everyone has the right to retain rainwater on his own land or to channel surface water from his neighbour's onto his own, provided no work is done on another's land (for no one is prohibited from benefiting himself provided he does not injure another) and no one is liable on this account. 12. Then Marcellus writes that no action, not even the action for fraud, can be brought against one who, while digging on his own land, diverts the stream of his neighbour. And certainly the latter ought not to have an action^[27] if he acted not with the intention of injuring his neighbour but to improve his land.

So, for reducing a neighbour's water supply the actio aquae pluviae arcendae did not lie, nor did any other action except perhaps the action for fraud (actio de dolo) when one acted deliberately to injure one's neighbour and not to benefit oneself. This was the law from the earliest times and remained the law in the age of Justinian. Just as the scope of the action for increasing the flow of water seems extraordinarily wide, that for diminishing the flow seems extraordinarily narrow. And not only is it obvious that a water supply is needed, but we know from numerous texts on the servitude of drawing water or of aqueduct that water from a neighbour's land was frequently wanted.^[28] No satisfactory explanation for this phenomenon can be drawn from economic or social conditions. An explanation must be sought within the law itself.^[29] The wording of the Twelve Tables and the name of the action were directed to warding off rainwater, and governments were so little interested in private law that the Roman state never again intervened to provide a further remedy (except for the interdicts still to be discussed).^[30] And jurists were so blinkered by their legal culture that they never sought to interpret the Twelve Tables' clause to include damage caused by deprivation of water.

Similarly, only legal tradition can explain why the law did not change to allow the judge in some circumstances to award compensation to the injured neighbour, rather than to order the defendant to destroy or permit to be destroyed the offending works. Obviously, it would frequently happen that potential gain to the maker of the work would be greater than loss to the neighbour, yet the latter would not agree to any deal. In other contexts judges were given discretion in the way the decision was formulated.^[31] In still others, they were able to issue a money judgment for a sum equal to what the defen­dant ought to give or do in accordance with good faith.^[32] As is typical, the Roman jurists seem to be unconcerned with social realities. There is not a word in our sources about neighbours doing a deal. But deals will have been common.

So far we have been concerned only with private law. The Roman jurists, in fact, drew a remarkably sharp distinction between private law and public law, and dealt almost exclusively with the former,^[33] by which they meant the interaction between one individual and another. In this instance, consider­ation of a public law dimension turns out to be illuminating. The Romans treated some rivers as public, and the praetor issued an interdict concerning these: “Do not do anything in a public river or on its bank, do not put anything into a public river or onto its bank, by which its position or its course for shipping becomes worse” (D 43.12.1; Ulpian, Edict 68). What counted as a public river was not entirely settled, but for Cassius, Celsus and Ulpian it was a river that flowed all year round (D 43.12.1.3). Because this edict dealt only with interference with navigation, its effects were restricted to navigable rivers (D 43.12.1.12) or, in the view of Labeo, to public rivers that visibly contributed to making navigable the river into which they flowed. For such public (or navigable) rivers, then, the right of landowners to use the water was restricted in the public interest. But this restriction would also benefit their neighbour. The landowner could not divert the public river or reduce its flow considerably. Thus, for such rivers the neighbour would in practice have equal right to a reasonable use.

Much more to our purpose would seem to be the second interdict. Ulpian gives its wording: “The praetor says: �?I forbid anything to be done in a public river or on its bank or anything to be put into the river whereby the water flows in a different manner than it flowed in the previous summer.”^[34]

This interdict applied to any public river, including those that were not navigable (D 43.13.1.2). Ulpian explains its purpose in a text in which the manuscript reading is insecure: “The praetor provided by this interdict that rivers do not dry up [exarescant] by channels that are not allowed or that a changed river bed does not cause some injury to neighbours” (D 43.13.1.1). Exarescant is the reading of the inferior manuscripts,^[35] and it seems to be generally preferred. But the prime manuscript, the Florentine, actually reads the questionable word as excrescent, “that rivers do not increase in volume”. If that were accepted as the proper reading, this part of the provision would be similar to the law for the actio aquae pluviae arcendae. In either case, however, the interdict seems to have been given a very limited scope, for Ulpian explains that it was not applicable where a neighbour changed the volume of the water's flow alone, but only where a neighbour changed the manner and direction of the current (D 43.13.1.3.). Thus, provided the neighbour did not use up all of the water in the public river, he could use and diminish the supply, as long as he did not change the manner of the water's flow. There was no attempt to strike a balance in the amount of use of water by, or of injury to, neighbouring proprietors.^[36] This interdict contained only a prohibition, but it was closely associated with another interdict ordering restitution where something had already been done that changed the water's flow (D 43.13.1.12f).

These last two interdicts thus did have an impact on the water rights of neighbouring proprietors. What seems surprising, however, is the lack of interest shown in them in Justinian's Digest, and hence apparently by the classical jurists. There is none of that detailed and subtle discussion that we find for the actio aquae pluviae arcendae. The relevant Digest title is very short and consists of only one text, by Ulpian in thirteen fragments, and he refers only once to another jurist, Labeo (D 43.13.1.13). The title on the actio aquae pluviae arcendae is much larger with twenty-six texts. The thrust, then, was always on that action. The neglect of the interdicts is most easily explained on the basis of the sharpness of the distinction between public and private law and the jurists' emphasis on the latter.^[37] At any rate, this juristic focus on the actio aquae pluviae arcendae had a great impact on subsequent discussion in French law.

C.