4. The liber homo bona fide serviens
The actio legis Aquiliae utilis was granted in a second type of situation by the classical lawyers: where a freeman had been injured, who did not know about his status and served in good faith as someone else's slave (liber homo bona fide serviens).
Ulpian must have referred to him when he said: "Liber homo suo nomine utilem Aquiliae habet actionem.'"16 Extension of Aquilian protection to the injury of sons in power could still be explained on the basis that the position of the paterfamilias was not altogether dissimilar to that of the erus (dominus) as contemplated by the lex Aquilia. In the case of Ulp. D. 9, 2, 13 pr. we are, however, for the first time dealing with a situation where the injured person was allowed to bring the action himself ("suo nomine"). This was another significant advance, justified, probably, on the ground that, since this person had so far been treated as a slave, it would have been inequitable to withhold the specific protection accorded to a slave from him.117 Of course, the liber homo bona fide serviens was not able to claim what his dominus would have been able to claim had he been his slave, particularly not his diminution in value; this was prevented by the principle of "liberum corpus nullam recepit aestimationem". Again, however, the action could be brought to recover medical expenses and the loss of earnings that resulted from his injury.Was this breakthrough further exploited by the Roman lawyers, in that they made the actio utilis available in other cases of injuries to persons sui iuris? The Digest contains a certain number of texts where any reference to the status of the injured person is lacking: the cases concerning the theft of the shopkeeper's lantern,118 the dog who is made to bite "aliquem"119 and the fatal fall from the bridge120 belong to this category. But it may well have been taken for granted that the injured person was a slave, and any argument based merely on an occasional generalizing "quidam" or "aliquis", is far too tenuous. D. 9, 2, 13 pr., as it stands, would of course provide a much more solid basis, but it is virtually certain that the text was generalized by the compilers.121 They, rather than the classical lawyers, appear to have been responsible for taking the final step and extending the ambit of Aquilian protection to damage to freemen in general.122
More on the topic 4. The liber homo bona fide serviens:
- CHAPTER XV. SPECIAL CASES (cont.). BONA FIDE SERVIENS. SERVUS MALA FIDE POSSESSUS. SERVUS FRUCTUARIUS, USUARIUS.
- �Homo sum: humani nihil a me alienum puto’
- From Cetera Bona to Independent General Pledge
- Freedom of contract and its limitation
- Roman Law Terms with Letters V
- The protection of a freeman's life and bodily integrity
- Walker B.. Selected Titles from the Digest. Cambridge: At the University Press,1881. — 190 p., 1881
- The sale of res extra commercium or of a free man
- Liability under the actio empti
- Pacta ex continent adiecta
- The admissibility of resolutive conditions