The meaning of "occidere"

"Occidere", for the Roman lawyers, was different from (and entailed another legal sanction than) "causam mortis praebere". But what exactly did the term positively imply? Etymologically, it was thought to derive from "caedere" and "caedes", that is, from words connoting direct slaying.^[5059] Hence the following definition was suggested by lulianus: "...

lege Aquilia is demum teneri visus est, qui adhibita vi et quasi manu causam mortis praebuisset";^[5060] the death must have been brought about by force, and as the direct result of the defendant's physical action. Ulpian is perhaps slightly more precise when he states that the word "killing" implies either the use of a sword or similar weapon or a direct and violent application of the wrongdoer's body or any part of it against the victim (as, for instance, strangling, kicking or butting).^[5061] But Roman definitions cannot always be taken at face value. What Julian and Ulpian are providing is the core meaning of the word;'^[5062]" but not every element of their definition was absolutely indispensable. More particularly, the Roman lawyers did not always require the use of force. Thus, Labeo was prepared to grant the actio legis Aquiliae against a midwife who administered a poisonous drug to one of her clients, provided only she administered the drug with her own hands. "[S]i quidem suis manibus supposuit":^[5063] nothing in the text suggests that the midwife must have forced the potion down the other woman's throat. Ulpian placed this point beyond all doubt when he commented: "[s]i... per vim vel suasum medicamentum... infundit..., lege Aquilia teneri."^[5064] The position was the same where someone killed another by injecting a lethal substance into his arm or by rubbing him with a poisonous potion.^[5065] Again, it was irrelevant whether the patient was forced or merely persuaded to undergo this kind of treatment.

What mattered was whether the murderer had with his own hands given the injection or rubbed in the potion. The mere act of handing the drug or potion over to the patient, with the request to apply it to himself, was not regarded as sufficient. It did not constitute "occidere". Since, however, it involved "mortis causam praestare", an actio in factum was available.^[5066] "Si quis corpore suo damnum dederit": this is how Gaius described the essential criterion for the range of application of the actio legis Aquiliae.^[5067] The death must have been brought about by the wrongdoer "with his own body", it must have been the direct consequence of a physical action of his.^[5068] ² Thus,^[5069] the lex Aquilia was applicable when someone had killed a slave by dashing him against a rock, ^[5070] by dropping a heavy load upon him^[5071] or by piercing him with a javelin.^[5072] A decretal actio in factum,^[5073] on the other hand, had to be resorted to against a person who held a slave so that a third party could murder him;^[5074] who persuaded a slave to go down a dangerous well where he was killed;^[5075] who gave a madman a sword, which the latter promptly used to commit suicide^[5076] or who caused the slave's death by pushing a third party into him.^[5077] The cases involving the red flag^[5078] and the scared horse^[5079] also fall into this category, and so do, very importantly, those cases where the death ultimately had occurred as the result of an omission. "Si quis hominem fame necavcrit, in factum actione teneri Neratius ait":^[5080] this was apparently a much discussed example. It is obvious that if someone caused another person to starve to death, the "corpore suo" requirement inherent in the term "occidere" was not complied with.¹⁸⁵ Of course, it cannot always have been easy to draw the line, and many cases must have been controversial.¹⁸⁶ Celsus, for instance, was prepared to grant an actio legis Aquiliac where someone drowned as a result of having been thrown off a bridge.¹⁸⁷ Unlike the person who had scared the horse, the wrongdoer had in this case used direct bodily violence against his victim: he had thrown him into the water.

Arguably, however, he had thereby furnished only a cause of death—for ultimately it was the force of the current that had killed the man. Hence we find Gaius arguing in favour of a mere action on the case.¹⁸⁸ Another interesting case is discussed by Proculus. Someone irritates a dog in order to make him bite and kill somebody else's slave. Proculus appears to regard the dog as a kind of weapon (such as a javelin thrown at another) and therefore considers the actio legis Aquiliae to be applicable. ¹⁸’’ Julian disagrees; in his opinion, the owner of the slave had to use an actio in factum, unless the dog had in fact been "held" by the defendant (in his hands? on a lead?)¹⁹⁰

^1K5 Cf. further Gai. HI. 219; Ulp. D. 9, 2, 2Y, 7; Lab./Ulp. D. 47, S. 2, 20; von Lubtow, Lex Aquiiia, pp. 148 Uf. Ulp. D. 19, 5, 14, ! deals with a case where a slave freezes to death because his clothes have been taken away. In both instances we are, however, not dealing with a "mere" omission; here, too, the death occurred as an indirect result of a previous action of the defendant: he had locked the slave in (so that he starved); he had taken away his clothes (so that he was exposed to the chill of a winter night).

^1Mfl Similar problems arose with regard to the tort of trespass. For an instructive example cf. Scoff i'. Shepherd (1773) 2 Black W 892: A throws a lighted squib into a crowd, where it falls upon B. B, in alarm, throws it away and it falls upon C, who does the same as B. The squib ends its journey by falling upon D, exploding and putting out his eye. The whole incident took place on a fair day, close to Guy Fawkes Night. Three of the judges regarded this as trespass by A to D; Blackstone J dissented and held an action on the case to be necessary. To read thejudgment is indeed to "step back into the age ot Julian and Ulpian and to be surprised by the anachronism that the Roman discussion is conducted in the prose of Boswell" (Andrews.

(19S7) 46 Cambridge LJ 321). For an in-depth analysis, cf. M.J. Prichard. Scott e. Shepherd (1773) and the Emergence of the Tort of Negligence (1976").

⁷ Cf. Ulp. D. 9, 2, 7, 7. It did not matter "sive ipso ictu pcrierit aut continue submersus est aut lassatus vi fluminus victus perierit".

¹¹¹¹¹ III. 219: "... item si quis alieuum servum de pome aut ripa in flumen proiccit"; cf. von Lubtow, Lex Aquiiia, pp. 145 sq. But some editors read "sed si" in place of "item si"; Gains would then have to be taken to have shared Celsius's opinion (as did, incidentally, Justinian: Inst. IV, 3, 16).

^IK" Ulp. D. 9,2, 11, 5; not interpolated: cf- MacCormack, (1975)41 SDH/14 sqq. against von Lubtow, Lex Aquiiia, p. 152 and others.

^{19the house itself.^[5104] "Rumpere", in turn, appears originally to have meant something like "to break", "to smash" or "to rend asunder", and it was primarily used, from the days of the XII Tables, to describe situations where a severe bodily injury was directly inflicted on a slave or animal.^[5105] This traditional core meaning is still reflected in the definition provided by Ulpianus:}

"Rupisse etim utique accipiemus, qui vulneravit, vel virgis vel loris vel pugnis cecidit, vel telo vel quo alio, ut scinderet alicui corpus, vel tumorem fecerit."^[5106]

Problems could arise in cases where a direct injury was inflicted and damage caused, but where the object of the injury itself nevertheless remained whole. Prototype was the situation where someone caused a miscarriage by striking a pregnant mare or woman. lunius Brutus was prepared cautiously to extend the scope of "rumpere" (and thus: of the third chapter of the lex Aquilia): "Si mulier pugno vel equa ictu a te percussa ciecerit, Brutus ait Aquilia teneri quasi rupto."^[5107] ^{^[5108] ^[5109] ^[5110] ^[5111] ^[5112] ^[5113] ^[5114] In a way, of course, the body of the mare (or woman) had indeed been "broken" when the foal (or child) was ejected prematurely.}

Celsus, however, took matters much beyond the concept of a "quasi rumpere". He boldly equated rumpere with corrumpere ("ruptum enim intellegitur, quod quoquo modo corruptum est")/¹⁸ which meant as much as to "spoil", "to make something worse", "to deteriorate". As a result, every form of physical deterioration was now covered by the lex Aquilia,²¹⁹ and thus an action could be brought, for instance, if wine was adulterated or poured away,²²" if clothes were torn or stained,²²¹ if millet or grain was thrown into a river,²²² if a document was rendered illegible,²²³ if a ship was scuttled²²⁴ or damaged in a collision,^[5115] if a mule broke down because it had been overloaded^[5116] or if unripe grapes were cut down from their vine.^[5117]

Celsus' view appears to have been readily received by the majority of Roman jurists. Of course, it was bound to render the other two verbs contained in chapter three, "urere" and "frangere", somewhat redundant. Celsus himself did not deny that,^[5118] ^{^[5119] but, as he himself explained:.. non esse novum, ut lex specialiter quibusdam}

enumerates generate subiciat verbum, quo specialia complcctatur.^1,229 Furthermore, the surprisingly liberal approach with regard to the word "rumpere" in chapter three may be said to correspond rather badly with the strict interpretation of "occidere" in chapter one. But the significance of reading "corrumpere" into chapter three was to make irrelevant any enquiry into the type of physical result that had occurred.^[5120] This was a problem that could not arise in chapter one, where the physical result was always death. Only as far as the question of indirect causation was concerned were thejurists faced with a similar problem under both chapters, and in this regard the same narrow approach was as consistently maintained under chapter three as under chapter one. Again, however, actiones in factum were available where the defendant had not injured the object corpore suo. This was the case, for instance, where a cooper who had been hired to mend a vat, punctured it so that the wine contained in it ran out.^[5121] The wine had been "corrupted", but the link between the cooper's physical action and the damage was not direct enough.

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The meaning of "occidere"

More on the topic The meaning of "occidere":