The Measure of Recovery

This is the last major topic. Its place offends against the system used so far in that we have left the statutory core and must now return to it. We know very little about the measure of recovery under the praetorian actions, though we are entitled to assume that it was the same as in the actio directa, at least unless there are arguments to the contrary.

i. Lis crescit (the suit enlarges)

Under both main chapters the action gave double damages against a defendant who contested his liability. That is a fierce rule which probably has a historical explanation: in the legis actio system of pro­cedure the defendant would have been subject to manus iniectio, phys­ical seizure against which there was no defence unless a vindex came forward to throw off the claimant's hand. The third party defender brought the action on himself, for double the damages. Hence a vindex would not lightly take up the defence.

If the defendant admitted liability the action was called confessoria. You might think that there would be nothing to litigate about if the defendant confessed. But in the actio confessoria he would still contest the measure; and without incurring the doubling he was allowed to show that the event had not happened at all. The slave supposed to have been killed was actually alive and well. Confession precluded only argument on the issues of liability, corpore suo and iniuria.

It has been suggested, though the matter is not clear, that there was no doubling of damages in the praetorian actions.

ii. The original measure

Doubling does not tell us the unit to be doubled. What did the statute intend to be the simplum? Under ch. I the answer is straightforward. The original measure was the highest value of the now dead res during the preceding year. The words of the lex are clear. The condemnation is to be plurimi, for the greatest value, in eo anno, in that year.

The measure under ch. III causes endless trouble. We know two things for certain. First, there was no mention of �highest’ value, because it was on the authority of Sabinus that the word �plurimi was implied into ch. III to balance its presence in ch. I. Gaius reports this at G.3.218. Secondly, the period of time mentioned was not a year but thirty days.

Daube argues that the measure was meant to work quite differently from that under ch. I. What was intended was that there should be a delay of thirty days to see how the matter developed.²⁴ The defendant could get the loss as calculated after a month had passed. The point was that wounds need to be waited for in that way, being unpredictable. The words in Latin will more than bear that interpretation: in diebus triginta proximis is, literally, â€?in the nearest thirty days', which could be prospective. And it is not impossible that the verb was erit, in the future: â€?as much as ea res shall be worth over the next XXX days.'

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Daube (n.5), 256ff.

This is attractive. The measure is very suitable for wounds, not crazy for other kinds of damage (though Daube himself thought inanimate damage was not at first included).^[70] The trouble is that the ch. III provision does seem to have been interpreted symmetrically with ch. I at least from Sabinus onwards. That is, at least from the beginning of the classical period. The XXX days were thrown backwards, and plurimi was read in. Why would it have been turned round? It was better as it was.

Jolowicz thought the measure had from the start been substantially the same as for ch. I, the value of the thing in the previous month.^[71] That really is a mad measure for wounding and other partial destruc­tion: full value for a cut or a chip, even if the depreciation was slight. So Jolowicz said the early substantive scope of the chapter was originally confined to destruction of non-ch. I objects.

Kelly suggested that the XXX days was not a period for valuation but a period for payment, later converted into a period for valuation on the model of ch. I.^[72] That is very attractive. I incline to the view that it may be right. The lex may have wanted the loss to be paid within one month, the means being ea res, the matter, i.e. the loss-causing disaster: let him pay its value within a month.

These difficulties are interesting and probably insoluble. It probably remains true that all the classics took the ch. III provision to be retrospective, working, with the help of Sabinus's plurimi, exactly as that of ch. I except with XXX (30) instead of CCCLXV (365) days.

iii. Full value under chapter III?

The uncertainties of the very early period oblige us to accept a base for ch. III some 200 years after the enactment: highest value in XXX retrospective days. Wounds were certainly included. Do we assume that I recovered 100 per cent for a wound depreciating a slave or cow by 1 per cent? Probably the �highest value' calculation was only to

218 delicts

provide a base from which to work. The penal nature of the lex cannot explain such gross disparity. The safest assumption is that full value so calculated was the prima facie measure of recovery, subject to a deduc­tion of the injured res’s surviving value. You recover 100 but if he was depreciated by only i, you must be taken to have received 99 already.

iv. The measure in high classical law

There was evidently a move away from value and to interesse.

There seem to have been two stages. In the first, one recovered the basic sum, the highest value, in every case; but one might get more if one could show that one had lost more. This is the �more but not less’ stage. You kill my slave. He was part of a team. I recover his value plus the loss from the depreciation of the team as a whole. Or he was just about to enter an inheritance which had been left to him. I can have the value of that too, which would have been mine if he had been able to enter. This is shortly described in G.3.212.

However, Ulpian seems to have gone further. He was apparently willing to switch so completely to the interesse principle that he could contemplate displacing the statutory measure altogether. If his interesse was less than the value the plaintiff would therefore get less than his statutory entitlement. That is a difficult way of putting it, but the steps in the interpretation are no easier. For an example, suppose this case. Among my slaves is X the illegitimate son of my cousin, Titius. Titius dies. Under his will X is to be heir if I free him, in which case I shall receive from the huge estate a legacy of ten times his market value. If X fails to take the inheritance for any reason other than my refusal to manumit, I am myself to be heir. You now negligently kill X after Titius' death but before I can manumit him.

(a) he had a calculable market value and (b) that value was enhanced by the legacy attached to him. But Ulpian will give no award.^[73] A century before, Julian would have allowed me to recover the market value as a minimum beyond which I could not fall.

Details under ch. III are obscure but two observations are worth making. First, consequential losses could sometimes be recovered by a separate action. I cut a rope. The ship on the other end floats off and hits a rock. There is an actio directa for the rope, an actio in factum (here also undoubtedly utilis) for the ship. If you could, did you have to divide in this way in classical law? I think the answer is that you did. You could not recover the value of the ship just as part of your interesse in the rope. This then raises a more alarming supplementary question: what if the consequential loss was of a kind not independently action­able? Because you injure my slave I fail to get my olives to market on a day when there is still a short supply; on the next market day there is a glut. So I lose profits. This question cannot be securely answered. It would be odd to allow some consequential losses to be reached by the actio directa while still insisting that those recoverable by actio in factum should be separately pursued.

The second observation is that a measure of recovery based on depreciation does obliquely reach many common consequential losses. Suppose a horse injured. The value before the disaster was 100. A vet will have to be called. The first item of depreciation from the stand­point of a notional buyer contemplating the fresh injury is the vet's bill, say 20. Hence, the horse, as is, goes down to 80. Then there is an imperfect recovery factor: if he gets better will he be as good as he was at 100? And a risk factor: will he pull through at all? The reductions attributable to these factors will depend very much on the nature of the injury.

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It is difficult to prove but this �depreciation’ approach seems to me to fit the classical law best for ch. III. Was the res depreciated by the disaster? You look at it from the standpoint of a notional buyer bidding after the disaster. The plaintiff gets the difference between the highest price in the preceding XXX days, and the price which the notional buyer, anticipating repair work and so on, would give after the disaster (presumably one should say, immediately after the disaster).

Notice two similar cases. I am fond of my slave and I get a doctor to look at the black eye which you have given her. The bill is 20. But an unsentimental buyer would have taken nothing off: â€?She’ll soon be over that.’ No expenses anticipated, no risk factor, ergo no depreciation. Hence I recover nothing. Ulpian is made to say the opposite at D.9.2.27.17,²⁹ but the text survives also in the Collatio at 12.4. There he does deny recovery. Suppose therefore that I insist on getting repaired something which you have broken very badly. Here there is depreciation but I spend more than is reasonable. For the sake of the friend who gave it I spend twice its value repairing a quite ordinary cooking pot. What would Ulpian have awarded? The notional buyer would have given me nothing on the ground that it would cost more to repair than to replace. His advice would have been to throw the pieces away. I think Ulpian and his predecessors would have given only the market price, not the actual repair bill. In 1981 the National Gallery in London restored a painting by Bryan Organ of Diana Spencer. It was said that the cost of making good the vandal’s attack was greater than the cost of commissioning a new portrait. Let us accept the assumption that a second commission was possible, at £x. It does not follow that the Gallery unreasonably spent £x + 1 repairing the first portrait. Each painting is unique. Getting another means getting a different item by way of substitute. Possibly the value of the first version was £2x and the anticipated value of the repaired version still greater than £x + 1. Sentimental expenses, which the market will not contemplate, are only those which exceed the value which they can restore.

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Ulpian, 18 On the Edict.