The Praetorian Periphery

Juristic interpretation of the statute sometimes produced results which failed to satisfy plaintiff demand. Such demand is, of course, not everything. It does not in itself justify reform.

The praetorian periphery can most easily be surveyed through the five questions used to consider the statutory core.

i. Has the plaintiff suffered loss (damnum)?

Here there is no extension. A plaintiff who had not suffered loss would be out of range not only of the lex but of the principle, however stated, which the lex reflected. Praetorian extension of this liability is essen­tially a matter of giving remedies for more kinds of damnum.

ii. Did that loss arise from a thing spoiled (res corrupta)?

Here there are extensions. It is an area which raises the issue which we refer to as �economic loss’, the central problem of which is that there is a danger of ramifying and unlimited liabilities and hence a need to go carefully.

It is necessary to distinguish two types of case. First there is the disaster in which the absence of spoiling is no more than technical or even freakish. There is something tantamount to damage or destruc­tion. Coins have gone down the drain irrecoverably. A diamond has been thrown over the side of a ship. An animal has been allowed to escape. These cases do not really raise the problems of �pure economic loss', for the damnum still arises from a necessarily limited and finite event, the reduction (albeit not by spoiling) of the plaintiff's corporeal wealth.

How far did the praetor go? There is no doubt that he would give an action in the first case. There is a hint, perhaps not reliable, that Sabinus was even willing to fudge the issue of res corrupta and allow the action under the lex.^[67] It has been thought that at least Justinian extended this extension so as to provide a general remedy for economic loss, but that is doubtful.^[68] Classical law, one may be almost certain, did not venture beyond the first kind of case. For economic loss caused by deliberate trickery there would be an actio doli, for fraud. Otherwise it would be a question of asking whether the plaintiff could make out a cause of action in contract. Did he pay the defendant for advice so as to make it locatio-conductio opens faciendi (investment opportunity to be analysed)? Or was he commissioned by the defendant to lay out his money to support the now failed business, so as to give him an actio mandati?

iii. Did the spoiled thing belong to the plaintiff (res actoris)?

We saw that the lex gave the damages only to the erus, i.e. to the dominus ex iure Quiritium. The praetor allowed claims by others with interests in the thing, the bona fide possessor, the usufructuary and the pledge-creditor. Also, though his obstacle was more comprehensive, the foreigner outside the ius civile was early given an action based on a fiction of citizenship.

The praetor also gave an action for injury to a free man's body, a thing not owned, also for the injury or death to members of his family in his paternal power (in potestate). In early law dominium and potestas may hardly have been distinguished. One writer, J. M. Kelly, believes that free children were intended to be within the lex itself.^[69]

iv. Did the defendant do the spoiling �corpore suo'?

It is difficult to see how the jurists could have done away with this test once adopted. What could they have put in its place? Yet there was plainly a need to reach defendants who were responsible for bringing damage about but had not actually done it. If I cause your slave to take poison or put a log in his way so that he rides into it I should not escape just because the statute happened to contemplate only the case in which I did the killing or injuring. There is no need to repeat the earlier discussion. The praetor did give actions for bringing about these consequences.

That is not the end of the difficulties. The restriction to corporeal causation had the effect of putting a very tight lid on questions about the infinite chain of causes. We all know that if we journey back in time we must at all costs not step on so much as a butterfly, lest the whole of history change. I cause a car to slow down as I dash across Princes Street. If I had not done so it would not two minutes later have been in position to run over a dog. Have I caused the dog’s death? One way of handling this problem is to ask whether the death of the dog was within the risk which I created by my dash. That kind of question is one which moves the issue from causation to fault. Was I blameworthy in respect of the dog’s death? The Romans must have followed that line, putting the burden on culpa. But there is no discussion explicitly on this problem. That is to say the texts do not directly address the issue of remote causation which lies behind the �corpore suo’ test.

v.

This question is of the same order as the first, about damnum. You could not well extend the liability to instances of harm done iure, rightfully. And in fact no sorties were made by the praetor into the field of strict liability; that is, liability for causing loss without culpa. So far as I know the only trace of such liability in the field of this delict is the special vicarious liability imposed on nautae, caupones and stabularii (keepers of ships, inns and stables) for losses inflicted on users by members of their staff. We will encounter this figure again under the heading of quasi­delict.

23

Under these five questions we have considered the range of the praetor's satellite actions. A word must be added on his modes of innovation and the vocabulary used to describe them.

A plaintiff who could bring his case within the statutory core was said to claim by the actio directa. The word �directa’ has nothing to do here with direct as opposed to indirect causation; it simply means �directed’ or �laid down' or �established’. An actio directa, in any field, is �an established action’. A plaintiff who could not bring the actio directa, because his facts fell outside the statutory core and would therefore not serve to substantiate the proposition advanced by the established action, might urge the praetor to uphold a pleading differ­ent from the actio directa. He might ask that the pleading should be settled in any one of the ways familiar to the praetor as means of reform and innovation. Thus, he might ask for a fiction to be inserted to knock out a single requirement of the established action or he might ask for a formula which simply recited the facts which he alleged to have hap­pened. The one case would produce a formula drafted in ius, based on the proposition of law in the actio directa, but ficticia, with a fiction. The other, a formula drafted on the facts, on the event which had happened.

Sadly we do not know enough about the Aquilian actions. In particular we do not know the patterns of the formulae used by the actiones in factum which extended the statutory delict. We do know that a fiction was used to extend the liability to and for a non-citizen. Whether anything other than formulae in factum were used in other cases we cannot be sure.

So far at the level of actio we have only two terms, actio directa and actio in factum. You do not need any more vocabulary to cover the facts on the ground. Yet there is one more term, actio utilis. This adds nothing except an element of organisation. Thus, an actio utilis is an actio in factum re-named to express its relationship to the actio directa, in the following way. The spirit, higher principle or policy of the lex is called its utilitas, its social usefulness, its expediency. An actio in factum related to an actio directa in being dictated by the latter's policy or spirit, though outside its letter, could be called �a policy action'—meaning �a policy-as-opposed-to-letter action'. We turn nouns easily enough into adjectives: a policy action, a confrontation situation and so on. It would be risky to change to the adjective and say �a politic action' because the adjective has its own specialised senses. If we did switch to �politic' we would have to keep warning ourselves that it meant �policy- motivated', not �astute in a manner befitting a statesman'. The Romans did switch to the adjective.

This discussion, which suppresses a good deal of doubt and contro­versy, assumes that the two terms utilis and in factum are virtually synonymous. Not quite. For it leaves the possibility of there being an actio in factum which is so to say a spontaneous creation, not related to the utilitas of any other action but simply needed in its own right. With that in mind we can approach the difficult lines with which Justinian's Institutes close their discussion of the lex Aquilia, at J.4.3.16:

But it has been held that there is only an action under the lex if someone has caused loss immediately with his body (corpore suo). And so if one has caused loss in another way the practice is to give utiles actiones. [Examples are then given of loss arising other than by the defendant's bodily force.] If the loss was not caused corpore and in addition no corpus has been damaged but loss has in some other way affected someone, then, since neither the directa nor the utilis Aquilian action lies, it has been held that the person responsible is bound by an actio in factum. For example, if someone moved by pity frees someone else's slave from chains so that he escapes.

Here the contrast between the actio utilis and the actio in factum is puzzling. Nowhere else is a line drawn explicitly between them. There are two possible explanations. One is that Justinian is using language which by his time was old-fashioned, without much regard for earlier usage, simply to convey the idea of an extension upon an extension. The other is that the idea is deliberately meant to be conveyed that the sphere of the lex is damage leading to loss, not simply loss. When phrasing the policy or utilitas of any rule one has to pick one's level of generality. It would be possible to say that the general principle of the lex was that people should have a remedy for wrongful loss; but no less sensible to affirm, at a slightly lower level, that its principle was that one should have a remedy for wrongful damage. If one pitched the level of generality at damage, actions for loss sine laesione corporis, without physical harm, would be set outside the statute's utilitas so described. They would then be actiones in factum without being actiones utiles. That may be what Justinian meant.

The reason for pausing on actiones in factum and actiones utiles is that, though specially well illustrated in the Aquilian field, they have a wider importance. They give us an opportunity to see how the praetor worked and how the jurists organised the product of his innovative practice. Actio in factum expresses the potentiality of the system for growth outside and between actiones directae. Actio utilis is a system­atising notion whose effect is to enable jurists to create compound molecules centred on direct actions.

5.