The protection of a freeman's life and bodily integrity

Secondly, and no less importantly, since the days of the glossators^[5338] the lex Aquilia was taken to cover cases of physical injury inflicted upon freemen.

This view could be based on D. 9, 2, 13 pr. and remained uncontroversial. The killing of a liber homo was a more difficult matter. Sedes materiae for the glossators was D. 9, 2, 7, 4, the fragment "Si quis in colluctatione".^[5339] "Sic ergo tenebitur lege Aquilia qui occidit liberum hominem", opined Azo,^[5340] and with him the majority of contemporary writers.^[5341] ^{^[5342] Bulgarus took the opposite view based, mainly, on the principle of "liberum corpus non recipit aestimationem".¹⁷⁰ It was Azo's view that prevailed in the long run. As far as the usus modernus was concerned, legal practice, as usual, took the lead; in the course of the 17th century the mores hodiernae also filtered through into legal literature.^[5343] But if injury to life led to Aquilian liability, it could hardly be the victim of the crime himself to whom the action was granted.^[5344]" His heirs or relatives might, of course, have incurred expenses for hospitalization, medical care, etc. Some writers confined the availability of the lex Aquilia to these kinds of items. Hence, for instance, Lauterbach's remark that no action could be brought against an occisor "[qui] liberum hominem statim examinaverit".^[5345] What about the funeral expenses? There is no legal action available, said Stryk; if the wrongdoer reimburses those who have incurred them, he acts "magis in solatium haeredum pauperum, quam ex juris necessitate".^[5346] But at the same time he indicated that the reimbursement was perhaps not merely a voluntary gesture of consolation but that it was rendered as a matter of custom(ary law?).'^[5347] The most important issue was, however, whether the wife and children of the deceased were able to claim compensation for the loss of support resulting from the death of the family's breadwinner ("... id quod illorum interest, ob difficiliorem vitae sustentationem, quae operis defuncti potuit sublevari"^[5348]).
It was this claim for which the glossators had laid the foundations^[5349] and which had become a widely accepted addition to the Aquilian repertory by the end of the 17th century. "Nee dubium", asserted Voet^[5350] in 1698, "quin ex usu hodierno latius ilia agendi potestas extensa sit", and he added some advice as to the assessment of the quod interest of the deceased's dependants: ..in quantum ob hominem liberum culpa occisum uxori et liberis actio datur in id, quod religioni judicantis aequum videbirur, habita ratione victus, quem occisus uxori liberisque suis aut aliis propinquis ex operis potuisset ac solitus esset subministrartV' ^s
8.}

<< | >>

↑

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

The protection of a freeman's life and bodily integrity

More on the topic The protection of a freeman's life and bodily integrity: