1. The reipersecutory character of the remedy

(a) Chapter one

What was the nature of the actio legis Aquiliae de damno iniuria dato? We have seen that delictual remedies could either be penal in character or reipersecutory, or both penal and reipersecutory at one and the same time.^{^[5021]} The actio legis Aquiliae belonged to the latter category: "[rjem vero et poenam persequimur...

ex h[aec] caus[a]", as we are informed by Gaius.^{^[5022]} It was the most interesting example^{^[5023]} of an actio mixta.^{^[5024]} ^{^[5025]} On the one hand, it therefore aimed at compensating the injured party for his loss; hence the emphasis, in chapter one, on the value of the slave or grazing animal that had been killed. Restoration of that value was perhaps a somewhat rough, but nevertheless normally not entirely unsatisfactory method of providing the plaintiff with compensation. In the course of time, however,^lk more refined considerations came to prevail. And whilst over the centuries aestimatio corporis always remained the basis for assessing the sum in which the defendant had to be condemned, certain further items came to be included, if that was required in an individual case. If, for instance, a slave who had been instituted heir was killed, the award of merely the value of the slave would not have compensated the plaintiff for his actual loss. For had his slave still been alive, he could have ordered him to accept the inheritance: with the result that it would have vested in himself. Of this chance he was deprived as a result of the slave's death and thus Neratius allowed the value of the inheritance to be included in the sum which the defendant had to pay under chapter one.^{^[5026]} Gaius took the same view: "... non enim tantum ipsius pretium aestimatur, sed et-hereditatis amissae quantitas."¹¹⁷ Similar considerations prevailed if one member of a troupe of actors or musicians was killed, or a horse that formed part of a chariot team: not only did the dead person (or animal) as such have to be taken into account, but also the amount by which the others had decreased in value.¹¹⁸ These were the kinds of examples that induced Gaius to state, in a more general vein, "si servo occiso plus dominus capiat damni quam pretium servi sit, id quoque aestimatur";^{^[5027]} ^{^[5028]} Paulus referred to "other heads of damage necessarily connected"¹²⁰ (sc: with the damaging event—"causae corpori cohaerentes").¹²¹ Thus there was a gradual relaxation of the rather inflexible measure of "damages" set by chapter one: a relaxation brought about by way of interpretation¹²² and based upon a more and more individualizing approach.

By the end of the classical period assessment of "quanti id... fuit" was no longer confined to the value of the object itself plus certain typical forms of consequential loss, but aimed at quod actoris interest: account had to be taken of whatever damages the individual plaintiff in each specific case had suffered as a result of the damaging event.¹²³ "[H]oc iure utimur, ut eius quod interest fiat aestimatio"—this statement of Ulpian marks the end of the development.¹²⁴ The practical consequences of this new formula can be gauged from the example discussed in D. 9, 2, 23, 4 (also a fragment taken from Ulpian's commentary of the Edict):¹²⁵ a slave had committed serious acts of embezzlement in the plaintiffs business; he was killed before the plaintiff had been able to extract from him—by means of torture (quaestio)—the names of his accomplices and thus to clear up all the details of this crime. What the plaintiff could claim from the person who killed the slaves is described as "quanti mea intererat fraudes... per eum commissas detegi": his interest in detecting the acts committed by the slave (and his accomplices).

(b) Chapter three

The same development from a standardized way of evaluating merely the diminution in value of the damaged object to a refined evaluation of the individual plaintiffs damages took place with regard to the "quanti ea res erit" clause in chapter three.^[5029] Generally speaking, the plaintiff received compensation for what the jurists of the ius commune dubbed damnum emergens and lucrum cessans.^[5030] Like aestimatio corporis in the first chapter, so was aestimatio vulneris in the third chapter (in the case of injury to animate objects; otherwise: estimation of the damage to the object itself) the starting point for any assessment of the sum to be awarded.^[5031] But apart from that, medical expenses could, for instance, be recovered if a slave was injured; and that was so even in cases where the value of the slave had not been diminished by the injury he had received.

^[5032]'^J Problems could arise as far as lucrum cessans was concerned. Where someone had destroyed the nets of a fisherman, he was liable for the value of the nets but not for the value of the fish which the fisherman was unable to catch on account of the damage: "incertum fuerit, an caperentur."^[5033] The mere chance that some fish might have been caught is too vague and unspecific to deserve legal protection qua damages.^[5034] The same argument probably prompted Marcellus to refuse to entertain the claim (based on the third chapter of the lex Aquilia) of a prospective heir against the person who had destroyed the ■will under which he had been instituted.^[5035] Ulpian, however, dissented; in his view the position was the same as when a debt certificate ("chirographum") had been destroyed. In both instances, according to Ulpian, the judge had to assess "quod interest".^[5036]

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

1. The reipersecutory character of the remedy

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