The Statute

The lex Aquilia was actually an enactment of the concilium plebis. So technically it was a plebiscite and not a lex. But that strict usage was departed from. We know that plebiscites were made to bind the whole people, rather than just the plebs, by the lex Hortensia in 287 bc.

On rather slender evidence it has been thought that the lex Aquilia was passed as a result of the same social disturbances, almost immediately after the lex Hortensia itself. More recently Professor HonorГ© has argued for a slightly later date, around 200 bc.^[54] One argument in favour of that date is that it was then that the currency got into trouble as a result of the inflation brought about by the war with Hannibal. The relevance of that is that one of the provisions which the lex Aquilia displaced was the rule of the Twelve Tables relating to the fracture of a slave's bone. The early code provided for payment of a fixed sum, 150 asses. Inflation brings down the real value of redress which is fixed in that way. Because of the war with Hannibal there would have been a need for reform. So 200 bc may be our best estimate of the date. If we were brutally honest we would have to say that it must have been passed after the lex Hortensia and before the middle of the second century bc when we find Brutus commenting on it. So between 287 and 150, with 200 most probable. Some people believe that the statute as we have it was built up over a period of time as different legislative sallies were made into the field of loss wrongfully caused.

We know something of three main sections or chapters of the lex. I shall briefly mention the second first, in order to get it out of the way.

Ch. II was early obsolete. We do not know its words. It was passed, like the other, de damno, concerning loss. But the loss was of a highly specialised kind. The chapter dealt only with the case of an adstipulator who in fraud of the stipulator released a debt owed by the promisor.

An adstipulator is a co-promisee to a promise made by stipulation. He is in a position to release the obligation either artificially or by accepting payment. It is not completely clear whether the statute contemplated only artificial release. Probably it contemplated both. Gaius tells us, at G. 3.216, that the contract of mandate would serve to regulate relations between the principal and the subsidiary promisee. But he notices that the lex lay for a double penalty against one who denied liability, and one would have thought that that would have kept the section alive.

Chapters I and III are both about loss arising from damage of various kinds. The immediate task is just to set out their wording. Matters of interpretation will be dealt with in the next section.

Ch. I

If anyone wrongfully kills another personвЂ™s male or female slave or fourВfooted herd-animal, let him be condemned to pay to the owner as much money as at the highest that thing was worth in the preceding year.^[55]

Ch. III

In respect of other matters [besides slaves and herd-animals killed], if anyone causes loss to another by burning, breaking or bursting wrongВfully, let him be condemned to pay to the owner as much money as that matter is worth in the nearest thirty days.^[56]

These translated versions gloss over points of detailed dispute but nothing of substance is lost which cannot be recovered in the later discussion. Ch. III has caused a good many headaches. It is difficult partly because its opening words seem to attach directly to ch. I, whereas on the day when the lex was passed ch. II had not yet fallen into disuse and could not be ignored by the draftsman of ch. III, and partly because the words which quantify the amount to be paid seem to contemplate full value for small and partial losses, as where you chip my plate or burn my slaveвЂ™s arm. Apparently you might as well have killed him, since the difference between valuation over a year and over a month will rarely have been great and never wide enough to discrimВinate between a burned slave and a dead one.

These considerations have led to some radical suggestions to the effect that the text of the chapter was originally much more restricted in scope than it now seems. Jolowicz proposed that it must have been concerned only with total destruction of inanimate things, so that all three chapters would have been about the extinction of items of wealth.^[57] Daube on the contrary maintained that the chapter was about wounding, rather than killing, chapter I objects, slaves and herd-animals.^[58] Between these two radical approaches Daube has much the better of the argument. However, though some difficulties remain, the pendulum has swung back towards accepting the text as it stands subject only to the elimination of the words in brackets which in Latin are awkward and, in either language, read like an explanatory gloss. Professor HonorГ© takes this less drastic line. He thinks that вЂ?in respect of other matters', when standing alone, can follow on from both preceding chapters; and his later date here helps since the word for вЂ?thing' (res) has more time to become abstract.⁶ So far as the measure of ch. III damages is concerned, it is too much in dispute to be allowed to control one's view of the substantive scope of the early lex.

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Source: Birks Peter. Roman Law of Obligations. Oxford University Press,2014. вЂ” 303 p.. 2014

The Statute

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