Wrongful damage to property

(Inst.Gai.3.210.-15., fnst.4.3., D.9.2., C.3.35.)

10.2.1 Evolution

The history of the delict of wrongful damage to property (damnum iniuria datum) followed an interesting path: fragmented beginnings, succeeded by legislative reform that was eventually extended well beyond its original framework by praeto­rian intervention and juristic interpretation.

A number of actions concerned with damage to property are known to have existed in early law. The Twelve Tables mention, for example, an actio de pastu, allowed where a person's cattle wrongfully grazed on another's land; and an actio de arboribus succisis for wrongfully cutting down another's trees. But the decisive devel­opment occurred in the middle Republic with the enactment of the lex Aquilia by the concilium plebis. The most significant drawback of the earlier remedies was their fixed monetary penalties that did not take account of fluctuations in the value of the currency. There is no general agreement as to when the lex Aquilia was enacted, but 287 BC is the most plausible (and generally held) date (see Zimmermann, Obligations, 953-61; Roman Statutes 11, 724-6 and most recently Ibbetson, D., 'The Dating of the Lex Aquilia', in fudge and Jurist, 167-77). It was then that the plebeian assembly acquired (through the lex Hortensia) the right to bind the whole people without the need for patrician ratification. A radical and substantial reform of the law relating to damage to property would seem a natural outcome, given the civil disturbances preceding the legislation. It is possible that a major purpose of the enactment was to redress plebeian grievances against the patricians. On the other hand, arguing for a later date, one can question whether a substantive reform such as the lex Aquilia was likely to have been enacted at a generally conservative period in the development of Roman civil law.

What happened to the old actions? Ulpian explains:

Ulpian, Edict, book 18: The lex Aquilia took away the force of all earlier laws which dealt with unlawful damage, the Twelve Tables and others alike, and it is no longer necessary to refer to them. (D.9.2.1pr.)

'Took away the force' is best interpreted as 'rendered unimportant' rather than 'nul­lified', as it seems that the old actions did survive for some time after the enactment af the lex Aquilia, See Lawson, F. H., Negligence in the Civil Law (1950), 4 ff. and gener­ally on this lex. See also Frier, Casebook on Delict, 4-6.

10.2.2 First chapter

The lex Aquilla was divided into sections known as 'chapters'. Wrongful damage to property was dealt with in the first and third chapters. The second chapter dealt with the contract of adstipulatio (see 9.4.3.5), imposing liability on a sec­ondary creditor who wrongfully released the debtor as against the principal creditor. This contract seems to have become obsolete by the second century AD, see Inst.Gai.3.216., D.9.2.27.4. (on the origin and purpose of the second chapter, see Birks, P., 'Wrongful Loss by Go-Promisees' (1994) 22 Index, 181-8, and the interesting, yet controversial theory of Westbrook, R., 'The Coherence of the Lex Aquilla' (1995) 42 RIDA 3, 437-71.

The first chapter stated:

Gaius, Provincial Edict, book 7: If anyone kills unlawfully a slave or servant-girl belonging to someone else or a four-footed beast of the class of cattle, let him be condemned to pay the owner the highest value that the property had attained in the preceding year. (D.9.2.2pr.) (See Roman Statutes ll, 724.)

The first chapter seems, prima fade, to be a rather narrow provision, dealing only with the killing (occidere), through the direct application of bodily force, of slaves and beasts of pasture. But such property (being res mancipl) was of the highest importance in that era: it is thus not surprising that slaves and beasts were singled out by the first chapter (on the significance of these animals in the context of the Lex Aquilia, see McLeod, G., 'Pigs, Boars and Livestock under the Lex Aquilia', in Critical Studies, 83-92). The owner could recover the highest value that the property had been worth in the preceding year, i.e. the year preceding the killing. But, sup­pose that the death of the slave or animal had occurred a considerable time after the killing—from when was the year reckoned back? Juristic interpretation settled that 'the preceding year' in such circumstances meant the year before the act that caused the later death.

It was the 'highest' value that the owner could recover, not just the value at the time of death:

Ulpian, Edict, book 18: Julian also writes that the valuation of the dead slave is made as at that time in the preceding year when he was worth most; and accordingly, if the thumb of a most valuable painter had been cut off beforehand and within a year of its loss he is killed, the Aquilian action lies and he must be valued at his price before he lost his skill together with his thumb.

This rule vividly illustrates what some scholars refer to as the penal character of the delict. The owner clearly did rather well in cases where the property's value had diminished by the time of the killing—he recovered more than his actual loss. This may seem hard to justify, but the rule expressed society's indignation at the wrong­doing, and was intended to have a deterrent effect.

Beasts of pasture included sheep, goats, mules, cattle, and (after some doubt) pigs. Dogs were not within the class; nor were wild animals, as a general rule, although by the classical period camels and elephants were specifically included.

10.2.3 Third chapter

Ulpian, Edict, book 18·. 'In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking, or spoiling his property, let him be condemned to pay to the owner whatever the damage shall prove to be worth in the next thirty days.' ('Ceterorum rerum praeter hominem et pecudem occisos, si quis alter! damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triglnta proximis, tantum aes damino dare domnas esto': D.9.2.27.5.)

10.2.3.1 The content of the third chapter

The passage quoted is attributed to Ulpian, who was writing some 500 years after the enactment of the lex Aquilia. Its accuracy cannot be guaranteed: 'great diffi­culty and controversy attends any attempt to reconstruct the actual wording, and every such attempt is the concomitant of some hypothesis as to the original scope and meaning of the statute. The problem is exacerbated by the volume of juristic interpretation this statute underwent' (see Roman Statutes II, 723). There has been much disagreement whether the original enactment contained the phrases ceter- arum rerum (of other things') or praeter,.. occisos ('apart from... killed'); whether ea res means 'that thing' or 'that damage'; whether it was actually fuit (‘has been') or fuerit ('will have been') rather than erit ('will be'); and whether proximis means 'next', 'nearest', or 'preceding'.

10.2.3.2 Scope of the third chapter

To what sort of damage was the third chapter applicable? It appears to have applied, at first sight, to all wrongful damage other than that covered by the first chapter. But, the damage must have occurred through urere, frangere, or rumpere—‘burning, breaking or tearing asunder' (for the significance of these 'harm-verbs' in consti­tuting liability under the statute see Birks, P., 'Doing and Causing to be Done', in Roman Law Tradition, 31-53.). The use of such words suggests that the third chapter covered only serious damage, and this is consistent with the probability that the lex Aquilia was enacted after a period of civil unrest. Jolowicz, H. R, 'The Original Scope of the Lex Aquilia and the Question of Damages' (1922) 38 LQR, 220-30, went further and maintained that the third chapter originally dealt only with total destruction of inanimate objects, thus complementing the first chapter. The view gains support from the likelihood that urere, frangere, and rumpere signified total destruction in early Roman usage. But would the drafters of the lex Aquilia have been so short-sighted as not to include less serious damage? Possibly, if the statute was an emergency measure aimed at deterring violent damage to property. The most plausible view is that the third chapter was aimed expressly at serious dam­age, but that it was later interpreted as covering lesser damage; rumpere (in the third chapter) originally meant 'tearing apart', but this meaning was soon found to be too restrictive. It seems that the early jurists probably came to interpret rumpere first as quasi-rumpere and later as cornimpere, i.e. 'spoiling', thus making the third chapter much broader in scope (cf. D.9.2.27.13.; 15.; 16.; Inst.4,3.13.).

10.2.3.3 Measure of damages

The third chapter seems to make sense—the owner could recover the loss that he had sustained, i.e, the difference between the value of the property when it was damaged and its worth at the end of the following thirty days.

Various opinions have been offered as to the measure of damages under the third chapter. See particularly MacCormack, G., 'On the Third Chapter of the Lex Aquilia’ (1970) 5 IJ, 164-78, as well as Birks, Obligations, 215-20. The dominant continental view has been that the owner could always recover the highest value the property had in the thirty days preceding the act which damaged it. MacCormack broadly agrees but thinks that originally liability was confined to ‘serious wounds to slaves and animals and serious injuries to inanimate objects' (165). Jolowicz (cited earlier) naturally adopts the highest value approach given his belief that the third chapter was originally concerned only with the total destruction of inanimate objects. Daube, on the other hand, argues that the third chapter originally dealt only with the wounding of slaves and animals, and allowed recovery for loss rather than value, namely compensation for such damage as appeared within thirty days after the wrongful act: (Daube, D., 'On the Third Chapter of the Lex Aquilia' (1936) 52 LQR, 253-68). Zimmermann agrees that the chapter was concerned with the diminution in value of the damaged property, and that the time rule has to be read forwards rather than backwards. But he considers that the chapter applied to inani­mate as well as animate property and that the 30-day period is a reference to the procedural rule under the Twelve Tables whereby that length of time had to elapse before the judge could be asked to assess damage. See Obligations, 962 ff. Pugsley has suggested the possibility that the measure of damages was based neither on diminu­tion of value, nor on the value of the property at a certain time, but on value in a certain period—the nearest thirty days—e.g. the cost of replacing an injured slave for a month. See Americans are Aliens, 43.

10.2.4 Liability under the lex Aquilia

To succeed under the first or third chapters of the lex Aquilia, the owner would have to prove that the defendant wrongfully caused loss.

10.2.4.1 Loss

Whatever the defendant's conduct, the owner could not succeed under the lex Aquilia unless he could prove that he had suffered loss in the sense of a depreciation. in the value of the object, and that the loss was ascertainable. (See Daube, D., 'On the Use of the Term Damnum', in Studi Solazzi, 93-156. See also Frier, Casebook on Delict, 55-71. Most recently, see Rodger, A., 'What did Damnum Iniuria Actually Mean?', in Mapping the Law, 421-38 as well as Cursi, E, 'What did Occidere Iniuria in the lex Aquilia Actually Mean?' (2011) 7 Roman Legal Tradition, 16-29. For a recent survey of this debate, see Lorusso, A. 'Reflections on the Quantification of Damnum', in Wrongfid Damage to Property, 183-210.) Hence, sentimental damages could not be recovered. For example, the owner of an injured slave could not recover greater damages simply because he was particularly fond of the slave. Nor could speculative damages be recovered—if a fisherman's nets were damaged while he was fishing, he could recover for the damage to the nets, but not for the loss of the fish that may have been caught:

Ulpian, Edict, book 18: But where action is brought for wrongful damage to the nets no account is to be taken of the fish which were not caught because of the damage, as it is so uncertain whether they would have been caught. The same is true in the cases of the prospec­tive catches of both hunters and bird-catchers. (D.9.2.29.3.)

Consequential damages could be recovered by the classical period, if not earlier. The concept of suing for the highest value proved broad enough to include con­sequential damages, so that the principle emerged that the plaintiff could recover his interesse, i.e. his interest—whatever the thing was worth to him. Thus, a loss of profit (lucrum cessans) could be recovered if it was ascertainable:

Ulpian, Edict, book 18:... if a slave who has been instituted as heir is killed, the value of the inheritance comes into the reckoning. (D.9.2.23pr.)

Another type of consequential damage was damnum emergens ('damage that comes to light'). So if your slave had been wrongfully killed, you could recover not only for the actual loss of the slave but also for any indirect loss caused, e.g. medical expenses incurred in trying to save him (and see now Sirks, A. J, B., 'An inheritance Lost and a Fraudulent Slave', in fudge and furist, 265-76, as well as now Sampson, J. 'Revisiting D. 9.2.23.1', in Wrongful Damage to Property, 163-82). If the slave's death resulted in the depreciation of your other slaves, that also was damnum emergens:

Paul, Edict, book 22: Furthermore, other heads of damage necessarily connected are taken into account, if, for example, someone kills one of a troupe of actors or musicians or one of twins or of a chariot team or one of a (matched) pair of mules: for not only must a valuation be made of the object destroyed but it must also be borne in mind how much the value of the others has been lessened. (D.9.2.22.1.)

10.2.4.2 Fault

The defendant must have caused loss wrongfully, i.e. through an iniuria. It is not clear whether iniuria originally signified fault on the defendant's part or simply the absence of legal justification for his act. But in the classical period the term was iden­tified with the requiremen t to prove fault, namely intentional or culpable conduct (see MacCormack, G., 'Aquilian Culpa', in Daube Noster, 201-24; Frier, Casebook on Delict, 40-54; as well as Scott, H., 'Pits and Pruners: Culpa and Social Practice in D.9.2', in fudge and furist, 251-64. For a good survey, see also now Valditara, G. 'Roman Law and Civil Law Reflections upon the Meaning of Iniuria in Damnum Iniuria Datum', in Wrongful Damage to Property, 224-54.). As regards the latter, the standard of care was that of the bonus paterfamilias:

Ulpian, Sabinus, book 42: Under the lex Aquilia even the slightest degree of fault counts. (D.9.2.44pr.)

However, another text appears to lay down a different test:

Paul, Sabinus, book 10:... there is fault when what could have been foreseen by a diligent man was not foreseen... (D.9.2.31.)

ft is arguable that the ‘diligent man' test required perhaps a lower standard of care, but in fact there was no real contradiction since the diligent man should be equated with the bonus paterfamilias. See Tellegen-Couperus, O. E., 'The Limits of Culpa Levissima' (2008) 76 (1-2) The Legal History Review, 19-25.

The degree of care that was expected from the defendant depended partly on the skills and expertise that he purported to have, especially if he was a professional. He would be expected to display the appropriate level of skill—imperitia culpae adnu- meratur (‘inexperience is counted as fault'):

Gaius, Provincial Edict, book 7: Furthermore, if a mule driver cannot control his mules because he is inexperienced and as a result they run down somebody's slave, he is generally said to be liable on grounds of negligence. It is the same if it is because of weakness that he cannot hold back his mules—and it does not seem unreasonable that weakness should be deemed negligence; for no one should undertake a task in which he knows or ought to know that his weakness may be a danger to others. (D.9.2.8.1.)

The principle that those who purport to have skills should be judged by the level of expertise expected of such persons is a familiar one in modern legal systems.

Even if the defendant was shown to have acted intentionally or carelessly, such conduct was not necessarily wrongful if a defence could be pleaded successfully (see Zimmermann, Obligations, 998-1013; Frier, Casebook on Delict, 88-108). For example, it was possible for the defendant to exclude liability for carelessness by an exclusion clause in a contract—this sometimes occurred in the case of a profes­sional performing services for his client. In such cases, the client in effect consented to run the risk of damage. The principle of consent was also applicable in cases where the damage was inflicted in public sporting contests, e.g. boxing or wres­tling matches—both parties were regarded as having consented to the risk of injury. Moreover, the contributory negligence of the plaintiff was a defence, providing that the defendant had acted carelessly:

Ulpian, Edict, book 18:... if when other people were already throwing javelins in a field a slave walked across the same field, the Aquilian action fails, because he should not make his way at an inopportune time across a field where javelin throwing is practiced. However, any­one who deliberately aims at him is liable under the lex Aquilio. (D.9.2.9.4.)

Contributory negligence was a complete defence—there was no attempt to award damages in proportion to the respective blame of the parties, as is done in modern English law (cf. Buckland, Textbook, 587). Moreover, the jurists did not generally isolate the plaintiff's conduct as a separate issue in their assessment of fault—it was simply one of the factors to be considered: ‘they determined liability using a flexible, casuistic inquiry that considered the case as a whole' (Travis Laster, J., 'The Role of the Victim's Conduct in Assessing Fault under the Lex Aquilia: Insights into the Analytical Methods of Roman Jurists' (1996) 25 Anglo-Am LR, 188-220, at. 220). To that extent, it may be misleading to talk of a Roman rule of 'contributory negligence’. The matter was viewed as essentially one of causation: the negligence: of the slave in walking across the field is what caused the accident rather than the. negligence of the thrower. The point is further illustrated by the following scenario in which the victim can be said to have inflicted the injury on himself:

Ulpian, Edict, book 18: Further, Mela writes that, when some people were playing with a ball, one of them hit it hard and it knocked the hands of a barber with the result that the throat of a slave whom the barber was shaving was cut by the jerking of the razor. In which of the parties does the fault lie? For it is he who is liable under the lex Aquilla. Proculus says the blame is the barber's, and surely, if he was doing shaving in a place where people customarily played games or where there was much going to and fro, the blame will be imputed to him; but it is no bad point in reply that if someone entrusts himself to a barber who has his chair in a dangerous place he has only himself to blame for his own misfortune. (D.9.2.11pr.)

Despite appearances, this famous text by Ulpian does not necessarily posit any wide- ranging principle of contributory negligence: 'Ulpian seems merely to be giving another example to show the variability of the fault inquiry.... The multi-factor case-by-case analysis explains the barber scenario' (Laster, cited earlier, 213-14). There are, of course, other issues which one might have expected to be dealt with in this text, particularly the potential liability of the people playing ball.

Self-defence was accepted as a complete defence; and so was necessity. There is hardly any textual analysis of necessity but it is clear that the concept was recog­nized. For example, we are told that damage is not done wrongfully:

Ulpian, Disputations, book 9:... where it is done under compulsion of overwhelming neces­sity, as Celsus writes about the man who pulled down his neighbor's house to keep a fire off his own. (D.9.2.49.1.)

The subsequent discussion in the text implies that the defence applied only if the defendant had acted in reasonable fear that the fire would spread to his own house.

10.2.4.3 Loss caused by the defendant

Causation is a problematic area of law even in the most sophisticated and devel­oped of legal systems. It is hardly surprising that no clear test or general princi­ples of causation emerged in Roman law, although some of the illustrations in the Digest are consistent with tests familiar to modern lawyers, e.g. was the defendant's act the substantive and operative cause of the damage? The Roman approach to causation was typically casuistic, attempting to provide solutions to each indi­vidual problem without sustained resort to overriding principle (cf. Frier, Casebook on Delict, 77-87, and now Johnston, D. 'Causation and Remoteness: British Steps on a Roman Path', in Wrongful Damage to Property, 211-23, as well as Sirks, 'Delicts', in Cambridge Companion, 259-61). Particular problems arose concerning interven­ing acts:

Ulpian, Edict, book 18: Celsus writes that if one attacker inflicts a mortal wound on a slave and another person later finishes him off, he who struck the earlier blow will not be liable for a killing, but for wounding, because he actually perished as the result of another wound,... (D.9.2.11,3.)

This makes good sense and is consistent with D.9.2.15.1. in which a person is held liable for wounding a slave (but not for killing him) where he mortally wounded the slave, whose death was accelerated subsequently by the collapse of a house. On the other hand, consider:

Juiian, Digest, book 86:... if someone wounds a slave mortally and then after a while someone else inflicts a further injury, as a result of which he dies sooner than would otherwise have been the case, it is clear that both assailants are liable for killing. (D.9.2.5lpt.)

'It is clear'? Hardly—the passages are difficult to reconcile. One attempt to do so is to regard the original act in D.9.2.51pr. as closer, more proximate to the slave’s death than in the earlier passages, but this is not really convincing.

If the defendant's conduct caused damage that may not have occurred in other property of the same type, the defendant was nevertheless liable. He had to take his victim as he found him—a principle known as the 'thin skull' rule in common law: Ulpian, Edict, book 18: But if someone gives a light blow to a sickly slave and he dies from it, Labeo rightly says that he is liable under the lex Aquilla; for different things are lethal for dif­ferent people. (D.9.2.7.5.)

Did the plaintiff have to prove that the damage was caused by an act? Could the defendant be liable for not acting, i.e. for omissions? The general rule which emerged was that the failure to act constituted wrongful conduct if there was a duty to act. The duty could arise through imposition by law, or it might be self-imposed, e.g. where someone voluntarily undertook responsibility to act. In such cases, the failure to act was not regarded as an omission, but as negligent conduct. So, if you failed to warn your neighbour that there was a fire in his garden, you were not liable for the resulting damage; but you would be liable if, having started a bonfire in your own garden, you failed to supervise it properly, and it damaged your neighbour's property (see McCusker, D., 'Liability for Omission under the Lex Aquilla' (1999) 50(3) Northern Ireland LQ, 380-402).

Under the lex Aquilla the damage had to be directly caused by the defendant's conduct—it had to be inflicted corpore corpori, i.e. 'by the body, to the body (object)'. For example, if your slave was struck and killed by a chariot that was being driven negligently, the driver would be liable since the damage had been caused corpore car­port. But there would be no liability if someone scared your horse, which then jumped to its death over a cliff. This rule came to be regarded as unduly restrictive; by the classical period indirect forms of causing damage became actionable (see 10.2.5.2).

The onus of proof was on the plaintiff. If his property was damaged, but it could not be proved that the defendant was responsible, the plaintiff could not succeed: Paul, Sabinas, book 10: When two slaves were jumping over some burning straw, they jumped into each other, fell, and one was burned to death. No action can be brought on that account if it is not known which was knocked over by which. (D.9.2.45.3.)

10.2.4.4 The Aquilian action

The actio legis Aquiliae lay for the recovery of the financial value of the loss caused: the defendant had to pay double if he denied liability but was held liable (cf. Buckland, Textbook, 586). This seemingly peculiar rule can be regarded as a penal feature of this delict; but a more plausible explanation is that the rule was intended to encourage settlements between the parties. This would have been an important aim at the time when the lex Aquilla was probably passed, in view of the level of civil unrest at that time.

As in other delicts, if the wrongdoer died, the action could not be brought against the heirs unless they had been enriched by the wrongful act. But the action did survive against the wrongdoer for the heirs of the victim (cf. Frier, Casebook on Delict, 24-8).

10.2.5 Extensions to the lex Aquilia

The lex Aquilia was originally quite narrow in its verbal formulation but its scope was greatly widened by a combination of juristic interpretation and praetorian intervention. The latter took the form of supplementing the lex Aquilia by granting actions additional to the original actio legis Aquiliae (cf. Frier, Casebook on Delict, 7-23). These supplementary actions consisted either of an actio utilis or an actio in factum. The difference between them is not clear. It is possible that the actio utilis was granted in situations more analogous to the original lex Aquilia than was the case with an actio in factum; but the Digest generally refers to the two actions as if they were interchangeable (see Zimmermann, Obligations, 993-6). It is probable that the double damages rule of the actio legis Aquiliae did not apply to the sup­plementary actions (see Stein, P., 'School Attitudes in the Law of Delicts’, in Studi Biscardi II, 281-93). It was thus advantageous for the plaintiff to sue under the lex Aquilia if possible.

10.2.5.1 Miscellaneous extensions

Some of the extensions (through juristic interpretation) have already been noted in passing, e.g. the interpretation of 'highest value' to include consequential dam­age, the interpretation of 'four-footed beast of the class of cattle' to include camels and elephants, and the interpretation of rumpere to include any form of 'spoiling'. Apart from these, there were several others, which came about through praetorian intervention (cf. Lee, Elements, 388):

(a) Non-owners The lex Aquilia initially allowed only an owner to sue—everyone else was excluded. Eventually, the praetors allowed certain non-owners to sue under the supplementary actions, e.g. usufructuaries and bona fide possessors (for exceptions, see Lee, Elements, 388 and Buckland, Textbook, 588).

(b) Foreigners They could not sue as the lex Aquilia originally applied to Roman citizens only. Later, foreigners were allowed an action on the fiction that they were citizens (Inst.Gai.4.37.),

(c) Persons in potestas The lex Aquilia applied to property (originally perhaps only movable property, but later also immovables), not to human beings (compare the position of slaves). Consequently, a paterfamilias could not sue for injuries inflicted on his children and others in his potestas. There would in any case be an obvious problem as to how to assess damages in such cases under the particular provisions of the lex Aquilia. However, an action (utilis) was eventually allowed for recovery of consequential damages such as medical expenses or loss of a son's earning capacity (D.9.2.5.3.). But it is not cleat when this extension occurred and whether its source was praetorian or juristic (see Buckland, Textbook, 589).

(d) Personal injuries The general rule was that a freeman could not recover for personal injury, but an exception was granted in the case of a freeman who was injured whilst acting as a slave (mistakenly thinking that he was a slave). The probable reason for the general rule was that the lex Aquilia protected rights in property, but Weir has argued that it had to do with the fact that most of the work in Rome was done by slaves—personal injuries tended to occur in employment (with which the freeman was generally not concerned): (Weir, T., 'Contracts in Rome and England' (1992) 66 Tulane LR, 1615-48, at 1637). The general exclusion of personal injuries partially explains why delict litigation was allegedly low. Later, an action was allowed for personal injuries:

Ulpian, Edict, book 18: For an injury to himself a freeman has on his own account an actio utilis after the manner of the Aquilian action. He cannot have the direct action under the lex because no one is deemed to be the owner of his own limbs. (D.9.2.13pr.)

This appears to be a major departure from the original scope of the lex Aquilla, and yet it receives little mention in the Digest. The attribution of the passage to Ulpian is rather dubious—the extension was most probably a post-classical development, possibly as late as Justinian.

10.2.5.2 Damage caused indirectly

It will be recalled that liability under the 'harm-verbs' of the lex Aquilia was origi­nally confined to direct physical acts. The interpretation of such words was strict. For example, N. H. Andrews considers that occidere (to kill) in the first chapter had a core literal meaning, when the statute was enacted, which the jurists felt generally compelled to follow, even in the classical period (see Andrews, N. H., '"Occidere" and the Lex Aquilia' (1987) 46 Cambridge LJ, 315-29). The rule that damage must be corpore corpori was gradually eroded through the grant of supplementary actions for various forms of indirect killing or damage. It would appear that both the jurists and the praetors assisted this development. For indirect killing, Roman jurists used the term mortis causam praebere (furnishing a cause of death) (see Norr, D., 'Causam Mortis Praebere', in The Legal Mind, 203-17). This was arguably the most significant extension of all. How this came about is a matter of some speculation. The Digest title on the lex Aquilia is replete with juristic discussion whether particular mis­conduct is corpore corpori, and thus actionable under the lex Aquilia, or whether a supplementary action is required. It seems that the first development was that the praetors allowed an action if the damage was corpore but not corpori, i.e. by the body but not to the body:

Ulpian, Edict, book 18: If a man knocks coins out of my hand, Sabinus thinks that there is an action for wrongful damage if they roll away and thus do not come into someone else's hands if, for example, they fall into a river or the sea or into a drain,... (D.9.2.27.21.)

Under the original lex Aquilia there was no liability in the previous situation, since there was no damage to the coin, i.e. to its body. Later, an action was allowed where the damage was corpori but not corpore. An illustration (probably hypothetical) from Ulpian concerning the death of a woman in labour;

Ulpian, Edict, book 18: Labeo makes this distinction if a midwife gives a drug from which the woman dies: if she administers it with her own hands it would appear that she killed; but if she gave it to the woman for her to take it herself an actio in factum must be granted. This opinion is correct; for she provided a cause of death rather than killed. (D.9.2.9pr.)

The final development was to allow an action even where the damage was neither corpore nor corpori, provided that there was a causal link between the wrongdoer's acts and the damage sustained:

Ulpian, Edict, book 18: If when my slave is out riding you scare his horse so that he is thrown into a river and dies as a result, Ofilius writes that an actio in factum must be given in just the same way as when my slave is lured into an ambush by one man and killed by another. (D.9.2.9.3.)

For procedural aspects of the lex Aquilia, see the texts collected by Frier, Casebook on Delict, 109-36.

10.2.6 Modern developments

It is obvious that liability under the lex Aquilia was transformed between the mid­Republic and the time of Justinian. The medieval lawyers tinkered with it further: e.g. they abandoned the penal elements and the method of assessing damage by reference to the time limits of one year or thirty days. The core of the Aquilian action remained intact, however, namely liability for loss caused through fault: 'There is little doubt that the older civilians regarded their law of negligent damage as a mod­ernised version of the Roman' (Lawson, F. H., Negligence in the Civil Law (1950), 27).

The Roman concept that delictual liability is firmly based on fault is one that has been largely entrenched in modern systems (even if increasingly questioned of late). For example, Article 1382 of the Code Civil commences the French law of delict with the wide-ranging principle that any act which causes damage to another obliges the person at fault to make reparation (see now Art. 1240 ff after the 2016 revision). The all-embracing nature of this provision has inevitably led to difficul­ties in interpretation for the courts. German law is perhaps closer to the spirit of the original Roman law by enumerating the various protected interests: s. 823 BGB imposes the duty to compensate on a person who causes unlawful damage, wilfully or negligently, to the life, body, health, freedom, property, or other right of another.

English law, though it borrowed some elements of the Roman law, generally lacked an organizing concept as the foundation of liability until comparatively recently (some would say not until Donoghue v Stevenson [1932] AC 562, HL). The notion of the duty of care has provided such an organizing concept, but its extent has caused considerable problems (e.g. the issue of liability for pure economic loss). The notion of a duty of care as a legal principle did not emerge in Roman law, although the overall picture presented by the casuistic Roman texts resembles that notion (especially in the Roman law of contracts). See generally, Lawson, F. H., Negligence in the Civil Law (1950), 27 ff. and Zimmermann, Obligations, 1017 ff.; cf. Frier, Casebook on Delict, 30-9, and now Evans-Jones, R. and Scott, H. 'Lord Atkin, Donoghue v Stevenson, and the Lex Aquilia: Civilian Roots of the "Neighbour" Principle', in Wrongful Damage to Property, 255-74.

10.3