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“If anyone wrongfully kills another’s slave of either sex or his
four-footed beast that lives in herd, let him be compellled to pay whatever
was its greatest value in the past year.” D.9.2.2.1 (Gai., Ed. Prov. 7)
“Regarding all other things except a human or a herd-animal killed, if
anyone does damage to another by wrongfully burning, breaking or maiming,
whatever the value of it in the last 30 days let him be condemned to pay to
the owner.” D.9.2.27.5 (Ulp., Ed.
18)
“In an action under this statute it is not only the value of the thing
damaged in itself that is assessed, but also if by the killing of his slave
an owner suffers loss exceeding the value of the slave, this too is
assessed.” GI.3.212.
“It has been decided that there is an action under the statute only
where a man has done damage with his own body; consequently actions on the
case are granted if the damage has been caused in some other way, for
example, if one shuts up and starves to death another man’s slave or
cattyle='mso-spacerun:yes'> This is true even if he
could not prevent the advance of the mules on account of weakness; and it
is not inequitable that weakness should be counted a fault since one ought
not to embark on an enterprise in which one knows or ought to know that his
weakness will be dangerous to others.”
D.9.2.8.1 (Gai., Ed. prov. 7)
“If a slave is killed by those who are throwing javelins for sport, the lex Aquilia applies, but if men are
throwing javelins in a field and the slave crosses it, there is no action,
because he ought not unseasonably to make his way over the playing field.
Nevertheless, one who hit the slave on purpose would be liable under this
statute.” D.9.2.9.4. (Ulp., Ed. 18)
“Mela gives another case: if a ball game was going on and a player
hitting the ball knocked it against the hand of a barber so that the throat
of the slave being shaved by the barber was cut by the razor, whoever of
them was negligent will be held under the lex Aquilia. Proculus holds that the barber was at fault; and
truly, if he was doing business near a place usually devoted to sport or
where there was heavy traffic, he is partly responsible; but there is much
to be said for the view that he who engages a barber who has set up his
stool in a dangerous place has only himself to blame.” D.9.2.11pr (Ulp., Ed. 18)
“1. If one holds a slave and another kills him, the former is liable in factum for having furnished the
cause of death. 2. But if several strike a slave, let us consider whether
all are held for killing. If it can shown who gave the mortal wound, he
will be liable for killing; if not, Julian says that all are liable for
killing: and if one has been sued, the others are not released, for what
one pays under the Lex Aquilia does not relieve another, as a penalty is
involved. 3. Celsus writes that if one gives a slave a mortal wound and
another later kills him, the former will not be held for killing but for
wounding, since the slave died from another wound; the latter the will be
held for killing; Marcellus agrees and it is the better view.” D.9.2.11.1,2,3 (Ulp., Ed. 18)
“If the tenant’s slave is detailed to look after a furnace but goes to
sleep and the house burns down, Neratius writes that the tenant is liable
for damages under the contract, providing he was negligent in choosing his
laborer; however, if one lights a fire in a furnace, and another
negligently watches it, will the former be held? for
he who watched it did nothing and he who correctly lit the fire was not at
fault. What is the conclusion? I
should say that there is an actio
utilis both against him who went to sleep at the furnace and him who
carelessly watched the fire; nor can anyone claim as to the former that he
underwent a natural experience common to all mankind, because his duty was
either to extinguish the fire or prevent it from escaping.” D.9.2.27.9 (Ulp., Ed. 18)
“Quintus Mucius writes: A mare was grazing in another’s field, and being
pregnant, miscarried while being driven off; it was asked if her owner
could bring an Aquilian action against the man who drove her away for
damage caused thereby. It was held that an action would lie if he struck
her or intentionally [consulto]
drove her too violently.” D.9.2.39pr
(Pomp., Quintus Mucius 17)
“If a pruner throws a branch down from a tree, or a laborer throws
something from a scaffolding, killing a passing
slave, they are held if they threw the thing on to a public place without
shouting so that the victim might avoid the accident. Mucius even holds
that there may be an action for negligence [culpa] if the same thing happens of private property, as it is
negligent not to foresee what could have been foreseen by a careful person,
or to give warning when it was too late to avoid the danger. On this view
[this is now Paul speaking] it makes little difference whether the victim
was crossing public or private land, as there is often a public way over
private property. But if there was
no path, there will be liability only for malice, so that one may not aim
at one whom he sees crossing; for no care should be required from one who
could not foresee that anyone would pass his way.” D.9.2.31 (Paul, Plautius
2)
“Mules were dragging two loaded carts up the Capitoline hill; the
drivers of the front cart, which had got tilted back, were holding it up to
make it easier for the mules; meanwhile the team began to move backward so
that when the drivers, who were between the two carts, jumped out from
their position, the rear cart was hit by the other and rolled down and ran
over someone’s slave boy. The boy’s owner consulted me against whom to
bring action. I answered that the rule of law depended upon the facts;
assuming that the drivers who were holding up the front cart got out of the
way of their own accord, thus rendering the mules unable to support the
cart, which dragged them back by its own weight, then there would be no
action against the owner of the mules, but an Aquilian action could be
brought against those who were upholding the tilted cart, for one has none
the less inflicted direct damage who voluntarily lets go something which he
is supporting so that it strikes another, as where one does not hold in an
ass which one is driving, just as one commits wrongful damage who allows a
weapon or anything else to escape him. Assuming, however, that the mules
shied at something and the drivers, fearing to be crushed, left the cart,
there would be no action against the men, but one against the owner of the
mules. But if neither the mules nor the men were responsible, but the mules
could not sustain the weight or in straining slipped and fell, whereupon
the cart began to go back, and because it was tilted the drivers could not
sustain its weight, then there could be an action neither against the owner
of the mules nor against the men At
least it was certain whatever the facts, that there could be no action
against the owner of the other mules, who had gone backward involuntarily
because they were hit.” D.9.2.52.2 (Alfenus, Dig. 2)
“There is another defense of which Gallus [probably the praetor of that
name 66 B.C.] doubts whether it should be advanced [to the interdict quod vi et clam]. Take the case of
my having pulled down my neighbor’s house to ward off fire, as a result of
which an action against force and stealth (Quod vi aut clam), or for unlawful damage is being brought.
Would it be proper to bring the defense “what was not done for the purpose
of defense against fire”? Servius
says that if the magistrates did this, the defense should be granted, but
that the same concession should not be made to a private person; but if it
was done by force or stealth, and the fire did not reach that far, damages
for simple value should be awarded; if it did, the doer should be released.
He says the same applies if there should be an action for unlawful damage,
because it is held that no injury or damage can be done to a house about to
perish anyway. However, if this was done in no fire, and the fire started
subsequently, the same should not be said; because Labeo says that it
should not be from a later event, but from what happpened at the time, that
assessment is made on whether or not damage was inflicted.” D.43.24.7.4 (Ulp., Ed. 71) (Watson trans. here fixed up, Thayer in
Mats).
“Sometimes a man is liable for theft of which he is not the actual
perpetrator; we refer to one by whose aid and counsel the theft has been
carried out, for instance a man who knocks coins out of your hands, or
obstructs you, for another to make off with them. So the old lawyers wrote
of one who stampeded a herd with a red rag. But if it is a mere prank,
without intention of furthering a theft, the question will be whether an actio utilis ought not to be given,
since even negligence is punished by the L. Aquilia, which governs damage
to property.” G.3.202.
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