6 - Reflections on the Quantification of Damnum
Published online by Cambridge University Press: 28 April 2021
The lex Aquilia is a plebiscite traditionally dated to 286 (or 287) BCE. It consists of three capita. The first deals with the unlawful killing of a slave or a pecus belonging to someone else. The second chapter is concerned with the contract of adstipulatio and imposes ‘liability on a secondary creditor who wrongfully released the debtor as against the principal creditor’. The third chapter focuses on wrongful damage to property generally by means of burning, breaking or breaking apart.
The wording of the first chapter is preserved in D.9.2.2.pr, a fragment of the second-century jurist Gaius's commentary on the provincial edict: ‘Lege Aquilia capite primo cavetur: “Ut qui servum servamve alienum alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto”’. The wording of the second chapter is less clear. In D.220.127.116.11 Ulpian reveals ‘Huius legis secundum quidem capitulum in desuetudinem abiit’, while the compilers of Justinian's Institutes settle the matter in eight words (Inst. 4.3.12): ‘Caput secundum legis Aquiliae in usu non est’. Gaius, in his Institutiones, comes closest to the actual wording of Chapter 2. In Gai.Inst. 3.215, we read: ‘Capite secundo aduersus adstipulatorem, qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur’. Finally, the content of the third chapter is reported in D.18.104.22.168 where Ulpian reports: ‘Tertio autem capite ait eadem lex Aquilia: “Ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto”’.
This contribution will focus on the first and third chapters, since the second chapter had already fallen into desuetude by the start of the classical period. In keeping with the general theme of this volume, I will approach the sources without any preconceptions, an approach typical of Anglo-Saxon academia, with a view to offering a critique of Continental scholarship on the question of the quantification of damnum.
Traditionally, according to Continental scholarship, the third chapter of the lex Aquilia provided that, irrespective of the extent of the damage caused to the object, the wrongdoer was obliged to pay the highest value of the object in the previous thirty days to its owner (hereafter referred to as ‘the traditional view/interpretation’).
- Wrongful Damage to Property in Roman LawBritish perspectives, pp. 183 - 210Publisher: Edinburgh University PressPrint publication year: 2018