De his, qui effuderint vel deiecerint
(Concerning those who pour anything out or throw anything down.)
1 Ulpianus libro vicensimo tertio ad edictum. Praetor ait de his, qui deiecerint vel effuderint: ‘Unde in eum locum, quo volgo iter fiet vel in quo consistetur, deiectum vel effusum quid erit, quantum ex ea re damnum datum factumve erit, in eum, qui ibi habitaverit, in duplum iudicium dabo. si eo ictu homo liber perisse dicetur, quinquaginta aureorum iudicium dabo. si vivet nocitumque ei esse dicetur, quantum ob eam rem aequum iudici videbitur eum cum quo agetur condemnari, tanti iudicium dabo. si servus insciente domino fecisse dicetur, in iudicio adiciam: aut noxam dedere.’ 1Summa cum utilitate id praetorem edixisse nemo est qui neget: publice enim utile est sine metu et periculo per itinera commeari. 2Parvi autem interesse debet, utrum publicus locus sit an vero privatus, dummodo per eum volgo iter fiat, quia iter facientibus prospicitur, non publicis viis studetur: semper enim ea loca, per quae volgo iter solet fieri, eandem securitatem debent habere. ceterum si aliquando vulgus in illa via non commeabat et tunc deiectum quid vel effusum, cum adhuc secreta loca essent, modo coepit commeari, non debet hoc edicto teneri. 3Quod, cum suspenderetur, decidit, magis deiectum videri, sed et quod suspensum decidit, pro deiecto haberi magis est. proinde et si quid pendens effusum sit, quamvis nemo hoc effuderit, edictum tamen locum habere dicendum est. 4Haec in factum actio in eum datur, qui inhabitat, cum quid deiceretur vel effunderetur, non in dominum aedium: culpa enim penes eum est. nec adicitur culpae mentio vel infitiationis, ut in duplum detur actio, quamvis damni iniuriae utrumque exiget. 5Sed cum homo liber periit, damni aestimatio non fit in duplum, quia in homine libero nulla corporis aestimatio fieri potest, sed quinquaginta aureorum condemnatio fit. 6Haec autem verba ‘si vivet nocitumque ei esse dicetur’ non pertinent ad damna, quae in rem hominis liberi facta sunt, si forte vestimenta eius vel quid aliud scissum corruptumve est, sed ad ea, quae in corpus eius admittuntur. 7Si filius familias cenaculum conductum habuit et inde deiectum vel effusum quid sit, de peculio in patrem non datur, quia non ex contractu venit: in ipsum itaque filium haec actio competit. 8Cum servus habitator est, utrum noxalis actio danda sit, quia non est ex negotio gesto? an de peculio, quia non ex delicto servi venit? neque enim recte servi dicitur noxa, cum servus nihil nocuerit. sed ego puto impunitum servum esse non oportere, sed extra ordinem officio iudicis corrigendum. 9Habitare autem dicimus vel in suo vel in conducto vel gratuito. hospes plane non tenebitur, quia non ibi habitat, sed tantisper hospitatur, sed is tenetur, qui hospitium dederit: multum autem interest inter habitatorem et hospitem, quantum interest inter domicilium habentem et peregrinantem. 10Si plures in eodem cenaculo habitent, unde deiectum est, in quemvis haec actio dabitur,
1 Ulpianus, On the Edict, Book XXIII. The Prætor says with reference to those who throw down or pour out anything: Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. If it is alleged that a freeman has been killed by a blow from anything that fell, I will grant an action for fifty aurei. If the party is living, and it is said that he is injured, I will grant an action for an amount which would seem to be just to the judge that the party against whom suit is brought should be directed to pay. If it is alleged that a slave committed the act without the knowledge of his master, I will add to the petition in the case the words, “Or surrender the slave by way of reparation”. 1No one will deny that this Edict of the Prætor is of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger. 2It makes, however, very little difference whether the place is public or private, so long as persons ordinarily pass there; because the Prætor had in view persons who were going their way, and particular attention was not paid to highways; for those places through which people ordinarily pass should have the same security. If, however, there was a time when persons did not ordinarily pass that way, and anything is then thrown down or poured out while the place was enclosed, but only after that it began to be used for travel; the party will not be liable under this Edict. 3Where something falls down while being hung up, the better opinion is that it should be held to have been thrown down; hence, where something is poured out of a vessel which is suspended, even without the agency of anyone, it must be said that the Edict is applicable. 4This action in factum is granted against the party who lodged in the house at the time when something was thrown down or poured out, and not against the owner of the house, because the blame attaches to the former. Mention of negligence or that the defendant denies the fact is not made, in order to authorize an action for double damages, although both of these matters are stated to afford good ground for an action for wrongful damage. 5Where a freeman is killed, the assessment of damages is not made for double the amount, because in the case of a freeman no valuation of his person is possible, but the judgment will be for the sum of fifty aurei. 6There words “If he is living and it is said that he is injured,” have no reference to the damage which has been committed against the property of a freeman; as, for instance, if his clothing or anything else should be torn or spoiled, but only to those injuries inflicted upon his body. 7Where the son of a family has rented an upper chamber and something is thrown down or poured out from it, an action De peculio is not granted against his father, because no claim arising from contract exists, and therefore the action must be brought against the son himself. 8Where a slave occupies the house, will a noxal action be granted, since one does not lie on the ground of business transacted: or can one De peculio be brought because no claim can be made on account of an offence of the slave? We cannot properly say that the damage was committed by the slave, since the latter committed no injury. I think, however, that the slave should not be unpunished, but that he should be corrected under the extraordinary authority of the judge. 9We say that a party occupies a house whether he resides in his own or one which is leased to him, or which he obtains gratuitously. It is evident that a guest will not be liable, because he does not live there, but is only entertained, but the party is liable who entertains him; and there is as much difference between him who lives in a house and a guest, as there is between one who has a domicile and the traveller who has none. 10Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them;
2 Gaius libro sexto ad edictum provinciale. cum sane impossibile est scire, quis deiecisset vel effudisset,
2 Gaius, On the Provincial Edict, Book VI. (Since it is absolutely impossible to know which of them threw it down or poured it out) :
3 Ulpianus libro vicensimo tertio ad edictum. et quidem in solidum: sed si cum uno fuerit actum, ceteri liberabuntur
3 Ulpianus, On the Edict, Book XXIII. And suit can be brought for the entire amount, but where it is brought against one of the parties the others will be discharged:
4 Paulus libro nono decimo ad edictum. perceptione, non litis contestatione, praestaturi partem damni societatis iudicio vel utili actione ei qui solvit.
4 Paulus, On the Edict, Book XIX. If the money has not been received on joinder of issue, the others will be compelled by a partnership or by an equitable action to pay their shares to the party who has made the settlement.
5 Ulpianus libro vicensimo tertio ad edictum. Si vero plures diviso inter se cenaculo habitent, actio in eum solum datur, qui inhabitabat eam partem, unde effusum est. 1Si quis gratuitas habitationes dederit libertis et clientibus vel suis vel uxoris, ipsum eorum nomine teneri Trebatius ait: quod verum est. idem erit dicendum et si quis amicis suis modica hospitiola distribuerit. nam et si quis cenaculariam exercens ipse maximam partem cenaculi habeat, solus tenebitur: sed si quis cenaculariam exercens modicum sibi hospitium retinuerit, residuum locaverit pluribus, omnes tenebuntur quasi in hoc cenaculo habitantes, unde deiectum effusumve est. 2Interdum tamen, quod sine captione actoris fiat, oportebit praetorem aequitate motum in eum potius dare actionem, ex cuius cubiculo vel exedra deiectum est, licet plures in eodem cenaculo habitent: quod si ex mediano cenaculi quid deiectum sit, verius est omnes teneri. 3Si horrearius aliquid deiecerit vel effuderit aut conductor apothecae vel qui in hoc dumtaxat conductum locum habebat, ut ibi opus faciat vel doceat, in factum actioni locus est, etiam si quis operantium deiecerit vel effuderit vel si quis discentium. 4Cum autem legis Aquiliae actione propter hoc quis condemnatus est, merito ei, qui ob hoc, quod hospes vel quis alius de cenaculo deiecit, in factum dandam esse Labeo dicit adversus deiectorem, quod verum est. plane si locaverat deiectori, etiam ex locato habebit actionem. 5Haec autem actio, quae competit de effusis et deiectis, perpetua est et heredi competit, in heredem vero non datur. quae autem de eo competit, quod liber perisse dicetur, intra annum dumtaxat competit, neque in heredem datur neque heredi similibusque personis: nam est poenalis et popularis: dummodo sciamus ex pluribus desiderantibus hanc actionem ei potissimum dari debere cuius interest vel qui adfinitate cognationeve defunctum contingat. sed si libero nocitum sit, ipsi perpetua erit actio: sed si alius velit experiri, annua erit haec actio, nec enim heredibus iure hereditario competit, quippe quod in corpore libero damni datur, iure hereditario transire ad successores non debet, quasi non sit damnum pecuniarium, nam ex bono et aequo oritur. 6Praetor ait: ‘Ne quis in suggrunda protectove supra eum locum, [ed. maior qua] <ed. minor quo> volgo iter fiet inve quo consistetur, id positum habeat, cuius casus nocere cui possit. qui adversus ea fecerit, in eum solidorum decem in factum iudicium dabo. si servus insciente domino fecisse dicetur, aut noxae dedi iubebo.’ 7Hoc edictum superioris portio est: consequens etenim fuit praetorem etiam in hunc casum prospicere, ut, si quid in his partibus aedium periculose positum esset, non noceret. 8Ait praetor: ‘ne quis in suggrunda protectove.’ haec verba ‘ne quis’ ad omnes pertinent vel inquilinos vel dominos aedium, sive inhabitent sive non, habent tamen aliquid expositum his locis. 9‘Supra eum locum, qua volgo iter fieret inve quo consistetur, id positum habeat.’ accipere debemus positum sive in habitationis vel cenaculi, sive etiam in horrei vel cuius alterius aedificii. 10Positum habere etiam is recte videtur, qui ipse quidem non posuit, verum ab alio positum patitur: quare si servus posuerit, dominus autem positum patiatur, non noxali iudicio dominus, sed suo nomine tenebitur. 11Praetor ait ‘cuius casus nocere posset’. ex his verbis manifestatur non omne quidquid positum est, sed quidquid sic positum est, ut nocere possit, hoc solum prospicere praetorem, ne possit nocere: nec spectamus ut noceat, sed omnino si nocere possit, edicto locus sit. coercetur autem, qui positum habuit, sive nocuit id quod positum erat sive non nocuit. 12Si id quod positum erat deciderit et nocuerit, in eum competit actio qui posuit, non in eum qui habitaverit, quasi haec actio non sufficiat, quia positum habuisse non utique videtur qui posuit, nisi vel dominus fuit aedium vel inhabitator. nam et cum pictor in pergula clipeum vel tabulam expositam habuisset eaque excidisset et transeunti damni quid dedisset, Servius respondit ad exemplum huius actionis dari oportere actionem: hanc enim non competere palam esse, quia neque in suggrunda neque in protecto tabula fuerat posita. idem servandum respondit et si amphora ex reticulo suspensa decidisset et damni dedisset, quia et legitima et honoraria actio deficit. 13Ista autem actio popularis est et heredi similibusque competit, in heredes autem non competit, quia poenalis est.
5 Ulpianus, On the Edict, Book XXIII. Where several persons occupy an apartment divided up among themselves, an action will be granted against him alone who occupied that part from which the pouring out was done. 1Where anyone gives gratuitous lodgings to his freedman and his clients or to those of his wife, Trebatius says that he is liable on their account; and this is correct. The rule is the same where a man distributes small lodgings among his friends, for if anyone rents lodgings and he himself occupies the greater portion of the same, he alone will be liable; but if he rents lodgings and retains for himself only a small part, leasing the remainder to several persons, they will all be liable as occupying the lodging from which the throwing down or pouring out took place. 2Sometimes, however, when no disadvantage results to the plaintiff, the Prætor, influenced by equitable motives, ought rather to grant an action against the party from whose bedroom or entry the object was thrown down, even though several persons occupy the same lodging; but if anything should be thrown down from the middle of the apartment, the better opinion is that all are liable. 3Where the keeper of a warehouse throws down or pours out anything, or some one who has leased a storeroom, or has rented the place merely for the performance of some labor or for purposes of giving instruction does so, an action in factum will lie; even if one of the workmen or scholars threw it down or poured it out. 4Where, however, a party has judgment rendered against him under the Lex Aquilia (because his guest, or anyone else, threw something down from the apartment) it is reasonable, as Labeo says that an action in factum should be granted against the party who did the throwing, and this is true. It is evident, if he had leased the room to the party who threw it down, that he will also be entitled to an action on the ground of contract. 5This action which can be brought for things which are poured out and thrown down is a perpetual one, and is available by an heir but is not granted against an heir; but the one which will lie where a freeman is said to have been killed, can only be brought within a year, and is not granted against an heir nor in favor of an heir or similar persons, for it is a penal and a popular action, and we must always remember that where several persons desire to bring a suit of this kind it should preferably be granted to someone who has an interest in it, or was allied to the deceased either by marriage or by blood. Where, however, injury was inflicted upon a freeman he will have a perpetual right of action; but if anyone else desires to institute proceedings, the right will not extend beyond a year; nor are heirs entitled to it as an hereditary privilege; since, where any bodily injury is inflicted upon the freeman, no claim can be transmitted by hereditary right to his successors, as no pecuniary loss is involved, for the action is based on justice and equity. 6The Prætor says, “No one shall have anything deposited upon a projecting roof above a place which is ordinarily used as a passage-way or where people are accustomed to stand; if it can injure anyone by its fall. I will grant an action in factum for ten solidi against any person who violates this law; and if a slave is said to have done this without the knowledge of his master, I will order this amount to be paid, or the said slave to be surrendered by way of reparation.” 7This provision is a part of the Edict previously referred to; for it was only consistent that the Prætor should provide for this case as well, so that if anything should be placed on any part of the house which would be dangerous, it might not cause any injury. 8The Prætor says, “No one,” “on a projecting roof.” These words “No one” have reference to all persons, whether they occupy the house as lodgers or as owners and whether they live there or not, so long as they have anything exposed in these places. 9“Who have anything deposited above a spot which is ordinarily used as a passage-way or where people are accustomed to stand.” We must understand the term “deposited” to be applicable to a lodging or apartment, or to a ware-house or any other building. 10A person may properly be held to have something “deposited,” even if he did not place it himself but allowed this to be done by someone else, and therefore if a slave should place it, and the owner allow it to remain in that position, he will be held liable not to a noxal action, but on his own account. 11The Prætor says, “If it can injure anyone by its fall.” It is manifest from these words that the Prætor only provides against injury being done, not by everything which may be placed in such a position, but by whatever is placed so that it may possibly cause injury, for we do not wait until the injury is done, but the Edict is applicable if injury can result at all; and the party who kept the object in its position is punished whether it caused any damage by being placed there or not. 12Where the object that was placed falls down and causes damage, an action will lie against the party who put it there, but not against the occupant of the house, as this action is not sufficient, because the party who placed the object cannot certainly be held to have kept it in its position, unless he was either the owner or a resident of the house. For when an artist had a shield or a picture on exhibition in a booth, and it fell down and injured a passer-by, Servius was of the opinion that an action corresponding to this one should be granted; for he said that the latter evidently could not be brought, since the picture had neither been placed on the eaves nor on the projecting roof. He stated that the same rule should be observed where a jar which was suspended in a net had fallen down and caused damage; for the reason that both a legal and an equitable action was wanting. 13This action is open to everyone, and lies in favor of an heir and his successors, but it does not lie against heirs, because it is a penal one.
6 Paulus libro nono decimo ad edictum. Hoc edictum non tantum ad civitates et vicos, sed et ad vias, per quas volgo iter fit, pertinet. 1Labeo ait locum habere hoc edictum, si interdiu deiectum sit, non nocte: sed quibusdam locis et nocte iter fit. 2Habitator suam suorumque culpam praestare debet. 3Si de nave deiectum sit, dabitur actio utilis in eum qui navi praepositus sit.
6 Paulus, On the Edict, Book XIX. This Edict is not limited to cities and villages, but also has reference to all roads along which persons ordinarily pass. 1Labeo says that this Edict only applies where an object is thrown down in the daytime, and not at night; still, in certain places people also pass at night. 2A person who occupies the premises is also responsible for the negligence of his family. 3Where anything is thrown out of a ship, an equitable action will be granted against the party in charge of the ship.
7 Gaius libro sexto ad edictum provinciale. Cum liberi hominis corpus ex eo, quod deiectum effusumve quid erit, laesum fuerit, iudex computat mercedes medicis praestitas ceteraque impendia, quae in curatione facta sunt, praeterea operarum, quibus caruit aut cariturus est ob id, quod inutilis factus est. cicatricium autem aut deformitatis nulla fit aestimatio, quia liberum corpus nullam recipit aestimationem.
7 Gaius, On the Provincial Edict, Book VI. Where the body of a freeman has been injured by something which has been thrown down or poured out, the judge must take into consideration the fees paid to a physician, and the other expenses incurred by the cure of the individual, as well as the value of any occupation which the party lost, or is liable to lose on account of having been disabled; but no estimate will be made of scars or of any other disfigurement, because the body of a freeman does not admit of appraisement.