Ulpianus, On the Edict, Book XVIII. Municipal magistrates have no authority to inflict severe punishment upon a slave; the right of moderate castigation cannot, however, be denied them.

Ulpianus, On the Edict, Book XVIII. Ad Dig. 4,9,7 pr.ROHGE, Bd. 11 (1874), Nr. 108, S. 344: Haftpflicht des Gasthofbesitzers für die vom Gaste eingebrachten Effecten. Uebergabe von Sachen an den Portier zur Beförderung mit dem Gasthofomnibus zur Post.ROHGE, Bd. 12 (1874), Nr. 35, S. 109: Ausschluß der Haftpflicht ex recepto durch Anordnungen des Absenders zur Sicherung des Frachtguts im Falle drohender Gefahr.The owner of a vessel shall be responsible for the acts of all his sailors, whether they are freemen, or slaves, and not without reason, for he himself employed them at his own risk. But he is not responsible, except where the damage has been committed on board the vessel; for where it happens off the vessel, even though it was committed by the sailors, he will not be liable. Moreover, if he gives warning that every passenger must be responsible for his own property, and that he will not be liable for damage, and the passengers agree to the terms of the warning, he cannot be sued. 1This action in factum is for double damages. 2Where any of the sailors cause damage to the property of one another, this does not affect the owner of the ship. But where anyone is both sailor and merchant, he will be responsible, and where the party injured is one of those commonly called nanlepibatæ that is to say one who works his passage the owner will be liable to him also; and he will be responsible for the acts of a person of this kind since he also is a sailor. 3Where the slave of a sailor causes damage, even though he himself is not a sailor, it is perfectly just to grant a prætorian action against the owner of the vessel. 4The ship-owner is liable in his own name in this action that is to say, he himself is to blame for employing persons of this description; and therefore, even if he should die, he will not be released from liability. Where, however, he becomes liable through the conduct of his own slave, only a noxal action can be brought; for where he employs the slaves of others, he must ascertain whether they are faithful and trustworthy, but he is excusable on account of his own slaves, no matter what kind of slaves he employed for the purpose of manning his ship. 5Where there are several owners of a ship, any one of them can be sued to the amount of the interest which he has in the same. 6These actions, although they are honorary, are still perpetual, but they are not granted against an heir; hence, if a slave has control of a ship, and dies, an action De Peculio will not be granted against his master, even within a year; but where a slave or a son manages a ship with the consent of his father or his master, or has charge of an inn or a stable; I am of the opinion that they will be compelled to defend the suit for the entire amount of damages, on the supposition that they assumed complete responsibility for everything which might happen.

Ulpianus, On the Edict, Book XVIII. Where a quadruped is said to have committed damage, an action which has come down from a Law of the Twelve Tables may be brought; which Law prescribes that either whatever caused the damage must be given up, that is, that the animal that committed it shall be surrendered, or an amount of money equivalent to the damage shall be paid. 1The term “noxia” means the offence itself. 2This action has reference to every kind of quadruped. 3The Prætor says “pauperiem fecisse”, which signifies the damage caused without wrong by the animal which commits it, for an animal cannot be guilty of wrong in law, because it is deficient in reason. 4Therefore, as Servius states, this action is available where an animal commits damage after its ferocity has been aroused; for example, where a horse which has the habit of kicking, kicks, or an ox which is accustomed to butt, does so; or a mule commits damage by reason of extreme savageness. But if an animal should upset a load on anyone on account of the inequality of the ground, or the negligence of the driver, or because the animal was overloaded; this action will not lie, but proceedings must be instituted for wrongful injury. 5Where, however, a dog, while he is being led by someone, breaks away on account of his viciousness, and inflicts injury upon another; then if he could have been held more securely by some one else, or if the party should not have led him through that place, this action will not lie, and the party who had charge of the dog will be liable. 6Moreover, this action will not lie if the savage animal causes any damage through the instigation of another. 7And, generally speaking, this action can be brought whenever a savage animal does any damage which is contrary to its nature, and, therefore, if a horse irritated by pain, kicks, this action will not lie; but the party who struck or wounded the horse will be liable rather to an action in factum, than under the Lex Aquilia, for no other reason than that the party did not commit the injury with his own body. But where anyone caresses a horse, or pats him, and he is kicked by it, there will be ground for this action. 8Where one animal provokes another and causes it to commit some damage, the action must be brought with reference to the one that caused the provocation. 9This action is available whether the animal committed the damage with its own body or through something else with which it was in contact; as for instance, where an ox bruises someone by means of a wagon or by anything else that is upset. 10This action will not be available in the case of wild beasts, on account of their natural ferocity; and therefore if a bear should escape and commit damage, its former owner cannot be sued, because when the animal escaped he ceased to be the owner; and therefore, even if I should kill it, the carcass will be mine. 11Where two rams or two bulls fight and one kills the other, Quintus Mucius makes a distinction; for he holds that the action will not lie if the one that was the aggressor is killed, but if the one not guilty of the provocation is killed, the action may be brought; and therefore the owner must either pay the damage or surrender the animal in lieu thereof. 12Also, in the case of quadrupeds, the offence follows the animal; and this action can be brought against the party to whom the animal belongs, and not against him to whom it belonged when it committed the damage. 13It is evident that if the animal should die before issue is joined, the right of action will be extinguished. 14To surrender the animal by way of reparation is to give it up while it is alive. If it belongs to several parties, an action for damages can be brought against them individually, just as in case of a slave. 15Sometimes, however, the owner will not be sued to compel him to give up the animal by way of reparation, but an action will be brought against him for the entire amount; as for instance, where having been asked in court whether the animal belongs to him he answers that it does not, and if it should be proved that it was his, judgment shall be rendered against him for the entire amount. 16If the animal should be killed by anyone after issue has been joined, since an action will lie against the owner under the Lex Aquilia, consideration of the Lex Aquilia will be taken in court, because the owner has lost the power to surrender the animal by way of reparation; and therefore, in the case which has been stated, he must tender the estimated amount of damages, unless he is ready to assign his right of action against him who killed the animal. 17There is no doubt whatever that this action will pass to an heir and the other successor of the party injured; and also that it can be brought against heirs and other successors, not by the right of succession but on the ground of ownership.

Ulpianus, On the Edict, Book XVIII. The Lex Aquilia annulled all laws previously enacted with reference to the reparation of unlawful damage, whether these were the Twelve Tables or any others; which laws it is not necessary to specify at present. 1The Lex Aquilia is a plebiscite; whose enactment Aquilius, a tribune of the people, proposed to the populace.

Ulpianus, On the Edict, Book XVIII. Where a male or a female slave has been unlawfully killed, the Lex Aquilia is applicable. It is added with reason that it must be unlawfully killed, as it is not sufficient for it to be merely killed, but this must be done in violation of law.

Ulpianus, On the Edict, Book XVIII. Where, however, anyone kills another who is attacking him with a weapon, he is not held to have killed him unlawfully; and where anyone kills a thief through fear of death, there is no doubt that he is not liable under the Lex Aquilia. But if he is able to seize him, and prefers to kill him, the better opinion is that he commits an unlawful act, and therefore he will also be liable under the Lex Cornelia. 1We must here understand the term “injury” to mean not some insult, as we do with reference to an action for injury, but something done illegally, that is to say contrary to the law; for instance, where anyone kills by negligence, and hence sometimes both actions can be brought, namely, that under the Lex Aquilia, and that for injury; but, in this case there will be two assessments, one for damage, and the other for insult, consequently, we must here understand the term “injury” to signify damage committed through negligence, even by a party who did not intend to do wrong. 2Therefore we ask whether an action under the Lex Aquilia will lie where an insane person causes damage? Pegasus denies that it will, for how can anyone be negligent who is not in his right mind? This is perfectly true. Hence an action under the Lex Aquilia will not lie; just as where an animal causes the damage, or where a tile falls from a roof. Again, if a child causes any damage the same rule applies. If, however, a boy who has not reached puberty causes it, Labeo says that he is liable under the Lex Aquilia, because he would be liable for theft; and I think this opinion is correct, if he is capable of committing a breach of the law. 3Where a teacher wounds or kills a slave while instructing him, will he be liable under the Lex Aquilia on the ground that he committed unlawful damage? Julianus says that a person was held liable under the Lex Aquilia, who blinded a pupil in one eye while instructing him; and much more would he have been liable, if he had killed him. He supposes the following case. A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boy’s eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him. Still, he is in doubt as to whether an action on a contract will lie, because only moderate punishment is conceded to a person who imparts instruction. I do not doubt, however, that an action can be brought under the Lex Aquilia;

Ulpianus, On the Edict, Book XVIII. By this action the father will obtain damages to the amount of the value of the services of his son which he lost on account of the destruction of his eye, as well as the expenses he incurred for his medical treatment. 1We must understand the term “kill” to mean where this was done either with a sword, a club, or some other weapon, or with the hands if strangulation was used, or with a kick, or by striking him on the head, or in any other way whatsoever. 2The Lex Aquilia will apply where anyone who has been too heavily laden throws down his load and kills a slave; for it was in his power not to be overloaded in this manner. Pegasus says that if anyone should slip and crush with his load a slave belonging to another, he will be liable under the Lex Aquilia, if he loaded himself more heavily than he should have done, or walked carelessly over a slippery place. 3In like manner, where anyone injures another because of someone pushing him, Proculus holds that neither he who gave the push is liable, because he did not kill him, nor he who was pushed either, because he did not commit wrongful injury; according to which opinion an action in factum should be granted against the party who gave the push. 4Where anyone in a wrestling match or in a wrestling and boxing contest or where two boxers are engaged, kills another; and he does so in a public exhibition, the Lex Aquilia will not apply, because the damage must be considered to have been committed for the sake of renown and courage, and not with the intent to cause injury. This, however, is not applicable to the case of a slave, since freeborn persons are accustomed to take part in such contests, but it does apply where the son of a family is wounded. It is evident that if one party inflicts a wound while the other was retiring, the Lex Aquilia will be applicable; or if he kills a slave where there is no contest, unless this is done at the instigation of the master; for then the Lex Aquilia will not apply. 5Where anyone lightly strikes a slave who is sick, and he dies; Labeo justly holds that he will be liable under the Lex Aquilia, for a blow that is mortal to one man, often will not be so to another. 6Ad Dig. 9,2,7,6ROHGE, Bd. 20 (1877), Nr. 96, S. 382: Schaden durch Ausbringen eines Ankers im Hafen ohne Bezeichnung.Celsus says that it makes a great deal of difference whether the party actually kills, or provides the cause of death, as he who provides the cause of death is not liable under the Lex Aquilia, but is to an action in factum. With reference to this, he cites the case of a party who administered poison as medicine, and who he says provided the cause of death; just as one who places a sword in the hands of an insane person, for the latter would not be liable under the Lex Aquilia, but would be to an action in factum. 7But where anyone throws another from a bridge, whether he is killed by the blow which he received, or is submerged and drowned, or, overcome by the force of the current, dies exhausted; the culprit, Celsus says, is liable under the Lex Aquilia, just as if he had dashed a boy against a rock. 8Proculus holds that if a physician should operate upon a slave unskillfully, an action will lie either on the contract, or under the Lex Aquilia.

Ulpianus, On the Edict, Book XVIII. Moreover, where a midwife administers a drug to a woman and she dies in consequence, Labeo makes a distinction, namely: that if she administered it with her own hands she is held to have killed the woman, but if she gave it to the latter in order that she might take it, an action in factum should be granted, and this opinion is correct; for she rather provided the cause of death, than actually killed the woman. 1Where anyone, either by force of persuasion, administers a drug to another, either by the mouth, or by injection, or anoints him with some poisonous substance; he will be liable under the Lex Aquilia, just as the midwife who administers a drug is liable. 2Where anyone kills a slave by starvation, Neratius says he is liable to an action in factum. 3If my slave is riding on horseback, and by frightening the horse you cause the slave to be thrown into a river, and he loses his life in consequence, Ofilius writes that an action in factiim should be granted; just as if my slave had been drawn into ambush by one man and killed by another. 4Ad Dig. 9,2,9,4ROHGE, Bd. 20 (1877), Nr. 99, S. 398: Einfluß der Konkurrenz der culpa levis des Beschädigten auf die Haftpflicht.Again, where a slave is killed by parties who are practicing with javelins for amusement, the Lex Aquilia is applicable; but where others are practicing with javelins, and a slave crosses the place the Lex Aquilia will not apply, because he should not have rashly crossed the field where this practice was going on; but still, if anyone intentionally casts a javelin at him, he will be liable under the Lex Aquilia.

Ulpianus, On the Edict, Book VIII. Mela also says that if, while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he had the habit of shaving persons in a place where it is customary to play ball, or where there was much travel, he is in a certain degree responsible; although it may not improperly be held that where anyone seats himself in a barber’s chair in a dangerous place, he has only himself to blame. 1Where one party holds a slave and another kills him, the party who held him is liable to an action in factum, since he provided the cause of death. 2But where several persons struck the slave, let us consider whether all of them will be liable, just as if they had all killed him? And, if it is known by whose blow he lost his life, the former will be liable for having killed him; but if this is not known, Julianus says all of them can be held liable for his death, and if proceedings are instituted against only one, the others cannot be discharged; for under the Lex Aquilia, where one man pays he does not release another, as the action is a penal one. 3Ad Dig. 9,2,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 15.Celsus states that where anyone strikes a slave a mortal blow, and another deprives him of life, the former will not be held liable for having killed him, but only for having wounded him, for the reason that he died from a wound inflicted by another, but the latter will be liable because he killed him; and this opinion is held by Marcellus, and is the more reasonable one. 4It was decided by the ancient authorities that where several persons throw down a beam which crushes a slave, all are equally liable to an action under the Lex Aquilia. 5Proculus also gave it as his opinion that a party who provoked a dog, and caused him to bite some one, would be liable to an action under the Lex Aquilia, even though he did not have hold of the dog. Julianus, however, says that, in this instance, he is liable under the Lex Aquilia only if he held the dog, and caused him to bite the other party; but if he did not hold him, an action in factum should be brought against him. 6An action under the Lex Aquilia can be brought by the master, that is, by the owner. 7Where wrongful damage is done to a slave that I was about to return to you on delivery of the price, Julianus says that I have a right to an action under the Lex Aquilia, and that when I begin to return the slave I must assign it to you. 8But if the slave is serving in good faith some person who is not his owner, will the latter have a right of action under the Lex Aquilia? The better opinion is that an action in factum should be granted. 9Julianus says that where clothing is loaned to anyone and it is torn, the latter cannot bring an action under the Lex Aquilia, but the owner of the clothing can do so. 10Julianus discussed the point whether an usufructuary or a party entitled to the use of property has a right of action under the Lex Aquilia? I think the better opinion is that in a case of this kind, a prætorian action should be granted.

Ulpianus, On the Edict, Book XVIII. A freeman is entitled to a prætorian action, based on the Lex Aquilia, in his own name; but he cannot bring the direct action, because no one can be held to be the owner of his own limbs. A master, however, can bring an action on account of a fugitive slave. 1Julianus says that if a freeman serves me in good faith as a slave, he himself is liable to me under the Lex Aquilia. 2Where a slave belonging to an estate is killed, the question arises who can bring suit under the Lex Aquilia, since there is no owner of said slave? Celsus says, that it is the intention of the law that all damages should be made good to the owner, and therefore the estate will be considered the owner; hence when the estate is entered upon, the heir can institute proceedings. 3Where a slave who was bequeathed is killed after the estate has been entered upon, the right of action under the Lex Aquilia belongs to the legatee, unless he did not accept the legacy until after the death of the slave; because if he rejected it, Julianus says that the result will be that the right of action must be said to belong to the heir.

Ulpianus, On the Edict, Book XVIII. In consequence of what was written it must be stated that, if the slave who was bequeathed is killed before the estate is entered upon, the right of action under the Lex Aquilia must remain with the heir, on account of having been acquired through the estate. If, however, the slave was wounded before the estate was entered upon, then, in fact, the right of action remained as a portion of the assets of the estate, but the heir is obliged to assign it to the legatee. 1Ad Dig. 9,2,15,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 15.Where a slave is mortally wounded and afterwards loses his life through the fall of a building, or through shipwreck, or through some blow, sooner than he otherwise would have done; an action cannot be brought on the ground of his death, but only for wounding him. If, however, he was manumitted or sold, and afterwards died of the wound, Julianus says an action can be brought as for having killed him. This difference exists because he was killed by you at the time you wounded him, although this only became apparent when he died; but in the former instances the fall of the building did not permit it to appear whether he was killed or not. Where a slave is mortally wounded and you order him to be free, and appoint him your heir, and he then dies, his heir cannot bring suit under the Lex Aquilia,

Ulpianus, On the Edict, Book XVIII. Where an owner kills his own slave, he will be liable to an action in factum brought by a bona fide possessor or a party who held the slave in pledge.

Ulpianus, On the Edict, Book XVIII. But where anyone kills a slave held in common he is liable under the Lex Aquilia, so Celsus says; and the same rule applies if he wounds him:

The Same, On the Edict, Book XVIII. The law says: “The greatest value of the slave during that past year”. This clause refers to an assessment of the amount of the damage which was inflicted. 1The year is to be calculated back from the day on which the slave was killed; but if he was only mortally wounded and died after a long interval had elapsed, then, according to Julianus, we must compute the year from the day on which he was wounded; although Celsus holds a different opinion. 2Must we, however, only appraise the value of the body of the slave when he was killed, or shall we not rather estimate what our interest was in his not being killed? The present rule is that an estimate shall be made of what our interest was worth.

Ulpianus, On the Edict, Book XVIII. Hence Neratius states that if a slave who has been appointed an heir is killed, the value of the estate must also be taken into consideration. 1Julianus says that if a slave who had been liberated and appointed heir is killed, neither the substituted heir nor the heir at law can recover the appraised value of the estate by an action under the Lex Aquilia, as the slave had not yet obtained it; and this opinion is correct. Therefore, the sole estimate which can be made is that of the value of the slave, since this is held to be the only thing in which the substitute is interested; but I think that even the estimate of his value should not be made, because if he had been the heir he would also have been free. 2Julianus further says that if I am appointed an heir under the condition that I will manumit Stichus, and Stichus is killed after the death of the testator, the appraised amount that I will be entitled to will likewise include the value of the estate; for the condition was not fulfilled on account of the death of the slave; but if the slave was killed during the lifetime of the testator, the estimated value of the estate cannot be considered, because the greatest value of the slave during the preceding year was retroactively taken into account. 3Julianus also says that the appraisement of the value of the slave who was killed can only be made with reference to the time when he was worth the most during that year; and, therefore, if the thumb of a valuable artist was cut off, and within a year of the time when this was done he was killed; his owner can bring an action under the Lex Aquilia, and his value must be estimated at the amount he was worth before he lost his skill along with his thumb. 4Where, however, a slave is killed who had committed great frauds in my accounts, and whom I had intended to put to torture in order to extract from him the names of his accomplices in the frauds, Labeo very properly holds that the value of the slave should be estimated at the amount of the interest I had in detecting the frauds committed by him, and not on the basis of the loss caused by the slave himself. 5If, however, a well-behaved slave should change his habits, and be killed within a year; the estimate of his value should be made upon the basis of what he was worth before the change took place. 6In short, it must be held that whatever advantage rendered the slave more valuable at any time within the year during which he was killed, should be included in the appraisement of his actual value. 7Where an infant slave who is not yet a year old is killed, the better opinion is that the appraisement of his value should be referred to that part of the year during which he was living. 8It is established that this action is granted to the heir and other successors; but it will not be granted against the heir and the successors of the other party, as it is a penal one; unless the said heir should have become more wealthy through the damage which was caused. 9Where a slave is killed through malice, it is established that his owner can also bring suit under the Lex Cornelia, and if he proceeds under the Lex Aquilia, his suit under the Lex Cornelia will not be barred. 10This action can be brought for civil damages where the party confesses his guilt, and for double damages where he denies it. 11Where anyone confesses that he killed a slave who is still living, and afterwards is prepared to show that the said slave is still alive; Julianus says that the Lex Aquilia does not apply, even though the party confesses that he killed him; because where the suit is based on a confession the plaintiff is not required to prove that the party who killed the slave was the defendant, but it is essential that the slave should have been killed by somebody.

Ulpianus, On the Edict, Book XVIII. Hence, if the slave was not killed, but died, the better opinion is that the defendant should not be liable for the dead slave, even though he may have confessed that he killed him. 1Where an agent, a guardian, a curator, or anyone else confesses that his absent principal wounded a slave, a prætorian action based upon the confession should be granted against said party. 2It should be noted that in this action which is granted against the person making a confession, the judge is appointed not for the purpose of rendering a decision, but to assess the damages; for no trial can take place for the conviction of persons who confess.

Ulpianus, On the Edict, Book XVIII. Where one slave carries off another belonging to a different owner, and kills him, both Julianus and Celsus hold that an action based on theft as well as one on wrongful damage will lie. 1Where a slave is owned in common, that is to say, belongs to you and me, and he kills another slave belonging to me, a suit based on the Lex Aquilia can be brought against you, if the slave acted with your consent; and Proculus also held this opinion, as Urseius asserts. But if he did not commit the act with your consent, a noxal action will not lie, lest it might be in the power of the slave to belong to you alone. I think this to be correct. 2Moreover, if a slave who is held in common by you and me is killed by a slave belonging to Titius, Celsus says that if one of the owners brings suit, he will either obtain a proportionate amount of the damages assessed, or the slave must be absolutely surrendered by way of reparation, because this is a matter which is not susceptible of division. 3The owner is liable on account of the slave who committed the homicide, and he whom he is serving as a slave in good faith is not liable; but the question arises whether a party whose slave is a fugitive, is liable on his account under the Lex Aquilia? Julianus says that he is liable. This is perfectly true, and Marcellus also holds the same opinion. 4The second Section of this law has fallen into desuetude. 5In the third Section the Lex Aquilia says, “If anyone damages the property of another except by killing slaves or cattle, whatever the value of the property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be compelled to pay the amount to the owner of the same”. 6Hence, if a man should not kill a slave or an animal but should burn, break, or injure any other property, proceedings could undoubtedly be taken under this provision of the law. Therefore, if you throw a torch at my slave and burn him, you will be liable to me. 7Moreover, if you set fire to my trees, or to my farmhouse, I am entitled to an action under the Lex Aquilia. 8If anyone should intend to burn my house, and the fire spreads to the house of my neighbor, he will be liable also to the neighbor under the Lex Aquilia; and he will be not less liable to the tenants, on account of the burning of their personal property. 9If the slave of a tenant who has charge of a furnace goes to sleep in front of it, and the house burns down; Neratius says that where an action is brought on the lease the tenant must make good the loss, if he was negligent in the selection of persons in his service; but where one person kindled the fire in the furnace, and another was negligent in looking after it, will he who kindled the fire be liable? He who had charge of the fire did nothing, and he who kindled it properly was blameless; what then is the conclusion? I think that a prætorian action will lie both against him who fell asleep before the furnace and against him who neglected to attend to it, for no one should say with reference to the one who went to sleep that his failing was only human and natural, since he should either have extinguished the fire, or have protected it in such a way that it could not spread. 10If you have an oven against a party-wall will you be liable for wrongful damage? Proculus says that no action can be brought, because none will lie against a party who has a hearth. Therefore, I think it is more just that an action should be granted in factum, of course, if the wall is burned; but if you have not yet caused me any damage, but your fire is in such a place that I am afraid that you will do so, I think that a bond providing against threatened injury will be sufficient. 11Proculus says that where the slaves of a tenant burn down a farm-house, the tenant will be liable either under the lease or under the Lex Aquilia, so that he can surrender the slaves by way of reparation; and where the case has been decided under one of the actions, no further proceedings can be instituted under the other. This is understood only to apply where the tenant was not guilty of negligence; but if he owned slaves who were in the habit of committing criminal acts, he will be liable for wrongful damage for having slaves of this kind. He states that the same rule must be observed with reference to persons who lodge in a building; and this opinion is reasonable. 12If my bees fly away to yours, and you burn them, Celsus says that I have a right of action against you under the Lex Aquilia. 13The law says “break to pieces”. This word almost all ancient authorities understood to mean the same as “destroy”. 14Therefore, Celsus makes the inquiry, if you sowed darnel or weeds in the wheat-field of another, the owner of the same can not only institute proceedings under the interdict Quod vi aut clam, (or if the land is leased, the tenant can do so) but he can also bring an action in factum; and if the tenant brings it he must give security that no other proceedings shall be instituted; this, of course, being done in order to prevent the owner from causing further annoyance, for it is one kind of damage to destroy or change something, for the purpose of giving cause for a suit under the Lex Aquilia; and another, when, without changing the substance of the article itself, you mingle something with it, the separation of which would be troublesome. 15Celsus says, that it is evident that suit can be brought under the Aquilian Law where a party puts filth in wine, or spills it, or makes it sour, or spoils it in any other way; for both pouring it out and making it sour are embraced in the words “destroy”. 16And he does not deny that “break to pieces”, and “burn” are also included in the word “destroy”; but that there is nothing new where certain things are especially enumerated in the law, for it usually adds a general term including those specific things. This opinion is correct. 17We must, by all means, understand that the expression “break to pieces” is applicable where a party wounds a slave, or strikes him with a stick, or a strap, or with his fist, or with a weapon, or with anything else which would cut or raise a swelling upon the body of anyone, but only to the extent where wrongful damage is committed. But where the act does not diminish the value of the slave or render him less useful, the Lex Aquilia, is not available, and an action for injury alone can be brought; for the Lex Aquilia only applies to such injuries as have caused loss. Therefore, if the value of the slave is not diminished, but expenses have been incurred to have him made well and sound again, it is held that I am damaged to that extent; and therefore an action can be brought under the Lex Aquilia. 18Where anyone tears, or soils the clothes of another, he is liable, just as if he had destroyed them. 19Moreover, if anyone throws my millet or wheat into a river, the action under the Lex Aquilia will be sufficient. 20Again, where anyone mixes sand or something else with my wheat, so that it will be difficult to separate it, proceedings can be brought against him just as if he had destroyed it. 21If anyone should knock coins out of my hand, Sabinus is of the opinion that an action for wrongful injury will lie, if they are lost in such a way that they cannot come into anyone’s possession, as for instance, where they have fallen into a river, the sea, or a sewer; but where they come into someone’s possession, proceedings must be instituted for theft caused by aid and advice. This was the opinion of the ancient authorities. Sabinus says that an action in factum can also be granted. 22If you strike a woman with your fist or a mare receives a blow from you, and a miscarriage results, Brutus says that you are liable under the Lex Aquilia for “breaking to pieces”, as it were. 23And also, if anyone overloads a mule, and breaks one of its limbs, the Lex Aquilia will be available. 24Where anyone pierces the hull of a vessel loaded with merchandise, Viviannus says that an action will lie under the Lex Aquilia for “breaking to pieces”, as it were. 25If a party picks olives that are not ripe, or reaps grain that is not mature, or gathers grapes that are green, he will be liable under the Lex Aquilia; but if the crops have reached maturity, the Lex Aquilia will not apply; for no wrong is committed, as the party has presented you with the expenses which would have been incurred by harvesting crops of this kind; if, however, he removes what has been gathered he will be liable for theft. Octavenus says with reference to grapes, “Unless he throws the grapes on the ground, so that they are scattered”. 26The same writer states with reference to cutting wood, that if what is cut is immature, the party will be liable under the Lex Aquilia; but if he takes it away after it is mature, he will be liable for theft, as well as for cutting trees by stealth. 27Where you remove mature willows in such a way as not to injure the trunks of the trees, the Lex Aquilia is not available. 28If anyone castrates a boy slave, and thereby renders him more valuable, Vivianus says that the Lex Aquilia does not apply, but that an action can be brought for injury, either under the Edict of the ædiles, or for fourfold damages. 29If you entrust an artisan with a cup to be polished, and he breaks it through want of skill, he will be liable for wrongful damage; but if he does not break it through want of skill, but it had cracks which spoiled it, he will be excusable; and therefore artisans, when things of this description are entrusted to them, are generally accustomed to provide by an agreement that the work will not be at their risk; and this bars any right of action on the agreement, or under the Lex Aquilia. 30Where a husband gives loose pearls to his wife for her own use, and she perforates them without the consent or knowledge of her husband, in order that they may afterwards be worn upon a string, she will be liable under the Lex Aquilia, either after a divorce, or while she is still married. 31Where anyone breaks down or forces open the doors of my building, or demolishes the building itself, he is liable under the Lex Aquilia. 32Where anyone demolishes my aqueduct, although the materials of which it was composed are my property, still, because the land through which I bring the water is not mine, the better opinion is to say that a prætorian action should be granted. 33Where a stone falls from a wagon and destroys or breaks anything, it is held that the driver of the wagon is liable to an action under the Lex Aquilia, if he loaded the stones insecurely and for that reason they slipped off. 34Where anyone employs a slave to lead a mule, and places the mule in his care; and he ties the strap of the halter to his thumb, and the mule breaks loose and tears off the thumb of the slave, and then precipitates itself from a height; Mela says, that if a slave who was unskillful was hired as being skillful, an action can be brought against the owner of the slave on account of the mule which was destroyed, or disabled; but if the mule was excited by a blow, or by fright, the owner, (that is to say, the owner of the mule as well as the owner of the slave) will be entitled to an action under the Lex Aquilia, against the person who frightened the mule. It seems to me, however, that even in a case where an action on contract will lie, one also can be brought under the Lex Aquilia. 35Moreover, if you entrust a vat full of wine to be repaired by a plasterer, and he breaks a hole in it so that the wine runs out, Labeo says that an action in factum will lie.

Ulpianus, On the Edict, Book XVIII. Just as if you set traps in a place where you have no right to set them, and the cattle of a neighbor are caught in them. 1If you cut off my roof which I have permitted to project over your house without any right; Proculus states that I am entitled to an action against you for wrongful damage, as you should have sued me, alleging that I had no right to have a projecting roof; and it is not just that I should suffer damage through your cutting off my timbers. A contrary rule is to be found in a Rescript of the Emperor Severus, who stated in said Rescript to a party through whose house an aqueduct was carried without any servitude existing, that he had a right to destroy it himself; and this seems reasonable, for the difference is that in one instance a man built the roof on land which belonged to him and in the other, the party built the aqueduct on the premises of someone else. 2If your ship collides with my boat and I am damaged, the question arises what action shall I be entitled to? Proculus says that if it was in the power of the sailors to prevent the accident, and it occurred through their negligence, an action can be brought against them under the Lex Aquilia, because it makes but little difference whether you cause damage by driving the ship at the boat, or by steering towards the ship, or inflict the injury with your own hands; as in all these ways I sustain damage through your agency, but where the ship ran against the boat on account of a broken rope, or because there was no one to steer it, an action cannot be brought against the owner. 3Labeo also says, that where a ship is impelled by the force of the wind against cables attached to the anchors of another ship, and the sailors cut the cables; and the ship cannot be extricated in any other way but by cutting the cables, no action should be granted. Labeo and Proculus are of the same opinion with reference to the nets of fishermen in which a vessel belonging to others had become entangled; and it is evident that if this took place through the negligence of the sailors, an action under the Lex Aquilia should be brought. Where, however, suit is brought for wrongful damage to the nets, no estimate should be taken of the fish which were not caught on this account; since it is uncertain whether any would have been caught. The same rule is adopted in the case of hunters, and bird-catchers. 4If one ship collides with another approaching in the opposite direction, an action on the ground of wrongful damage will lie either against the steersman or the captain, so Alfenus says. Where, however, the ship was driven with too much force to be controlled, no action can be granted against the owner; still if the trouble occurred through the negligence of the sailors, I think that an action under the Lex Aquilia would be sufficient. 5Where anyone cuts a cable by which a vessel is secured, and the vessel is lost in consequence, an action in factum will lie. 6Under this Section of the law proceedings can be instituted by this action for the injury of any animals which are not classed as cattle, for instance, a dog; and the same rule will apply with respect to a wild boar, or lion, and other wild beasts and birds. 7Municipal magistrates who have committed wrongful damage can be held liable under the Lex Aquilia; for where any of them has taken cattle of yours in execution, and allows them to die of hunger, by not permitting you to give them food an action in factum should be granted. Moreover, where he thinks that he is levying an execution in accordance with law, but does not actually do so, and restores the property worn out and ruined, it is held that the Lex Aquilia will apply; and this, indeed, can also be stated where the execution was levied in compliance with the law. Where, however, a magistrate committed violence against a party who was resisting, he would not be liable under the Lex Aquilia, for when one took a slave in execution and the latter hanged himself, no action was granted. 8The words, “Whatever was the value during the last thirty days”, although the greatest value is not expressly stated, still it is established that this should be understood.

Ulpianus, On the Edict, Book XVIII. For the reason that the ownership is held to have accrued to him retroactively;

Ulpianus, On the Edict, Book XVIII. Where a slave kills anyone with the knowledge of his owner, he renders the latter liable for the full amount of damages, for it is held that the owner himself committed the homicide; but where this was done without the owner’s knowledge, a noxal action will lie, as the owner should not be held liable, on account of the offence of the slave, for any more than to surrender him by way of reparation. 1Where he did nothing to prevent the crime, whether he remains the owner or ceases to be such, he will be liable to this action; for it is sufficient if he was the owner at the time when he did not prevent the act; and to such an extent is this the case, that Celsus thinks if the slave should be alienated in whole or in part or manumitted, the damage does not follow the person, for the slave did not commit any offence, as he obeyed his owner’s orders. And this may be truly said, if the latter did order him, but if he only did not prevent him, how can we excuse the act of the slave? Celsus, however, makes a distinction between the Lex Aquilia and the Law of the Twelve Tables, for, under the ancient law, if a slave committed a theft or caused any other damage with the knowledge of his owner, a noxal action would lie on account of the slave, and the owner would not be directly liable; but he says that under the Lex Aquilia the owner would be directly liable, and not liable on account of the slave. He then states the principle of each of the two laws; the intention of that of the Twelve Tables being that, in an instance of this kind, slaves should not obey their masters, but in the case of the Lex Aquilia the law excused a slave who obeyed his master, as he would have been put to death if he had not done so. But if we consider as established what Julianus states in the Eighty-sixth Book, that, “Where a slave commits a theft or causes some injury,” this has also reference to more recent laws; it may be said that a noxal action can be granted against the owner on account of his slave; so that because an Aquilian action is granted against the owner this does not excuse the slave, but is a burden to the owner. We approve of the opinion of Julianus, which is reasonable, and is supported by Marcellus as is stated by Julianus.

The Same, On the Edict, Book XVIII. But the slave himself, if manumitted, will also be liable.

Ulpianus, On the Edict, Book XVIII. Where anyone is sued by several persons on account of an offence committed by his slave, or by one person on account of several offences, then it will not be necessary for him to tender the amount of damages assessed to those to whom he cannot surrender the slave, since he cannot surrender him to all of them. What then is the rule if he is sued by several parties? If, indeed, one of them has anticipated the others, is his position better, and shall the slave be surrendered to him alone? Or shall he be surrendered to all of them, or must the defendant furnish security that he will defend his adversary against the other parties? It is the better opinion that the position of the party who has anticipated the others is preferable. Therefore the slave should be surrendered, not to the plaintiff who first instituted proceedings, but to the one who first obtained judgment; and hence an action to enforce the judgment will be refused to a party who gains his case subsequently. 1If a slave is entitled to his freedom conditionally, and the condition is fulfilled before the surrender; or if he should obtain his freedom under the terms of a trust, or a condition is complied with in accordance with which the ownership of the slave was bequeathed as a legacy and transferred, the defendant must be discharged by an order of court; and it is part of the duty of the judge to provide that the party to whom he is surrendered shall give security against the recovery of the slave by eviction on account of an act of the defendant.

The Same, On the Edict, Book XVIII. Where anyone is interrogated in court as to whether a quadruped which has committed damage belongs to him, and he answers that it does, he will be liable.

The Same, On the Edict, Book XVIII. Where a tract of land is sold, and fraud is committed with reference to the quality of the jugera, an action on purchase will lie.

Ulpianus, On the Edict, Book XVIII. And that half of the amount of the price should not merely be taken into consideration.

The Same, On the Edict, Book XVIII. If anyone should have intercourse with a female slave, an action for injury will be granted to her master, but if he conceals the slave, or does something else with the intention of stealing, he will also be liable to an action for theft; or, if anyone should have intercourse with a young girl who was not mature, some authorities think that the action under the Aquilian Law will also lie.

The Same, On the Edict of the Prætor, Book XVIII. Where anyone demolishes a sepulchre, the Aquilian Law does not apply, but proceedings can be instituted under the interdict Quod vi out clam. This opinion was also stated by Celsus with reference to a statue torn from a monument. He also asks if it was not fastened with lead, or attached to the tomb, in any way, whether it should be considered a part of the monument, or a part of our property. Celsus says that it is a part of the monument, as a receptacle of bones, and therefore the interdict Quod vi aut clam, will be applicable.

The Same, On the Edict, Book XVIII. If anyone should maliciously burn my house, he shall suffer capital punishment as an incendiary.

Ulpianus, On the Edict, Book XVIII. A “meadow” is land for whose harvest nothing is required but a sickle; and it is so called because it is already prepared for the crop to be gathered.

Ad Dig. 50,17,130Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 9.Ulpianus, On the Edict, Book XVIII. Actions, and especially penal ones, which have reference to the same subject, never abrogate one another.