VI P. ALFENUS VARUS: ALF. 2 DIG. D

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1 VI P. ALFENUS VARUS: ALF. 2 DIG. D Mules were hauling two loaded wagons up the Capitoline Hill, and the drivers were pushing the first wagon which was inclined to one side in order that the mules might haul it more easily; in the meantime the upper wagon began to go back, and as the drivers were between the two wagons they withdrew, and the last wagon was struck by the first and moved back, crushing a slave boy who belonged to someone. The owner of the boy asked me against whom he ought to bring an action?

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4 A TRAFFIC ACCIDENT I answered that it depended upon the causation, for if the drivers who had hold of the first wagon voluntarily got out of the way, and the result was that the mules could not hold the wagon and were pulled back by its weight, then no action would lie against the owner of the mules, but an action under the Lex Aquilia could be brought against the men who had hold of the wagon; for if a party, while he was supporting something, by voluntarily releasing his hold enabled it to strike someone, he, nevertheless, committed damage; as for instance, where anyone was driving an ass and did not restrain it; or where anyone were to discharge a weapon, or throw some other object out of his hand. But if the mules gave way because they were frightened, and the drivers, actuated by fear of being crushed, released their hold on the wagon, then no action can be brought against the men but one could be brought against the owner of the mules. And if neither the mules nor the men were the cause of the accident, but the mules could not hold the load, or while striving to do so slipped and fell, and this caused the wagon to go back, and the men were unable to support the weight when the wagon was inclined to one side, then no action could be brought either against the owner of the mules or the men. This, however, is certain, that no matter what the circumstances were, no action would lie against the owner of the mules which were in the rear, as they did not go back voluntarily, but because they were struck.

5 PAUPERIES: NATURAL BEHAVIOUR OF THE ANIMAL ACTION D (4) Therefore, 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.

6 BEYOND LEX AQUILIA: Broadening of the liability for damage

7 PRAETORIAN DELICTS servi corruptio edictum de effussis vel deiectis, positis aut suspensis edictum adversum cauponem, nautam et stabularium de damno aut furto edictum de dolo, edictum de metu

8 EDICTUM DE SERVO CORRUPTO D pr. (Ulpianus, Edict, book 23) The Praetor says: Where anyone is alleged to have corrupted a male or female slave belonging to another, or have persuaded him or her maliciously to do anything which would depreciate the value of him or her, I will grant an action for double the value of the thing.

9 EDICTUM DE SERVO CORRUPTO: PRESUMPTION OF CORRUPTION? D (Ulpianus, Edict, book 23) (4) Shall a person, however, be liable where he has driven a slave of good habits to commit a crime, or instigates a bad slave, or shows him how to perpetrate the act? The better opinion is that even if he showed the bad slave how to perpetrate the offence he will be liable. And, in fact, if the slave had already intended to take to flight, or to commit a theft, and the person referred to should have approved of his intention, he will be liable, for the malice of the slave should not be increased by praising him; therefore, whether he made a good slave bad or a bad slave worse, he will still be held to have corrupted him. (5) He also makes a slave worse who persuades him to commit some injury or theft, or induces him to take to flight, or instigates the slave of another to do these things, or to confuse his peculium, or to be a lover of women, or to wander about, or to devote himself to magical arts, or to be present too often at exhibitions, or to be riotous; or to persuade a slave who is a court official either by words or by bribery to mutilate or falsify the accounts of his master, or even to render an account of which he has been placed in charge unintelligible; D (Paulus, edict, book 19) Or makes him extravagant or disobedient, or persuades him to indulge in debauchery.

10 CORRUPTING OF A DAEMON? Acts of Apostles [16] It happened, as we were going to prayer, that a certain girl having a spirit of divination met us, who brought her masters much gain by fortune telling. [17] The same, following after Paul and us, cried out, These men are servants of the Most High God, who proclaim to us the way of salvation! [18] This she did for many days. But Paul, becoming greatly annoyed, turned and said to the spirit, I charge you in the name of Jesus Christ to come out of her! It came out that very hour. [19] But when her masters saw that the hope of their gain was gone, they seized Paul and Silas, and dragged them into the marketplace before the rulers. [20] When they had brought them to the magistrates, they said, These men, being Jews, are agitating our city, [21] and set forth customs which it is not lawful for us to accept or to observe, being Romans. [22] The multitude rose up together against them, and the magistrates tore their clothes off of them, and commanded them to be beaten with rods. [23] When they had laid many stripes on them, they threw them into prison, charging the jailer to keep them safely, [24] who, having received such a charge, threw them into the inner prison, and secured their feet in the stocks. [25] But about midnight Paul and Silas were praying and singing hymns to God, and the prisoners were listening to them. [26] Suddenly there was a great earthquake, so that the foundations of the prison were shaken; and immediately all the doors were opened, and everyone's bonds were loosened.

11 1. Titus discovered after having manumitted his slave Eros that the man had regularly falsified the accounts entrusted to him, in this way he could give presents to Clodia, femina famosa. A) What may the former owner of Eros do? (see D ) B) Would the situation differ if Eros had been well known for his dissolute ways C) Let us assume for a while that Eros (still a slave responsible for the forgeries) got accidentally killed by Marcus, so his master lost the only possible way to clear his accounts. D) Would the situation differ if Marcus killed Eros on purpose, being outraged by his dissolute behaviour with the woman?

12 ALFENUS VARUS D Alfenus Varus, Digest, Book II.The owner of a slave who had employed him as a steward manumitted him, and subsequently caused him to produce his accounts, and finding that they were not correct, he ascertained that the slave had spent the money on some woman. The question arose whether he could bring suit against this woman for corrupting the slave, as the slave was already free? I answered that he could, and that he could also do this for theft on account of the money which the slave had given her.

13 Quintus and Livia have inherited together Onesimos, a young slave. They jointly hire him as a porter at the Ostia harbour, sharing the his earnings. One day a very bored Quintus decides to take Onesimos to the chariot race, the following day to the gladiators games. The slave takes such a liking to this kind of entertainment that he stops working and spends all his time watching the games. A) Quid iuris? B) would the situation differ if the original will had given the ownership Onesimos as a bequest to Quintus, and its usufruct as a bequest to Livia? (cf. D ) C) what if Onesimos has passed his vice to Pamphilus, a slave solely owned by Livia? (D )

14 9. Ulpianus, On the Edict, Book XXIII. The question is asked by Julianus in the Ninth Book of the Digest, whether a party who corrupts a slave owned in common by myself and him, can be held liable to this action; and he says that he can be held liable by the other joint-owner; and, moreover, that suit can be brought against him for the partition of common property, and also on the ground of partnership, if the joint-owners are partners. But why does Julianus make the condition of the partner worse when he brings suit as such, than where he institutes proceedings against a stranger? Where an action is brought against a stranger, this can be done whether he harbored or corrupted the slave, but when it is brought on the ground of partnership, this is done without the alternative, that is to say, without the allegation of harboring him; for perhaps Julianus thought that this did not affect the partner, for no one can harbor his own slave; but if he did so for the purpose of concealing him, it can be maintained that he is liable. (1) Where I have the usufruct in a slave and you the mere ownership, and the said slave is deteriorated by me, you can institute proceedings against me; but if you committed the act, I can proceed against you by means of a praetorian action; for this action is applicable to all kinds of corruption, and it is to the interest of the usufructuary for the slave in whom he enjoys this right to be of good habits. The usufructuary is also entitled to a praetorian action if another party should harbor or corrupt the slave.

15 D Paulus, On the Edict, Book XIX. So that the action for the recovery of an estate may have the same scope as this action. (1) This Edict does not apply in the case of the corruption of a son or a daughter under paternal control, as the action was established for corrupting a slave who is part of our property, and it is one in which the owner can prove that he has become poorer, although the honor and reputation of his family remain unimpaired. An equitable action for damages, however, will lie for an amount to be decided by the judge, since it is for our interest not to have the minds of our children corrupted. (2) Where a slave who is owned in common by yourself and me corrupts a slave who is mine individually; Sabinus says that an action cannot be brought against the joint-owner any more than if my own slave had corrupted another of my slaves. Moreover, if a slave owned in common corrupts one owned by another, it should be considered whether an action can be brought against both jointowners, or against each separately, in the same way as other offences which are the subject of noxal actions. The better opinion is that each owner is liable for the entire amount, but if one of them pays, the other will be released.

16 DOLUS & METUS Deceit/Fraud & Duress

17 DECEIT & DURESS

18 DECEIT & DURESS Aulus threatens to burn Quintus house if he does not promise him 100. Quintus does so. What can he do?

19 DECEIT & DURESS Aulus threatens to burn Quintus house if he does not promise him 100. Quintus does so. What can he do? Condictio certi cum exceptione:

20 DECEIT & DURESS Aulus threatens to burn Quintus house if he does not promise him 100. Quintus does so. What can he do? Condictio certi cum exceptione: Let Caius Aquilius be judge. If it appears that the Defendant ought on the basis of civil law (oportere) give (dare) to the Plaintiff 100, which is the case, unless in the case matter anything has been achieved through duress, let the judge condemn the Defendant in favour of the Plaintiff; if it does not appear let him absolve.

21 DECEIT & DURESS

22 DECEIT & DURESS The starting point: not relevant for ius civile

23 DECEIT & DURESS The starting point: not relevant for ius civile Later they give rise to an exception/defence in a civil action (exceptio doli/exceptio quod metus causa):

24 DECEIT & DURESS The starting point: not relevant for ius civile Later they give rise to an exception/defence in a civil action (exceptio doli/exceptio quod metus causa): Finally, on the basis of the edicts: penal actions are introduced

25 DECEIT (DOLUS) D pr.-1 (Ulpianus, On the Edict, Book XI. In this Edict the praetor gives relief against tricky and deceitful persons, who use artifice to the injury of others, to prevent the former from profiting by their malice, or the latter from being harmed by their simplicity. (1) The following are the terms of the Edict: Where anything is said to have been done with fraudulent intent and no other action is applicable in the matter, I will grant an action if there seems to be good ground for it.

26 ADMISSIBILITY OF ACTIO DOLI: NO OTHER ACTION AVAILABLE D Ulpianus, On the Edict, Book XI. Labeo thinks that an action based on fraud should not be granted, not only where no other right of action exists, but even where it may be doubtful whether another is available, or not; and he adduces the following instance: Where a party owed me a slave on account of a sale, or a stipulation, and gives him poison, and delivers him to me, or where he owes me a tract of land, and, during the delivery, he imposes a servitude upon it; or demolishes buildings, or cuts down, or roots up trees; Labeo says that whether he gave me security against fraud or not, an action based upon it should be granted against him; since, if he did give security, it is doubtful whether a right of action founded on the stipulation exists. The better opinion is, however, that if security was given against fraud, an action based upon it will not lie, since an action on the stipulation is available; but where there is no security, then, in case an action on purchase is brought, one based upon fraud will not lie, because one based on purchase does; but where one on the stipulation is brought, an action on the ground of fraud will be necessary.

27 DOLUS? D (Ulpian, on the Edict, book XI(10) Moreover, Pomponius says that the praetor Caecidianus did not grant an action on the ground of fraud against one who had alleged that a certain person to whom money was to be lent was solvent, which is the proper view of the case; for an action on the ground of fraud should not be granted unless bad faith was flagrant and evident. D (Gaius, On the Provincial Edict, Book IV.) If, however, you knew that the person had lost his property, and, for the sake of gain, stated to me that he was solvent, and action on the ground of fraud would properly be granted against you; since you falsely recommended another with the intention of deceiving me.

28 DOLUS D Ulpianus, On the Edict, Book XI.) If, however, you persuaded me to reject the estate, under the pretext that it would not pay the creditors, or induced me to choose a certain slave because there was none better in the household; I say that an action on the ground of fraud should be granted, if you did this with malicious intent. Lucius persuades to Tititus that he should reject inheritance as it is apparently burdened with debts. when he does so, it turns out that Lucius was substitute and that the estate in fact is of a great value. what can Titius do?

29 DURESS/THREAT (METUS) D Ulpianus, On the Edict, Book XI. Labeo says that the term fear must be understood to mean not any apprehension whatever, but the dread of some extraordinary evil. 6. Gaius, On the Provincial Edict, Book IV. The fear which we say is meant by this Edict is not that experienced by an irresolute man, but that which would reasonably affect a man of very decided character.

30 Seia threatens Gaius t h a t s h e w i l l severely beat him if he does not return to her 1000 denari that Seia has lent to G a i u s. G a i u s succumbs. Will he be able to sue Seia with actio quod metus causa?

31 D , Ulpianus, On the Edict, Book XI.(2) Julianus says that where a creditor employs force against his debtor to obtain payment of his debt, he is not liable under this Edict, on account of the nature of the action based on duress, which requires that loss should be caused; although it cannot be denied that the party comes within the scope of the Lex Julia de vi, and has lost his right as a creditor.

32 D Callistratus, On Judicial Inquiries, Book V. There is extant a Decree of the Divine Marcus in the following terms: The best course to pursue if you think that you have any legal claim, is to test it by an action ; and when Marcianus said, I have employed no force ; the Emperor replied, Do you think that there is no force employed except where men are wounded? Force is employed just as much in a case where anyone who thinks that something is owing to him and makes a demand for it, without instituting judicial proceedings; therefore, if anyone is proved before Me to have boldly, and without judicial authority obtained possession of any property of his debtor, or any money which was due to him, and which was not voluntarily paid to him by the said debtor; and who has established the law for himself in the matter, he shall not be entitled to the right of a creditor.