Civil Law II Supervision Sheets
Joe Sampson, jws43
Civil Law II Supervision Sheets 2014-15
Order of Supervisions
1. Servitudes
2. Ownership
3. Possession
4. Acquiring ownership
5. Origins of the lex Aquilia
6. The scope of the lex Aquilia
7. Iniuria and culpa; causation
8. Damages
Easter term will be dedicated to revision.
A Course in Two Halves
As you probably know, the Civil Law II syllabus covers two topics that have relatively little overlap.
In Michaelmas we will be looking at the law of property as a whole, with a particular emphasis on the
conceptualisation of property. We will introduce steadily more Digest reading over the course of the
term. In Lent we focus extremely narrowly on a single title of the Digest (D.9.2) dealing with the lex
Aquilia. Here we are concerned not only with delictual theory but with juristic method.
Supervision Arrangements
Supervisions will be held in Clare Hall’s President’s Lodge with myself and Professor Ibbetson. On
occasion it is possible supervisions will be with just me in the Law Faculty – you will be notified by
email when this is the case. Once you have chosen a supervision time, there is very little scope for
changing times.
The reading lists are relatively short. This is to allow you time to seriously think about what you have
read. The questions on the supervision sheets will, as ever, guide your thinking.
Lectures
Go. This course gets confusing quickly, and the secondary literature often assumes a considerable
degree of familiarity with the subject.
Latin
Virtually nobody who takes Civil Law II has any understanding of Latin. However, we will frequently
use Latin terminology (e.g. ‘dominium’ instead of ‘ownership’) in the interests of accuracy. Treat this
like unfamiliar conceptual language in any other subject – nobody complains about having to know
old French when confronted with mortgages and estoppel in land law. Unfortunately, the secondary
literature often assumes some knowledge of Latin. As a result, texts are often quoted in Latin. This
can be remedied simply by having a copy of the Digest/Institutes to hand when doing your reading.
Civil Law II Supervision Sheets
Joe Sampson, jws43
Essays
Written work will be set in supervisions 2, 3, 5, 6 and 8. Hand in at the relevant supervision. All
written work is subject to a 1500 word limit. Two particular notes on essays:
1. Please ensure you actually put forward an argument. There is very little value in providing an
uncritical overview of the topic at hand. It may seem obvious, but a startling number of
Cambridge law undergraduates never learn how to do this.
2. One of the hardest things about this subject is interweaving your opinions, the secondary
literature and the primary material into a cohesive whole. Do not tackle each of these three
components on their own (e.g. by having a paragraph where you go through all the arguments
you have read about, then a paragraph with your own views). It is far more impressive if you
set out a single author’s views, examine the texts upon which he is relying and then put
forward your own opinion about his argument and authorities.
Questions?
Email [email protected]
Joe Sampson
Trinity College
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 1 – Servitudes
There is relatively little written (in English) on this topic. As such, we will be focusing on the texts in
the supervision (even more so than usual). Please read through as much of D.8 as you can, trying to
identify interesting texts for us to talk about.
Reading
Main Buckland, ‘The conception of servitudes in Roman law’ (1928) 44 LQR 426
(Heinonline)
Rodger, Owners and Neighbours in Roman Law (E.9.R.30), chs1-2 (and
more if you can – the whole thing is worth reading)
Texts J.2.3 (servitudes)
J.2.4 (usufruct)
D.7 (usufruct)
* D.8 (servitudes)
D.39.2 (damnum infectum)
D.43.19 (interdicts on iter and actus)
Questions
1. Explain D.41.3.4.28 (usucapio of libertas from a servitude). What’s weird about the usage of
usucapio in the texts on libertas?
2. Explain D.8.3.27 – how did co-ownership work in Roman law?
3. Explain D.8.5.10.pr (acquisition of servitudes by long use).
4. Explain D.8.5.8.5. Is this evidence of natural rights in Roman legal thought?
5. How did damnum infectum work?
6. ‘The law of servitudes clearly shows that dominium was not absolute.’ Discuss
7. Ted, Dougal and Jack had lived together for many years in a house they jointly own. Dougal,
who was recently ‘discovered’ by a talent agent, has let his newfound celebrity go to his head.
Unable to put up with his ego any longer, Ted and Jack convince him to split their land in
half. One half is owned by Dougal, the other by Ted and Jack jointly. The next day Dougal set
off for town. Unfortunately the only road out of the property was on Ted and Jack’s side of
the plot. Dougal asked Jack if he could pass over his part of the land, to which Jack gave a
noncommittal grunt. As Jack was a man of few words, Dougal thought any response ought to
be taken as consent, and made his way into town. While there he ran into Ted and mentioned
his arrangement with Jack. Knowing Jack would have only entered into such an agreement if
the conditions were advantageous, and not wanting to upset his irritable cohabitant, Ted also
agreed to let Dougal walk across their land. Life goes on.
Dougal’s celebrity reaches unimaginable heights, and he decides it is time to leave his former
home. He gives it to his long-suffering servant Doyle on an usufruct. Whenever she passes by
Jack and Ted’s property, she often stops to talk for considerable periods of time. Irritated by
this behaviour but averse to direct conflict, Ted leaves a note for Doyle informing her that she
is no longer allowed to walk across their land. Unable to leave the property, Doyle turns her
industrious spirit towards improving her living conditions. She starts breeding lovely horses,
which frequently trot onto neighbouring land to relieve themselves. One such horse finds a
Civil Law II Supervision Sheets
Joe Sampson, jws43
particularly agreeable corner of land on Jack and Ted’s property, and makes it his home.
Furthermore, Doyle decides she does not like the view from her current bedroom, and starts
adding storeys to her side of the building. Not only does this force Ted and Jack to live in
eternal darkness, but due to Doyle’s somewhat wanting construction skills they fear the entire
edifice will collapse in on itself (and perhaps them) at any moment. Ted wants to Doyle to
tear down the building and get rid of her horses. Doyle refuses, and resumes using their land
as a throughway.
Discuss any property claims that arise.
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 2 – Ownership
This supervision examines the Roman concepts that we believe correspond to modern ideas of
ownership. We approach the topic at a conceptual level, exploring the nature of proprietary claims as
well as the rights enforced through those claims. The reading on early Roman law also raises basic
methodological questions about how we use extremely early material.
Reading
Early Roman Law Diósdi, Ownership in Ancient and Pre-classical Roman Law, ch7 (E.9.D.37)
Watson, Rome of the Twelve Tables: Persons and Property, ch10 (E.9.W.10)
Watson, ‘Towards a new hypothesis of the legis actio sacramentum in rem’,
(1967) 14 Revue international des droits de l’antiquité 455 (E.8.2.47, item
number 27)
Thomson, ‘Who could sue on the lex Aquilia?’, (1975) 91 LQR 207
Classical Roman Law Buckland, A Textbook of Roman Law, 191-195
Birks, ‘The Roman law concept of dominium and the idea of absolute
ownership’, [1985] Acta Juridica 1
Diósdi, Ownership in Ancient and Pre-classical Roman Law, 154-160, 166-
179
Texts G.2.1-18 (types of property)
G.2.40-41 (division of ownership
G.4.3, 5 (vindication)
G.4.16 (LASIR)
G.4.36 (actio Publiciana)
J.2.1 (types of property)
J.2.8 (power to alienate)
J.4.6.15 (vindication)
J.4.6.4 (actio Publiciana)
D.6.1 (vindication)
* D.6.2 (actio Publiciana)
Questions
1. What can the legis actio sacramento in rem (LASIR) tell us about early Roman proprietary
ideas? What can’t it tell us?
2. What does Kaser mean by ‘relative ownership’? Is his a persuasive interpretation of the
LASIR?
3. What did it mean to be dominus? What did it mean to have dominium? How, if at all, do these
ideas differ from modern English views on ownership?
4. Does the omnipresence of ritualization in early Roman law and society help or hinder our
attempts at understanding early proprietary concepts through the LASIR?
5. For whose sake was the actio Publicana enacted? How did its enactment affect the Roman
concept of ownership?
Essay
Did classical Roman lawyers have a substantive notion of dominium separate from the actions and
defences by which it was enforced? (Tripos 2014)
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 3 – Possession
The secondary literature makes possession appear extremely difficult. I’m not convinced it is. Bear in
mind from the outset that, unlike ownership, possession is a factual concept with superimposed legal
consequences. Think of it like a Venn diagram, with factual and legal possession having a substantial
(but not total) area of overlap.
Reading
Main Buckland, A Textbook of Roman Law, 733-744
Dias, ‘A reconsideration of possessio’. [1956] CLJ 235
MacCormack, ‘The role of animus in the classical law of possession’ (1969)
86 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 105 (accessible
online – search through Newton for the journal and select the ‘Romanistische
Abtheilung’, not the ‘Germanistische Abtheilung’)
Watson, Law of Property in the Later Roman Republic, ch3
Watson, ‘Acquisition of possession and usucapion per servos et filios’
(1962) 78 LQR 205
Watson, ‘Acquisition of possession per extraneam personam’ (1961) 29
Tijdschrift voor Rechtgeschiedenis 22
Texts * D.41.2 (possession)
D.41.3-10 (specific instances of possession – D.41.10 is particularly weird –
NB also on next reading list)
J.2.6.7
J.2.9.5
J.4.15.3
G.2.89-90
G.2.95
G.4.153
Questions
1. Was possession one concept or many?
2. Why do modern writers on Roman law find possession such a slippery concept? Did classical
jurists have the same problems?
3. Can more than one person possess a thing?
4. Much of the secondary literature is concerned with the role of animus in acquiring and losing
possession. Were the classical jurists similarly preoccupied with animus?
5. ‘Any perceived difficulties in the Roman law of possession owe their existence to generations
of academics overthinking things.’ Discuss
6. What did each element of “nec vi nec clam nec precario” mean?
7. X goes out to market, taking his entire household (a single slave) with him. A scatter-brained
man, he leaves the front door wide open. Y, seeing the open door, thinks the property has
been abandoned. He goes in and embarks upon various domestic chores. That evening X
returns from the market. He sees Y painting the wall through the window. Y is quite unaware
of X’s presence. X, a habitually timid man, decides he would rather avoid a confrontation and
Civil Law II Supervision Sheets
Joe Sampson, jws43
goes to stay with his sister. Who has possession of the house? What factors would need to be
changed to give the opposite answer?
Essay
‘Possession is a matter of fact, not of right’ (Paul); ‘Possession is not merely a matter of physical fact
but also of right’ (Papinian)
Did the Romans have a coherent idea of the nature of possession?
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 4 – Acquiring Ownership
Though the supervision technically covers every mode of acquisition, we are not going to discuss the
original modes. The nature of traditio is a perplexingly popular topic within Roman law academia.
The development of usucapio is considerably more interesting. These two topics are the focus of this
supervision.
Reading
Traditio Gordon, Studies in the Transfer of Property by Traditio, chs1-3 (E.9.G.36)
Evans-Jones & MacCormack, ‘Iusta causa traditionis’, in Birks (ed.), New
Perspectives on the Roman Law of Property (consider also looking at
Gordon’s chapter in the same volume) (E.92.N.1)
Pugsley, ‘Was justa causa necessary for tradition in Roman law?’, in
Pugsley, Americans are Aliens and Other Essays in Roman Law (also ch4 on
mancipatio, if interested) (E.9.P.41)
Usucapio Yaron, ‘Reflections on usucapio’, (1967) 35:2 Tijdschrift voor
Rechtsgeschiedenis 191-229 (Heinonline)
Prichard, ‘Early Usucapio’, (1974) 90 LQR 234-245
Prichard, ‘Auctoritas in Early Roman Law’, (1974) 90 LQR 378-395
Daube, ‘Furtum Proprium and Furtum Improprium’, (1936-8) 6 CLJ 217-34
(Heinonline)
Winkel, ‘Usucapio Pro Suo and the Classification of the Causae Usucapionis
by the Roman Jurists’ in Birks (ed.), New Perspectives on the Roman Law of
Property (E.92.N.1)
Daube, 'Doves and Bees' in H. Levy-Bruhl, Droits de l'antiquité et sociologie
juridique, 63 (E.92.L.2)
Texts J.2.1.11-48 (acquiring ownership)
J.2.6.pr-14 (usucapio)
J.2.9.pr.6 (acquiring through another)
* D.41.1 (acquiring ownership)
D.41.3 (usucapio)
D.41.4-9 (specific instances of usucapio)
* D.41.10 (usucapio pro suo)
Questions
1. Was it possible to have a traditio (transfer of ownership) without a traditio (handing over)?
2. How accepting were the Romans of constitutum possessorium? Why?
3. Who thinks traditio was abstract? Why do they think this?
4. What is the relationship between the iusta causa requirement in traditio and usucapio?
5. Make sense of D.41.10.
6. How did classical usucapio differ from its earlier form? Can we explain its development?
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 5 – The Origins of the lex Aquilia
There are two parts to this supervision: 1) when and why was the lex Aquilia enacted? 2) What was its
original scope? Though most of the literature treats these two questions separately, any real account of
the lex’s origins needs to account for both.
Reading
Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 1-12
(H.quev.9.L.1)
MacCormack, ‘Aquilian studies’, in Studia et Documenta Historiae Iuris
no.41 (1975), 1-43 (Civil II box 2 item 29; E.7.S.1) – also on reading list for
supervision 6, so skim for now.
Zimmermann, The Law of Obligations, ch.29-30 (Civil II box 3 items 45
(ch29) and 47 (ch30); M.qq.9.Z.1; most college libraries) – skim for now and
return to relevant bits before each supervision.
When and why? Ibbetson, ‘The dating of the Lex Aquilia’ in Burrows et al (eds), Judge and
Jurist: Essays in Memory of Lord Rodger of Earlsferry (J.g.92.R.1)
Honoré, ‘Linguistic and social context of the Lex Aquilia’, (1972) 7 Irish
Jurist 138 (Periodicals on first floor of Squire) (Civil II box 2 item 28)
Gordon, ‘Dating the Lex Aquilia’, (1976) Acta Juridica 315 (Heinonline)
Daube, ‘The influence of interpretation on writing’, (1970) 20 Buffalo Law
Review 41 (Heinonline)
Sirks, ‘The delictual origin, penal nature and reipersecutory object of the
actio damni iniuriae legis Aquiliae’, (2009) 77 Tijdschrift voor
Rechtsgeschiedenis 303 (Heinonline)
What? Daube, ‘On the third chapter of the Lex Aquilia’, (1936) 52 LQR 253
(Heinonline) (Civil II box 2 item 27)
Jolowicz, ‘The original scope of the Lex Aquilia and the Question of
Damages’ (1922) 38 LQR 220
Kelly, ‘The meaning of the Lex Aquilia’, (1964) 80 LQR 73 (Civil II box 2
item 26)
Westbrook, ‘The coherence of the Lex Aquilia’, (1995) 42 Revue
internationale des droits de l’antiquite 437
Birks, ‘Wrongful loss by co-promisees’, (1994) 22 Index 181 (UL South
Front 2 P250.c.688)
Texts G.2.210-217
D.9.2.1
D.9.2.2.pr
D.9.2.27.5
Questions
1. Critically assess the explanations of the origins of the lex Aquilia provided by: a)
Ibbetson; b) Honoré
2. What is the impact of Daube’s argument in ‘The influence of interpretation on writing’ on
our understanding of the original scope of chapter 1?
3. What was the original scope of chapter 3?
Civil Law II Supervision Sheets
Joe Sampson, jws43
4. ‘Without even a shred of evidence as to the content of chapter 2, there is no point in
discussing the original scope of chapters 1 and 3’ Discuss
5. ‘The lex Aquilia was not the only product of a desire to escape fixed penalties. We see the
same narrative in iniuria, at roughly the same time. As such, any account of the origins of
the lex Aquilia ought to be interwoven with the history of iniuria. It is simply impossible
to see them as separate developments.’ Discuss.
Essay
‘If we knew when the lex Aquilia was enacted, we could probably say why. If we knew why the lex
Aquilia was enacted, we could probably say when. But, knowing neither, we can do little but guess.’
Do you agree?
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 6 – The Scope of the lex Aquilia
This supervision recaps the substantive elements of Aquilian liability, with a particular emphasis on
the boundaries between the various instances of direct and decretal liability.
Reading
Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 14-19 (H.quev.9.L.1) Buckland, Textbook of Roman Law, 589 (E.9.B.39) Jolowicz & Nicholas, Historical Introduction to the Study of Roman Law, 210n.5, 512-3 (E.9.J.5)
Main Andrews, ‘Occidere and the lex Aquilia’, [1987] CLJ 315
Scott, ‘Killing and causing death’, (2013) 129 LQR 101
Stein, Regulae Iuris, 61-67 (E.9.S.71)
Watson, Law of Obligations in the Later Roman Republic, 241-244
(E.9.W.7)
Watson, ‘D.7.1.13.2: The lex Aquilia and decretal actions’ in Watson,
Studies in Roman Private Law, 263 (Civil II box 2 item 32; E.9.W.68)
Barton, ‘The lex Aquilia and decretal actions’ in Watson (ed.), Daube
Noster, 15 (Civil II box 2 item 31; E.92.D.5)
Daube, ‘On the use of the term damnum’, Studi in Onore di Siro Solazzi, 93-
156 (Civil II box 2 item 34; E.92.S.1)
MacCormack, ‘Aquilian studies’, in Studia et Documenta Historiae Iuris
no.41 (1975), 1-43 (Civil II box 2 item 29; E.7.S.1)
Stein, ‘The two schools of jurists in the early Roman principate’, (1972) 31
CLJ 8 (Heinonline)
Norr, ‘Causam mortis praebere’ in The Legal Mind: Essays for Tony Honore
(Civil II box 2 item 33; D.9.M.27)
Questions
1. What was the boundary between occidere and causam mortis praebere?
2. What determined the existence of corrumpere?
3. Compare the approaches of individual jurists to occidere and corrumpere. Do any
patterns emerge? Can we explain these patterns?
4. What differences existed between actiones utiles, actiones in factum and actiones
(utiles/in factum) ad exemplum legis Aquiliae?
5. How did decretal actions differ from actions on the lex Aquilia?
Essay
Trace the juristic approach to the interpretation of "occiderit" and the interrelation between the direct
action on the lex Aquilia and decretal actions insofar as the killing of slaves was concerned. Do we
find a parallel development in the interpretation of "rumpere"?
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 7 – Iniuria and Culpa; Causation
In this supervision we will try to pin down the reasons behind, and the effects of, the shift from iniuria
to culpa. Linked to these considerations is the problem of causation, which was for the most part
analysed in terms of culpa. A recurring problem is whether culpa had a special legal meaning (in the
same way that “fault” in modern English tort law means falling below the standards of the reasonable
man).
Reading
Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 19-34
(H.quev.9.L.1)
Frier, A Casebook on the Roman Law of Delict, 72-107 (Civil II box 3 item
43; E.9.F.40 – on reserve at desk)
Culpa and iniuria Paschalidis, ‘What did iniuria in the lex Aquilia actually mean?’ (2008) 55
RIDA 321 http://www2.ulg.ac.be/vinitor/rida/2008/17.Paschalidis.pdf - 321-
330 is a very good summary of others‘ views
Beinart, ‘The relationship of iniuria and culpa in the lex Aquilia’, in Studi in
Onore di Vincenzo Arangio-Ruiz, vol.1, 279 (E.92.A.4)
MacCormack, ‘Aquilian culpa’ in Watson (ed.), Daube Noster, 201-224
(E.92.D.5 – on reserve behind library desk)
MacCormack, ‘Culpa’, in Studia et Documenta Historiae et Iuris, no.38
(1972), 123 (Civil II box 3 item 37; E.7.S.1)
MacCormack, ‘Fault and causation in early Roman law: An anthropological
perspective’ [1981] Revue Internationale du Droit d’Auteur, 97 (Civil II box
3 item 38; UL West Room L.250.c.167)
MacCormack, ‘Aquilian studies’, in Studia et Documenta Historiae Iuris
no.41 (1975), 1-78 (Civil II box 2 item 29; E.7.S.1)
Watson, The Law of Obligations in the Later Roman Republic, 236-246
(E.9.W.7)
Norr, ‘Causam mortis praebere’ in The Legal Mind: Essays for Tony Honore
(Civil II box 2 item 33; D.9.M.27)
Rodger, ‘What did damnum iniuria actually mean?’ in Burrows and Rodger
(eds), Mapping the Law (J.qt.92.B.1 – often put on reserve behind the library
desk)
Causation MacCormack, ‘Aquilian Studies’, in Studia et Documenta Historiae Iuris
no.41 (1975), 9-30 (Civil II box 2 item 29; E.7.S.1)
Pugsley, ‘Causation and confessions in the lex Aquilia’, (1970) 38 Tijdschrift
voor Rechtsgeschiedenis 163 (Heinonline; Civil II box 3 item 36)
Kortmann, ‘Ab alio ictu(s): Misconceptions about Julian’s view on
causation’ (1999) 20:2 Journal of Legal History 95 (available via Taylor &
Francis Online)
Sirks, ‘The slave who was slain twice: causality and the lex Aquilia’ (2011)
79 Tijdschrift voor Rechtgeschiedenis, 313
Sirks, ‘The parallel universes of Baker, Joblin and Julian: Causation and law’
(2013) 17 Edinburgh Law Review, 22 (available via the journal’s website)
A bit of theory Daube, Roman Law: Linguistic, Social and Philosophical Aspects, 131-156
(esp 151 ff.) (E.9.D.35)
Sorabji, Necessity, Cause and Blame: Perspectives on Aristotle’s Theory,
278-81 (Civil II box 3 item 35; UL SW4 182:6.c.95.138)
Civil Law II Supervision Sheets
Joe Sampson, jws43
MacDowell, Athenian Homicide Law, 73-81 (compare the texts in 9.2)
(EG.9.M.2)
Ibbetson, ‘Wrongs and responsibility in pre-Roman law’, (2004) 25 Journal
of Legal History 99 (available via Taylor & Francis Online)
Hruschka, Imputation (Civil II box 3 item 49) – not really Roman law, but
interesting.
Questions
1. Asterix, a recently enslaved Gaul, has yet to accept his slavery and frequently acts disobediently towards his owner, Gracchus. One day Asterix attempts to escape. What happens in the following scenarios?
a) Gracchus’ neighbour, Ignoramus, catches him prowling through his garden. Thinking that he has caught a thief in action, he kills Asterix.
b) Ignoramus recognises Asterix and, attributing Asterix’s disobedience to Gracchus’ soft nature, decides to help out his neighbour by punishing the wayward slave. As a result Asterix is rendered incapable of working for several weeks.
c) As in b), but the next day Gracchus, moved by Asterix’s desire for freedom, manumits his slave. Two weeks later the wounds inflicted on Asterix by Ignoramus become infected, and he dies within days.
d) As in b), but Gracchus, disheartened by Asterix’s obstinacy, resolves to sell the recalcitrant slave to Vitriolix. As in c), Asterix’s wounds fester and he dies.
e) As an alternative to c) and d), the wounds become infected and leave Asterix incapable of working, though he does not die.
2. Soporifix is a slave tasked with educating the young of a sizable provincial town in the details of Roman law. His classes have a habit of lasting well into the night. On a particularly humid summer evening, his discussion of the condictio sends the class of thirty into a blind rage. Advise Regius, Soporifix’s owner, in the following scenarios:
a) Obsequilis grabs hold of the infirm professor while the rest of the class strike him. One of the blows kills Soporifix, but it is impossible to tell whose.
b) As in a), but the killing blow was clearly inflicted by a particularly frustrated student, Justforkix.
c) As in b). An unwilling participant, Tragicomix, confesses to the killing. He later hears Justforkix boasting about his deed and wants to recant his confession.
3. During the turmoil of the Year of the Five Emperors, Delerius plundered the houses of many of Rome’s wealthy citizens. He buried his illicit gains across his gargantuan estate in Tuscany. For the next four decades Delerius moved up in the world and left the treasure untouched, fearing his ever more eminent houseguests might recognise their family jewels. Upon retiring from public life, Delerius decides it is time to profit from his furtive past. Unfortunately he cannot remember where any of the treasure is buried. He spends years digging holes around his estate in vain. And then...
a) Overoptimistix, a hunter-slave belonging to Crustacius, chases a boar onto Delerius’ land and falls down a hole, breaking his leg.
b) Crustacius’ favourite truffle-identifying pig meets the same fate as Overoptimistix.
c) Crustacius, who has for many years used a path across Delerius’ estate as a shortcut, also falls into a hole. His view was obscured by the large crate of fine cheeses he was carrying. The crate smashed, and the cheeses are now coated in mud.
Civil Law II Supervision Sheets
Joe Sampson, jws43
Supervision 8 – Damages
We’ve saved the hardest topic for last. Chapter one damages are a bit of a nightmare. Please make
sure you leave plenty of time to think about D.9.2.23.1-6 – they may be migraine-inducing, but
they’re worth the effort. Rodger’s articles should help a bit.
Reading
Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 35-6,
160-3 (H.quev.9.L.1)
Zimmermann, The Law of Obligations, 961-2, 969-75 (Civil II box 3 item
45; M.qq.9.Z.1)
Main Daube, ‘On the use of the term damnum’, Studi in Onore di Siro Solazzi,
139-156 (Civil II box 2 item 34; E.92.S.1)
Daube, Roman Law: Linguistic, Social and Philosophical Aspects, 66-71
(E.9.D.35)
Dias, ‘Policy differences in remoteness of damage’ (1976) Acta Juridica 193
(Heinonline)
MacCormack, ‘Aquilian Studies’, in Studia et Documenta Historiae Iuris
no.41 (1975), 9-30, 67-78 (Civil II box 2 item 29; E.7.S.1)
Rodger, ‘Labeo, Proculus and the ones that got away’, (1972) 88 LQR 402
(Civil II box 3 item 44)
Rodger, ‘Labeo and the fraudulent slave’, in Ibbetson and Lewis (eds), The
Roman Law Tradition (Civil II box 3 item 46; E.9.L.39)
Rodger, ‘Damages for the loss of an inheritance’, in Watson, Daube Noster
(E.92.D.5 – probably on reserve behind the library desk if not on shelves)
Jolowicz, ‘The original scope of the lex Aquilia and the question of damages’
(1922) 38 LQR 220
Sirks, ‘The delictual origin, penal nature and reipersecutory object of the
actio damni iniuriae legis Aquiliae’ (2009) 77 Tijdschrift voor
Rechtsgeschiedenis 303 (Heinonline)
Questions
1. What difficulties arose in the assessment of damages under chapter three?
2. Explain D.9.2.23.4
3. Explain D.9.2.23.1
4. Octavius, a lonely teenager, thought a pet might improve his mood. Being a nonconformist,
he opted for a family of moles. Unfortunately he knew little about the critters, and thought a
bit of fencing would be enough to keep them contained. They quickly burrowed out and
invaded an adjacent plot owned by Lepidus. Within minutes, they had upturned a family
grave, undermined a greenhouse containing Lepidus’ prized orchids, and uprooted several
tomato vines. All this digging inevitably created a number of deep holes. Octavius, chasing
the miscreant rodents, tripped on one and broke his arm. Lepidus, hearing Octavius’ cries,
rushed outside. Seeing the ruins of his beloved orchid collection, he punted a nearby mole
into the distance. After chasing Octavius off his land, he asked his good friend Crassus (who,
being a former gladiator, he considered a professional animal slayer) to take care of the
remaining moles, which he promptly did with gusto. Octavius is lonely once more.
Discuss any claims that arise under the lex Aquilia.
Essay
What problems arose in the assessment of damages under chapters one and three of the lex Aquilia,
and how were these resolved by the classical jurists? (Tripos 2012)