Thursday 3 April 2014

The lex Aquilia and the negligent barber

We usually aim to give useful comment and analysis of recent legal developments or topical issues so this post is a bit of a diversion. I can't pretend that it deals with the stuff of current legal moment, but the story of how law evolves is an interesting topic and I am on holiday for the week. The weather has been pretty awful and whilst I know some people whose vacation reading has been restricted to the adventures of the billionaire Christian Grey, I've been re-reading the Digest of Justinian, including the section dealing with the lex Aquilia. Bear with me: I hope it's not as dry as it sounds.

The Scots law of delict is rooted to a large extent in the lex Aquilia. Publication of Viscount Stair's "Institutions" in 1681 in particular marked the transition from a period "dominated by native customary law" to one "in which Scots law came to engage more clearly with the civilian tradition" and the Aquilian law. It's a fascinating history.
The first and third parts of the statute are the important ones:

"If anyone wrongfully kills another's male or female slave or four-footed herd-animal, let him be ordered to pay the owner whatever its highest value was in the preceding year.
As regards things other than men and cattle which have been killed, if any one does damage to another, and unlawfully burns, breaks, or ruptures something, let him be ordered to pay its owner whatever that thing is worth in the nearest thirty days."

Leaving content aside for a moment, the first thing to strike a lawyer will be how the process of statutory drafting has moved on. As any fule kno, the longest ever Act of the UK Parliament was previously the 2006 Companies Act but I believe that the honour is now held by the Corporation Tax Act 2009 (the contents list of whose 1,330 sections alone runs to 66 pages). In any event, from the few words of the Roman statute, Scots law developed the concept of a general duty to make reparation for harm wrongfully caused by fault or neglect (damnum iniuria datum) that underpins the whole notion of delictual liability.

The lex Aquilia is thought to date to 286 BC. Justinian's Digest was completed in 533 AD and by that time there had been a wealth of commentary and analysis arising from how the statute had been applied to the disputes of everyday Roman life. And it's reading that again that has taken me aback. I think I still knew how truly dreadful were both the lot of a Roman slave and the cold indifference to that, beyond a concern for money's worth, of the slave-owning classes. What I hadn't remembered was the absurdity and comedic horror of the fate that apparently befell so many of the poor serfs.

"It 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.
Where a muleteer, through want of skill, is unable to restrain the course of his mules, and they crush a slave belonging to another, it is ordinarily said that the driver is liable on account of negligence.
Where... 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.
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.
Where 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
Where two slaves leap over burning straw and collide with one another, and both fall and one is burned to death; in this instance an action cannot be brought where it is not known which of them was overthrown by the other.
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."

I suppose he does, but still. Beams, mules, torture, javelins, mules again, some kind of tumbling trick involving burning straw and a surely vanishingly unlikely hairdressing/football concurrence. It's been like reading X-rated slapstick. As I say, it's maybe of no legal interest at all but I will return to work refreshed and grateful to be alive and free in 2012.


  1. You don't fancy blogging about the remedy of cautio usufructuaria do you? About to raise an action. The lex Aquilia isn't available because we are complaning about neglect, not a deliberate or negligent act. We could always have a chat when next in the forum I suppose...