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DAMNUM INJU´RIA DATUM was a delict committed by a person who damaged a physical object belonging to another by a positive act, either intended by him or due to his negligence ( “dolo aut culpa,” Gaius, 3.211), whereby the right of another was violated. The term injuria is sometimes used in this connexion to signify an act which is an infringement of a right of another, and sometimes for an act done intentionally or by reason of negligence (Gaius, 3.211). The expressions used in early times to denote this delict were noxia nocita, noxiam nocere, nocere; but these included also outrage to a man's person (membrum rumpere, os frangere) as well as damage to property. There were provisions in the Twelve Tables directed against particular kinds of damage to property (cf. Grueber, pp. 185-196; Voigt, Die XII. Tafeln, 2. § § 131-134). Thus a man who caused certain objects of property to be burnt ( “urere aedes acervumve frumenti juxta tugurium positum” ) was liable to the actio de aedibus incensis (Tab. 7.14, according to Voigt's arrangement; Dig. 2, 14, 7.13); the owner of farm animals (pecora) which damaged a crop was liable to the actio de pastu pecoris (Tab. 7.10: “Si impavit in laetam segetem alterius, noxiam sarcito” ); a person who cut the trees of another was liable to the actio de arboribus succisis (Tab. 7.12). It is probable that the Twelve Tables gave an action on account of killing a slave, actio de servo occelso or occiso, as they certainly punished a person for the less grave offence of injuring a slave ( “os servi frangere” ): the same action may also have been given on account of the killing of a quadruped. Two passages of Festus (s. v. rupitias--sarcito: C. Sell, Die actio de rupitiis sarciendis) seem to suggest that the Twelve Tables recognised a more general form of action than any of the above, which may have been called actio de rupitiis sarciendis or de rupitiis this action would have been applicable in case any property was damaged by an act of breaking ( “rumpere rem” ), but not where property was damaged by any other kind of act; the wide sense which Festus gives to rupitias ( “rupitias (in) XII. significat damnum dederit” ) being evidently derived from the interpretation subsequently given by the jurists to the word rumpere in the Lex Aquilia. It has been questioned on philological grounds whether the word rupitias can have been used in the Twelve Tables (Mommsen, Rhein. Mus. für Phil., Neue Folge, 15.464; Voigt, XII. Taf. 1.121). The expression noxiam sarcire originally meant to repair damage done by the defendants making over to the plaintiff something exactly similar to that which was damaged. This principle of reprisals (talio) was used in early times in respect to damage to property as well as to personal injuries, until the principle of pecuniary damages came to be substituted for it.

The law of the Twelve Tables respecting damage to property had in the time of the Roman classical jurists only an antiquarian interest, since the existing law on the subject depended on a later enactment, which was called the Lex Aquilia. According to Ulpian (Dig. 9, 2, 1, pr.), the Lex Aquilia repealed all preexisting laws respecting damnum injuria, whether contained in the Twelve Tables or in any other source. This statement is not strictly accurate, for we know that some of the actions given by the Twelve Tables--viz. the actio de incensis aedibus, de pastu pecoris, and de arboribus succisis--were in use subsequent to the enactment of the Lex Aquilia; but the importance of these actions was much diminished by that law, and at the time when Ulpian wrote they were practically obsolete.

The Lex Aquilia was a plebiscitum called after Aquilius the tribune, who proposed it. The author of the law and its date are uncertain. According to Byzantine writers (Theophilus, Par. Inst. Justinian. 4, 3, 15; Anon. ad Bas. 60, 3, 1), it was passed at the time of one of the secessions of the plebs, by which the third secession 467 A.U.C. must be meant (cf. Grueber, pp. 183-185; Pernice, pp. 15-20). The Lex Aquilia, in accordance with the character of early law, did not give a general action on [p. 1.596]account of damage of property, but extended only to certain acts and objects of damage. The first chapter of the Lex Aquilia provides that, if a man has unlawfully (injuria) killed a slave of another or a quadruped of his cattle, he shall be bound to pay to the owner whatever within the previous year was their highest value. Thus, if the value of the slave or animal had been greater some time during the year previous to the injury than it was at the time of the injury, the owner recovered something beyond compensation for his loss. By the second chapter an adstipulator, who defrauded a principal stipulator by releasing the promissor, was made liable to the principal stipulator in damages. This part of the enactment, which is not very closely connected with the preceding and subsequent parts, was obsolete in the time of Justinian, the practice of joining accessory stipulatores having ceased to serve any legal purpose. Hence its contents are not described in his legislation; and until the MS. of Gaius was discovered, in which they are noticed, there was much speculation as to their nature. The third chapter provides that if anyone unlawfully damages the property of another by burning, crushing, or breaking ( “quod usserit, fregerit, ruperit” ), if the case does not come under the first chapter ( “praeter hominem et pecudem occisos” ), he shall be liable for the value of the property within the last thirty days. The value of the property within the last thirty days was interpreted as meaning the highest value, although the word plurimi was not inserted in this part of the statute. The jurists enlarged the scope of the statute by a bold interpretation of rumpere, which they held to be equivalent to corrumpere, and so to include any act causing damage.

But it was necessary that the damnum should be a direct consequence of the act of the delinquent ( “damnum corpore datum” ), in order for it to be treated as a killing under the first chapter or an injury under the third. Thus to kill a person by a direct act ( “occidere” ), as by striking him, and to give occasion for his death ( “causam mortis praestare” ), as by putting a cup of poison in his way so that he himself takes it, are distinguished, there being no liability under the statute itself in the latter case. Further, in order to maintain an action by the statute, the damnum must not only have been corpore, but also corpori datum; that is, there must have been injury or destruction of a thing. Depriving the owner of an object of property without damaging it was not sufficient. The lex only gave an action to the owner of the property damaged ( “Legis autem actio ero competit, id est domino” ), not to a person who had any other interest in a thing, and who suffered loss by damage to it. Hence it did not allow a bonae fidei possessor, a fructurarius, usuarius, or a mortgagee creditor, to maintain an action under it. In all the above cases, in which the lex did not apply, the edict of the praetor supplied an analogous remedy, as also in the case of an injury done to a freeman. The praetorian actions thus given are called actiones utiles or in factum [ACTIO]. Various attempts have been made by German jurists to reconstruct the formula of the Aquilian action. (Lenel, Das Edictum perpetuum, p. 1571.) The Aquilian action was regarded as penal, and so could not be brought against the heirs of the delinquent. (Inst. 4.3; Dig. 9, 2; Cod. 3.35; Grueber, The Roman Law of Damage to Property, being a commentary on Tit. of Dig. Ad Legem Aquilium; A. Pernice, Zur Lehre von den Sachbescheidigungen nach Röm. Recht.


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