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DAMNUM INFECTUM is damage not done, but apprehended, on account of the dangerous condition of neighbouring property. [p. 1.595]

If proceedings were not taken before damage had been done, the injured party had no action for damages subsequently; if, e.g., a ruinous house (aedes ruinosae) fell and damaged a neighbour before a cautio had been demanded, all the right that the damaged person had was to retain the materials that had fallen on his land. (Dig. 39, 2, 6. 7.2. 8.) Gaius states that a party who apprehended damage might have recourse to a legis actio in order to protect himself, but that the stipulatio damni infecti provided by the praetor in his edict for such cases was always sought as being the more convenient remedy. (Gaius, 4.31.)

The praetor required a person whose land or building was likely by its dangerous state (vitio aedium, loci, operis, arborum; Dig. 39, 2, 24, pr. 2) to cause damage to another, to give the latter security (cautio) against such damage. No security was, however, required if danger from land simply arose from its natural character.

Every person who was in possession or detention of the property threatened, either as owner or in any other right, could claim this cautio, but it is doubtful whether a bonae fidei possessor was entitled to it (Dig. 39, 2, 11. 13.9. 18).

The complainant had to swear to his bona fides by taking the jusjurandum calumniae. The owner of the dangerous property, its bonae fidei possessor, and anyone who had a right in the property (jus in re) might be required to give this cautio, which for the owner and bonae fidei possessor consisted in a mere personal promise, but in other cases had to be undertaken by sureties also.

The complainant had no direct means of compelling the defendant to give security, but in the event of refusal he was empowered by the praetor to make entry on the property which threatened the damage, for the purpose of forcing the defendant into submission: if this produced no result, the defendant was ejected, and his right to the property was transferred by the praetor to the complainant. The defendant who had entered into a cautio was not liable under it to a greater amount than the value of the land or building which had caused the damage; if he surrendered the mischievous thing, he escaped all further liability. (Dig. 39, 2; Hesse, Die Cautio damni infecti; Vangerow, Pandekten, 3.678; Windscheid, Pandekten, § 458, &c.; Huschke, Gaius, § § 203-242.)


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