DAMNUM INJU´RIA DATUM
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.)
[
E.A.W]