DAMNUM INFECTUM
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.)
[
E.A.W]
