Before turning to the legal problem, some remarks have to be made as regards the facts of the case. Two persons are involved in the legal conflict: the innkeeper and (probably) the owner of the passer-by (assuming that the passer-by was a slave). The lantern was placed outside the shop of a shopkeeper or the inn of an innkeeper,163 beside the street.164 A taberna could be a shop for
certain forms of retail.165 Nevertheless, one could also translate tabernarius as
a keeper of a tavern or an innkeeper because this translation, among others, would be consistent with the normal language used from the second century BC onwards, when with tabernarius normally an innkeeper was meant.166
When one interprets tabernarius as keeper of a tavern, one should immediately realise that tabernarii were notorious people167 who belonged to the lower
Vergilii Donatiana in Brummer 1912, p. 17, and the translation of and commentary on Donatus’ Vita Vergilii by D. Scott Wilson-Okamura 2008, which was based on Brummer’s text.
160 Spruit 1995, p. 249.
161 On the discussion of the question whether the Digesta of Alfenus were only, or considerably, a collection of responsa of Servius, see Roth 1999, p. 21.
162 Noctes Atticae VII.5.1.
163 Several translations are possible. According to Heumann & Seckel 1907 (reprint 1958), p. 577, s.v. tabernarius, tabernarius can mean (a) Besitzer einer Kaufbude, Krämer, or (b) Schankwirt.
164 Interesting is H. Brenkman, Apparatus on D. 9.2, note semita (c) ad D. 9.2.52.1 (edn. Van den Bergh/Stolte 1977, p. 300). Apparently, according to Brenkman, one has to consider the street as a rather narrow one, a half-road. He referred to Varro, De lingua Latina, V.35, who mentions that narrow streets were called semita, a ‘ by-path’, or a semiter, a ‘half-road’ (see also the English translation by Kent 1938, p. 33).
165 Spruit 1995, p. 250. On taberna, see also VIR V, p. 933; Schneider 1932, col. 1863ff.; Wagner, 1982, p. 391ff.; Wacke 1989, p. 485.
166 Spruit 1995, p. 251; for further reasons, refer to this article, esp. p. 251-252. 167 See, e.g., C. 5.27.1pr.
ranks of Roman society and to the infames personae.168 The translation as
innkeeper does make more sense, as the lantern would be especially relevant in that case: at night, the visibility of an inn would be important to attrack potential customers.169
Some scholars assume that the passer-by did not have the intention to steal.170
Those scholars suggest that the passer-by, to some extent, was just a little drunk.171 So, a drunken prank172 or a case of practical jest is suggested and even a
simple ‘borrowing’ of the lantern (assuming the innkeeper would not mind),173
or at any rate an act not constituting theft.174 In addition, secondary literature
mentions that such an assumption has to be made, otherwise a problem would arise as regards the provision of the Twelve Tables on the fur nocturnus.175 If
the tabernarius caught the thief in the act at night, he was allowed to kill him immediately. The fact that the passer-by started to use a weapon (a whip) only made it even more imperative to kill him. Because of the large possibility to do justice by his own hands, there would have been no reason to argue about the less serious injuries inflicted on the thief.176 However, in the meantime,
the introduction of the actio furti manifesti by the praetors had put an end
168 See also literary sources such as Cicero, In Catilinam IV.17; Pro Flacco 18; for further sources, see Spruit 1995, p. 251. In this article, a sociological interpretation is given of D. 9.2.52.1 in which the social position of the persons and the (social) relations between the persons involved are used to interpret D. 9.2.52.1.
169 Although this also – in principle – applies to shops, it seems less likely that shops were open at night.
170 A different conclusion could be made based on the text of the Basilica B. 60.3.51. The content of the text of the Basilica is mainly identical to the fragment in the Digest, in D. 9.2.52.1 (except for the part that a part of Alfenus’ argumentation is missing in B. 60.3.51). The fragment from the Basilica is more explicit, in the sense that it mentions the verb ὑπέκλεψε instead of
sustulerat in D. 9.2.52.1. Thereby, it explicitly states that the case concerns a passer-by who stole
a lantern.
171 Spruit 1995, p. 247.
172 Watson 1984, p. 239; Travis Laster 1996, p. 217ff.
173 Lawson 1968, p. 131; as Travis Laster 1996, p. 217 and Hausmaninger 1996b, p. 248 nt 71 rightly sate, this is disproved by his refusal to return it.
174 MacCormack 1975, p. 46; - According to Huvelin 1912, p. 571, the case did not give a hypothesis of theft because ‘anciennement la soustraction ne rentrait pas dans la notion technique du furtum’; differently De Castillo Santana 1994, p. 52f., who argues that the verb
residere indicates that there was a reference to theft in the fragment. The compilers would have
deleted it to make it fit into the sedes materiae of the lex Aquilia.
175 See Lex XII Tabularum 8.12; 8.13; Ulp. Coll. 7.3.2; Ulp. D. 4.2.7.1; Gai. D. 47.2.55.2; Noctes
Atticae XI.18. 6-8; Kaser 1972, p. 158 nt. 34; Spruit 1995, p. 247; on these matters also, Huvelin 1912,
p. 569ff.; Del Portillo 1983, p. 163f.; Roth 1999, p. 105f.
176 Spruit 1995, p. 253;- According to Hausmaninger 1996b, p. 247, the dolo (Hausmaninger wished to emendate dolor into dolo), i.e. a dagger or a spike, which was inserted into a stick, was probably only stressed by the tabernarius in order to dramatise the danger threatening him; for the rest it did not really play a role in the discussion/dispute.
to the archaic forms of permissible self-redress in theft,177 and, therefore, it is
questionable whether such competence still existed. A second reason why one states that the passer-by could not be qualified as a thief is that it is not at all clear why the owner of the thief should ever have been allowed an Aquilian action in respect of an injury received in the course of a struggle with the innkeeper.178 Taking into consideration that the lantern probably was a very
common thing of relatively low value, knocking out an eye was more serious than taking away a cheap lantern. In that case, the reaction of the innkeeper knocking out an eye is disproportionate,179 and would not be allowed.
Clearly, Alfenus was consulted by the innkeeper.180 The innkeeper asked
whether the damage in this particular case had (not) unlawfully been inflicted. The fact that the passer-by took the lantern was not in question, but just the fight.181 The innkeeper thought (and hoped) that his action would not be seen
as unlawful (iniuria),182 and he would not be at fault (culpa) because of the fact
that he was hit first by the passer-by and only defended himself. Therefore, the theft was not the central problem, but only the knocking out of the eye. Which specific actio was applicable in this case Alfenus does not tell us explicitly. However, because of the phrase damnum iniuria non videtur dedisse, it probably concerned the actio legis Aquiliae based on the third chapter of the lex Aquilia, and not – as has also been defended – the actio iniuriarum.183
177 Zimmermann 1996, p. 938, and see also already Kaser 1971, p. 616. 178 MacCormack 1975, p. 46.
179 Spruit 1995, p. 253; see p. 257ff. for the reason why it was the tabernarius who consulted the jurist; Cannata 1971, p. 71, considers the lantern to be a neutral object of public use.
180 Maybe the responsum is already of S. Sulpicius Rufus. One says that the form Respondi does not with certainty mean that it concerns a reply of Alfenus; on this topic, see Sanio 1858, p. 73ff.; Huvelin 1912, p. 562 nt.1; Schulz 1961, p. 108f., 255; Watson 1984, p. 240; Del Castillo Santana 1994, p. 52.
181 As appears from these facts, in particular from the beating with this whip, a rather big fight originated, i.e. a real fight, not confined to an argument but the quarrellers came to blows. In the same sense already G. Noodt, Ad legem Aquiliam liber singularis, c. XIX, p. 143 (and also H. Brenkman, Apparatus on D. 9.2, note rixa (d) ad D. 9.2.52.1 (edn. Van den Bergh/Stolte 1977, p. 301), who shares Noodt’s view on this point). Noodt mentioned some literary sources interesting in this respect. An almost similar case was mentioned by Suetonius in his commentary on the life of Nero; see Suetonius, Nero, XXVI.2, who stated that in quarrels there was often danger to life and limb for Nero, since in one case he was almost beaten to death by a man of the senatorial order, whose wife he had touched. That the fight must be interpreted in this way is also confirmed by the use of the word rixa by Juvenalis, Satires, III.287 and Tacitus, Historiae, I.64, in which they used the word rixa (brawl) in the same meaning.
182 In other words: has he inflicted unlawful damage at all? (cf. Von Lübtow 1971, p. 107: ob
er überhaupt widerrechtlich Schaden zugefügt habe).
183 See Huvelin 1912, p. 565ff. who interprets the fragment from the perspective of the
actio iniuriarum; this possibility is also suggested by Lawson 1968, p. 131, namely, that this was a
case of iniuria, wedged in between cases of damnum; on this possibility, see also Pugsley 1968, p. 383 (nt. 50) and Krampe 2002, p. 137.
Although Alfenus does not further specify the person of the passer-by, in particular did not say whether he was a slave, modern scholars often assume he was.184 In fact, it seems that we have to assume that the injured person
was a slave185 or a son under paternal control (filius familias) because it is not
plausible that (the pre-classical) Alfenus would allow an Aquilian action to a free person sui iuris for physical injuries suffered.186 Otherwise, this would
be evidence of an actio utilis for negligent injury to a freeman as early as in the Republic. That Alfenus pronounced upon granting such an actio utilis187 is
not likely, since there are hardly any traces to justify such a possibility in the Digest, apart from the two exceptional late-classical cases of the liber homo bona fide serviens (Ulp. D. 9.2.13pr.; application by analogy188) and the case of
the apprentice of the shoemaker (Ulp. D. 9.2.5.3).189
The reply of Alfenus
Before pursuing the legal interpretation of this text, it is appropriate to focus more closely on the structure of this responsum of Alfenus. The master of the injured passer-by (assuming that the passer-by was a slave – as discussed above) brought a lawsuit against the innkeeper. The innkeeper asked Alfenus about the lawfulness of his act. The jurist gave a twofold answer. 1) He answered that the damage was not inflicted unlawfully, unless the innkeeper knocked out the eye intentionally,190 because the culpa did not lie on his side but on the
person who first struck with the whip (i.e. the passer-by).191 2) If the innkeeper 184 cf. Mommsen 1955, p. 830 nt. 7; Von Lübtow 1971, p. 107, 120, even presumed that the text had been changed and that Alfenus originally wrote servus praeteriens instead of quidam
praeteriens (an interpolation).
185 Also Wieacker 1975, p. 357; Roth 1999, p. 104. Spruit 1995, p. 254f. believes that to contemporaries of Alfenus it was clear that the case was about a slave, also because there was no extension of the lex Aquilia to freemen in the time of Alfenus.
186 MacCormack 1975, p. 47; Roth 1999, p. 104; differently Del Portillo 1983, p. 163f. 187 See Huvelin 1912, p. 565f.; also Ulp. D. 9.2.5.3; differently Del Portillo 1983, p. 161ff.; - On this topic also Wittman 1972, esp. p. 98ff.
188 A freeman, who did not know his status and served in good faith as someone else’s slave, had been injured. The reason, therefore, probably was that since this person until then had been treated as a slave, it would have been inequitable to withhold from him the specific protection accorded to a slave; see Wittmann 1972, p. 104; Zimmermann 1996, p. 1017.
189 On this text, see, e.g., Del Portillo 1983, p. 160ff. 190 On the words data opera, see, e.g., Schipani 1969, p. 172f.
191 Also the phrase culpam enim penes eum … residere was suspected as being an interpolation; see Albertario 1923, p. 506 (nt. 4); differently Rodriguez-Ennes 1984, p. 93, who argued that this statement must be understood in such a way that the action must be brought against a person whose authorship is presumed, in the case of D. 9.2.52.1, because he was the one who first hit with the whip; Rotondi 1922, p. 489 criticised the meaning of residere as ‘to remain, to stay’, based on VIR V, col. 167. In the Vocabularium, one can see the unique use of residere, because D. 9.2.52.1 is the only case in which residere means neither to reside physically nor to remain, stay (dotem apud maritum, peculium); differently Huvelin 1912, p. 564 and Schipani 1969, p. 174. Also the reference to culpa in this phrase is suspected of being spurious. See Albertario
had started the fight himself when trying to get the lantern back, he would have been at fault (culpa) and would, therefore, be liable for the damage.
Alfenus thus drew distinctions. It has been suggested that they are only hypo- thetical variations, which had nothing to do with legal practice and which were particularly well suited to explain difficult legal problems to law students.192 For
such didactical purposes, however, no direct proof can be found in any other source. Furthermore, such a clear (implied) distinction between responsa col- lected for use in legal practice and responsa collected for didactical purposes was never made in the time of Alfenus.193
Other authors consider this second part of Alfenus’ reply (sed si … factum vi- deri) an interpolation.194 This last sentence would be redundant and could be
deleted without altering the sense of the decision.195 Besides, this phrase would
solve a question the tabernarius had not asked because of the presumption that not the innkeeper but the adversary of the tabernarius had given the first blow (ille flagello … tabernarium coeperat). Alfenus had to give an answer assuming that it was the passer-by who struck the first blow and not the tabernarius. Why, then, contemplate the inverse case, as if the tabernarius was the one who had taken the offensive?196
In my opinion, it is possible that this second part is not a hypothetical variation, but reflects an argument in favour of the passer-by assuming a different set of facts. Probably the passer-by argued that the facts were not as stated by the innkeeper and that it was not he, but the innkeeper who struck first and started the fight.197 Alfenus replied to the defence of the passer-by (that it was
the innkeeper who started fighting) by stating that if this indeed had been the
1936, p. 87 nt. 1; Beinart 1953, p. 287 nt. 37; differently De Sarlo 1940, p. 124ff.; Visky 1949, p. 451ff.; MacCormack 1974, p. 223f.; Schipani 1969, p. 168ff.; Watson 1984, p. 239; Pugsley 1970, p. 427 suggests that the facts stated by Alfenus were used by the compilers ‘as a peg on which to hang a discussion of their own’.
192 Roth 1999, p. 102ff., 203.
193 See Tellegen-Couperus 2001, p. 384, a responsum could be used as an argument in pleading a case as well as used as a decision for teaching purposes.
194 Huvelin 1912, p. 563; Riccobono 1913, p. 76 nt. 3; see also Lawson 1968, p. 130f.; Taubenschlag 1925, col. 2326f. and 2327: ‘die Unterwerfung des damnum iniuria datum unter die Allgemeine Kategorie von der culpa ist erst ein Werk byzanistischen Jurisprudenz’ (see, e.g., the interpolation in D. 9.2.52.1; see Rotondi 1922, p. 486, and also Bonfante 1946, p. 524); differently Roth 1999, p. 107.
195 Accordingly, Huvelin 1912, p. 563.
196 Therefore, this part of the decision should not belong to the original part of the
responsum of Alfenus. See Huvelin 1912, p. 563; Del Portillo 1983, p. 160.
197 Tellegen-Couperus 2001, p. 384; the author adds another possibility, namely, that such ‘variations’ may also be arguments Alfenus used in order to make his decision more convincing.
case, the innkeeper would have been liable. The outcome was not yet clarified and had to be assessed by the judge (iudex). So Alfenus argues both ways: firstly, according to the facts presented by the innkeeper and, secondly, as an alternative, according to the facts presented by the passer-by.198
Another remarkable part of Alfenus’ reply is the phrase nisi data opera effodisset oculum. Possibly, these words were not included in the original responsum; they may have been added by the compilers,199 perhaps in order to give the phrase
a broader meaning. They are part of the answer to num damnum … percussus esset. The response, including the phrase nisi data opera effodisset oculum, however, would not represent a logical answer to the question whether the damage could be considered unlawful given the fact that the tabernarius was hit first by the passer-by. Besides, (only) based on the information of Alfenus, it is impossible to say whether the knocking out of the eye was done intentionally. Moreover, according to Huvelin (1873–1924),200 restrictive propositions in
the Digest starting with nisi are often interpolated.201 Obviously, however, in
Huvelin’s time passages were more often and more easily suspected of being interpolated than today.
It would be too simple to state that all passages starting with nisi are inter- polated. Also in this case this seems to go too far, since there are no solid arguments for assuming such an interpolation. Possibly the contrast between such a restriction and the rest of the responsum is an argument in favour of a later addition. While nisi … oculum provokes the problem of the delictual intention, the rest of the text only concerns the priority of the aggression.202
At first sight, given the fact that Roman jurists did not write scholarly treatises, it does not seem plausible that num damnum … percussus esset was originally part of the text. It is not necessary to provide an answer to the question posed by the tabernarius. Below, however, it will be argued that this addition was in fact necessary. When answering the question whether the tabernarius was at fault (culpa), Alfenus made use of an argumentum ab initio incremento summa, but he added a restriction that applied for the case in which the tabernarius acted intentionally.203
198 Also Krampe 2002, p. 139.
199 Huvelin 1912, p. 564; Del Portillo 1983, p. 160; differently De Castillo Santana 1994, p. 53f. 200 P. Huvelin was a professor at the Faculté de Droit de l’Université de Lyon.
201 Eisele 1899, p. 296ff.; Huvelin 1912, p. 564; Appleton 1967, p. 52ff., 265ff. 202 Huvelin 1912, p. 564 nt. 3; Del Portillo 1983, p. 160.
203 Also Spruit 1995, p. 260 argues that the passage has to be seen as a restriction, namely, to the priority of the aggression as criterion to determine the culpa.
Various interpretations of D. 9.2.52.1: Introduction
Before explaining my new theory, various interpretations of the meaning of D. 9.2.52.1 have to be discussed. When examining Digest texts in which the actio legis Aquiliae played a role, it is important to avoid interpretations of Ro- man law from a perspective determined by later developments (anachronistic interpretation). A requirement to succesfully apply for an actio legis Aquiliae (for damnum iniuria datum) was that the damnum had to be caused iniuria. With damnum in the third chapter of the lex Aquilia the loss inflicted on the victim of the delictual act is meant. It is often assumed that damnum refers to the actual damage done to the object concerned, in this case the knocked-out eye. However, it seems more precise to argue that damnum refers to the loss caused to the owner.204
The damnum had to be caused iniuria. Unfortunately, the meaning of iniuria is very complex,205 as is also the relation between iniuria and culpa.206 The
majority view considers the concept of iniuria as evolving over time.207 Iniuria
had the generic and most probably earlier meaning of unlawfulness (non iure), without justification.208 In relation to the lex Aquilia it can also mean culpa.209
The concept of culpa had a gradual influence, in time, on the concept iniuria. Eventually, culpa ousted the earlier concept to a certain degree, so that aspects of iniuria in many cases just became a ‘pleading device’ (the formula included the word iniuria so the jurists had to do this); it was, however, never completely suppressed, but rather submerged. Jurists thought more in terms of culpa and
204 See Daube 1948, esp. p. 98ff.
205 Recently, on the meaning of iniuria in the lex Aquilia, Paschalidis 2008, p. 321ff. and on the meaning of iniuria and culpa in the lex Aquilia, Corbino 2009b, p. 77ff., Cursi 2010, p. 45ff., 59ff.
206 On this topic also Paschalidis 2008, p. 322ff.
207 On this view, see Travis Laster 1996, p. 195ff. A minority view (mainly defended by MacCormack) argues that iniuria always meant acting wrongfully in the general sense (‘what is