The compilers inserted the comment by Paul (D. 9.2.10) after D. 9.2.9.4, probably in order to provide an explanation (it starts with nam) of the last phrase of Ulpian’s reply in D. 9.2.9.4 (qui tamen ... tenebitur). Indeed, as to the interpretation of Justinian law, these fragments (D. 9.2.9.4 and D. 9.2.10) have to be seen in relation to each other.363 It has been stated that it is not absolutely certain either
how D. 9.2.10 was understood by the compilers.364
359 Amaya García 1993, p. 64.
360 Cicero, Topica 17.64: Nam iacere telum voluntatis est, ferire quem nolueris fortunae. Ex
quo aries subiciter ille in vestris actionibus ‘si telum manu fugit magis quam iecit’; for the Latin text
with English translation, see the edition of Reinhardt 2003, p. 148f.
361 Table 8.24a: Si telum manu fugit magis quam iecit; see on this text as well as the above- mentioned texts, Del Castillo Santana 1994, p. 25ff. The author concludes (p. 28) by stating that the intervention of the element of intention at the time of the Twelve Tables was limited to the contrast between voluntary or intentional acts and acts caused by accident or force majeure; see also Amaya García 1993, p. 65f.
362 See Cicero, Topica 10.63-20.64.
363 cf. also scholion 11 ad B. 60.3.9 (BS 3101/12); see page 77. 364 MacCormack 1974, p. 215.
Although this view seems correct, I will attempt to interpret it, to give it a useful meaning.
According to D. 9.2.9.4, if the javelin thrower threw with data opera, the victim’s interruption of the causation of the result had no effect. When putting the text of D. 9.2.9.4 as an explanation (and bringing ludus noxius in relation to the words data opera), this would mean: for a dangerous game should be classed as an act of negligence. This is rather strange, when one would interpret data opera as intention, because intentional throwing would be qualified as a dangerous game and as negligence (culpa).
However, as already mentioned above, the view has been defended in secondary literature, that data opera has to be interpreted in a more extensive manner here. It seems that acting opera data did not necessarily mean the actor had the intention to hit the other person,365 but that it could also mean
various other things,366 which were all interpretations of data opera in this
context. In all these possibilities, the thrower was aware of the presence of the slave and, therefore, was responsible and liable. These forms of risky behaviour could be qualified as ludus noxius, and, thus, the view of the compilers could have been that therefore participation in such a mischievous/cruel sport constituted negligence (culpa).367
An interesting question is whether the compilers of Justinian’s compilation considered D. 9.2.9.4 to be an application of the rule of D. 50.17.203 (generalised as a maxim by Justinian). Could one argue that the slave, who crossed the sports field intempestive, suffered damage as a result of his own fault and, therefore, is not considered to have suffered any damage? This is indeed possible. Is it plausible that the compilers did so? Possibly; but, strangely enough, they did not include this ‘own negligence’ of the injured party in another fragment about javelin throwers included in the Institutes and showing resemblance with that of D. 9.2.9.4,368 namely, Inst. 4.3.4. Apparently,
365 See literature mentioned in section 2.4.4, on page 68.
366 For example: throwing only to frighten that person, throwing just to show the thrower’s capacity not to hit the person; the possibilities were discussed above.
367 One can also argue that already throwing javelins in a public place, and thereby killing a slave, would make liable based on (the first chapter) of the lex Aquilia, as a dangerous game (at a wrong place) would justify negligence (culpa); a similar view is held by Knütel 2001, p. 357.
368 According to Grüber 1886, p. 32, the rule of Ulpian in D. 9.2.9.4 must even be taken with the restriction made in Inst. 4.3.4; - The Institutes have an introductory character. Because of the complexity of the Digest for students, Justinian decided an introductory textbook had to be prepared. This task was assigned to Tribonian, Theophilus and Dorotheus. Justianian instructed them to make the Institutes based on earlier introductory works of the early Empire, i.e. the
Institutes of Gaius, but also to adjust it to their time; see Tellegen-Couperus 2003a, p. 136. A large
part seems to be more or less literally copied from Gaius’ Institutes. Inst. 4.3.4 is, however, not copied from the Institutes of Gaius. Obviously, at the time of the Institutes of Gaius (ca. 161 AD)
the ‘own negligence’ was not that important that it had to be included in Inst. 4.3.4. The fragment of Inst 4.3.4, included in book IV, title III. De lege Aquilia, reads as follows:
Itaque si quis, dum iaculis ludit vel exercitatur, transeuntem servum tuum traiecerit, distinguitur. Nam si id a milite quidem in campo eoque, ubi solitum est exercitari, admissum est, nulla culpa eius intellegitur: si alius tale quid admisit, culpae reus est. Idem iuris est de milite, si is in alio loco, quam qui exercitandis militibus destinatus est, id admisit.369
Therefore, if someone, while playing or exercising with javelins, pierces your slave while he is passing by, a distinction is made. For if this was done by a soldier in a field where one usually practised, no negligence [culpa] is considered of him; if anyone else should commit such an act, he is liable for negligence [culpa]. The same is in accordance with the law to a soldier, if he committed the act in any other place than that designated for military exercises.
With a broader formulation at the beginning, this fragment is not only appli- cable when a person was playing (in a game), as stated at the beginning of the fragment of D. 9.2.9.4, but also when practising with a javelin.370 For the case
of the piercing of someone’s slave, a distinction is made, and this is a different distinction from the one in D. 9.2.9.4. Firstly, if the damage was caused by a soldier practising in a field where it was usual to do so (i.e. an exercise field), he had no negligence (culpa). If someone else (i.e. a civilian) did so, he would have culpa.371 The same goes, i.e. there would be culpa, in the case where a
soldier pierced a slave in some place other than one designated for military
Ulpian was probably not even born yet. Possibly, Inst. 4.3.4 is derived from or at least inspired by Ulpian in D. 9.2.9.4.
369 On this fragment, see, e.g., De Robertis 2002, p. 217f.
370 According to MacCormack 1974, p. 214, Justinian made explicit and brought into force one of the assumptions underlying Ulpian’s decision. He made the question of culpa and liability subject to the question of the right to be in the field and throw javelins there; he took the soldier as an example.
371 Beinart argued that in this case damnum iniuria datum meant non iure and not culpa
aut dolo. Liability was not negligence, but acting without right, iniuria (also Watson 1962, p. 212).
It is on the ground for the exercise of his right that the soldier who performs javelin exercises in a place where practising is permitted, is not liable for killing a passing slave (Inst. 4.3.4; nulla culpa
eius invenitur). On the other hand, if it is someone else, not a soldier, then that person would be
liable (culpae reus). According to Beinart, whether either was truly at fault is not investigated but presumed. The jurists thought in terms of culpa but still applied earlier solutions. They tried to justify the solutions found in earlier concepts (i.e. iniuria) on the basis of culpa. Hence, they introduced what virtually amounted to presumptions of negligence. Inst. 4.3.4 would be an attempt to illustrate both the earlier meaning of iniuria as mentioned in Inst. 4.3.1 and the meaning of culpa (Inst. 4.3.3). See Beinart 1953, p. 290ff.
exercises. Justinian set out specific situations and for each situation he gave a ruling as to whether there was culpa or not.372 Only in one situation, namely,
the soldier who threw in a field designated for that purpose, could the thrower be exonerated from liability.373
Justinian has deleted the motivation of liability of Ulpian (quia non debuit …)374
in this text and by doing so he changed the criterion of culpa, bringing it back from prudence or imprudence (depending on the place where the javelin was thrown, in a field or somewhere else) to the mere question whether the person was a soldier or not, basing the ratio on exercises common to soldiers.375 A
confirmation for such reasoning can be found in the Paraphrasis Institutionum of Theophilus. If the soldier committed the act (at the Campus Martius or) in a place where it is the custom for soldiers to exercise, and thereby a slave was killed by a javelin, the striker will not be liable.376 However, if it was a private
person and he killed in this place, then he will be liable, as it was not custom- ary for a private person to exercise in arms.377 Apart from the new distinction
in Inst. 4.3.4 as to the status of the thrower,378 the question as to whether the
thrower had thrown intentionally has disappeared.379
Also the next fragment of the Institutes, Inst. 4.3.5 (case of a tree pruner), is relevant here as both concern the culpa requirement. Contrary to classical Roman law, where such a link did not exist between the case of the javelin thrower (D. 9.2.9.4) and the case of the tree pruner (D. 9.2.31), in Justinian law there was a link between these cases. In the latter case, the question whether the tree pruner had culpa and was liable depended on the place where the accident happened and the further relevant circumstances. Also D. 9.2.9.4
372 MacCormack 1974, p. 214; one similarity between this text and D. 9.2.9.4 is that both texts concern the question of culpa; also Kunkel 1929, p. 176; according to Beinart 1953, p. 290f., this text, when studied from the perspective of a developed theory of culpa, is unsatisfactory, liability being imputed in cases where there might have been no fault (i.e. the civilian), and vice versa (i.e. the soldier).
373 Also Rossi Masella 1951, p. 146. 374 Also Schipani 1969, p. 455. 375 Schipani 1969, p. 458.
376 The question still was whether a poena could be required based on the first chapter of the lex Aquilia. This is also a civil law sanction, as the criminal law liability is not given in the event of only the negligent killing of a free person; see C. 9.16.1 (a soldier killed another soldier), Mommsen 1955, p. 839; Knütel 2001, p. 359.
377 See Theophilus, Paraphrasis Institutionum, 4.3.4, edn. 2010, p. 762ff. (with English transl.); - On Theophilus, the Paraphrasis Institutionum, and the authorship of the Paraphrasis
Institutionum, see Lokin 1976, p. 337ff.
378 See on this point, Schipani 1969, p. 455 nt. 10, for further references; - According to Van den Heever 1944, p. 58, public policy changed as the recollections of a citizen army became dim; Justinian conceded the privilege, so qualified, only to soldiers.
dealt with the culpa requirement and provided a specification of culpa for an individual situation. An act could involve culpa at one time and not at another. Also in Inst. 4.3.4 the place of the act (practice area or not) was used as a criterion.
In the Institutes, the case of the tree pruner (Inst. 4.3.5) directly follows the case of the javelin throwers (Inst. 4.3.4).380 The compilers saw a connection
between the fragments and, therefore, placed the fragments immediately next to each other, making this connection more explicit than in classical Roman law. D. 9.2.9.4 and D. 9.2.31 still included decisions made in an individual case on an individual basis. Besides, these decisions were given by two different jurists (Ulpian and Paul) and, therefore, were not, strictly speaking, (directly) connected with each other in classical Roman law. The two fragments in the Institutes, however, are part of a more or less systematic treatise for educational purposes. Moreover, they are promulgated together as law. As to the content, the treatment of Justinian in Inst. 4.3.5 is in large part the same as the content in D. 9.2.31. However, whether the land was public or private was not consid- ered to be decisive, only whether there was a path. A number of possible events are distinguished, and for each case Justinian establishes whether or not there was negligence (culpa) on the side of the tree pruner.381
Soon after Justinian completed his Latin codification Greek translations, excerpts and summaries appeared,382 because the Byzantine lawyers were
Greek-speaking and were hardly able to read Latin anymore.383 These
writings did not have any formal force of law. This Greek tradition is the true beginning of Byzantine law.384 The Basilica (τὰ βασιλικὰ νόμιμα, the imperial
laws) was a collection of Greek texts of rules from Justinian’s codification which still applied, and which was completed in final form in 900 under emperor Leo the Wise.385 The Basilica reordered Justinian’s codification in
sixty books, subdivided into titles. Due to the amount of legal texts and the lack of knowledge of the Latin language in the unclear mass of Greek texts, the overview was lost. In the Basilica, texts concerning the same content or issues
380 This is also the case in Theophilus’ Paraphrasis Institutionum, edn. 2010, p. 764. 381 MacCormack 1974, p. 214.
382 See also Stolte 2005a, p. 65f.; - General information on Byzantine law written in this section can also, more extensively and profoundly, be found in Van der Wal & Lokin 1985, esp. p. 38ff., 81f.
383 Brandsma 1996, p. 2; see also already Van der Wal 1976, p. 7f. 384 See Stolte 2005b.
385 See Van der Wal & Lokin 1985, p. 8f.; on the Basilica, see also, e.g., Lawson 1930, p. 486ff.; 1931, p. 536ff.; Jolowicz & Nicholas 1972, p. 503f.
are included under one title. Those texts were Greek summaries, sometimes translations of full texts, of passages of the Digest, the corresponding title(s) of the Codex, the Novel(s) and in some cases of the Institutes. The function of the Basilica was to make the law of Justinian more accessible. They did not have the force of law, but just constituted a new order of the compilation of Justinian.386
Around those fragments of the Basilica, so-called scholia, were written. Besides new scholia, which were written after the creation of the Basilica, also old scholia originating from the Justinianic period were written around the main text of the Basilica.387 These scholia originated from legal education given by
professors (antecessores) at the law schools of Berytus and Constantinople.388
The texts of the Basilica, the ‘old’ scholia and the aforementioned Paraphrasis Institutionum of Theophilus give an explanation of the fragments of the Digest. They can provide better insights into Justinian law and into the way these fragments were understood in the sixth century.
The fragment below (B. 60.3.9) from the Basilica could be considered as a tool to read Justinian’s compilation. Although the wording of the text of Basilica text is slightly different, the content is more or less the same as that of D. 9.2.9.4: ‘So, if people who were playing389 with a javelin killed someone, there
is place for the lex Aquilia. But not if they were playing with the javelin in a field [no liability],390 because in that case, one should have refrained from crossing
the field at an inappropriate time, except for the case when the thrower in- tentionally aimed at the person, because in that case the person is held liable by the lex Aquilia.’ Interesting is the fact that the latter exception is linked by a scholion391 to the Basilica text 60.3.10 (=D. 9.2.10): because [participating in] a
harmful game is regarded/imputed as negligence (culpa).392 Furthermore, in
another scholion reference is made to Inst 4.3.4.393 According to this scholion,
the meaning of the passage of the Basilica is that, according to the distinction of Inst. 4.3.4, when a military man killed a passing slave, while playing or ex- ercising with a javelin, and if this happened in the usual place of exercise, the soldier was not held liable by the lex Aquilia. But the soldier was liable if this
386 De Jong 2008, p. 76.
387 Van der Wal & Lokin 1985, 90f. 388 Brandsma 1996, p. 3.
389 See also BS 3101/12-14 (scholion 11 ad B. 60.3.9).
390 This is explained by BS 3101/22-23 (scholion 14 ad B. 60.3.9) in such a way that they were soldiers, - according to the distinction in Inst. 4.3.4 - from which this principle originates.
391 BS 3101/12-14 (scholion 11 ad B. 60.3.9). 392 See BT 2752/7-9.
happened somewhere else, or if he was a private person. The reason is that exercising with arms in private was not allowed.394
2.5Ulpian’s reply in the barber case
2.5.1The text of D. 9.2.11pr.
Ulpianus libro octavo decimo ad edictumItem Mela scribit, si, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus eam deiecerit et sic servi, quem tonsor habebat, gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam: et sane si ibi tondebat, ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur: quamvis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.
Apart from some minor differences in textual editions, which will not be discussed in detail,395 three remarkable peculiarities have to be examined. Firstly, the word
habebat. The littera Florentina contains the word habebat,396 as also the later (hu-
manist) edition of Torelli does.397 The same verb and conjugation can be found in
various manuscripts of the vulgate,398 of which one, Ms. Biblioteca Vaticana, Barb.
lat. 1459, reads tonsor habebat in manu.399 However, the Basilica text (B. 60.3.11pr.)
contains a Greek version of radebat (ὁ κουρευόμενος δοῦλος).400 The same verb and
conjugation (radebat) can be found in the editions of Haloander and H. a Porta.401 394 Kunkel 1929, p. 175, – who apparently considered this scholion as an old scholion – regarded this last phrase as a police consideration, which could well fit in the time of Justinian.
395 The edition of Haloander (edn. of 1550, fo. 256v) reads ‘eandem’ instead of ‘eam’, ‘quocunque’ instead of ‘quocumque’ and a verb was inserted, namely, ait, after Proculus, so that it reads Proculus ait. The final insertion is, although not made in the vulgate edition cf. edn. Kriegel 1844, p. 191, was made in the vulgate edition with the Accursian gloss in edn. of 1487, fo. 162v.
396 See fo. 148v of the facsimile edition of the littera Florentina.
397 See edn. of 1553, I, p. 238; according to Gebauer-Spangenberg 1776, p. 171, after this example was written in the littera Florentina, another person wrote an r, and after he read tonsor
adebat changed it into tonsor habebat.
398 cf. edn. Kriegel 1844, p. 191; see, e.g., Ms. Biblioteca Vaticana, Ottobon. lat. 1605, fo. 124r and Ms. Torino, Bibl. Naz., E. I.4, fo. 139v; more references are made by Gebauer in Gebauer- Spangenberg 1776, p. 171.
399 Ms. Biblioteca Vaticana, Barb. lat. 1459, fo. 88r.
400 BT 2752/13; Mommsen agrees with this emendation, see Mommsen & Krüger 1962 (editio maior), I, p. 280.
401 See ed. of Haloander (edn. of 1550, fo. 256v) and edition of H. a Porta (edn. of 1551, p. 700); also in edn. Contius 1576, col. 1061; a later edition of the Digestum Vetus (edn. 1581, p. 700) even reads tradebat; - According to H. Brenkman, Apparatus ad D. 9.2, note habebat (1) ad D. 9.2.11pr. (edn. Van den Bergh/Stolte 1977, p. 263), the word radebat was not only found by
The second peculiarity concerns the word adiecto.In the littera Florentina a letter ‘a’ is missing, and so written as praecisadiecto.402 The edition of Torelli contains
the same word (praecisAdiecto).403 Furthermore, an emendation is made in the
littera Florentina. An ‘E’ is inserted by hand so one could read praecisadeiecto. In
later editions also other different combinations exist, namely, praecisa adacto,404
praecisa adiecto,405 praecisa deiecto406 and praecisa abiecto.407
A final peculiarity concerns the word illud. In the littera Florentina it was written as illum.408 However, the littera vulgata409 contains the word illud, as do also the
later humanist editions of Haloander410 and Torelli411 and, according to Brenk-
man, other scholars earlier than Torelli. According to Brenkman and later also Gebauer-Spangenberg, the reading illum was a mistake.412
Haloander, but also by Robertus Stephanus, Henricus a Porta and others. 402 See fo. 148v of the facsimile edition of the littera Florentina. 403 See edn. of 1553, I, p. 238.
404 Edn. Contius 1576, col. 1061; see also VIR I col. 1078. The reading adacto was also followed by the littera vulgata; see H. Brenkman, Apparatus ad D. 9.2, note adiecto (2) ad D. 9.2.11pr. (edn. Van den Bergh/Stolte 1977, p. 263f.). Later, J. Hoffmann (1710–1739) provided reasons for the preference for this reading in his Meletematum ad Pandectas, ad D. 9.2, §6. The reading adiecto