When considering D. 9.2.11pr. as part of Justinian’s compilation, it is super- fluous to distinguish the opinions of the jurists included in this fragment (Mela, Proculus, Ulpian) because the text became part of the promulgated law of Justinian. Analysing the argumentation in this fragment the following picture results. The person at fault (culpa) was liable. Firstly, this could be the ball-player, if he acted intentionally (see D. 9.2.9.4) or if he played in a place where people did not customarily play.533 Secondly, it could be the barber, if he
shaved at a place where people customarily played or where there was a lot of traffic.534 However, he who entrusted himself to a barber who put his chair in
such a dangerous place ought to be blamed himself. A conclusion might be that the possible liability of the barber is nullified, and only the ball-player could be held liable (which is not mentioned in the fragment) or that no one would be liable.535 The last part, in which the decision is made that he who entrusts
himself to a barber who has put his chair in such a dangerous place ought to be blamed himself,536 can be explained in combination with D. 50.17.203 dis-
cussed above. Because he who suffers damage by his own fault, after having entrusted himself to a barber who put his chair in such a dangerous place, is not considered to have suffered any damage.
2.6General treatment of all relevant cases in Justinian law Introduction
In later (medieval) times scholars saw a connection between the texts dis- cussed in this chapter. Was such a connection already present in Justinian law?537 It seems to me that such a coherence is definitely feasible, especially
between D. 9.2.9.4, D. 9.2.11pr. and D. 50.17.203 (D. 9.2.52.1 seems to me a differ- ent kind of case and a more complicated one). Apparently, a kind of principle existed by which someone just cannot claim damages if he caused his injury
533 A. Faber, Rationalia in Pandectas, ad D. 9.2.11pr.
534 Perhaps this liability could be set on the basis that the incident could have been avoided if the barber had taken reasonable precautions; Paschialidis 2008, p. 360f., considered this case an example of the approach of Byzantine jurists of culpa as αἰτία (responsibility).
535 See, on the ratio of D. 9.2.11pr., A. Faber, Rationalia in Pandectas, ad D. 9.2.11pr. 536 According to Luig 1969, p. 194f., in case of preponderant negligence of the injured the liability of the barber would be excluded.
537 The problem is that no interpretation of Justinian law as such is handed down to us, except possibly the old scholia which originated from legal education provided by professors (antecessores). The Corpus Iuris was only studied again in Western Europe at the beginning of the 12th century, but then in the light of a new socio-legal context.
due to his own fault. This is more or less the principle as stated in D. 50.17.203. Such an attitude leads to the unreasonableness of punishing a wrongdoer. This possible way of thinking of the compilers is, of course, totally different from that of the classical Roman jurist themselves, who concentrated on the wrongdoer and just asked whether or not he ought to be punished in that case and whether or not the requirements for an action were fulfilled.
Penal character
Because of the penal character, and because of that the wording of the actio legis Aquiliae, the only and final question in classical Roman law was whether the wrongdoer (e.g. the barber) had been at fault (culpa). If the iudex was convinced that the requirements of the formula were fulfilled, the wrongdoer had to pay the poena. A possibility to give the wrongdoer an inferior punish- ment was not possible; the iudex had no possibility to reduce the poena due to negligence of the injured. The final statement of Ulpian in D. 9.2.11pr. (quamvis-debere) does not imply any change of the penal liability of the barber. The fact that the slave should not have entrusted himself to a barber who put his chair in such a dangerous place does not change the question whether the barber had to be punished or not. Had the barber, under the circumstances of the case, been at fault (culpa)? One of those circumstances was indeed the negligence of the slave. In this case this was not enough to release the barber from his liability. Supposedly the circumstances were such that they excluded his liability, not because of contributory negligence of the injured, but because the requirements for a successful actio legis Aquiliae were not fulfilled. In that respect another remark is important, namely, that in classical Roman law no balancing of culpable behaviour of the two parties was possible, but only an assessment of the culpable behaviour of the wrongdoer. The view that in case of preponderant negligence of the injured the liability of the barber would be excluded is therefore not correct and for this view insufficient ground is found in the sources.
One compilation
In Justinian’s time all relevant texts discussed in this chapter became part of the same compilation. Therefore, the relevant texts (D. 9.2.52.1, D. 9.2.9.4 and D. 9.2.11pr.) could possibly be explained in combination with D. 50.17.203. Especially, the final phrase of D. 9.2.11pr. (he who entrusts himself to a barber who has put his chair in such a dangerous place ought to be blamed himself) can be considered as an application of the more general rule of D. 50.17.203: because the person who suffers damage as a consequence of his own fault, entrusting himself to a barber who put his chair in a very dangerous place, is not considered to have suffered any damage.
Some remarks have to be made about changes in Justinian law. The ‘new’ fragment of Inst. 4.3.4 did not fundamentally change the decisive criterion at stake, i.e. of culpa. Justinian used the case of D. 9.2.9.4 as an example and made a modified version in Inst. 4.3.4. Compared to D. 9.2.9.4, Justinian deleted Ulpian’s motivation of liability (quia non debuit …) in Inst. 4.3.4 and by doing so he took another point of departure as he changed the criterion of culpa, deducing it from prudence or imprudence to the mere question whether the person was a soldier or not.538 As discussed in section 2.4.5, based on the Basilica and some
scholia, this apparently did not lead to a problem of interpretation in Justinian (or Byzantine) law.
Also the next fragment of the Institutes, Inst. 4.3.5 (tree pruner) is relevant. The compilers of the Institutes placed the case of the tree pruner directly after the case of the javelin throwers in the Institutes, and thereby saw a connec- tion between these fragments, a connection stronger than in classical Roman law. The two fragments in the Institutes are part of a more or less systematic treatise for educational purposes. Moreover, they are promulgated together as law (together with the Digest). In Inst. 4.3.5, a number of possible events are distinguished, and for each case Justinian establishes whether or not culpa is to be placed on the side of the tree pruner.
All or nothing?
Finally, there could be no consequences of such ‘contributory negligence’ other than a denial of claims based on insufficiency in the requirements for an actio legis Aquiliae. It is commonly believed that when contributory neg- ligence of the injured occurred, he had no possibility to obtain an actio legis Aquiliae (the all-or-nothing approach). In that respect, only an all-or-nothing approach was possible in classical Roman law as well as in post-classical (and Justinian539) times. It is inconceivable that a restriction of the obligation to pay
full compensation, in the sense that the wrongdoer was only liable for part of the damage, was recognised as a general rule in Justinian law. There are just a few scattered texts in the Digest in which the behaviour of the injured party results in a restriction of the (amount of) damages which the wrongdoer had
538 Besides the new distinction in the Institutes as to the status of the thrower, the question as to whether the thrower intentionally threw also disappeared.
539 Although the procedure per formulam did not exist any longer, the all-or-nothing approach remained to exist in the law at the time of the application of the cognitio procedure in matters of private law. The all-or-nothing approach was inherent to the writings of the (classical) jurists – some of them were even explicitly made authoritative in the Lex Citandi of 426, e.g. Ulpianus (see D. 9.2.9.4 and D. 9.2.11pr., which clearly envisage an all-or-nothing approach as already elaborately discussed in this chapter). These writings became incorporated in Justinian’s Digest, and so the all-or-nothing approach was co-inherited along with the substantive rules enclosed in the writings of the (classical) jurists.
to pay, and they are not in the law of delicts. Certain consequential losses are concerned, not caused by the act of the wrongdoer, but only by wrong behav- iour of the injured party. These cases appear only in contract law: Neratius D. 19.1.11.12 and Paul. D. 19.1.45.1.540
In the first case (D. 19.1.11.12), a buyer of a slave is sued by an actio noxalis. The buyer can either hand over the slave or pay an amount of money. In both cases, according to Neratius, the buyer can only get the damages back from the seller with the actio empti which would have accrued to him if he had chosen the economically best option. If he chose to pay the monetary fine, but hand- ing over the slave would have been more advantageous for him, the seller only had to pay him the amount of the value of the compensation for handing over the slave. The rest of the disadvantage of the monetary fine had to be borne by the buyer himself.541
In the second case (D. 19.1.45.1), someone sold a vacant lot that belonged to a third person and the purchaser built upon it. Subsequently, the owner of the property recovered his lot (through an eviction). If the buyer brought an actio empti against the seller, the latter was – in principle – also liable for the expenses made by the buyer with respect to the purchased item.542 According
to D. 19.1.45.1, the owner who brought an action against the possessor in order to recover his property could be barred by an exception on the grounds of bad faith (exceptio doli), unless he was willing to pay the building expenses. When the possessor omitted to bring forward this exceptio doli, and thus did not claim the damages regarding the building costs, the actio empti was restricted to the payment of the purchase price, as it is the better view that this was not part of the vendor’s risk.543 Thus the latter was not liable for those expenses.
In these two cases, the negligence of the injured party only regarded the increase of the damages. These consequential damages were not imputed to the other party. However, these exceptional casuistic decisions do not provide sufficient proof to assume a general rule, implying a restriction of the range of the compensation existed,544 and surely not for the classical period.
A general rule containing a restriction of the obligation to pay full compensa- tion, in the sense that the wrongdoer was only liable for part of the damage,
540 Luig 1969, p. 193; see Medicus 1962, p. 322f.; Aumann 1964, p. 14ff. 541 See Aumann 1964, p. 14f.
542 ibid., p. 15.
543 ibid.; - One could see that Paul. in D. 19.1.45.1 is very careful when writing magis est. 544 See further on this topic Aumann 1964, p. 16f., and Medicus 1962, p. 322ff.; differently Jörs 1927, p. 119 (‘im gegebenen Falle nicht oder nicht in vollem Umfang in Anspruch genommen werden’).
cannot be derived from the wording of D. 50.17.203.545 There are no traces of
these exceptional casuistic decisions being generalised in post-classical times. One may assume that the compilers, in case of damage resulting from the act of the injured person, in principle adopted the view that in such a case the wrongdoer had no duty to pay any compensation (all-or-nothing approach). No dogmatic foundation for the view that a restriction of liability of the wrong- doer existed can be found in the text of Pomponius, nor did Pomponius ever refer to mutual blame (beiderseitige Schuld).546
Medieval scholars (Johannes Bassianus et al.) were the first to consider con- causality and concurrences of negligence in case of damnum iniuria datum and Aquilian liability.547 These scholars constructed their theory of culpae com-
pensatio among others on the main texts discussed in this chapter. Such a theory could not yet be found in Justinian law.548 As discussed above, the conduct of the
injured party in delictual cases is still not considered as ‘contributory negligence’. The reason why this was not so, and especially not in cases of damnum iniuria datum, should be sought in the penal character of the lex Aquilia.
2.7Concluding remarks
The central question in this chapter is what were the consequences of the conduct of the injured party to the liability of the wrongdoer in Roman law of Antiquity. In this chapter the view, commonly held in present-day literature, that in classical Roman law the injured party could not recover his damages when his contribu- tory negligence contributed to the occurrence of the damage is rejected.549 To
understand the approach of the Roman jurists to ‘contributory negligence’, the question has to be considered from an appropriate perspective. A distinction has to be made between the situation in classical Roman law and in Justinian law. First of all, at the beginning of this chapter it was made plausible that D. 50.17.203 had no general validity in classical Roman law but only concerned a case about a legacy. The compilers extracted D. 50.17.203 from its original
545 Aumann 1964, p. 31; Medicus 1962, p. 323f.
546 Aumann 1964, p. 31, stated that in post-classical Roman law, the conceptual understanding of the culpae compensatio came to the foreground. He also based his conclusion on a study of Paul. D. 18.1.57.
547 In the same sense Castresana 2001, p. 77.
548 Much later, the Pandectists based their theory of Schuldkompensation on the Roman jurisprudence.
context in Pomponius and designated it as a ‘regula’. Because the compilers placed the sentence as a general rule in the Digest (D. 50.17.203), it could be- come one of the bases for the later medieval theory of contributory negligence. Someone who suffered disadvantage resulting from his own negligence, in a legal sense, was not considered to have suffered any loss for which damages could be claimed. Although in some cases the facts could give rise to damages, the injured would have no remedy because of his ‘contributory negligence’. Secondly, with regard to the approach of legal practice in dealing with what (in the law of delicts) we would now call ‘contributory negligence’ of the injured party, in classical Roman law as well as in post-classical Roman law contribu- tory negligence was not known as a specific legal notion. The Roman jurists did not question negligence on both sides, but merely enquired whether the injury, considering the circumstances, was due to the negligence of either the wrongdoer or the victim. Therefore, and this conclusion is also affirmed by my investigation of the sources, it is plausible to argue that a theory of culpae compensatio was not present among classical Roman jurists, but was anachro- nistically forced into their decisions by medieval and modern scholars. That the classical Roman jurists as well as the jurists in Justinian’s time did not question negligence on both sides, but merely enquired whether the in- jury, considering the circumstances, was due to the negligence of either the wrongdoer or the victim, can for example be seen in the case of the javelin throwers. The classical jurists solved the problem of ‘contributory negligence’ by interpreting the elements of damnum iniuria datum, especially the element of culpa. Roman jurists approached the culpa requirement in a casuistic man- ner, as they did with all legal problems. They did not try to subsume the facts of the individual case under a standardised test. The jurists asked themselves whether the defendant had been at fault if he did not behave as he should have. It is useful to acknowledge that in the cases I studied the problem was the status qualitatis. This has to do with quality: an act is not permitted or ap- propriate everywhere, e.g. the question whether the javelin thrower acted as he should have depended on the evaluation of all circumstances of the case and tended to be determined from an objective point of view. Therefore, it has to be pointed out that there are often no technical theories behind the reply of the classical jurists. Roman jurists were practically oriented, which can be seen, for example, in Alfenus’ reply in D. 9.2.52.1. As described before, the situation changed in Justinian law in the sense that the fragments were possibly connected with each other and the idea of D. 50.17.203 was regarded as a general underlying principle (except possibly for D. 9.2.52.1). The concept
novelty of medieval scholarship. The all-or-nothing approach was retained and would be in force until the lex Aquilia lost its penal character (only in early modern times).
MEDIEVAL IUS COMMUNE
3.1Introduction
3.1.1
Subject and purpose of this chapter
The renaissance of the twelfth century (1070–1225) brought about an intel- lectual revival in Western Europe.1 From the beginning of the twelfth century
Bologna, in the north of Italy, was the centre of legal scholarship. In this city, the authoritative texts of Roman and canon law were studied and taught.2 Two
periods can be distinguished in the medieval study of Roman law: the period of the Glossators, starting with Irnerius (ca. 1055–1130) at the beginning of the twelfth century in Bologna until the end of the thirteenth century, and the pe- riod of the Commentators, which roughly covers the fourteenth and fifteenth centuries. Within the study of canon law we can distinguish between the ear- lier period of classical canon law, in which the Decretum Gratiani (1140/1145) was interpreted, and the period from the beginning of the thirteenth century when the law of the decretals took over the leading role in canon law. In this chapter, the contributions to the concept of contributory negligence of the Glossators, Commentators and canonists from these periods will be discussed.3
Strangely enough, no profound study has been made yet on the development of the concept of contributory negligence in medieval scholarship. How did the medieval jurists solve cases of ‘contributory negligence’? It appears that the so-called doctrine of culpae compensatio, which might have its origins in medieval (Roman) legal scholarship, could provide the solution. Also in this chapter, clarity will be provided with regard to the question of whether the
1 On this period, see Haskins 1927; Paré, Brunet & Tremblay 1933; Genzmer 1941, p. 298ff. 2 See on this topic, e.g., Bellomo 1995, p. 58ff., 65ff., 112ff.
3 With contributory negligence, the negligence of the injured party that led to the origination of the initial damage is meant, not the worsening of the damage by lack of self-care, as Descamps 2005, p. 61f., seems to include. His conclusion that contributory negligence led to a diminution of liability (in ius commune) has to be considered in this light.
medieval scholars formulated such a theory, and if so, whether they used it to