In the first four sections exegeses of fragments of the Digest will be presented. Apart from the specific fragments of the Digest, a text from another part of the Corpus Iuris Civilis is also relevant, namely, Inst. 4.3, as well as texts from two other sources, the Paraphrasis Institutionum of Theophilus and the Basilica. These texts will be discussed together with the corresponding relevant frag- ments in the Digest and Institutes.
The structure of these exegeses will be similar: after the text of the source is provided and a text-critical discussion based on a consultation of the text editions of the Digest of Mommsen and of Gebauer-Spangenberg is made,8
7 The ‘new’ scholia, which can give us insight into the way the law was interpreted in the 11th century in the East, and in this respect especially that of Hagiotheodoritès, therefore, do not fit within the scope of this study, and will as such not lead to new insights into the development of law in Western Europe. These scholia are, however, important for the development of the concept of contributory negligence in the sense that they can provide a better understanding of how legal problems were solved in Byzantine law. Being interesting from a comparative point of view, one of these scholia will be discussed in the next chapter.
8 The text-critical discussion will start with the edition of Mommsen. However, this edition is very much based on the littera Florentina and too little notice is given to the littera vulgata. Mommsen made a complete collation of only one manuscript, namely, Ms. Paris BN, lat. 4450, and only consulted other manuscripts of the Digestum Vetus when Ms. Paris BN, lat. 4450, and the littera Florentina disagreed; see Radding & Ciaralli 2007, p. 173. On Ms. Paris BN, lat. 4450, see Radding & Ciaralli 2007, p. 205ff. In order to compensate for this limitation, I used the edition of Kriegel (edn. 1844) as the first starting point for the littera vulgata, and I also consulted the edition of Gebauer- Spangenberg as well as several vulgate editions (e.g. Ms. Biblioteca Vaticana, vat. lat. 1406, fo. 80v, which has been qualified as the earliest manuscript of the vulgate tradition; see Radding & Ciaralli 2007, p. 171, 197f.). For my text-critical reproduction, I discussed the main variants of the reading of the texts in these editions.
a translation of the source is given, the inscriptio of the text is discussed, and an exegesis of the texts in their classical context follows, including a discussion of possible later interpolations. Finally, the post-classical development of the texts, in the context of Justinian law, is discussed.
Most importantly, in these exegeses, is the legal problem, i.e. the legal articulation of the actual conflict that gave rise to the legal dispute, which will be defined. Furthermore, the reply of the jurist or jurists involved will be discussed. Especially important for the discovery of the legal problem and the reply of the jurist(s) are the particular circumstances of the case, the claims of the plaintiff and the defence of the defendant. Reconstructing the case in this way often helps to understand the advice that jurists gave in a particular case. Then, the different interpretations in modern and present-day literature will be discussed and where these seem to be inaccurate, new ways to solve the problem will be provided.
2.2The origin of the regula of D. 50.17.203
2.2.1The text of D. 50.17.203
As mentioned above, this subsection will start with the reading of D. 50.17.203,9
followed by a text-critical discussion. Pomponius libro octavo ad Quintum Mucium.
Quod quis ex culpa sua damnum sentit, non intellegitur damnum sentire.
The first peculiarity of this fragment is that the name of Pomponius is lacking in the oldest manuscript of the Digest, the littera Florentina (there is an empty space in place of his name).10 However, Torelli seems to have filled in the empty
space by printing the name of Pomponius in hisedition of 1553, which was fully and directly based on the littera Florentina.11 Also the littera vulgata contains the
name of Pomponius.12 Furthermore, there are no reasons to assume that someone 9 The readings of the Digest texts which are elaborately discussed in this chapter are taken from the editio maior (and the editio minor) of Mommsen & Krüger.
10 Fo. 474r of the facsimile edition of the Florentina. 11 See edition of Torelli of 1553, III, p. 1665.
12 cf. edn. Kriegel 1844, p. 979. See also the critical edition of Gebauer-Spangenberg containing variants of the littera vulgata (Gebauer-Spangenberg 1776, p. 1144). In the edition of Gregorius Haloander (1501–1531), which incompletely and indirectly contains elements from the
littera Florentina (see Feenstra 1974, p. 128), the inscriptio only contains IDEM (see edn. of 1550,
else wrote this fragment. Accordingly, it seems plausible and acceptable that this fragment was correctly ascribed to Pomponius by Mommsen.
The second peculiarity concerns an inserted word. In the littera Florentina a small ‘si’ is written between the lines.13 Probably, as Mommsen also stated in his editio
maior, the first corrector of the littera Florentina (F²) made an addition in the
margin of the Florentine. He added ‘si’ (then the text reads quod si quis). Another manuscript, namely, a (vulgate) manuscript, collected by Thomas Rehdiger (1541– 1576), part of the so-called (Codices) Rehdigerani, provides additional information on this point. The reading of D. 50.17.203 originally commenced with the words
Quod si quis.14 The word si was deleted at a later moment by means of dots (sed
vocula ‘si’ punctis est deleta).15 However, the insertion of ‘si’ seems to add to the
fragment a meaning more general than would be justifiable for classical Roman law.16 As with si the phrase is more likely to be a general statement (if someone
X, then Y), and without si the phrase could be considered as the end of a casuistic decision, the latter option is more plausible (as will also be discussed below). A final problem concerns the second word damnum. In the littera Florentina and in the littera vulgata the second word damnum is clearly present.17 Mommsen
suggested deleting this word.18 However, such a deletion seems to be unnecessary
for classical Roman law, as will appear below.
word IDEM, and by looking back to the first different inscriptio one finds Iabolenus (D. 50.17.198). Therefore, one could conclude that the IDEM at D. 50.17.203, according to Haloander, has to refer to Iabolenus, and thus this has to be a mistake of Haloander’s.
13 See fo. 474r of the facsimile edition of the Florentina. 14 See Ms. Wroclaw BU, Rehd. 289, fo. 285r.
15 Gebauer-Spangenberg 1776, p. 1144; differently, the littera vulgata cf. edn. Kriegel 1844, p. 979, which contains ‘Quod quis’.
16 The placing of this text in Lenel’s Palingenesia (see section 2.2.3, p. 19) does not give cause to consider D. 50.17.203 as a general rule. The formulation of D. 50.17.203 originates from a larger text and belongs to a reply to a concrete case rather than that is was meant as a general (didactical) rule. Also the Greek reading of the ‘rule’ of Pomponius in the Basilica in the title about ‘various rules of old law’, B. 2.3.203 [BT 66/16-17], cannot provide sufficient grounds for such an insertion. When comparing B. 2.3.203 with D. 50.17.203, one observes that the fragment was stated in a more general manner.
17 See fo. 474r of the facsimile edition of the Florentina (and similarly in the later edition of Torelli of 1553, III, p. 1665), and also the littera vulgata cf. edn. Kriegel 1844, p. 979.
18 Mommsen & Krüger 1963b (editio maior), II, p. 969; also De Ligt/Sirks in: Spruit et al. 2001, p. 986, leave this word untranslated.
2.2.2Translation of D. 50.17.203
The following translation will be as literal (in order to remain faithful to the Latin text) and as grammatically acceptable as possible. As a result, the incompleteness of the fragment becomes visible, more specifically, the fact that the text was removed from its original context. The text of D. 50.17.203 could be translated in two different wpays: ‘damage that someone suffers ...’ or ‘because someone who suffers damage …’. I think the first translation is less accurate, therefore, and for the reasons I will mention later on, I have chosen the second translation.
Pomponius in his eighth book on Quintus Mucius.
Because19 the one, who suffers loss20 as a result of his own negligence (culpa),21
is not considered to suffer any loss.
19 ‘Quod’ is translated differently by Scott 1973, p. 317 (‘He who sustains any damage through his own fault …’) and De Ligt/Sirks in: Spruit et al. 2001, p. 986 (‘Schade die iemand door eigen schuld lijdt …’); and not translated by Watson 1985, who starts with ‘If anyone …’, nor d’Ors et al. 1975, p. 882, who start with ‘No se considera que …’; different also Otto, Schilling & Sintenis 1832 (reprint 1984), p. 1285, who did translate this word, but differently, namely, as ‘wenn’.
20 cf. Heumann & Seckel 1907 (reprint 1958), p. 120, s.v. damnum, this fragment is classified under damnum iniuria, Sachbeschädigung, by which loss as the damage to an object is meant. On p. 534 it is written that sentire damnum has to be interpreted as ‘Schaden leiden, davon betroffen werden’. The meaning of the term damnum will be further discussed below.
21 In this chapter, culpa is mostly translated as negligence, sometimes as fault; according to MacCormack 1974, p. 201ff., culpa (in the context of the lex Aquilia) has to be translated as fault. With the translations of the word culpa, no principal choice in this respect is made; with the translation into negligence, no necessary implicit principle of forseeability is meant (in classical Roman law); the choice is mostly made for linguistic reasons based on what is most suitable in each individual case.
2.2.3Inscriptio
The context of D. 50.17.203
This fragment derives from Pomponius’ commentary22 on Quintus Mucius
Scaevola.23 Q. Mucius Scaevola24 (ca. 140–82 BC) became known mainly due
to his Iuris civilis libri XVIII. This work contained a systematic treatise of the ius civile25 and was the only pre-classical work still read in the classical period. In
the second century AD it was even commented on by Laelius Felix, Gaius and Pomponius.26 D. 50.17.203 concerns a commentary of Pomponius on Q. Mucius
Scaevola’s record of the ius civile, and, therefore, can be seen as a commentary on the ius civile. As is generally known, the ius civile at the time of Quintus Mucius is understood to have consisted of ‘private’ law as far as enclosed in laws (e.g. Lex XII Tabularum), senatus consulta and it also comprised the in- terpretation of all these legal sources by the jurists. At the time of Pomponius the imperial constitutions also became part of the ius civile.27 D. 50.17.203
contains a fragment by Pomponius in the eighth book of his commentary on Q. Mucius Scaevola.
Lenel, in his Palingenesia, placed the fragment of D. 50.17.203 in the com- mentary of Pomponius on Quintus Mucius under the title De legatis.28 This
fragment (pal. nr. 260) is the last fragment of liber VIII (De legatis 6), which part consists of nine Digest texts (in seven pal. numbers). Book eight (De legatis 6) is one of the parts about legacies (De legatis), De legatis consisting of seven parts in total (liber III [pal. nr. 228ff.] to liber IX). Unfortunately, Lenel’s
22 In humanistic literature, there has been a discussion on the precise nature of Pomponius’ commentaries on Q. Mucius. According to Jacobus Gothofredus, Pomponius wrote notae to the regulae of Q. Mucius Scaevola. See J. Gothofredus, Commentarius in titulum Pandectarum
de diversis regulis iuris antiqui, col. 1221f., paragraph before the commentary on D. 50.17.203.
However, the Dutchman (Frisian) Georgius d’Arnaud (1711–1740) argued that Pomponius shaped his commentaries as ‘Readings (Lectiones) on Quintus Mucius’. See G. d’Arnaud, Variae
conjecturarum, II.29, p. 400. Also Johannes Bachius (1721–1758) cited those writings as ‘Q. Mucium Lectionum XXXIX’. See I.A. Bachius, Historiae Jurisprudentiae Romanae, III.2 sect. 5 § 13.
23 Already in the humanistic edition of Schulting-Smallenburg, three fragments of the same origin as D. 50.17.203 are mentioned, namely, D. 23.3.66, D. 29.2.77 and D. 31.45. With regard to the content of D. 50.17.203, reference is made to D. 43.16.9.1, which will be discussed by J. Gothofredus and Donellus in their commentaries on D. 50.17.203 (see chapter four).
24 See on Scaevola also Behrends 1976; Bauman 1983, p. 340ff.; Kunkel 1967 (reprint 2001), p. 18; Liebs 2002, p. 569ff.; also Kübler 1933 (RE 31), col. 442ff., which is about his life as a jurist.
25 Pomp. D. 1.2.2.41: ‘Post hos Quintus Mucius Publii filius pontifex maximus ius civile primum
constituit generatim in libros decem et octo redigendo.’
26 Spruit 1994, p. 99; Liebs 2002, p. 571.
27 In the 2nd century AD, Gaius noted that the ‘responses prudentium’ were also part of the
ius civile (Gai. Inst. 1.2).
reconstruction in his Palingenesia is the only indication available.29 Since there
is no well-founded reason to take a different view, the best option seems to consider his indication as an assumption.
A legacy is a bequest in a will of certain goods or rights to another person or to persons other than the heir. In the classical period one could mainly dis- tinguish two categories of legata: legatum per vindicationem and legatum per damnationem.30 Later, the compilers of the Digest placed this fragment in the
title De diversis regulis iuris antiqui (various rules of ancient law).31
Sextus Pomponius
The writer of this text, Sextus Pomponius,32 lived in the second century AD.
In the absence of any other sources, his works provide the only information available about his life. Pomponius wrote his works during the reign of the emperors Hadrian, Antoninus Pius, Marcus Aurelius and Lucius Verus. He was probably born in about 110 AD and died around 180 AD. From the com- plete ‘silence of the sources’, we may deduce that Pomponius did not exercise public functions and that the ius respondendi was not granted to him.33 We do
not know whether Pomponius belonged to one of the schools and, if he did, to which school he belonged (the Proculiani or the Sabiniani).34 The majority
of present-day scholars seem to maintain that Pomponius was an adherent of the Sabinian school.35 However, a more correct view would be that there is
no conclusive indication as to Pomponius’ own preference for one school or the other.36
Pomponius wrote over three hundred papyrus rolls (libri). Fragments of his writings are indirectly handed down to us via the Digest, and they are possibly altered by interpolations. His now most famous work is the Enchiridium, a di-
29 Some humanists, namely Raevardus and Donellus, attempted to reconstruct by means of palingenesis the contextual origin of D. 50.17.203, which they also considered to be the law of legacies. However, they came to a conclusion different from mine as will be made clear in the discussion of their views in chapter four.
30 See on legatum: Voci 1967, p. 11f., 21ff.; Kaser 1971, p. 109ff., 740ff.; 1975, p. 549ff. 31 Only then did the fragment become a maxim; see the end of this section.
32 On S. Pomponius, see, e.g., Wesenberg 1952 (RE 21), col. 2416ff.; Nörr 1976, p. 497-604; Liebs 1997a, p. 144-150; Kunkel 1967 (reprint 2001), p. 170f.
33 Ankum 1974, p. 1; see also Wesenberg 1952 (RE 21), col. 2417.
34 cf. Wesenberg 1952 (RE 21), col. 2417; Honoré 1962a, p. 21ff.; - In general, on the Sabiniani and Proculiani, see Liebs 1976; Falchi 1981 and recently Leesen 2009.
35 See references mentioned by Leesen 2009, p. 4 nt. 3. The opposite view is held by Baviera 1898, p. 27ff.; Honoré 1962a, p. 21ff., esp. 25f., argued that Pomponius was first educated at the Proculian law school, but later moved to the Sabinian school to teach.
dactical work, the more important because, besides the Institutes of Gaius, very few didactical works existed in the first two centuries of the Roman Empire. Also important are Pomponius’ two commentaries on the ius civile (one ad Q. Mucium [lectionum] libri XXXIX and one ad Sabinum XXXVI),a commentary on the edict as well as monographs on stipulations, senatusconsulta and fidei- commissa.37