An innkeeper had placed his lantern at night on a stone at a path;133 someone
took it when passing by. The innkeeper pursued him,134 demanded the lantern
back, and got hold of the person running away; he (i.e. the passer-by) started beating the innkeeper with a whip which he had in his hand, inside of which135
something painful136 was enclosed,137 so that he (i.e. the innkeeper) would let
him go. From this encounter, a real brawl developed in which the innkeeper knocked out an eye of the man who had taken the lantern. He (i.e. the inn- keeper) asked for advice as to whether the damage he had inflicted would not be considered unlawful (iniuria), bearing in mind he was hit with the whip first. I answered that unless he had intentionally knocked out the eye, he would not be considered to have caused the damage unlawfully (iniuria), as the culpa lay with the one138 who first struck with the whip;139 but if he had not been hit by
him first, but he had started the brawl when he wanted to get the lantern from him, it seems to have happened as a result of the culpa of the innkeeper.140
133 The tabernarius did so outside his taberna. The taberna (shop) could be any kind of building which was fit for habitation, evidently because these were generally closed with boards; see Ulp. D. 50.16.183. Usually it was a place for trade or industry. Many examples can be found in Heumann & Seckel 1907 (reprint 1958), p. 577, s.v. taberna; differently Huvelin 1912, p. 561, who, based on the circumstances of the adventure and also with reference to D. 23.2.43pr. and D. 33.7.13, translates taberna with taverne, cabaret and tabernarius with tavernier.
134 That is, the innkeeper ran after him to seize him (persequendo adprendere); see VIR I, col. 929. 135 Refers to flagello; see VIR III/1, col. 797.
136 Monro 1898, p. 75: ‘a lash with which would inflict severe pain’; Thayer 1929, p. 47: ‘in which there was a spike’; d’Ors et al. 1968, p. 394: ‘aguijón’; Scott 1973, p. 345: ‘and to which an iron was attached’; Otto, Schilling & Sintenis 1839 (reprint 1984), p. 814: ‘worin ein Dolch steckte’; Watson 1985: ‘on which there was a spike’; Feenstra/Spruit in: Spruit et al. 1994, p. 741, translate this passage as ‘waaraan een scherpe punt zat’ and explains in a footnote that they had translated quo dolo inerat; Schipani 2005, p. 262: ‘in cui era una punta’.
137 cf. Heumann & Seckel 1907 (reprint 1958), p. 263, s.v. inesse: ‘worin enthalten, begriffen sein’. 138 Heumann & Seckel 1907 (reprint 1958), p. 416, s.v. penes: In übertragenen Sinne zur Bezeichnung der Person, auf der ein nachteiliger Umstand sitzen bleibt: culpam penes aliquem
residere (D. 9.2.52.1).
139 This part of the argumentation (‘I answered that unless he had intentionally knocked out the eye, he would not be considered to have caused the damage unlawfully (iniuria), as the
culpa lay with the one who first struck with the whip’) is missing in the text of the Basilica (B.
60.3.51.1), which simply states that the innkeeper was not responsible (on culpa as αἰτία, see Paschialidis 2008, esp. p. 360). The text of the Basilica continues by stating that if the tabernarius had not been hit first, but he had taken the lantern back, and given rise to a scuffle, he is to be held liable under the lex Aquilia. According to a short explanation in BS 3163/2 (scholion 1 ad B. 60.3.51), no actio legis Aquiliae could be brought against the shopkeeper, as the ‘injured party’ was the first who hit with the whip. See also Paschialidis 2008, p. 360, who argued that according to this scholion, the passer-by first hit the innkeeper, and that, thus, the incident is not attributable to the shopkeeper.
2.3.3Inscriptio
The context of D. 9.2.52.1
This fragment derives from the second book of the Digesta141 of Alfenus
(Varus).142 The Digesta (libri XL) of the (pre-classical) jurist Alfenus is the
earliest work of a Roman jurist whose texts occur in the Digest of Justinian.143
However, the compilers of the Digest (of Justinian) did not have the original work of Alfenus at their disposal, but only an Epitoma by Julius Paulus, written in the second century (or the beginning of the third century) AD,144 and
another Epitoma written by an anonymous jurist (probably in the first half of the second century).145
As almost six hundred years elapsed between the Digesta of Alfenus and the Digest of Justinian, it is uncertain to what extent it really provides information about the law of the late Republic.146 This uncertainty is further increased by the
circumstance that the compilers did not have the original work of Alfenus at their disposal and by the fact that in post-classical times texts that were adopted in the Digest were sometimes modified or even interpolated by the compilers. Neither the original Digest of Alfenus nor the original Epitomae survives to our day. Only the texts included in the Digest of Justinian can be the basis of a (certain) reconstruction of the Epitomae. The original work by Alfenus consisted of forty books; the Pauli Epitomae contained eight books and the anonymous Epitoma ten at the most.147 Only one hundred and four decisions
of Alfenus survived in Justinian’s Digest.148 The interpretation of these texts
may provide some information about the Epitomae, but hardly about the original Digest of Alfenus. In his Palingenesia, Lenel placed D. 9.2.52.1 in book two of Alfenus Varus’ Digesta (ab anonymo epitomata) under the title Ad legem Aquiliam.149 According to Lenel, this text, therefore, originally derives from
the context of the lex Aquilia. The actio the plaintiff wanted to obtain was the actio legis Aquiliae.150 Based on this enactment the injured party, i.e. the one
141 On the tradition of this Digest, see also Roth 1999, p. 20ff.
142 Assuming that the reading of the Basilica is incorrect. For the rest of my exegesis I assume that the text of D. 9.2.52.1 was not written by Iavolenus (cf. the reading of Basilica: Ἰαβολένου) but – cf. the prevailing view today – by Alfenus Varus.
143 Wieacker 1988, p. 107f.
144 In any case before 211 AD; see Roth 1999, p. 185f., 202 and Liebs 2000, p. 522. 145 Roth 1999, p. 201f.; Tellegen-Couperus 2001, p. 382.
146 Tellegen-Couperus 2001, p. 382. 147 ibid., p. 384.
148 Roth 1999, p. 20.
149 Lenel, Palingenesia iuris civilis, I, col. 39, pal. nr. 7.
150 The dating of (the origin of) the lex Aquilia is not certain, but it probably dates from 286 or 287 BC; see, e.g., Kaser 1971, p. 161; Watson 1984, p. 234.
who suffered damage to his property, could ask the praetor for an actio legis Aquiliae against the wrongdoer. Also the compilers of the Digest placed this fragment under the title Ad legem Aquiliam (D. 9.2).
Alfenus
The author of this text, Publius Alfenus Varus,151 lived during the late Republic
and the beginning of the Principate. He was consul suffectus in 39 BC. Accord- ing to Horace, Alfenus (vafer) remained a sutor (shoemaker) even after having tossed aside every tool of his art and after having closed his shop; 152 this can
be explained in the sense that a man may be actively engaged in one pursuit (being a consul suffectus) yet remain potentially the master of another (a shoemaker).153 From the commentary of Porphyrio on Horace,154 it appears that
Alfenus Varus was born in Cremona and originally was a shoemaker or a son of a shoemaker.155 In addition to the meaning of the word sutor as a craftsman
working with awl and pitched thread it can also mean a person belonging to the equites who is an entrepreneur and uses slaves to make shoes.156 Interpreting
the word sutor here in the latter sense is more plausible as it is not likely that Octavian would have raised an actual shoemaker to the consulship.157 Besides,
only if Alfenus (or already his father)158 owned a large-scale enterprise, would
he have sufficient capacity to supply the means required in the social order for Alfenus to aspire to a state career and dedicate himself to jurisprudence.159
151 Klebs 1894 (RE 2), col. 1472f., Jörs 1894 (RE 2), col. 1473f.; Kunkel 1967 (reprint 2001), p. 29; Wieacker 1988, p. 607ff.; Behrends 1990, p. 607; Badian & Honoré 2000; Liebs 2010, p. 32ff. On Alfenus, and on his Digesta, see Ferrini 1891, p. 1ff.; De Sarlo 1940; Roth 1999 and the literature mentioned therein and Liebs 2000, p. 519ff.; 2010, p. 32ff.; extensively, also Bauman 1985, p. 89-105.
152 Horatius, Sermones I.3.130ff.; the tradition of this text is not clear, another version, namely, according to the Codex Blandiniensis, is clausaque ustrina tonsor erat: this could be interpreted as a corpse washer or a funeral undertaker (libitinarius); see Liebs 2010, p. 34f. (with references) who discussed these possibilities profoundly.
153 See also Brewster 1917, p. 71. However, according to Frank 1920, p. 160, Horatius in
Sermones I.3.130 cited the example of Alfenus – who was once a shoemaker and recently a
consul – in pretended support of the Stoic paradox that the wise man alone is the universal expert; although Alfenus long ago closed his shop, he has never outgrown being a shoemaker.
154 Porphyrio, Commentum in Horati Sermones I.3.130ff. 155 Kunkel 1967 (reprint 2001), p. 29.
156 Klebs 1894 (RE 2), kol. 1472; Kunkel 1967 (reprint 2001), p. 29. 157 In the same sense Frank 1920, p. 620.
158 Frank 1920, p. 620, provided the possibility that the father of Alfenus was a colonial of the usual type found in the Po Valley, in which case he doubtless invested the surplus earnings of his farm in urban shops and factories.
159 Differently Liebs 2010, p. 35ff.; - Probably the jurist is also Alfenus Varus, who, in the year 41 BC together with Asinius Pollio and Cornelius Gallus, let the settlement of the veterans in Gallia Transpadana and kept Vergilius from being penalised (i.e. expropriated) in the distribution of lands after the victory at Philippi, when lands were being divided among the veterans by order of the triumvirate; Klebs 1894 (RE 2), kol. 1472. On this topic also Liebs 2010, p. 44ff. See Vita
Probably P. Alfenus Varus, who was consul in the year 2 AD, was Alfenus’ son. Alfenus Varus, born in Cremona, was the first from Gallia Cisalpina to gain a consulship under Augustus (27 BC – 14 AD).
Alfenus Varus was a student of Servius Sulpicius Rufus’ (ca. 105–43 BC) and belonged to the last generation of pre-classical jurists. He was the first Roman jurist who, under the title of Digesta, wrote a casuistic work based on the praetorian edict in which he treated problems by means of concrete cases.160
Frequently, Alfenus gave appraisals to his teacher Servius Sulpicius Rufus. He often cited consultative opinions (responsa) of his teacher Servius along with his own.161 According to (the writings of) Aulus Gellius, one may assume that
Alfenus wrote another work, the Coniectanea.162