Also Mela writes that413 if, when some people were playing with a ball, (some)
one hit the ball quite hard414 and knocked it against the hands of a barber,415
who, as a result cuts the throat of a slave, whom the barber was holding,416
with the positioned small knife,417 whichever of them is negligent (culpa) is
held (liable) under the lex Aquilia. Proculus [says]418 the negligence (culpa) is
the barber’s; and certainly if he was shaving there, where people customarily played games or where there often was crossover,419 this is attributed to him.420
Although one could also not improperly say that421 he who entrusts himself to a
barber who held his chair in a dangerous place, ought to blame this on himself.422
413 Feenstra/Spruit in: Spruit et al. 1994, p. 715, translate this passage as ‘Zo schrijft Mela dat’; - In a more interpretive way Thayer 1929, p. 13, who translates ‘Mela gives another case’; d’Ors et al. 1968, p. 381, do not translate Item.
414 In the Basilica text 60.3.11pr. [BT 2752/12-16], a Greek equivalent for the Latin word
vehementius is missing. Interesting is the definite way of formulating the final phrase of this
Basilica text: ‘even though one would say very correctly’ (εἰ καἰ τὰ μάλιστα καλῶς λέγει τις). 415 According to the VIR II, col. 140, the verb ‘deicio’ means ‘proprie deorsum iacere’, in this case therefore to throw the ball downwards into the hands of the barber.
416 Feenstra/Spruit in: Spruit et al. 1994, p. 715: ‘die de barbier onder handen had’; differently Thayer 1929, p. 13: ‘the throat of the slave being shaved by the barber’; d‘Ors et al. 1968, p. 381f.: ‘que a un esclavo al que el barbero estaba afeitando’; Otto, Schilling & Sintenis 1839 (reprint 1984), p. 792: ‘… einen Sclaven rasierenden Barbiers’; Watson 1985: ‘whom the barber was shaving’; Schipani 2005, p. 241: ‘un servo che era dal barbiere’.
417 Feenstra/Spruit in: Spruit et al. 1994, p. 715: ‘door het reeds daarop geplaatste scheermes’; adiecto is not translated by d’Ors et al. 1968, p. 381f.; Otto, Schilling & Sintenis 1839 (reprint 1984), p. 792: ‘dass durch die Bewegung des Messers …’; Watson 1985: ‘by the jerking of the razor’; Schipani 2005, p. 241: ‘dal rasoio ad essa accostato’; Scott 1973, p. 327, translates the previous passage as follows: ‘… the hand of the barber who is shaving at the time, in such a way that the throat of the latter is cut by the razor’.
418 Differently Otto, Schilling & Sintenis 1839 (reprint 1984), p. 792: ‘[hingegen sagt]’. 419 Thayer 1929, p. 13: ‘where there was heavy traffic’; Feenstra/Spruit in: Spruit et al. 1994, p. 715: ‘waar druk verkeer was’; Scott 1973, p. 327: ‘where there was much travel’; Otto, Schilling & Sintenis 1839 (reprint 1984), p. 792: ‘wo häufig Menschen vorübergingen’; Watson 1985: ‘where there was much going to and fro’; Schipani 2005, p. 241: ‘dove il passaggio era affolato’.
420 Slightly different Feenstra/Spruit in: Spruit et al. 1994, p. 715: ‘valt hem terecht een verwijt te maken’; d’Ors et al. 1968: ‘hay motivo para imputarle la responsabilidad’; Thayer 1929, p. 13: ‘he is partly responsible’; Scott 1973, p. 327: ‘he is in a certain degree responsible’; Otto, Schilling & Sintenis 1839 (reprint 1984), p. 792: ‘kann ihm Schuld beigemessen werden’.
421 Differently Thayer 1929, p. 13: ‘there is much to be said for the view’; d’Ors et al. 1968, p. 382: ‘aunque también se dice acertamente que’.
422 See also Heumann & Seckel 1907 (reprint 1958), p. 486, s.v. queri: de se queri debere means ‘etwas sich selbst zuschreiben müssen’; no reference is, however, made to D. 9.2.11pr.; differently d’Ors et al. 1968, p. 382: ‘sólo él tiene la culpa’.
2.5.3Inscriptio
The context of D. 9.2.11pr.
Just as D. 9.2.9.4, this fragment is derived from the eighteenth book of Ulpian’s commentary on the edict (of the praetor); see section 2.4.3. The text of D. 9.2.11pr. was on the actio legis Aquiliae, because in a case where a slave is killed, the first chapter of the lex Aquilia is relevant.423 Lenel confirms that this text
originally derives from a context of the lex Aquilia. In his Palingenesia, Lenel placed this fragment in book eighteen of Ulpian’s commentary on the edict, in the part dealing with the first chapter of the title on title Ad legem Aquiliam.424
Also, the compilers of Justinian (527–565) incorporated this fragment in (Justinian’s) Digest under the title Ad legem Aquiliam (D. 9.2).
Mela
The fragment is written by Domitius Ulpianus,425 who cites Fabius Mela.426
With regard to the latter’s life, no exact date of birth and death can be estab- lished. However, some indications of time are found in fragments of the Digest. Ulpian cites Mela as an authority of an opinion of Aquilius Gallus (who was a contemporary of Cicero and was praetor in 86 BC);427 Ulpian also cites Mela
as an authority of an opinion of Servius Sulpicius Rufus (ca. 105–43 BC).428 Ac-
cordingly, Mela must have lived after or in the same period as Aquilius Gallus and Servius Sulpicius Rufus. Because Ulpian first cites Mela and subsequently Proculus in D. 9.2.11pr., we can deduce that Mela lived prior to Proculus or that he was his contemporary.429 Finally, Africanus cites Mela in two fragments, D.
46.3.39 and D. 50.16.207. Accordingly, Mela must have lived either in the same period as Africanus or just before. In scholarly literature it is generally accepted that Mela lived in the same time period as Labeo.430
The origin of Mela is uncertain. Possibly he came from Spain, or from another area influenced by the Celtics, especially Gallia Cisalpina. In any event, it is plausible that he did not come from Italy, i.e. the region south of the Po.431 Mela
was literarily active during the reigns of Augustus and Tiberius. No title of his
423 See Gai. D. 9.2.2pr.
424 Lenel, Palingenesia iuris civilis, II, col. 523f., pal. nr. 614. 425 For a discussion about Domitius Ulpianus, see section 2.4.3.
426 Long 1870a, p. 1011; Brassloff 1909 (RE 6), col. 1830f.; Kunkel 1967 (reprint 2001), p. 116. 427 Ulp. D. 19.1.17.6.
428 Ulp. D. 33.9.3.10. 429 Long 1870a, p. 1011.
430 ibid.; Kunkel 1967 (reprint 2001), p. 116. 431 Kunkel 1967 (reprint 2001), p. 116.
work has remained. From Africanus D. 46.3.39 it becomes clear that the work of Mela mentioned by him consisted at least of ten books. Obviously, his works are directly or indirectly used by later authors, as becomes clear from their excerpts in the Digest (see, e.g., the above-mentioned fragments).
Proculus
The second jurist mentioned in this fragment is Proculus.432 Neither his nomen
gentile nor his origin can be established with certainty.433 Proculus lived during
the Principate; possibly he was born between 12 and 2 BC and he died after the year 66 AD.434 He was one of the first leaders of the school of the Procul(e)
iani, and after whom the school is also named. Proculus was a student of Nerva (pater) and succeeded him as head of the secta started by Labeo after Nerva (pater), who died in 33 AD.435 He lived in the same period as Nerva
(filius). Proculus must have been an important jurist.436 Moreover, the fact
that the school is named after him confirms that he must have been a jurist of importance in those days. Proculus’ most important work is the Epistolarum libri VIII, which was meant in the first place as a manual for educational purposes.437 Part of his work is indirectly handed down to us via Justinian’s
Digest, through which 33 extracts from Proculus’ eight or eleven books of Epistulae have survived.438 Also, one fragment ex posterioribus Labeonis is thus
handed down to us (D. 33.6.16).439
432 On Proculus, see Long 1870b, p. 541; Mayer-Maly 1957 (RE 45), col. 1234; Honoré 1962b, p. 472ff.; Krampe 1970, esp. p. 1ff.; Seidl 1973, p. 1227ff.; Kunkel 1967 (reprint 2001), p. 123ff.
433 See on this topic the literature mentioned in the previous footnote.
434 Honoré 1962b, p. 485ff.; Spruit 1994, p. 169; see also Rodger 1972, p. 404 nt. 9; elaborated and slightly different Kunkel 1967 (reprint 2001), p. 126.
435 See also Pomp. D. 1.2.2.52.
436 This was the view of Pomp. D. 1.2.2.52 (‘sed Proculi auctoritas maior fuit, nam etiam
plurimum potuit’).
437 Spruit 1994, p. 169.
438 According to the Index Florentinus, Proculus wrote eight books. However, according to D. 18.1.69 he wrote at least eleven books. See Long 1870b, p. 541; Mayer-Maly 1957 (RE 45), col. 1234; Krampe 1970, p. 8.