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Emilia Mataix Ferrándiz
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What could possibly go wrong on a sea venture? Romans were well aware that they did not always have everything under control when navigating the seas, and that sometimes compelling circumstances could cause harm to third parties, whether intentionally or not. A vessel could run out of control and collide with another ship, be driven ashore on someone else’s land and wreck on the bank, or even break other people’s fishing nets when sailing.1 In relation to these events, the delict labelled damnum iniuria datum (loss wrongfully caused) dealt with different matters concerning damage caused to another’s property. The edictum de naufragio was no exception to this precedent when dealing with wrongful acts, since it addressed behaviours stemming from a catastrophic situation, which could force individuals to act according to sudden impulses or even irrationally, and cause losses to someone else’s property.

This chapter will focus on the wrongful damage caused by or derived from shipwrecks. This damage could only be labelled ‘wrongful’ in the case that there was no lawful excuse (e.g. force majeure or self-defence) for what was done.2 In this regard, the sea seems like a perfect space to find an excuse for these events, as it is an uncivilised, unpredictable space, which cannot be dominated by humans. However, that is not how the Roman jurist perceived loss and damage to property. The different texts examined in this chapter will show that the main point in Roman law was that if someone had caused a loss that could have been avoided, they should repair the damage. In this way, a lack of knowledge and understanding of the range of variables involved in navigation (peritia),3 that might be considered negligence (culpa), alongside the intentions of the parties concerned, entered the picture when evaluating whether the loss could have been avoided or not. These elements were considered extra contractually, because the loss wrongfully caused might have exceeded the contractual benefits arising under the express terms and conditions assumed in a contract.4

4.1 Seizing Space by Using Legal Institutions

The work of jurists from different periods provides food for thought on how loss and its circumstances were legally targeted. As happened recurrently in Roman jurisprudence, in the title de naufragio events that took place at sea were paralleled with cases that took place on land.5 This will allow me to show how similar solutions were sometimes applied to legally diverse spaces. In that way, it will be possible to see how Roman jurists bridged the gap between land and sea and appreciate the adaptability of Roman law in addressing the misfortunes derived from a wreck and similar catastrophes.

4.1.1 Damnum Iniuria Datum and Shipwrecks

The notion of loss wrongfully caused was developed in the Lex Aquilia de damno, a plebiscite of unknown date, but probably enacted before 217 BCE.6 The Lex Aquilia introduced general provisions on wrongful damage to property and largely superseded old provisions and specific cases mentioned by the Twelve Tables and other statutes. The Lex Aquilia was quite narrow in its verbal formulation, but its scope was greatly expanded by a combination of juristic interpretation and praetorian intervention.7

One key extension was enlarging the scope for foreigners, who would be able to sue on the basis of the Lex Aquilia through the fiction that they were citizens.8 The scholarly literature on the Lex Aquilia is vast, and it is not my intention to indicate here all the references that deal with the topic, rather, I will focus on its reflection in the title de naufragio.9 Two of the three chapters of the law are relevant to the development of the delict of loss wrongfully caused. More concretely, chapter three penalised cases in which someone caused loss to another by burning (urere), breaking (frangere), or destroying (rumpere) their property.10

The edictum de naufragio addressed private violence, which constituted a form of iniuria,11 and was therefore punished in a more rigorous way than the hypothetical cases already foreseen by the Lex Aquilia. This edict individualised the delicts committed in relation to a shipwreck.12 In essence, the edict looked back at furtum and damnum iniuria datum and dealt with misappropriation, but dealt with it by means of different actions. Among the conducts provided for in the edict, (rapere, dolo malo recipere, abstulere, amovere, damnum dare), the only one that derives from the Lex Aquilia is damnum dare, and even for this behaviour it is necessary to consider things on a case-by-case basis, because many cases featured implied evil intent (dolus malus).13 In that case, the loss inflicted on the owner had to be the result of a wrongful, physical, and direct act of a wrongdoer upon a something tangible.14

It appears to be explained quite clearly by Ulpian, who in § 3.4 indicates that the actio de naufragio applies to a person inflicting damage on things that belong to a wreck. However, whether the act committed was suited to an action deriving from the Lex Aquilia or other specialised laws depended on the specific elements of each case. The latter would have had an effect on the penalty applied, since the actio de naufragio establishes a higher penalty (of quadruple the value of the item) than the actio ex lege aquilia (of double the value of the item).

Title 9.2 from the Digest presents different cases involving shipwrecks, and all of them are included in book 18 of Ulpian’s commentary on the praetorian edict. The Severan jurist provided comments on the verbs rumpere and corrumpere, and sometimes extended the liability for these behaviours to other situations, such as:

D.9.2.27.24 (Ulpian. 18 ad Ed.) Si navem venaliciarum mercium perforasset, Aquiliae actionem esse, quasi ruperit, Vivianus scribit. (If someone pierces a merchant ship with cargo, Vivianus wrote that they would be guilty under the action of the Lex Aquilia, as if they have broken it).

In this case, Ulpian quotes the preceding jurist as Vivianus (or Iulianus)15 and equates the action of piercing (perforare) a ship with rumpere,16 but by using the adjective quasi (almost) for the verb, the author is highlighting that this exercise constitutes a pragmatic and analogical extension of the verb rumpere.17 The same use can be perceived in other fragments from the Digest, in which conducts such as straining or pulling an object are assimilated to rumpere.18 The text is not entirely clear, and when reading it is difficult to see whether the relevant element of the text is the ship or the cargo. Spagnuolo thinks that this text is paired with the previous one by an antiphonal structure, and since § 23 refers to the mule, this text would address the ship.19 However, the cargo is no less important in the text, because the piercing of the ship would render the cargo ruined anyway,20 as the ship would sink.21

In that sense, in § 3.8 of the title Ulpian indicates (quoting a senatusconsultum from Claudius’ time) that removing the nails from a ship equates to being responsible for the fate of the whole ship.22 Reading that text it is possible to understand that this behaviour not only affected the ship but also the cargo and the people who were on board. I have written elsewhere about Ulpian’s way of thinking about collectivities,23 but what is important here is that, in this text, that conduct is not punished by the Lex Aquilia. Abstulere is a behaviour that fits best in the delict of theft or rapina,24 while an act such as piercing fits better with the verb rumpere from the Aquilian liability, even if for this case both behaviours had the same result for the ship and its cargo.25 These nuances are key for distinguishing when the Aquilian liability applied, because while the statute was being commented on by jurists, new subjective values were applied to decide what was reprehensible under that statute.

Damages caused indirectly or by simple omissions created no liability under the statute.26 Going back to § 8 of the title de naufragio, the text established the obligation to repair damage caused unintentionally, but not under the provisions of the Lex Aquilia.27 The loss would have been produced by inanimate things, a type of damage against which the owner of the fund was protected only if, having perceived the danger, he had promptly initiated proceedings for the feared damage (cautio damni infecti).28 Specifically, the actio legis Aquiliae was not applied because the requirement of the damnum corpore datum was not met, since the damage was caused by an inanimate thing impelled by the force of the river, and thus lacked an active participant who could have been held responsible.

4.1.2 Loss Wrongfully Caused

Throughout this book I have repeated that the sea was a space that was difficult to control, and that the Romans were the first people to consider the risks of navigation from a legal perspective when planning a venture. Contractually, there were different legal mechanisms to cope with the uncertainties of sea travel, including diverse kinds of agreements, loans, and securities.29 The sea’s ever-changing conditions have always made seafaring a highly variable practice,30 especially in antiquity, as navigation consists of a series of decisions made from instant to instant based on the local context.31 These individual actions can, in turn, have a cascading effect on the whole journey. The state of the sea, time of day, type of cargo, experience of the crew, and other factors all impact the decisions made by human actors at specific points in a journey, and these decisions do not necessarily result in the desired outcome, meaning that no two journeys are identical.32 This latter point emphasises that, even when planning a sea venture in great detail, things can still go wrong: the cargo can be lost, or the ship wrecked, or the vessel can cause wrongful damage to someone else’s goods.

However, does that mean that the consequences of their behaviour at sea, even considering the risks of navigation, were excusable? The answer is that on most occasions, it was not. One example of this assertion is the text D.19.2.13.1 (Ulpian. 32 ad Ed.). In this fragment, Ulpian explains a case when a carrier contracted to convey freight to Minturnae tranfers the cargo to another ship when getting from the sea to a river and that ship sank. The carrier would be guilty of fault if he acted against the lessor’s will, or if he transferred the cargo to an inferior ship. On the one hand, this text highlights the importance of what was agreed in a contract between parties (the lex contractus).33 On the other hand, it also indicates the importance of the expertise of the carrier in terms of knowing the quality of performance of a ship, but also of the features of the routes taken when shipping cargo around. In sum, a good sailor should have known better, and warned the lessor of a freight that transhipping was going to be involved in the journey.

Another example would be D.44.7.1.4 (Gaius 2 Aur.), which described one case when a person loaned silver tableware to someone else and indicated that if he were to take it with him on a sea journey, he would be liable for it even if it was lost owing to an attack by pirates or shipwreck. The justification was that even if these cases were considered force majeure, the debtor put the loaned object at risk by sending it off it on a sea trip.34 A similar comment is given for the episode described in D.17.1.26.6 (Paul. 32 ad Ed.), in which it is considered that a mandatary cannot ask the mandator for the extra money spent in case of a pirate attack or shipwreck, because these events are considered accidents and do not apply to the liability implied in the contract of mandate.

In sea contexts, the notion of imperitia (lack of skill) means that the captain might have decided not to sail based on his expertise and experience and the insight that was expected of him, as a prudent and professional practitioner of his craft.35 One example of this is the fragment D.9.2.29.2 (Ulpian. 18 ad Ed.), in which Ulpian wonders what action would be available if a boat caused damage through colliding with another boat’s skiff. In this text, Ulpian quotes the first-century CE jurist Proculus,36 and underlines not only the importance of the expertise of the captain, but also the good choices and skill of the crew when managing a ship.37 If the vessel was governed recklessly, the sailors would be subject to an actio ex lege Aquilia for colliding with another’s ship.38 The text does not mention acts prior to the loss, nor conduct which would have been available to the sailors that could have prevented the damage, since they should have known, as skilled people, that they should keep the ship under control while navigating.39 The jurist’s phrasing is quite simplistic, but it fits well with the idea of contingent movement by a ship. The captain and crew were aware that the marine environment was subject to changing circumstances, which is why sailors had to make decisions with each change in the wind; therefore, their fault would lie in not making these decisions and essentially demonstrating a lack of due diligence.

Moreover, in Roman law, culpa (negligent behaviour) did not require conscious risk-taking, and it was not judged by the individual defendant’s own, perhaps limited, ability to appreciate the consequences of their conduct, and was not excluded by the fact that something more than general knowledge would have been needed to avert the disaster.40 That said, it is understandable that some extraordinary events could not have been averted and avoided by the sailors.41 However, their expertise may have allowed them to prevent an accident; if they did not use these skills, the loss could have been considered negligence, which was inexcusable and potentially criminal.42

The last bit of the fragment suddenly mentions the lack of liability of the dominus navis (shipowner) under the Lex Aquilia.43 Even if the owner of the ship generally took care of choosing the captain, who would then take care of choosing the crew,44 on many occasions the crew was formed by slaves of the shipowner, whose actions were the responsibility of their owner since they depended on him.45 However, if we read the glossa of the text, the exclusion of liability is justified for the simple reason that Aquilian liability does not apply to damages caused by inanimate objects. The responsibility of the owner of an object for the damages caused by it was based exclusively on the existence of property rights, and it was extremely variable. These are situations in which the owner had a duty to keep an object in good condition (such as a house at risk of collapsing).46 Instead, this text does not refer to any maintenance of the ship, and only mentions cases where a rope was broken, or the ship was out of control.47

Ulpian’s comment on the event follows in § 4, in which the Severan jurist pursues the same pattern as in previous fragments. If a ship collides with another and the damage is the fault of the helmsman or the captain, they will be subject to Aquilian liability, while the shipowner will not be guilty of negligence in the same circumstances.48 Moreover, § 349 indicates that no action will lie against the sailors, if they could not have done anything other than cut the ropes.50 A different reasoning is offered for the case indicated in § 5,51 where there is a wrongful loss of the mooring rope, but the action is offered in factum because the consequences from this act were not only damage to the moorings but also that the ship was lost.52

In all these texts, there is no direct mention of a possible consequence of the events described, which is that on many occasions the ship would have sunk. Even if in these cases the wreck may have been caused by a lack of diligence and not by evil intent, a ship does not necessarily sink immediately, and there are still larcenous acts that can be committed while the wreck is happening, as Pedius described in D.47.9.4pr.53 These behaviours are also considered by Ulpian in § 1.5 and § 3pr. of the title de naufragio, so it must not have been rare to take advantage of such catastrophes. In § 4.1 Emperor Caracalla indicated that taking what cannot be saved from a wreck (peritura collegerint) does not constitute robbery. This assertion could be only be justified by the fact that these goods were taken before the ship was effectively wrecked and were in danger of being lost under the sea.54 In contrast, if the goods reached the shore, the person taking them would have been guilty according to the edictum de naufragio.55 The latter establishes a seemingly small but key difference between land and sea, and highlights the savage nature of maritime spaces.

If the force of the sea would have caused the complete loss of the ship and goods anyway, then nobody was liable, even when goods were grabbed from a ship that was sinking. However, if these goods reached land, their legal consideration was then different, and so was the liability of any individuals interacting with them. In these cases, the edictum de naufragio was available, as well as other legal tools such as the actio vi bonorum raptorum or the actio furti. This understanding qualifies the Roman maritime cultural landscape as a safe space bounded by their civil private laws. The latter is another argument for the agency of the sea, which cannot only take ownership, but also empower someone to take other people’s goods with impunity.

4.2 Establishing Parallels with Land Case Studies

The use of dissimilar scenarios to explain how a legal principle behaves in different situations is not a rare occurrence in Roman law. Indeed, it appears clearly established in the simple phrasing of the edictum de naufragio, by relating a catastrophe happening in water to others taking place on land (fire and collapse of a building).56 However, even if the events calling for the use of these legal remedies occurred due to similar behaviours or events,57 the specific affairs took place in contrasting spaces. I am not only mentioning this fact due to the range of applications of civil law, but also because different spaces entailed different hazards, and these need to be understood in context. The case of turba is also included in this section,58 since it corresponds to an edict that has several connections with the edictum de naufragio, due to the context in which it was enacted and the kinds of wrongdoings targeted.59 An examination of the following three cases will characterise the peculiarities of the areas where these behaviours took place, and how they redefined the relationship between land and sea.

4.2.1 Turba (Tumult)

The edictum de turba, and the edicts de naufragio and vi bonorum raptorum are concerned with damnum (loss), and all three have in common the element of disorder. The essential differences between the actiones de naufragio and vi bonorum raptorum and the actio de turba are that in the latter the behaviours targeted should not be committed by gathering a gang (either armed or not)60 and it does not include violent robbery among the conducts targeted.61 The edict addresses loss wrongfully caused, as well as misappropriation (theft) committed by a crowd, and this context is enough to presume the ill-intent of the offender, who does not need to have caused the tumult to have been considered in the scope of this edict.62 In this sense, it looks back at furtum and damnum iniuria datum, which are listed in Gaius’ enumeration of delicts.63 The behaviours targeted in this edict were probably subsumed into the scope of the actio vi bonorum raptorum in its latest version, when it was compiled in Hadrian’s perpetual edict.64 This collection was part of a process of organising and generalising legal tools, which resulted in the loss of individuality of this remedy, as well as depriving it of the particular political character that it had when it was enacted.

The edictum de turba was established during the late Republic, when the latent climate of violence in politics and society may have lead the praetor to enact a disposition targeting the losses caused by people who took advantage of a crowd to inflict loss or make things go missing.65 As with most of the Republican edicts that have been preserved (which are not many), the chronology of this edict is uncertain, but I have suggested elsewhere that it most likely belongs to the last century of the Republic.66 Some years later, Labeo (quoted by Ulpian) related turba to the general category of creating a disturbance.67 In his turn, Ulpian wrote at the apex of classical jurisprudence, in a world wholly accustomed to autocratic stability; his comments on this edict did not describe actual reality and certainly not the state of affairs in the earlier eras of Roman civilisation.68 Indeed, the word turba generally refers to a disturbance, and can apply to a crowd gathered in a wide variety of contexts.69 However, bearing in mind the sociopolitical ambience of the time when this edict was enacted, the term turba also had a political meaning, linked to lawmaking in the city of Rome and its spaces. In fact, the glossa, commenting on § 3 of the edict,70 which described what can be labelled as a crowd, indicated that the comitia populi tributa could be considered.71 I would like to highlight this notion in order to relate the space where a crowd interacted with the Roman maritime cultural landscape, which also had a political meaning constructed through legal dispositions such as the edictum de naufragio.

One of the most notable works on this topic is that of Millar, who demonstrated how the politics of the crowd were central to the great changes that took place year after year during times of unrest. Millar especially highlights the role of the crowd during the years 80–70 BCE,72 the period during which I presume this edict was approved.73 Pomponius, in his ‘sourcebook’ (liber singularis enchiridii), dating to the last years of Hadrian (the first half of the second century CE), refers to the citizenry reunited in the forum to exercise their political capacities.74 The aim of quoting Pomponius here is to highlight that if the crowd that the praetor was originally considering in his edict referred to one gathered in the forum, it did not constitute a general audience. The focus on the role of the citizen had the effect of excluding women, slaves, foreigners, and other marginalised groups from the political community (whether or not they were physically excluded from the crowd). The crowd was not ‘the community’ but ‘the correctly constituted citizen body of free adult Roman males’ (even if they were poor).75 Even if the word could be used in a general sense, when applied to that concrete setting, it also suddenly takes on a strongly political sense. It highlights the political spirit of the remedy included in the edict as belonging to civil private law, and therefore being associated with citizenship, and the status of the people forming the crowd. The latter does not mean that foreigners would have been physically excluded from the general crowd, and we know that it was possible for them to make a claim for theft or damage via the fiction of citizenship.76 Many of the edicts approved during that decade (80–70 BCE) had a strong political connotation connected to their spatial realms, because they aimed at controlling the violence that had become a plague in Rome.77 In the case of the sea, the edictum de naufragio likewise provided civil remedies for a space not governed by Roman civil law. Indeed, many of the remedies provided in the edictum de naufragio became effective when the wrecked ship or the salvaged goods touched land, and thus underlined the divide between land and sea spaces and their associated legal connotations. Somewhat differently, the edictum de turba also constituted a tool of civil law that took on a strong political connotation when applied to a crowd gathered in the forum during the exercise of their political rights.

4.2.2 Ruina (Collapse of a Building)

The uncontrollable collapse of a building is another of the situations envisaged, together with fire or shipwreck, in the edictum de naufragio. The logic behind connecting these events is that when they occur they cause a state of chaos, and some people may take advantage of this to cause damage or seize objects.78 The inclusion of building-collapse in the edictum de naufragio is not disentangled from the social realities of the late Republican period, since according to literary sources the insulae of the time suffered from many problems that often resulted in structural collapse.79 These shortcomings were unfortunately not only present during the Republican period but also in the Empire, and included the use of poor building materials, the inadequate construction of foundations, and inexpert and careless workmanship.80

This was especially the case for poor tenants, who suffered from an ignorance of the building regulations that applied to property owners, builders, and officials.81 As in the case of shipwrecks, the edict applied not only to the goods stolen from an actual building which had collapsed, but also from any adjacent premises.82 In addition, Ulpian indicates that the building must have already effectively collapsed, and that the edict would not apply if the building was just about to crumble.83 Several texts from later periods mention the collapse of a building as a lawful excuse for not having to fulfill obligations, such as not repaying a loan due to the fact the subject (the building) no longer existed, or not handing in documents on time for a trial.84 This continuous reference to the edict demonstrates that it was still useful long after its publication.

4.2.3 Incendium (Fire)

The Digest title de naufragio mainly provides remedies for events involving a wreck or fire, which were conjoined due to the type of conduct that constituted the delict, which is in turn influenced by the catastrophic situations that they generated. Indeed, when Ulpian comments on the edict, he says that looting takes place because of the confusion and alarm caused by a fire, and includes goods pillaged from any land adjacent to the scene of the fire.85

Notwithstanding Ulpian’s clarification, most fragments from the work dealt either with the intentional provocation of a fire or with cases in which the defendant intended the looting but claimed that it was justified by circumstances. The fragments from the title addressing fire belong to different periods, starting chronologically with § 9:

D.47.9.9 (Gaius 4 ad Leg. XII Tab.) Qui aedes acervumve frumenti iuxta domum positum conbusserit, vinctus verberatus igni necari iubetur, si modo sciens prudensque id commiserit. Si vero casu, id est neglegentia, aut noxiam sarcire iubetur aut, si minus idoneus sit, levius castigatur. Appellatione autem aedium omnes species aedificii continentur (A person who sets a building or a sheaf of wheat set beside a dwelling on fire should be bound, flogged, and put to death by fire, if their act was deliberate and conscious. If, however, they did it by chance, that is, by negligence, they are to make good the wrong, or if their means be inadequate, be more lightly punished. The expression ‘building’ includes every kind of edifice).

Gaius’ comment belongs to tabula VII.10,86 and the severity of the penalties included in the text bears witness to the archaic nature of the Twelve Tables.87 However, his comment also remains current, clarifying that the term ‘aedes’ encompasses all kinds of buildings.88 In that way, Gaius was including the Roman country house, as well as the urban insulae, which were so common throughout the Empire.89 Regarding the insulae, many sources refer to fires as a common occurrence in these types of buildings.90

Gaius’ comment exemplifies the variety of criminal and civil sanctions available, depending on the behaviour committed.91 On the one hand, the jurist offers a glimpse into the criminal punishments established in the Twelve Tables, which were partly influenced by the talio and reflect an element of vengeance, such as burning alive anyone who consciously sets fire to a house.92 On the other hand, the jurist’s inclusion of elements such as chance (casus) is considered to have been interpolated by various scholars, probably because they thought that Gaius wrote his comment only following the spirit of the Twelve Tables.93 However, other scholars thought that the use of neglegentia could be a gloss inserted to give a technically accepted meaning to casus, which perhaps already had multiple connotations for Gaius.94 Leaving these questions aside, these terms drew a distinction between the intentional and unintentional (not planned) lighting of a fire, and their relative sanctions are indeed genuine.95 For its part, casus constituted the first system of liability known in Roman times outside the sphere of dolus, which implied intentionality from the parties.96 Later, writing during the Severan period,97 Marcian included fortuitus in a text that also concerned fire:

D.47.9.11. (Marcian. 14 Inst.) si fortuito incendium factum sit, venia indiget, nisi tam lata culpa fuit, ut luxuria aut dolo sit proxima. (If a fire be caused by chance, it merits indulgence, unless the carelessness was so conspicuous as to be ranked as being close to deliberate intent).

Here Marcian is using fortuitus in the same sense as Gaius, that is to say, not excluding fault from the targeted behaviour. Therefore, it should be understood that Marcian said that when the fire was caused unintentionally, it must be forgiven. In contrast, Gaius does not indicate any nuances for casus, but only distinguishes it from wrongful intent and establishes a lighter punishment for cases when someone sets fire to buildings without full knowledge of the consequences of this action.98 Marcian therefore takes up the rule stated by Gaius and indicates that only instances of severe negligence could be considered as intentional harm. In his turn, by indicating diverse penalties and including intentionality as an element to consider for establishing them, Gaius was stating the substance of the rulings as applied in his own day but maintaining the influence of the Twelve Tables in his comment.99 The latter can be appreciated in the fact that Gaius establishes different penalties but does not refer to the Lex Aquilia for these cases, since the plebiscite was approved at a later date.100 Nevertheless, for cases in which the damage is caused through a purposeful act, § 3.7 includes a text that involves several elements that may remind one of the cases mentioned in section 4.1.2. The fragment is included in book 56 from Ulpian’s edict:

D.47.9.3.7 (Ulpian. 56 ad Ed.) Quod ait praetor de damno dato, ita demum locum habet, si dolo damnum datum sit: nam si dolus malus absit, cessat edictum. Quemadmodum ergo procedit, quod Labeo scribit, si defendendi mei causa vicini aedificium orto incendio dissipaverim, et meo nomine et familiae iudicium in me dandum? Cum enim defendendarum mearum aedium causa fecerim, utique dolo careo. Puto igitur non esse verum, quod Labeo scribit. An tamen lege Aquilia agi cum hoc possit? Et non puto agendum: nec enim iniuria hoc fecit, qui se tueri voluit, cum alias non posset. Et ita Celsus scribit. (What the praetor says about the infliction of damage is applicable only if the damage is deliberate: for if wrongful intent is absent, the edict does not apply. How then does what Labeo writes apply, if when a fire arose therein, I demolished my neighbour’s house in self-defence, and an action should be granted against both me and my slaves? Since I have done this to preserve my own premises, I am lacking evil intent. I think, therefore, that what Labeo writes is not true. But would it be possible to proceed under the Lex Aquilia in such circumstances? Again, I think not; for a person does not act wrongfully if they act to protect themselves when they had no other option. And so writes Celsus).101

The fragment describes the situation of a subject who, by fleeing from a burning home, brings about the destruction of his neighbour’s house. According to Labeo, this event should be punished since a loss has been caused, while in Ulpian’s opinion (following Celsus) there would be no penalty for the subject or for his slaves, since they had acted in this way without iniuria or dolus malus mediating their attitude. In this text, the most important justification for wrongful damage is self-defence, limited to the force necessary to prevent any anticipated harm to oneself, and not extending to measures = exceeding this limit of proportionality, as for instance blows struck in revenge.102 Two other texts from the Digest deal with losses wrongfully caused due to a fire and present divergent thoughts from both Celsus and Labeo.103 Their discrepancies are based on the different remedies proposed to deal with the damage, being either the solutions derived from the Lex Aquilia or the interdict quod vi aut clam.104

Similarly, in the case of § 3.7, the divergent opinions of Celsus and Labeo are justified because they are thinking of different legal solutions. In the case of Celsus, the regime of the Lex Aquilia would not apply because there is no ill-intent from the offender, as happened in the case of the boat pushed towards another by the force of the wind.105 Instead, Labeo is thinking of the edictum de naufragio in the fragment,106 and since ‘to receive’ is the only conduct included in the scope of the delict that requires wrongful intent, the rest, as they cause a loss, are presumed to include bad intent.107 Labeo’s conception is also connected to his context, because in his time establishing the presence of dolus, or evil intent, was not a requirement for granting the action.108 On the contrary, for Ulpian, in keeping with the time in which he developed his legal work, it was necessary to consider the psychological element in the case by introducing the requirement of evil intent.109 Labeo’s interpretation of the damnum iniuria datum corresponds to a classic notion of the Lex Aquilia, by which anyone who causes damage, whether by action or omission, is responsible for it.110 Ulpian introduces a new vision of the problem of loss wrongfully caused based on the specific case and its subjective elements.

Contrasting with this text, § 12.1111 from the work reflected the punishment for setting a fire in the Severan period, and graduated the penalties according to the social rank of the offender.112 The sanctions available correspond with those provided in the Lex Cornelia de sicariis et veneficis,113 a statute that had also influenced § 3.8 from the title de naufragio. The fragment only referred to the event of an intentional fire that took place in a city, as other fragments from the Digest did, and included capital punishment for these cases.114 Fragment 12.1 was part of book 8 on the office of the proconsul compiled by Ulpian in the third century CE, in which the jurist compiled many rescripts that addressed Christians.115 For that reason, it would not be surprising to see that similar penalties were applied to the Christians who were accused by Nero of setting fire to Rome in 64 CE.116 However, the penalties included in the fragment are not what we have to consider when comparing the fragments on arson; rather, we should consider the intentionality of the offenders in causing the catastrophe.117

The key element in the inclusion of fragments § 9 and § 12.1 in the work is that these justify that the provocation of catastrophes such as wrecks, fires, or the collapse of a building should be included in the edict, even if they are not specifically mentioned in § 1pr., including the phrasing of the edict. The latter challenges the opinion that these texts dedicated to arson are only included in the title due to an association of ideas.118 In addition, it underlines the connection of this edict with the ius naufragii and reaffirms its importance to the Roman quest to keep its seashores peaceful.

The last point of this section has addressed the connection between events taking place at sea and on land. It refers to the causality of the event of a fire or collapse of a building, as referred to in § 1.4.119 As can be noticed when reading the fragment, here Ulpian only refers to the events of a fire or collapse of a building, but not of a shipwreck. The latter is connected to the idea of contingent navigation as referred to in section 4.1.2. It seems that the Severan jurist had in mind the conception that, while events taking place on land such as a fire or the collapse of a building could be predicted and prevented, a shipwreck was difficult to foresee and avert. Indeed, suffering from a shipwreck could be used as an excuse for the abandonment of obligations such as liability for a cargo lost (at least from the time of Labeo onwards), even if it was normally protected by the necessity of acknowledging the reception of the load (receptum nautarum).120 Other similar cases would be the exemption from liability for failing to repay a loan, or for the death of a slave.121

This distinction among otherwise similar events was justified partly by the savage nature of the sea, but also by the very nature of ships, which, as Ulpian reminds us, is to put to sea and sail.122 Therefore, on the one hand, it is understandable that the jurists aim to compare different catastrophic events to examine the efficiency of the legal remedies and principles about which they were writing. However, even if the events possessed some similarities, the nature of the spaces in which they took place was different, not only because the sea was a space unable to be grasped by the law of the Romans, but also simply because of its uncertain and unpredictable nature. The edictum de naufragio established a relative gap in the dichotomy between land and sea by repressing via private law the events related to a wreck and the wreck itself. However, its efficiency was limited due to the savage nature of the sea, and therefore in many cases it would only have applied once the consequences of the wreck (e.g. the seizure of goods) were manifested on shore. As we will see in the following chapter, for cases such as homicides the commentary on the edict refers to other statutes that could provide solutions for these events, highlighting the need for public remedies to address some events taking place at sea.

1

D.9.2.29.3–5 (Ulpian. 18 ad Ed.).

2

e.g. D.9.2.5pr. (Ulpian. 18 ad Ed.).

3

Martin 1990, 302–303; 2002, 161–162; for a more general approach, see Martin 2001, 107–129. I must note here that peritia is not only involved in navigation, but in any activity that requires certain knowledge or skill.

4

Even if negligence is a concept widely considered in contractual liability. e.g. D.19.2.25.7 (Gaius 10 ad Ed. Prov.); D.17.1.26.6 (Paul. 32 ad Ed.); D.17.2.52.4 (Paul. 31 ad Ed.).

5

See § 1.2; § 3.2 or § 3.7.

6

D.9.2.1 (Ulpian. 18 ad Ed.) and G.3.210–219. Honoré 1972, 138, 145–150, proposes around 200 BCE.

7

Valiño 1973, 21; Gerkens 2009, 82.

8

G.4.37, ‘Again, there is a fiction of Roman citizenship for a foreigner who is raising or defending an action established by statutes, if it is equitable for that action to be extended to a foreigner’. See also chapter two, section 2.1.

9

For some general notions and literature, see: Zimmerman 1996, 998–1013.

10

D.9.2.27.5 (Ulpian. 18 ad Ed.); Daube 1936, 253; MacCormack 1970, 164–178; Paschalidis 2008, 321–363.

11

Riggsby 2016, 316.

12

Labruna 1971, 19–20; 1986, 19n31.

13

Gerkens 1997b, 143.

14

e.g. D.4.3.7.7 (Ulpian. 11 ad Ed.); Albanese 1950, 5–20; De Robertis 2000, 98–99; Zilotto 2000, 79–83.

15

The vulgata edition of the Digest mentions Iulianus instead of Vivianus. The age difference between the two jurists would have been approximately one century. While Julian worked during the reign of Hadrian (Hist.Aug.Hadr.18.1), Vivianus worked during the first century CE. See: Russo Ruggeri 1997.

16

The verb perforare is also used in D.9.2.27.30 (Ulpian. 18 ad Ed.), in a lemmatic commentary on frangere. Contrarily to Lenel Pal. 2, 530, Rodger thinks that this fragment is part of Ulpian’s comment on rumpere, see: Rodger 2007, 196.

17

Spagnuolo 2020, 171–194.

18

D.9.2.27.18 (Ulpian. 18 ad Ed.) and D.47.10.15.39 (Ulpian. 77 ad Ed.).

19

Spagnuolo 2020, 187–188, 192. Also, MacCormack 1971, 5.

20

Musumeci 2010, 347–352; Valditara 2016, 206; Sanna 2017, 366; Lorusso 2018, 208.

21

Spagnuolo 2020, 188, maintains that an unloaded ship will not sink. This could be the case, even if none of the technical reasons to sustain that argument are particularly strong. The weight—and therefore displacement potential—of seawater allows the ship to float. An unloaded ship which has been pierced will take on water that has to be pumped out, but if it is lighter, then it is less likely to be affected by this. Perhaps a heavily laden ship that is pierced cannot bear the added weight.

22

Senatus consultum Claudianis temporibus factum est, ut, si quis ex naufragio clavos vel unum ex his abstulerit, omnium rerum nomine teneatur.

23

Mataix Ferrándiz 2015, 525–540.

24

See § 3pr.; § 3.4 and § 5 from the title.

25

Purpura 1995, 469.

26

Valditara 2005, 17–19.

27

For a translation, see the appendix, and chapter three, section 3.3.2.

28

Branca 1937, 367–375; Marrone 2001, 189.

29

Kupiszewski 1972; Litewski 1983; Jakab 2022; Fiori 2022.

30

These unstable weather conditions sometimes resulted in wrecks, such as happened to Paul the apostle NT 2 Cor.11.25, or Emperor Marcus Aurelius Antoninus (Hist.Aug.M.Ant.27.2).

31

The fear of shipwreck also explains the practice of potential travellers asking for divine advice on whether to travel by sea, see: Cic.Div.2.14; Noy 2000, 142.

32

See Campbell 2022, which quotes several literary examples of decision-making at sea.

33

As highlighted by Du Plessis 2006.

34

Tarwacka 2018, 307. Similar case is presented by Gaius in D.13.6.18pr. (Gaius 9 ad Ed. Prov.).

35

Something that can be appreciated in other texts such as D.14.1.1pr. (Ulpian. 28 ad Ed.); D.6.1.36.1 (Gaius 7 ad Ed. Prov.). The paradigm of the responsible role would be the figure of the paterfamilias, understood as what a diligent man would have foreseen; see D.9.2.31pr. (Paul. 10 ad Sab.); D.13.6.18pr. (Gaius 9 ad Ed. Prov.), and not only for his own things but also the ones kept for others; D.44.7.1.4 (Gaius 2 Aur.). MacCormack 1974, 203.

36

Honoré 1962b; Krampe 1970.

37

D.9.2.29.2 (Ulpian. 18 ad Ed.) Et ait Proculus, si in potestate nautarum fuit, ne id accideret, et culpa eorum factum sit, lege Aquilia cum nautis agendum, quia parvi refert navem immittendo aut serraculum ad navem ducendo an tua manu damnum dederis, quia omnibus his modis per te damno adficior: sed si fune rupto aut cum a nullo regeretur navis incurrisset, cum domino agendum non esse (…) Proculus says that if it was in the power of the sailors to prevent the collision and it happened through their fault, an action under the Lex Aquilia can be brought against them, because it matters little whether you do damage by letting your boat run loose or by bad steering or even with your own hand, because in all these ways I suffer damage caused by you; but if a rope broke or the vessel ran into mine when no one was in control of it, no action can be brought against the owner).

38

Ibbetson 2003, 497.

39

Paschalidis 2008, 353.

40

Birks 2014, 206–207.

41

D.50.17.23 (Ulpian. 29 ad Sab.).

42

See for example D.17.2.52.4 (Paul. 31 ad Ed.) or D.50.17.23 (Ulpian. 29 ad Sab.).

43

Pérez Simeón 2001, 7–11, also thinks that the exercitor would be liable for the actio in factum adversos nautas (D.4.9.1pr.) and not ex lege Aquilia. Van Dongen 2014, 245, states that in the event of accidental loss, no action based on the Lex Aquilia could be brought by the owner of the damaged ship, and quotes examples of early modern law following Roman law.

44

D.14.2.2 (Ulpian. 28 ad Ed.). According to Schipani 1969, 198–242, the shipowner would be liable for any damage caused in any case.

45

Aubert 1994, 46–116; 1999, 151–152.

46

e.g. D.39.2.7.1 (Ulpian.53 ad Ed.); D.39.2.6 (Gaius 1 ad Ed. Prov.).

47

D.39.2.24.4 (Ulpian. 81 ad Ed.); the force of the sea is something that even buildings cannot resist.

48

D.9.2.29.4 (Ulpian. 18 ad Ed.) 4. Si navis alteram contra se venientem obruisset, aut in gubernatorem aut in ducatorem actionem competere damni iniuriae Alfenus ait: sed si tanta vis navi facta sit, quae temperari non potuit, nullam in dominum dandam actionem: sin autem culpa nautarum id factum sit, puto Aquiliae sufficere. (If a ship had sunk another ship that was heading against it, Alfenus says that it is possible to release an action for wrongful loss against the pilot or gubernator. But if the ship had gone with such force that it would have been impossible to moderate it, no action is to be brought against the owner. If this had occurred due to the fault of the sailors, I believe the action of the Lex Aquilia is sufficient).

49

D.9.2.29.3 (Ulpian. 18 ad Ed.); 3. Item Labeo scribit, si, cum vi ventorum navis impulsa esset in funes anchorarum alterius et nautae funes praecidissent, si nullo alio modo nisi praecisis funibus explicare se potuit, nullam actionem dandam. (Labeo also writes that if the ship had been driven by the force of the winds against the ropes of the anchors of another ship, when the sailors had cut the ropes, and even then, the ship had been able to untangle itself, no action should be taken).

50

Accursius et al. 1627, 1038, n. f, in which Accursius also mentions the actio de naufragio.

51

D.9.2.29.5 (Ulpian. 18 ad Ed.) Si funem quis, quo religata navis erat, praeciderit, de nave quae periit in factum agendum. (If someone has cut the ropes that hold a ship, an actio in factum could be brought with respect to the ship that sank).

52

Barton 1974, 23; Corbino 2007, 32.

53

D.47.9.4pr. (Paul. 54 ad Ed.) Pedius posse etiam dici ex naufragio rapere, qui, dum naufragium fiat, in illa trepidatione rapiat.

54

Gerkens 1997a, 152–157, compares this case to the one described in § 3.7 of the edict.

55

See § 7 and chapter three, section 3.1.

56

As can be appreciated in other edicts such as D.4.9.1pr. (Ulpian. 14 ad Ed.) and D.14.1.1pr. (Ulpian. 28 ad Ed.).

57

D.39.2.24.4 (Ulpian. 81 ad Ed.).

58

D.47.8.4pr. (Ulpian. 56 ad Ed.); Lenel. EP, § 183.

59

See chapter one, section 1.3.1.

60

D.47.8.4.6 (Ulpian. 56 ad Ed.); Balzarini 1969b, 262–264; Vacca 1972, 48–51. When individuals cause damage in a crowd with the use of arms, they will be criminally punished, PS.5.3.3, and if their intent is to commit murder, they fit in the scope of the Lex Cornelia de sicariis et veneficis, see: D.48.8.1pr. (Marcian. 14 Inst.).

61

D.47.8.4.9 (Ulpian. 56 ad Ed.).

62

D.47.8.4.6 (Ulpian. 56 ad Ed.).

63

G.3.182.

64

See chapter one, section 1.3.1.

65

D.47.8.4pr. (Ulpian. 56 ad Ed.).

66

Mataix Ferrándiz 2019, 164–165. See also Birks 2014, 191.

67

D.47.8.2pr. (Ulpian. 56 ad Ed.).

68

He described a crowd in a general way also in D.47.8.4.3 and D.47.8.4.6 (Ulpian. 56 ad Ed.). Lawmaking was in the hands of the emperor by the time of Ulpian, see for example, Honoré 1994.

69

e.g. Fagan 2011; Russell 2016b.

70

D.47.8.4.3 (Ulpian. 56 ad Ed.) Turbam autem ex quo numero admittimus? Si duo rixam commiserint, utique non accipiemus in turba id factum, quia duo turba non proprie dicentur: enimvero si plures fuerunt, decem aut quindecim homines, turba dicetur. Quid ergo, si tres aut quattuor? Turba utique non erit. Et rectissime Labeo inter turbam et rixam multum interesse ait: namque turbam multitudinis hominum esse turbationem et coetum, rixam etiam duorum. (By what number do we recognise that a mob exists? If two people fight, we will certainly not understand that this happened as part of a mob, because it will not be said with reason that two people form a mob, but if there are more, ten or fifteen people, it will be said that there is a mob. Then, what will be said if there were three or four? There was certainly no mob, and Labeo says with much reason that there is a great difference between a mob and a quarrel, because a mob is a grouping and gathering of a multitude of men, while a quarrel is a meeting of two people).

71

Accursius et al. 1627, 1344, n.h(c).

72

Millar 1998, esp. 49–123.

73

See chapter one, section 1.3.1, and table three in the appendix.

74

D.1.2.2.9 (Pompon. L.S. Ench.).

75

Russell 2016a, 46; Nippel 1995, 15.

76

G.4.37.

77

Lintott 1968, 6–34; Mataix Ferrándiz 2019, 163–165.

78

D.47.9.3.2 (Ulpian. 56 ad Ed.).

79

Cic.Att.14.9.1. Van der Bergh 2003, 460–461.

80

Juv.3.190–196; Sen.Ep.90.43; Frier 1977, 36.

81

Yavetz 1958; Scobie 1986, 404. For example, the Senatus Consultum Hosidianum (54 CE) was concerned with the maintenance of buildings, but it was concerned with appearance and not with the social necessities of the poor. See: Phillips 1973, 94.

82

D.47.9.1.3 (Ulpian. 56 ad Ed.).

83

D.47.9.1.4 (Ulpian. 56 ad Ed.).

84

Table one in the appendix.

85

D.47.9.1.2 (Ulpian. 56 ad Ed.).

86

Lenel.Pal.1.244.

87

Santalucia 1988, 427; 2009, 29–31; La Rosa 1998, 369; Pólay 1986, 73.

88

D.50.16.211 (Florent. 8 Inst.); D.19.1.15 and D.19.1.17.7 (Ulpian. 32 ad Ed.).

89

Frier 1980, 1; 39–60.

90

Juv.3.190–204; Gell.NA.15.1.2–3.

91

As could be perceived in D.47.9.1.1 (Ulpian. 56 ad Ed.). See also chapter two, section 2.3.

92

Bauman 2002, 114.

93

Considered as interpolated by Ferrini 1899, 145; Costa 1921, 42–48; Brasiello 1937, 206, n. 21; contra, Muciaccia 1977, 75, quoting Coll.1.11.2–3.

94

MacCormack 1972, 393–394 n. 6; 1981, 117; Wacke 1979, 553; Molnár 1986, 481–482 and n. 53. For arguments that the precise statement is not Gaius’, see Gioffredi 1970, 40; Wittmann 1972, 21–22; Pólay 1984, 179–180.

95

Cursi 2012, 300–301.

96

Casus is defined in Coll.1.7.1. See also Muciaccia 1977, 67.

97

De Giovanni 1983, 91–146.

98

Robinson 1977, 339.

99

MacCormack 1972, 382–383, 392; Sitek 2007.

100

D.9.2.27.7 (Ulpian. 18 ad Ed.).

101

This fragment has been considered to have been altered by De Martino 1939, 44–45; Beinart 1952, 287 n. 3; Longo 1970, 334–335; Schipani 1969, 207; contra; Gerkens 1997b, 102, who is right to indicate that it would have been strange for the compilers to alter one text to cause a controversy between jurists from the same school, and justifies these scholars’ claims about the incorrect analysis of the text from the perspective of a ‘state of necessity’, which is a concept that was not conceived of until the nineteenth century.

102

Self-defence is a concept also associated with fear, see: D.40.12.16.1 (Ulpian. 55 ad Ed.); D.4.2.1 (Ulpian. 11 ad Ed.); Tafaro 1974, 57.

103

D.9.2.49.1 (Ulpian. 9 Disp.) and D.43.24.7.4 (Ulpian. 71 ad Ed.).

104

Gerkens 1997b, 148.

105

D.9.2.29.3 (Ulpian. 18 ad Ed.).

106

Von Thur 1888, 64–68; Gerkens 1997b, 143.

107

See § 3.3. and § 1pr.

108

Gerkens 2005, 117.

109

Gioffredi 1970, 45.

110

e.g. G.3.211; D.47.10.1pr. (Ulpian. 56 ad Ed.).

111

D.47.9.12.1 (Ulpian. 8 de Off. Proc.) Qui data opera in civitate incendium fecerint, si humiliore loco sint, bestiis obici solent: si aliquo gradu id fecerint, capite puniuntur aut certe in insulam deportantur. (Those who deliberately start a fire in a city, if they be of lower rank, are usually thrown to the beasts; but if they be of some status, they would be subject to capital punishment or certainly deported to an island).

112

Cardascia 1950, 336; Sitek 2007, 10.

113

Coll.12.5; D.48.8.1pr. and D.48.8.3.5 (Marcian. 14 Inst.).

114

D.48.19.28.12 (Callist. 6 de Cogn.); Coll.12.2.4; 12.6; PS.5.3.6; 5.20.1.

115

Plescia 1971, 131.

116

Tac.Ann.44.15; Plin.Ep.10.96; Suet.Ner.38.121; Cass.Dio.62.229; Saumagne 1962, 344–345; Albanese 1982, 46.

117

MacCormack 1972, 388.

118

Gerkens 2007, 6.

119

D.47.9.1.4. (Ulpian. 56 ad Ed.) Si suspicio fuit incendii vel ruinae, incendium vel ruina non fuit, videamus, an hoc edictum locum habeat. Et magis est, ne habeat, quia neque ex incendio neque ex ruina quid raptum est. (If there was a suspicion that there was going to be a fire or a collapse which does not actually happen, let us see whether this comes within the scope of the edict. And the better view is that it does not come, for nothing is seized from either a fire or a collapse).

120

D.4.9.3.1 (Ulpian. 14 ad Ed.).

121

D.13.6.1.8pr (Gaius 9 ad Ed. Prov.); D.6.1.36.1 (Gaius 7 ad Ed. Prov.). However, a later constitution from 294 CE (C.33.2.5) indicates that the lack of liability is not automatically assumed, and that the carrier will be bound to repay the loan in the case that he did not include the exception of shipwreck in the agreement beforehand.

122

D.7.1.12.1 (Ulpian. 17 ad Ed.).

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