Lex Aquilia

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The lex Aquilia ( Latin for "Law of Aquilius" ) was a plebiscite from the time of the Roman Republic that regulated the law of damages . The law described a number of offenses and gave them different legal consequences. During the Middle Ages and the subsequent modern period , the received lex Aquilia was then increasingly applied more extensively and generally, until it had developed into a general clause under the legal interpretation method of the usus modernus . The law is an important precursor to modern tort law .

The lex Aquilia is said to be traced back to the Roman tribune Aquilius and to the year 286 BC. Based on economic and historical studies, a later introduction around 200 BC is also expected. This was discussed and justified by the fact that at the end of the second Punic War the Roman economy was down and money had lost a lot of purchasing power . The penalties contained in the XII tables should be corrected by law. Older property damage laws have been repealed. The law began to be interpreted by the Praetors .

construction

The lex Aquilia was divided into three chapters, with the second chapter being out of use. The first chapter dealt with the killing of slaves and cattle. Since the annual high was used, it still contains remnants of the old private criminal law . The third chapter, which was probably added later, regulated other property damage. This was based on the value at the time of the offense and the expected consequential damage of the following month. In this respect, it was a question of compensation without the character of a penal provision. Both chapters have been preserved verbatim. They were reproduced in the 7th book on the provincial edict of Gaius and in the 18th book on the edict of Ulpian and can be found in the digests .

Offense

Initially, any objectively unlawful damage to property led to claims for damages. Later, the guilt was used as an additional element of action (intentional or negligent inspection), which limited the scope of the law. In fact , a damnum iniuria datum was necessary in the sense of both chapters, i.e. unlawfully inflicted damage. The prerequisite was action in the way of positive action and this had to be causal for the damage to occur. Positive action meant physical activity ( damnum corpore datum ) of the perpetrator. Here, too, the law was subject to change, as it was decided that indirect damage also required compensation.

The term damnum , the original meaning of which is not certain, denoted in the sense of the lex Aquilia an impairment of property caused by a perpetrator . The prerequisite for the lawsuit ex lege Aquiliae was, according to Chapter 1, a third chapter by killing ( occidere ) a strange slave or four-legged herd animal or, according to the more generally formulated, not limited to slaves and four-legged herd animals, by burning ( urere ), breaking ( frangere ) or tearing ( rumpere ) a thing damage taken.

A distinction to be made from the occidere presupposed in Chapter 1 , which was interpreted restrictively in the sense of killing by direct laying on of hands ( quasi manu ), was the indirect cause of death ( causam mortis praebere or causam mortis praestare ). In such a case, the lex Aquilia was not immediately applicable. The lex Aquilia was just as inapplicable to damage to the outdoors , such as a filius familias . For such cases of indirect causality or damage to the outdoors, liability ex lege Aquiliae was already extended in Republican times through the granting of analogous praetorical actions, referred to as actiones in factum or actiones utiles . Even in Republican times, rumpere from Chapter 3 was interpreted as corrumpere ("destroy, spoil, damage"), i.e. expanded.

According to both chapters, the act must also have happened iniuria . For this, it was first necessary to check whether the damaging act was brought about non iure (“unlawful”). The illegality was indicated by the realization of the facts. The act could be justified or excused, for example, through self-defense , an emergency , lawful intervention by a magistrate or the consent of the injured party.

Later, the illegality was placed at fault in the form of intent ( dolus ) and negligence ( culpa ). The iniuria was accordingly answered in the affirmative if someone acted with intent or negligence. Anyone who foresaw and approved the damaging outcome of his act acted willfully, whereas negligence was understood as the failure to exercise due care.

Kind of action

According to Gaius, a distinction had to be made between prosecuting actions and criminal actions, which could be brought side by side, according to Gaius. The aim of the criminal actions ( actiones poenales ) was on the one hand to compensate for damages - in addition in the sense of chapter 1 - a fine to be paid by the perpetrator ( poena ), which could amount to many times the damage. A distinction had to be made between the purely prosecuting actions and the purely criminal actions, in which the two purposes of the action were linked. These actiones mixtae could not be asserted alongside other criminal claims or other prosecuting claims.

The actio legis Aquiliae is one of the mixed actions because of its passive inheritance and noxality as a criminal action with a prosecution function. As such, it was in elective competition with other lawsuits; the injured party had the choice of which action to bring. However, in the case of several acts, such as the injury to a slave and subsequent killing, the perpetrator was liable for both the injury and the killing.

If the defendant was prosecuted according to the first chapter, he had to pay the owner as much as the thing was worth at most last year - there is probably a penal element in this. If he was prosecuted from the third chapter, he would have to pay as much as it would be worth in the next 30 days. The reasons for this valuation are controversial in research.

literature

Individual evidence

  1. ^ Corpus iuris civilis , Text and Translation, II, Digest 1–10, jointly translated and edited by Okko Behrends , Rolf Knütel , Berthold Kupisch , Hans Hermann Seiler , with contributions by Peter Apathy and others. a. 1995, p. 733 ff.
  2. ↑ Hans-Peter Benöhr : The editing of paragraphs 823 and 826 BGB . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, p. 499 ff (502 f.).
  3. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 280 f.
  4. ↑ a b Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Pp. 185-189 (186 f.).
  5. ↑ See Ulpian D. 9.2.27.4.
  6. ↑ D.9.2.2.pr. and D.9.2.27.5.
  7. ^ Paul Jörs , Wolfgang Kunkel , Leopold Wenger : Römisches Recht. 4th edition. New York, Berlin, Heidelberg 1987, revised by Heinrich Honsell , Theo Mayer-Maly , Walter Selb , p. 368.
  8. ^ Theo Mayer-Maly: The lawsuit competition in Roman law. On the history of divorce from damages and personal punishment. Göttingen 1972, p. 164.
  9. ↑ Inst. 4,3,16.
  10. ↑ a b c d Max Kaser , Rolf Knütel : Roman private law. 19th edition. CH Beck, Munich 2008, ISBN 978-3-406-57623-2 , § 36 Rn. 3, § 51 Rn. 11.
  11. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 218.
  12. ↑ To this Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 205 f.
  13. ^ Reinhard Zimmermann: The Law of Obligations. Roman Foundations of the Civilian Tradition. Reprint, Munich 1996, p. 957.
  14. ↑ This Dieter Nörr : Causa mortis. On the trail of a phrase. Munich 1986, p. 121 ff.
  15. ↑ a b c Heinrich Honsell: Roman law. 7th edition. Berlin, Heidelberg 2010, p. 169.
  16. ^ Reinhard Zimmermann: The Law of Obligations. Roman Foundations of the Civilian Tradition. Reprint, Munich 1996, p. 1014 f.
  17. ↑ To differentiate the terms Reinhard Zimmermann: The Law of Obligations. Roman Foundations of the Civilian Tradition. Reprint, Munich 1996, p. 993 ff.
  18. ^ Max Kaser, Rolf Knütel: Roman private law. 19th edition. CH Beck, Munich 2008, ISBN 978-3-406-57623-2 , § 51 Rn. 14th
  19. ↑ Herbert Hausmanninger: The law of damages of the lex Aquilia. 5th edition. Vienna 1996, p. 12.
  20. ^ A b Paul Jörs, Wolfgang Kunkel, Leopold Wenger: Römisches Recht. 4th edition. New York, Berlin, Heidelberg 1987, revised by Heinrich Honsell, Theo Mayer-Maly, Walter Selb, p. 365.
  21. ^ Reinhard Zimmermann: The Law of Obligations. Roman Foundations of the Civilian Tradition. Reprint, Munich 1996, p. 999 ff.
  22. ^ Heinrich Honsell: Roman law. 7th edition. Berlin, Heidelberg 2010, p. 168 f.
  23. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 216 ff.
  24. ^ Max Kaser, Rolf Knütel: Roman private law. 19th edition. CH Beck, Munich 2008, ISBN 978-3-406-57623-2 , § 35 Rn. 12.
  25. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 187.
  26. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 209 with additional information
  27. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 209.