23Pits and Pruners: Culpa and Social

Practice in Digest 9.2Helen Scott*

When Peter Birks died suddenly in July 2004 the future of the advanced Roman Law course at Oxford seemed precarious. Only three undergraduates had expressed an interest in taking the course in the next academic year, and it seemed that the pragmatic solution might simply be to suspend it until a new Regius Professor could be appointed. But the course did run, because Alan and David Ibbetson stepped in and taught it: David gave his seminars on quasi-delict, furtum, and iniuria on Saturday mornings during Michaelmas Term in the Board Room at the Law Faculty, making a special trip over from Cambridge each week, while Alan travelled up from London every Friday morning first thing during Hilary Term to give seminars on the lex Aquilia in the Eckersley Room at Brasenose. Arianna Pretto-Sakmann and I were the nominal convenors of the course, but in truth we were happy to join the students (whose numbers swelled to six when the graduates arrived in October) in attending David and Alan’s seminars each week and taking copious notes. The next year, 2005/06, only one undergraduate signed up, and the question once again arose whether it would not perhaps be better to suspend the course until the arrival of Boudewijn Sirks, who had by now been appointed. When I made this suggestion to Alan, he fixed me with a rather stern look and declared that the course certainly should run ‘because that student might be a future Regius Professor’.

The Roman Law of Delict course is, happily, on a much firmer footing these days. But Alan’s concern that it should continue without interruption points to an important aspect of his identity as a Romanist: his deep awareness of the extraordin- ary tradition of Roman law scholarship and of the great responsibility which rests on each generation to continue that tradition, embodied in the Arbor Leneliana which he handed out to the students in a special introductory lecture each year. The Arbor was of great significance to him for another reason also: it had been prepared for (and culminated in) the great German Romanist Otto Lenel. As Boudewijn Sirks explains so well in the following essay, Alan regarded the work of Lenel, and in

* Associate Professor in the Department of Private Law in the University of Cape Town.

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particular his Palingenesia and reconstruction of the praetor’s edict, as the necessary starting point for the study of the lex Aquilia. Indeed, Lenel’s work informed every aspect of Alan’s scholarship, and influenced profoundly everyone whom he taught. Alan’s preference for mild and humorous understatement—‘I’m not at all sure about that’ (of a catastrophic paper delivered by an eminent visiting professor), ‘boring’ (of an influential but long-winded article), ‘not bad’ (of the Royal Gallery in the House of Lords)—concealed a highly critical, exacting intellect. The centrality of the Palingenesia aside, he exemplifies to me a particular way of doing Roman law: the importance of textual analysis, the absolute necessity of resisting unsupported hypotheses, however attractive, and the great value of the rigorous German tradition. His high standards could make the experience of presenting a seminar in his presence rather traumatic, especially when it took place in the grand setting of his chambers. Nevertheless, my litmus test for work on Roman law remains: what would Alan think of this?

1. Culpa in Roman Law

The subject which I propose to discuss here—one which Alan himself addressed in detail in his seminars—is the meaning of culpa in the context of the lex Aquilia. As even English lawyers know, the lex Aquilia was a Roman statute passed (probably) early in the third century BC which dealt with damage to property. According to chapter one, ‘If anyone kills unlawfully [iniuria] a slave or servant-girl belonging to someone else or a four-footed beast of the class of cattle, let him be condemned to pay the owner the highest value that the property had attained in the previous year.’1 According to chapter three, ‘In the case of all things apart from slaves or cattle that have been killed, if anyone does damage to another by unlawfully [ iniuria] burning, breaking or spoiling his property, let him be condemned to pay to the owner whatever the damage shall prove to be worth in the next thirty days.’2 In time, iniuria came to be interpreted to comprise both culpa and dolus (wrongful intent): according to Gaius, commenting on chapter one of the lex in his

1 Paul D. 9.2.2 pr. For text and translation see Theodor Mommsen and Paul Krueger, The Digest of Justinian (English translation edited by Alan Watson, 1985). Rodger argues that Lenel probably worked with Bruns’ Fontes Iuris Romani, which gives the original Latin text as: si quis servum servamvealienum alienamve quadrupedemve pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes ero dare damnas esto: Alan Rodger, ‘The Palingenesia of the Commentaries Relating to the Lex Aquilia’ (2007) 124 ZSS (RA) 145, 146–7. For the most recent reconstruction of the original wording of the lex, see M Crawford (ed), Roman Statutes, vol II (1996) 723, 725 (JA Crook).

2 Ulp. D. 9.2.27.5 Again, this translation is based on the Watson edition of the Digest (n 1) with some minor adjustments. Rodger argues that Lenel probably worked with an amended version of Bruns’ reconstruction: si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res fuerit in diebus XXX proximis, tantum aes ero dare damnas esto: Rodger (n 1) 147–8. For Crook’s reconstruc- tion of the original text, see Roman Statutes 25.

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Institutes, ‘he is understood to kill iniuria by whose dolus or culpa the killing occurs’.3 But what exactly did the jurists mean by culpa?

It used to be widely believed that, whereas the older concept of iniuria looked to specific justifications for wrongful acts (where the defendant could be said to have acted iure, by right, rather than non iure, without any right), culpa was a relatively general, subjective concept akin to the modern idea of negligence.4 During the classical period, iniuria in its original sense became partially submerged within culpa, as indeed did dolus; nevertheless, the concepts remained distinct. Others think that this refined version of culpa was inserted into the classical texts by Justinian’s compilers, or perhaps by postclassical jurists working before Justinian. This view supposes substantial interpolation of the classical texts excerpted inD. 9.2; certainly, the general explanations for culpa offered in the texts are assumed to be postclassical.5 However, more recently the dominant view has shifted. It is now thought that the classical jurists did not clearly distinguish iniuria from culpa, nor did they apply any unitary test for culpa, either explicitly or implicitly.6 Rather, culpa bore different meanings depending on the particular context in which it was used. Although it could incorporate subjective considerations, it was in the main objectively determined. Generalizations, where they occurred, were local ones only. According to this modern view, although there was substantial abbreviation of the classical texts, there was only minimal interpolation.

Against this background I propose to consider two cases discussed by the late classical jurist Paul. Both fragments were taken by the compilers from Book 10 of Paul’s commentary on the work of the first-century jurist Sabinus, part of which appears to have been devoted to the lex Aquilia.7 The first has been inserted by the compilers into a long extract from Book 18 of Ulpian’s commentary on the praetor’s edict, the work which forms the backbone of D. 9.2.8 At this point in his commentary Ulpian appears to have been discussing the word iniuria in chapter three of the lex.9 Paul does not explicitly refer to iniuria or culpa in D. 9.2.28; unfortunately it is impossible for us to be sure what the focus of his analysis was. The second fragment is one of two texts excerpted from works by Paul which follow immediately on the end of Ulpian’s edictal commentary at D. 9.2.29.10 Here Paul does express his conclusions using the language of culpa. In his reconstruction of

3 Gaius, Inst. 3.21. This translation is based on Zulueta’s edition of the Latin text: Francis de Zulueta, The Institutes of Gaius, Part I (1946).

4 eg B Beinart, ‘The Relationship of Iniuria and Culpa in the lex Aquilia’ in Studi in Onore di Vincenzo Arangio-Ruiz, vol I (1953) 279.

5 eg Wolfgang Kunkel, ‘Exegetische Studien zur aquilischen Haftung’ (1929) 49 ZSS (RA) 158.6 eg Geoffrey MacCormack, ‘Aquilian Culpa’ in Alan Watson (ed), Daube Noster: Essays in

Legal History for David Daube (1974) 201; ‘Aquilian Studies’ (1975) 41 SDHI 46.7 Otto Lenel, Palingenesia Iuris Civilis, vol I (1889, repr. 1960) 1279–80.8 Rodger (n 1) 185.9 According to Lenel, Ulpian was commenting on the phrase si damnum faxit . . . iniuria

through- out 27.25–35 and 29 pr -29.5: Lenel (n 7) vol II, 530–1. Rodger thought that Ulpian might have been commenting specifically on the word iniuria only in 27.34–35 and 29 pr -1: Rodger (n 1) 183–9, 196.

10 Rodger (n 1) 161–2.

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Book 10 of Paul’s commentary on Sabinus, Lenel grouped these two fragments—D. 9.2.28 and 31—together, on the basis that both raised similar issues.

Digest 9.2.31 is famous: it concerns a slave killed by a branch thrown down from a tree by a pruner (or a man working on a scaffold), and is of particular interest to students of tort or delict because culpa on the part of the pruner is determined according to whether the accident could have been foreseen by a diligent man. This fragment played a role in the development of the general test for negligence in English law;11 it is arguably the direct ancestor of the modern South African test for fault (culpa).12 Digest 9.2.28 is less well known. It concerns damage sustained when the claimant’s property (we imagine something like a wagon or a pack animal) fell into a pit dug by the defendant in order to catch bears and deer. Here too, Paul made use of the concept of foreseeability of harm. Indeed, these are the only texts preserved in D. 9.2 in which that concept—providere posse—appears. In line with MacCormack’s thesis, it does not seem that there was any truly general test for culpa at work in these cases from which Paul reasoned deductively. Certainly, we cannot assume on the basis of D. 9.2.31 that the jurists’ analyses of other cases in D. 9.2 relied tacitly on a test for culpa which closely resembled the modern test for negligence.13 Nevertheless, it seems that Paul was attempting a species of local generalization. My purpose here is to determine what exactly it wasthat he was attempting to generalize.

2. Digest 9.2.28 and 31

I begin by setting out in full Paul’s account of these two cases:

[28] People who dig pits to catch bears and deer are liable under the lex Aquilia if they dig such pits where people pass [itineribus]14 and something falls in and is damaged, but there is no such liability for pits made elsewhere [ in aliis locis], where they are habitually made [ubi fieri solent]. 1. But this action is given only for good reason, that is, if no warning was given and the claimant was unaware of and could not foresee the danger [providere potuerit]; and many cases of this sort can be seen in which the claimant fails, if he could have avoided the danger [si evitare periculum poterit].15

11 See, eg, David Ibbetson, ‘“The Law of Business Rome”: Foundations of the Anglo-American Tort of Negligence’ [1999] Current Legal Problems 74; ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26(2) University of New South Wales LJ 475.

12 eg Fleming v Rietfontein Deep Gold Mining Co Ltd 1905 TS 111; Kruger v Coetzee 1966 (2) SA 428 (A); Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA).

13 But cf, eg, Beinart (n 4) 293–4; FH Lawson, Negligence in the Civil Law (1950) 40.14 Not ‘in a public place’, as in the translation edited by Watson. Lawson has, ‘where people

pass’; Munro, ‘where people habitually pass’: CH Monro, Digest IX.2. Lex Aquilia (1898).15 Qui foveas ursorum cervorumque capiendorum causa faciunt, si in itineribus fecerunt

eoque aliquid decidit factumque deterius est, lege Aquilia obligati sunt: at si in aliis locis, ubi fieri solent, fecerunt, nihil tenentur. 1. Haec tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit et multa huiusmodi deprehen- duntur, quibus summovetur petitor, si evitare periculum poterit.

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[31] If a pruner threw down a branch from a tree and killed a slave passing underneath (the same applies to a man working on a scaffold), he is liable only if it falls down on to a public place [in publicum] and he failed to shout a warning so that the fall of the branch could be avoided [ut casus eius evitari possit].16 But Mucius says that even if the accident occurred in a private place [in privato], an action can be brought on account of his fault [culpa]; for he thinks there is fault [culpa] when what could have been foreseen by a diligent man [a diligente provideri poterit] was not foreseen or when a warning was shouted too late for the danger to be avoided [periculum evitari non possit]. Following the same reasoning, it does not matter much whether the deceased was making his way [iter] through a public or a private place [per publicum an per privatum], as the general public often make their way across private places. But if there is no path [iter], the defendant should be liable only for intentional wrongdoing [dolus], so he should not throw anything at someone he sees passing by; for he is not to be held to account for culpa when he could not divine17 whether someone was about to pass through that place.18

Two factual variants are contemplated by Paul in D. 9.2.28: in the first, the pits have been dug where people pass (itineribus); in the second, elsewhere (in aliis locis) where they are habitually made (ubi fieri solent). There is liability in the first case but not in the second.19 But in 28.1 an important qualification is introduced: even in the first case, if either the defendant gave a warning or the claimant knew of or could have foreseen the presence of the pits—if, in short, he could have avoided the danger—then the claimant might fail nonetheless.20

The text is taken, like all others throughout this essay, from the Mommsen and Krueger edition of the Digest. The English translation is based on Watson’s edition (n 1).

16 Eius is not included by Lawson is his Latin text but appears in the Mommsen and Krueger edition. Thus literally ‘the fall of the branch’ rather than the transferred meaning common elsewhere inD. 9.2 (‘the accident’).

17 cf ‘when he could not have guessed’ as in Lawson and Watson’s translations. Munro has, ‘he could not possibly have foretold’. But ‘potuerit’ seems to be a perfect subjunctive (he could not foretell) used to denote a general set of circumstances, rather than future perfect indicative (he could not have foretold).

18 Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur, si is in publicum decidat nec ille proclamavit, ut casus eius evitari possit. Sed Mucius etiam dixit, si in privato idem accidisset, posse de culpa agi: culpam autem esse, quod cum [cum quod] a diligente provideri pot[u]erit, non esset provisum aut tum denuntiatum esset, cum periculum evitari non possit. Secundum quam rationem non multum refert, per publicum an per privatum iter fieret, cum plerumque per privata loca volgo iter fiat. Quod si nullum iter erit, dolum dumtaxat praestare debet, ne immittat in eum, quem viderit transeuntem: nam culpa ab eo exigenda non est, cum divinare non potuerit, an per eum locum aliquis transiturus sit.

Translation based on Watson (n 1).19 It is striking that Paul appears to have allowed a direct action here. This view has been

rejected as interpolated (eg by Beseler: G Beseler, Beiträge zur Kritik der Römischen Rechtsquellen, vol III (1913) 73–4) but Rodger defends it: Rodger (n 1) 185.

20 Kunkel, following Beseler, believed 28.1 to be heavily interpolated: Kunkel (n 5) 171–4. First, he objects to the phrase haec actio ex causa danda est: see also Lawson (n 13) 111. Rodger regards this view as ‘unduly critical’: ‘In deciding whether to grant the plaintiff the direct action (haec actio), the praetor would have regard to the particular circumstances of the case. Had the defendant given a warning of the hazard? Did the plaintiff know about it or could he have foreseen it and so avoided the danger? Depending on the view he took of these circumstances and of the justice of the plaintiff ’s case (ex causa), the praetor would either grant (dare) or refuse (denegare) the action’: see Rodger (n 1) 186. As

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The structure of Paul’s analysis in D. 9.2.31 is broadly similar. He starts by claiming that if a pruner threw down a branch on to a public place and failed to shout a warning so that it could be avoided by the victim, liability follows. We assume from the way in which the conditions of liability are stated that if the throwing had occurred in a private place the answer would be different. But Paul tells us that Quintus Mucius Scaevola (active around 100 bc) took the same view— that liability should be imposed—even if the throwing occurred in a private place, his reason being that there was fault—culpa—in this case when either what could have been foreseen by a diligent man was not foreseen or when a warning was shouted too late for the danger to be avoided.21 Paul then points out that according to this reasoning the location of the accident makes little difference to the outcome in the case, ‘as the general public often make their way across private places’.22 But if there was no path, the pruner is liable only where he deliberately aimed at someone whom he saw passing by (this is dolus); for there cannot be said to be culpa where he failed to divine whether someone was about to pass by.23

I pause here to make several preliminary observations. The digging of animal traps and the pruning of trees are both socially useful activities which pose certain obvious risks to passers-by. In both cases, it is the passer-by (the claimant or victim) who must alter his conduct if he is to avoid the danger, for example by taking a detour: this is due to the fixed nature of pits and trees. In both cases, liability depends in the first instance on the location of the hazard: if the pit is dug where people pass or the pruning is undertaken over a public place, then prima facie there is liability unless the one responsible for creating the hazard issued a warning, to enable the passer-by to avoid the danger; we might say that the defendant is under a duty to warn. On the other hand, if the pits were dug elsewhere ( in aliis locis), where they are habitually made (ubi fieri solent), or the pruning is done in a private place, Paul’s starting point is that there is no liability, regardless of the defendant’s failure to warn.

In both cases, Paul departs from this initial position. In the case of the pits, it is the first proposition that is called into question: even where a pit is dug where

for the remainder of 28.1, this too is rejected by Kunkel as postclassical, mainly on linguistic grounds. Parallels are drawn with similar ‘spurious’ elements in D. 9.2.31; cf the following note.

21 This sentence (the definition of culpa attributed to Quintus Mucius Scaevola) has been widely suspected of interpolation. See, eg, Kunkel, ‘Diligentia’ (1925) 45 ZSS (RA) 266, 298–9; (n 5) 180–2, as well as Vincenzo Arangio-Ruiz, Responsibilità contrattuale in diritto romano (2nd edn, repr. 1958) 234 ff. The use of indirect speech militates against this view (eg Alan Watson, The Law of Obligations in the Later Roman Republic (1965) 238 n 4) but inconsistencies in the tenses suggest that the original Pauline text has at least been abbreviated by the compilers. See MacCormack, ‘Aquilian Culpa’ (n 6) at n 10 for a survey of the literature and for refutation of some of the more extreme interpolationist views.

22 Kunkel points out the very close parallels between this sentence and Ulp. D. 9.3.1.2 regarding the edict de effusis vel deiectis: Kunkel (n 5) 180–1. The point made there—that ‘those places where people usually pass [per quae volgo iter solet fieri] should at all times enjoy equal safety’—appears to have clear application in the context of Aquilian culpa. See further Section 4.

23 Similarly, the final sentence is suspected: Kunkel (n 5) 181–2. [N]am culpa ab eo exigenda non est is dismissed by Lawson as ‘untranslatable’—(n 13) 118—and even MacCormack thinks that the compilers might have rewritten it in order to give the definition of culpa a more general form (MacCormack, ‘Aquilian Culpa’ (n 6) n 11).

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people pass and no warning is given, an action for damage might nevertheless be refused where the claimant knew of the danger or could have foreseen it. This is because the passer-by could have avoided the danger himself, even without the defendant’s warning. We (ie modern tort/delict lawyers) might say that under these circumstances it was the passer-by who caused the accident, or that he was at fault, or even that there was no duty on the defendant to warn him at all because the danger was a patent one. In the case of the pruner, it is the second, implied proposition that is qualified: even where the pruning was undertaken in a private place, an action can be brought in the event of accident because there is culpa where what could have been foreseen by a diligent man was not foreseen by the pruner or, foreseeing it, he failed to shout in time so that the danger could be avoided. People often do use paths over private land, Paul says; the significance of this appears to be that passers-by are foreseeable even on private land, and therefore the pruner attracts liability for culpa according to Mucius’ view, provided that the victim was using a path (iter). However, where the victim was not using a path, his presence could not have been foreseen, and thus there is no culpa on the part of the pruner. Indeed, Paul’s point is stronger: he could not be said to be guilty of culpa in failing to divine the future. Thus, in both cases Paul’s initial position, which depended on location, is qualified with reference to the foreseeability (or actual foresight) of the accident from the point of view of either the claimant or the defendant.

3. Branches, Snares, Javelins, and Balls: Some Similar Cases

The cases discussed by Paul in D. 9.2.28 and 31 form part of a larger subset of cases, contained both in the Digest and in Justinian’s Institutes, which deal with the risks posed by ordinary, socially beneficial activities and in which liability—and culpa in particular—is made to turn on the location in which the accident occurred. Indeed, the case of the pruner is repeated in a slightly different form in Justinian’s Institutes, one of several cases intended to illustrate the meaning of culpa:

Again, if a pruner throws a branch down from a tree and kills your slave as he passes by, he is guilty of culpa if this was done near a public road [viam publicam] or an occupation road [vicinalem] and he did not call out so that its fall24 could be avoided [ut casus evitari possit]; if he did call out, and the passer-by did not trouble to take care [curavit cavere], the pruner is free of fault [culpa]. He is understood to be equally free of fault [culpa] if he was cutting, say, at a distance from the road or in the middle of a field, even though he did not call out, because no stranger had the right to pass through that place [eo loco nulli extraneo ius fuerat versandi].25

The differences between this account and the treatment of the case in D. 9.2.31 are interesting. Whereas Paul clearly distinguished three scenarios—the branch is thrown down on to public land; the branch hits someone using a path across

24 Theophilus specifies ‘the fall of the branch’ (1rTø~sis To~ı kladou)·25 Just., Inst. 4.3.5; Lawson’s translation, with some modifications.

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private land; the branch hits someone walking on private land away from any path—the text in the Institutes draws only one principal distinction, between the case where the victim was on a road—whether a public road or a via vicinalis26— and the case where the accident took place away from the road or in the middle of a field. In the former case, there is liability unless the pruner gave a shout so that the victim could avoid the branch; in the latter, no liability. There is no attempt to justify either of these positions with reference to what the pruner could reasonably foresee. Rather, the distinction is explained with reference to the rights of the parties involved. We are told that the passer-by in the second case has no right to walk there [no ius versandi]. It is strongly implied that the reason for liability in the first case is that the victim did have such a right. However, Paul’s conclusions on the facts are echoed in the Institutional account. The new detail of the via vicinalis—a road which runs across private land to a village—means that the ius versandi analysis applied there gives the same results as Paul’s analysis.

Turning back to the case of the pits for a moment, we find Ulpian appearing to advance a similar justification for liability in D. 9.2.29 pr, the fragment which follows immediately on Paul’s account in D. 9.2.28:

Digest 9.2.29 pr (Ulpian, On the Edict Book 18): as where you set snares in a place [eo loci] where you had no right to put them [quo ius ponendi non haberes] and your neighbour’s cattle fall into them.

Again, Paul distinguished two variants: where the pits have been dug where people pass and where they have been dug elsewhere, where they are habitually made. Ulpian’s remark, which is about snares rather than pits, seems to pertain to the first kind of case. His justification for liability is that the defendant had no right to set the traps where he did. Of course, the transition from Paul’s analysis in fragment 28 to Ulpian’s remark in 29 pr is rather a clumsy one, since Ulpian appears to ignore Paul’s qualification in 28.1. We cannot know what preceded Ulpian’s remark in his own analysis, and indeed it is strange that the compilers introduced a text from Paul to give the main exposition of the case and then simply appended an additional comment from Ulpian’s edictal commentary in 29 pr.27 Nevertheless, it is striking that Ulpian’s justification for his conclusion—that the defendant had no right to set snares in that place (no ius ponendi eo loci)—is closely echoed in the justification offered in the pruner case in the Institutes for the absence of liability where the pruning took place at a distance from the road or in the middle of a field (no ius versandi eo loco). As in the case of Paul’s foreseeability test, we find a legal reason—the absence of a right—used both with respect to the defendant (to explain liability) and with respect to the claimant (to explain non- liability).

26 Theophilus in his Paraphrasis explains via publica as ‘a military road . . . which is used by everyone to get to different places’, whereas a via vicinalis is a road which leads to a particular village.

27 ‘This is unusual in a chain of texts where Ulpian 18 ad edictum is, for the most part, the main source’: Rodger (n 1) 185.

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That the defendant acted within his rights is often advanced as the explanation for the outcome in the case which immediately precedes the case of the pruner in the Institutes:

Accordingly if someone, in the course of playing or practising with javelins, runs your slave through as he passes by, a distinction is made. If the act was committed by a soldier in a field [in campo]28 where practising is habitual [ubi solitum est exercitari], he is understood to be without fault [culpa]; if someone else does something similar [tale quid], he is guilty of culpa. The same rule applies to a solider if he did it in any other place [in alio loco] than one appropriated to military exercises [exercitandis militibus destinatus est].29

The rules stated here—that a soldier who kills a passing slave while practising javelin-throwing in a place where practising is usually done lacks culpa, but anyone else throwing in the same circumstances is at fault, as is the soldier who practises elsewhere—cannot be explained in terms of a ‘developed theory of culpa’.30 Rather, the explanation is said to lie in the fact that the soldier alone is entitled to act as he does; in all other instances the defendant acts without any right (nullo iure) and therefore liability follows.31

The case of the javelin-thrower is also discussed in a fragment of Ulpian’s edictal commentary which appears early in D. 9.2, at 9.4:

Ulpian, On the Edict Book 18: But if a slave is killed by people throwing javelins by way of sport [per lusu], the Aquilian action lies. On the other hand, if when other people were throwing javelins in a field [in campo] a slave walked across it, the Aquilian action does not apply, because he should not make his way at an inopportune time across a field used for javelin throwing32 [per campum iaculatorium]. However, anyone who deliberately aims at him is of course liable under the lex Aquilia.33

It should be noted that Ulpian was apparently commenting here on the word occiderit in the context of chapter one, not on the word iniuria,34 and thus his primary focus was the nature of the defendant’s conduct, in particular whether he could be said to have committed a typical killing act. As in D. 9.2.28, no explicit reference to culpa is made. Nevertheless, Ulpian’s analysis is said to be preferable to that in the Institutes in that it appears to be based on what we could call contribu-

28 I have translated in campo as literally as possible, and as in D. 9.2.9.4 below. Lawson, translating in campo eoque ubi solitum est . . . has, ‘on a parade ground where practising is usual’. Sandars, translating in campo locove ubi solitum est has, ‘in the Campus Martius, or other place appropriated to military exercises’. Theophilus account in his Paraphrasis is closer to the second alternative: see further n 37.

29 Just., Inst. 4.3.4; Lawson’s translation, with some modifications.30 Beinart (n 4) 290–1.31 eg Beinart (n 4) 290–1; MacCormack, ‘Aquilian Culpa’ (n 6) 214–15. For Beinart, the

standpoint taken here is a remnant of the earlier meaning of iniuria, ie unlawfulness.32 Not ‘where javelin throwing is being practised’.33 Translation based on Watson’s edition of the Digest (n 1) with some modifications.34 According to Lenel, Ulpian’s commentary on iniuria began at D. 9.2.3 and ended at 7 pr;

his commentary on occiderit (occisum) began at 7.1 and ended at 11.5: Lenel (n 7) vol II, 522–4. Rodger agrees: Rodger (n 1) 147, 195.

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tory negligence.35 Thus, there is liability in the first instance but not in the second, where the slave himself appears to have been to blame for the accident. Nor could the throwers be expected to foresee the slave’s crossing in the second case.

However, there is another feature of these two texts which is significant in this context. Regarding Ulpian’s account, what appears to be decisive of liability is not the fact that the slave was to blame but rather that the accident occurred in a campum iaculatorium, a field used for javelin-throwing. The contrast is then principally between the case where javelins are being thrown in campo iaculatorio and the case where they are thrown elsewhere.36 Similarly, in the context of the Institutional text, although part of the explanation for the outcome in the first case does undoubtedly lie in the defendant’s status as a soldier, it is important to note the other part of the explanation, the place where the accident occurred: the solider is free of culpa where the slave is killed in a place where practising is habitual (ubi solitum est exercitari), but where the accident takes place in alio loco the result is otherwise, even where it is a soldier who does the throwing.37

In fact, we seem to find this analysis at work in another well-known text taken from Ulpian’s commentary on the edict, this one involving a ball:

Digest 9.2.11 pr (Ulpian, On the Edict Book 18): Further, Mela writes that, when some people were playing with a ball, one of them hit it hard and it knocked the hands of a barber with the result that the throat of a slave whom the barber was shaving was cut by the jerking of the razor, the person of these in whom the fault [culpa] lies is liable under the lex Aquilia. Proculus says the blame [culpa] is the barber’s, and surely, if he was doing shaving in a place where people customarily played games [ex consuetudine ludebatur] or where there was much going to and fro [vel ubi transitus frequens erat], the blame will be imputed to him; but it is no bad point in reply that if someone entrusts himself to a barber who has his chair in a dangerous place he has only himself to blame for his own misfortune [ipsum de se queri debere].38

Although once again Ulpian appears to have been commenting on the word occiderit in the context of chapter one, he is clearly also interested in the question of culpa.39 Ulpian records a case apparently much discussed by earlier jurists (he

35 Beinart (n 4) 292; Lawson (n 13) 88. On the differences between the analyses of this case in the Digest and Institutes, and on the possible origins of the Institutional analysis, see Kunkel (n 5) 174–6.

36 Admittedly, the fact that the throwers in the first case are said to be throwing per lusum, by way of sport, may be significant in itself. Certainly the deliberate throwing referred to in the final sentence of9.4 had no social utility to commend it, but the single line from Paul’s edictal commentary which follows immediately on 9.4 might be understood to mean that all javelin-throwing by way of sport was regarded as a lusus noxius, a dangerous game. Paul D. 9.2.10; cf Beinart (n 4) 391.

37 In fact, according to Theophilus’s Paraphrasis of 4.3.4, whereas a soldier practising with javelins in a military camp or place where it is customary (avvÅŁEs) for soldiers to practise lacks culpa if he runs through a passing slave, ‘if it was a civilian ({oØwTÅEs) and he killed him (the slave) in a place where it is not customary (avvÅŁEs) for civilians to practise in arms, then the killer will be liable under the [lex] Aquilia. We say the same thing also if a soldier did the equivalent in a place where it is not customary (avvÅŁEs) for soldiers to practise.’ Thus it appears that Theophilus thought that liability in this case turned exclusively on whether the defendant’s activity was customary to the location.

38 Translation based on Watson’s edition of the Digest (n 1) with some modifications.39 ‘A lemma provides the starting-point of a discussion but does not prescribe its limits. It is

indeed this feature which makes identifying the source of isolated fragments from the commentaries particu- larly difficult’: Rodger (n 1) 186.

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ascribes it to Mela). As between the ball-players and the barber, Ulpian says, culpa was said by Proculus to lie with the barber, and Ulpian’s gloss on this view is that if the accident occurred where it was customary to play games or where there was much coming and going, then it is the barber who is to blame.40 As in the case ofD. 9.2.9.4, this conclusion is explicable in terms of foreseeability: the barber could have foreseen the danger to the slave. However, as in that case, what Ulpian actually says makes the matter turn on where the accident took place: if in a place where it was the custom (consuetudo) to play games or where people usually walked to and fro, culpa lies with the barber rather than the ball-players.

4. Three Criteria for Culpa

To summarize, there appear to be several criteria for liability, or more specificallyculpa, at work in these cases.

The first criterion we encountered was that used by Paul, and only by him, in his analysis of the case of the pits in D. 9.2.28 and the case of the pruner in D. 9.2.31: the foreseeability of the accident (quod providere potuerit or quod a diligente provideri potuerit). As we saw, Paul inquires into the foreseeability of the accident both from the perspective of the claimant (in 28) and from the perspective of the defendant (in 31). In both cases, the outcome of this inquiry is used to determine culpa on the part of the defendant.

Secondly, in the case of the pruner in the Institutes, in Ulpian’s brief discussion of the case of the snares in D. 9.2.29 pr, and perhaps also in the Institutional account of the case of the javelin-throwers, we encountered the criterion of what was done without right (ius versandi/ponendi/exercitandi). Again, this seemed to apply both to the conduct of the defendant (as in the case of the snares) and to the conduct of the victim (in the case of the pruner, where the accident occurred at a distance from the road or in the middle of a field). At least in the Institutes, the conclusion reached is expressed in terms of culpa on the part of the defendant: where either of the parties had no right to act as he did, the matter goes against him. However, there seemed to be other similar cases, such as the cases of the javelin- throwers or ball-players discussed by Ulpian in D. 9.2.9.4 and 11 pr, in which neither of these criteria was used. Those cases were made to turn exclusively on where the accident occurred; and, specifically, on whether the defendant’s risk- generating activity was customary or habitual in that location. Where the slave was struck by a javelin while crossing a field used for javelin-throwing, the thrower was not liable. As for the case of the ball-players, here again, where the accident occurred in a location where it was the custom to play games, the ball-players were free of culpa. This analysis seemed to be at work also in the Institutionalversion of the javelin-thrower case.

40 The text appears to have survived only in an abbreviated version: eg no final decision by Ulpian is recorded. Kunkel describes it as ‘mutilated’: Kunkel (n 5) 177, and further 177–9.

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If we now double back to the cases of the pruner in the Institutes—where the second criterion seemed to be used—here too, the starting point from which the analysis proceeds is the location where the accident occurred. Again, liability appears to turn on whether the victim was engaging in an activity habitual to the location of the accident. Where a pruner threw down a branch near to a public road or an occupation road and failed to shout a warning and it hit and killed a slave walking below, the pruner was at fault: roads are for walking on, and thus it was incumbent on the pruner to warn passers-by so that an accident could be avoided. The position was different where the accident took place away from the road or in the middle of the field, because it was not usual to walk there.

Finally, the same criterion appears to be at work in the two cases with which we began, D. 9.2.28 and 9.2.31. Regarding 28, where pits were dug where people usually pass (itineribus), liability was imposed. On the other hand, where pits were dug where they were habitually made (ubi fieri solent) and something fell in and was damaged, there was no liability. Of course, Paul added an important qualification to this basic rule, in that he applied the first criterion, the criterion of foreseeability, in order to limit liability in the first case. But the bedrock of his example—the core case discussed in the first half of the analysis—turned solely on whether either the activity of the defendant or claimant was occurring in its habitual location.41

It is more difficult to detect this criterion at work in D. 9.2.31. Whereas the analysis in 28 turns on the distinction between pits dug where people pass and pits dug where they are habitually made, and whereas Inst. 4.3.5 distinguishes pruning done near a public road (via publica) or occupation road (via vicinalis) from pruning done in the middle of a field, 31 turns on the distinction between pruning done over a public place (in publicum) and in a private place (in privato). The distinctions in 28 and 31 are usually regarded as equivalent—indeed, in Watson’s edition of the Digest itineribus in the first sentence of 28 is translated as ‘in a public place’—but Paul’s distinction in 31 is in truth more abstract than the one he employs in 28, a distinction less rooted in particular locations.42 If Paul’s principal preoccupation in 31 was the application of the criterion of foreseeability, he may have been insensitive to this difference in language. However, when 28 and 31 are considered side by side, the essential similarity becomes apparent. Paul’s starting point was the same in both cases: he began his discussion in 31 with the basic rule that there would be liability for accidental damage arising from a risky activity (pruning) where the victim’s conduct was habitual—walking in a public place, presumably a road—before going on to develop his position with reference to the foreseeability criterion.

41 cf J Travis Laster, ‘The Role of the Victim’s Conduct in Assessing Fault under the lex Aquilia: Insights into the Analytical Methods of Roman Jurists’ (1996) 25 Anglo-American LR 188, 205, who notes the role of custom in determining culpa in this context.

42 As MacCormack points out, there is nothing in Paul’s analysis in D. 9.2.31 to suggest that he was examining the content of the right to lop trees on one’s own land or the permissible limits of its exercise: ‘Aquilian Studies’ (n 6) 44–5.

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In fact, it appears that Paul’s purpose in D. 9.2.28 and 31 was the same: to achieve a degree of local generalization by replacing the wholly casuistic criterion of what was customary or habitual in a particular location with the more abstract criterion of foreseeability. In this he appears to have been influenced by the earlier work of Quintus Mucius Scaevola. Of course, what is customary or habitual is usually also foreseeable; Paul’s revised criterion did not necessarily require revision of the original conclusions in these conventional cases. However, the latter criterion is in fact wider than the former, and this led Paul to dispute the conventional view of culpa, and thus liability, in some instances. In the case of the pruner, where the accident occurred on a private path, although the victim’s activity in making his way there was not customary, nevertheless ‘the general public often make their way across private places’. This meant that the victim’s presence there was foreseeable by the defendant, and thus Paul concluded that there was culpa in this case. On the other hand, in the case of the pits, even where the pits had been dug where people habitually walk and not in their customary place (ubi fieri solent), the claimant might nevertheless have been able to foresee their existence and take evasive action. Thus, there was no culpa here according to Paul’s revised criterion.

Ulpian seems (on the slender evidence of 29 pr) to have had a different view as to how best to analyse the conventional case of the pits (or snares): he sought to explain this case according to the relatively straightforward (and arguably much older)43 criterion of whether the defendant had acted by right, as he was entitled to do. Unlike Paul’s foreseeability test, this view—objective and casuistic like the criterion of what was customary or habitual to the location of the accident—would not have required any departure from the original determination of liability in these cases.44 One could hardly have any right to set traps where people habitually passed. In fact it might have been Ulpian’s analysis here that the writers of the Institutes drew on in formulating their account of the pruner case. We cannot, of course, know whether Ulpian also discussed the case of the pruner in his edictal commentary, and if he did, what led the compilers of the Digest to prefer Paul’s account.

5. The Rules of the Game

In modern English law, it has been held that there is no liability for injuries inflicted on participants in accordance with the rules of a game. In particular, where the risk that materialized was one inherent in the game, there is said to be no negligence on the part of the defendant.45 The rule may have been the same in Roman law: where a little slave-boy’s leg was broken in the course of a ball game there was no culpa on

43 eg Beinart (n 4); Watson (n 21) 236 ff.44 Contra Rodger, who speculates that Ulpian might have taken the same line as Paul, ie in

qualifying his initial view of the case: Rodger (n 1) 186.45 Blake v Galloway [2004] 1 WLR 2844, another case involving projectiles.

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the part of the one who injured him.46 The justification for this rule is not difficult to find: a game has its own internal standards, and where conduct complies with those standards it cannot generally be described as culpable or blameworthy. But, in fact, it is possible to explain this rule rather differently. Behaviour which complies with the rules of a game forms part of a practice. In its nature, it is regular and predictable. Compliance with the rules minimizes the risks associated with the game to the greatest degree compatible with playing it, or at least it should if the rules are well designed. Behaviour which complies with the rules of the game is efficient in this sense.

In my view, reasoning of this kind is implicit in the texts discussed earlier. In cases involving accidents arising from risk-generating but socially beneficial (or at least ordinary, non-noxious) activities, the starting point even for Paul and Ulpian was the rules of the game, where the game comprised a distinct social practice: what was customary or habitual. Where the defendant’s conduct conformed to such a practice, he was free of culpa: it had been for the claimant to take care in order to avoid the danger. Equally, one who suffered injury while conforming to a social practice would generally have a claim under the lex Aquilia on the basis of the defendant’s culpa: it had been incumbent on the defendant to take steps in order to avert the accident. Thus, where someone dug pits where they were habitually made and another fell in, there was no culpa. On the other hand, where the pits were dug where people usually walked, there was culpa and liability was imposed. Where a pruner threw down a branch on to a public place and it hit someone walking below, the pruner was guilty of culpa. Where the pruning was done elsewhere, no culpa. If someone practising javelin-throwing on a field used for that purpose hit a passer-by there was no culpa, but the same was not true where the accident occurred somewhere else. People playing with a ball in a place where it was customary to play games were not at fault if the ball hit the hand of a barber shaving a slave and cut the slave’s throat. In all these cases, the risk of harm generated by the defendant’s activity was allocated through the concept of culpa according to whether either he or the victim had been behaving in accordance with some well-established social practice. Because these practices had grown up over time, by social convention, we can assume that this allocation of risk was efficient; that it minimized the risks generated by the defendant’s activity to the greatest degree compatible with its taking place.

46 Alf. D. 9.2.52.4. It is not clear, however, whether the slave-boy was a participant in the game: see MacCormack, ‘Aquilian Studies’ (n 6) 47.