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Civil Law II Supervision Sheets

Joe Sampson, jws43

Civil Law II Supervision Sheets 2014-15

Order of Supervisions

1. Servitudes

2. Ownership

3. Possession

4. Acquiring ownership

5. Origins of the lex Aquilia

6. The scope of the lex Aquilia

7. Iniuria and culpa; causation

8. Damages

Easter term will be dedicated to revision.

A Course in Two Halves

As you probably know, the Civil Law II syllabus covers two topics that have relatively little overlap.

In Michaelmas we will be looking at the law of property as a whole, with a particular emphasis on the

conceptualisation of property. We will introduce steadily more Digest reading over the course of the

term. In Lent we focus extremely narrowly on a single title of the Digest (D.9.2) dealing with the lex

Aquilia. Here we are concerned not only with delictual theory but with juristic method.

Supervision Arrangements

Supervisions will be held in Clare Hall’s President’s Lodge with myself and Professor Ibbetson. On

occasion it is possible supervisions will be with just me in the Law Faculty – you will be notified by

email when this is the case. Once you have chosen a supervision time, there is very little scope for

changing times.

The reading lists are relatively short. This is to allow you time to seriously think about what you have

read. The questions on the supervision sheets will, as ever, guide your thinking.

Lectures

Go. This course gets confusing quickly, and the secondary literature often assumes a considerable

degree of familiarity with the subject.

Latin

Virtually nobody who takes Civil Law II has any understanding of Latin. However, we will frequently

use Latin terminology (e.g. ‘dominium’ instead of ‘ownership’) in the interests of accuracy. Treat this

like unfamiliar conceptual language in any other subject – nobody complains about having to know

old French when confronted with mortgages and estoppel in land law. Unfortunately, the secondary

literature often assumes some knowledge of Latin. As a result, texts are often quoted in Latin. This

can be remedied simply by having a copy of the Digest/Institutes to hand when doing your reading.


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Essays

Written work will be set in supervisions 2, 3, 5, 6 and 8. Hand in at the relevant supervision. All

written work is subject to a 1500 word limit. Two particular notes on essays:

1. Please ensure you actually put forward an argument. There is very little value in providing an

uncritical overview of the topic at hand. It may seem obvious, but a startling number of

Cambridge law undergraduates never learn how to do this.

2. One of the hardest things about this subject is interweaving your opinions, the secondary

literature and the primary material into a cohesive whole. Do not tackle each of these three

components on their own (e.g. by having a paragraph where you go through all the arguments

you have read about, then a paragraph with your own views). It is far more impressive if you

set out a single author’s views, examine the texts upon which he is relying and then put

forward your own opinion about his argument and authorities.

Questions?

Email [email protected]

Joe Sampson

Trinity College

mailto:[email protected]


Joe Sampson, jws43

Supervision 1 – Servitudes

There is relatively little written (in English) on this topic. As such, we will be focusing on the texts in

the supervision (even more so than usual). Please read through as much of D.8 as you can, trying to

identify interesting texts for us to talk about.

Reading

Main Buckland, ‘The conception of servitudes in Roman law’ (1928) 44 LQR 426

(Heinonline)

Rodger, Owners and Neighbours in Roman Law (E.9.R.30), chs1-2 (and

more if you can – the whole thing is worth reading)

Texts J.2.3 (servitudes)

J.2.4 (usufruct)

D.7 (usufruct)

* D.8 (servitudes)

D.39.2 (damnum infectum)

D.43.19 (interdicts on iter and actus)

Questions

1. Explain D.41.3.4.28 (usucapio of libertas from a servitude). What’s weird about the usage of

usucapio in the texts on libertas?

2. Explain D.8.3.27 – how did co-ownership work in Roman law?

3. Explain D.8.5.10.pr (acquisition of servitudes by long use).

4. Explain D.8.5.8.5. Is this evidence of natural rights in Roman legal thought?

5. How did damnum infectum work?

6. ‘The law of servitudes clearly shows that dominium was not absolute.’ Discuss

7. Ted, Dougal and Jack had lived together for many years in a house they jointly own. Dougal,

who was recently ‘discovered’ by a talent agent, has let his newfound celebrity go to his head.

Unable to put up with his ego any longer, Ted and Jack convince him to split their land in

half. One half is owned by Dougal, the other by Ted and Jack jointly. The next day Dougal set

off for town. Unfortunately the only road out of the property was on Ted and Jack’s side of

the plot. Dougal asked Jack if he could pass over his part of the land, to which Jack gave a

noncommittal grunt. As Jack was a man of few words, Dougal thought any response ought to

be taken as consent, and made his way into town. While there he ran into Ted and mentioned

his arrangement with Jack. Knowing Jack would have only entered into such an agreement if

the conditions were advantageous, and not wanting to upset his irritable cohabitant, Ted also

agreed to let Dougal walk across their land. Life goes on.

Dougal’s celebrity reaches unimaginable heights, and he decides it is time to leave his former

home. He gives it to his long-suffering servant Doyle on an usufruct. Whenever she passes by

Jack and Ted’s property, she often stops to talk for considerable periods of time. Irritated by

this behaviour but averse to direct conflict, Ted leaves a note for Doyle informing her that she

is no longer allowed to walk across their land. Unable to leave the property, Doyle turns her

industrious spirit towards improving her living conditions. She starts breeding lovely horses,

which frequently trot onto neighbouring land to relieve themselves. One such horse finds a


Joe Sampson, jws43

particularly agreeable corner of land on Jack and Ted’s property, and makes it his home.

Furthermore, Doyle decides she does not like the view from her current bedroom, and starts

adding storeys to her side of the building. Not only does this force Ted and Jack to live in

eternal darkness, but due to Doyle’s somewhat wanting construction skills they fear the entire

edifice will collapse in on itself (and perhaps them) at any moment. Ted wants to Doyle to

tear down the building and get rid of her horses. Doyle refuses, and resumes using their land

as a throughway.

Discuss any property claims that arise.


Joe Sampson, jws43

Supervision 2 – Ownership

This supervision examines the Roman concepts that we believe correspond to modern ideas of

ownership. We approach the topic at a conceptual level, exploring the nature of proprietary claims as

well as the rights enforced through those claims. The reading on early Roman law also raises basic

methodological questions about how we use extremely early material.

Reading

Early Roman Law Diósdi, Ownership in Ancient and Pre-classical Roman Law, ch7 (E.9.D.37)

Watson, Rome of the Twelve Tables: Persons and Property, ch10 (E.9.W.10)

Watson, ‘Towards a new hypothesis of the legis actio sacramentum in rem’,

(1967) 14 Revue international des droits de l’antiquité 455 (E.8.2.47, item

number 27)

Thomson, ‘Who could sue on the lex Aquilia?’, (1975) 91 LQR 207

Classical Roman Law Buckland, A Textbook of Roman Law, 191-195

Birks, ‘The Roman law concept of dominium and the idea of absolute

ownership’, [1985] Acta Juridica 1

Diósdi, Ownership in Ancient and Pre-classical Roman Law, 154-160, 166-

179

Texts G.2.1-18 (types of property)

G.2.40-41 (division of ownership

G.4.3, 5 (vindication)

G.4.16 (LASIR)

G.4.36 (actio Publiciana)

J.2.1 (types of property)

J.2.8 (power to alienate)

J.4.6.15 (vindication)

J.4.6.4 (actio Publiciana)

D.6.1 (vindication)

* D.6.2 (actio Publiciana)

Questions

1. What can the legis actio sacramento in rem (LASIR) tell us about early Roman proprietary

ideas? What can’t it tell us?

2. What does Kaser mean by ‘relative ownership’? Is his a persuasive interpretation of the

LASIR?

3. What did it mean to be dominus? What did it mean to have dominium? How, if at all, do these

ideas differ from modern English views on ownership?

4. Does the omnipresence of ritualization in early Roman law and society help or hinder our

attempts at understanding early proprietary concepts through the LASIR?

5. For whose sake was the actio Publicana enacted? How did its enactment affect the Roman

concept of ownership?

Essay

Did classical Roman lawyers have a substantive notion of dominium separate from the actions and

defences by which it was enforced? (Tripos 2014)


Joe Sampson, jws43

Supervision 3 – Possession

The secondary literature makes possession appear extremely difficult. I’m not convinced it is. Bear in

mind from the outset that, unlike ownership, possession is a factual concept with superimposed legal

consequences. Think of it like a Venn diagram, with factual and legal possession having a substantial

(but not total) area of overlap.

Reading

Main Buckland, A Textbook of Roman Law, 733-744

Dias, ‘A reconsideration of possessio’. [1956] CLJ 235

MacCormack, ‘The role of animus in the classical law of possession’ (1969)

86 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 105 (accessible

online – search through Newton for the journal and select the ‘Romanistische

Abtheilung’, not the ‘Germanistische Abtheilung’)

Watson, Law of Property in the Later Roman Republic, ch3

Watson, ‘Acquisition of possession and usucapion per servos et filios’

(1962) 78 LQR 205

Watson, ‘Acquisition of possession per extraneam personam’ (1961) 29

Tijdschrift voor Rechtgeschiedenis 22

Texts * D.41.2 (possession)

D.41.3-10 (specific instances of possession – D.41.10 is particularly weird –

NB also on next reading list)

J.2.6.7

J.2.9.5

J.4.15.3

G.2.89-90

G.2.95

G.4.153

Questions

1. Was possession one concept or many?

2. Why do modern writers on Roman law find possession such a slippery concept? Did classical

jurists have the same problems?

3. Can more than one person possess a thing?

4. Much of the secondary literature is concerned with the role of animus in acquiring and losing

possession. Were the classical jurists similarly preoccupied with animus?

5. ‘Any perceived difficulties in the Roman law of possession owe their existence to generations

of academics overthinking things.’ Discuss

6. What did each element of “nec vi nec clam nec precario” mean?

7. X goes out to market, taking his entire household (a single slave) with him. A scatter-brained

man, he leaves the front door wide open. Y, seeing the open door, thinks the property has

been abandoned. He goes in and embarks upon various domestic chores. That evening X

returns from the market. He sees Y painting the wall through the window. Y is quite unaware

of X’s presence. X, a habitually timid man, decides he would rather avoid a confrontation and


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goes to stay with his sister. Who has possession of the house? What factors would need to be

changed to give the opposite answer?

Essay

‘Possession is a matter of fact, not of right’ (Paul); ‘Possession is not merely a matter of physical fact

but also of right’ (Papinian)

Did the Romans have a coherent idea of the nature of possession?


Joe Sampson, jws43

Supervision 4 – Acquiring Ownership

Though the supervision technically covers every mode of acquisition, we are not going to discuss the

original modes. The nature of traditio is a perplexingly popular topic within Roman law academia.

The development of usucapio is considerably more interesting. These two topics are the focus of this

supervision.

Reading

Traditio Gordon, Studies in the Transfer of Property by Traditio, chs1-3 (E.9.G.36)

Evans-Jones & MacCormack, ‘Iusta causa traditionis’, in Birks (ed.), New

Perspectives on the Roman Law of Property (consider also looking at

Gordon’s chapter in the same volume) (E.92.N.1)

Pugsley, ‘Was justa causa necessary for tradition in Roman law?’, in

Pugsley, Americans are Aliens and Other Essays in Roman Law (also ch4 on

mancipatio, if interested) (E.9.P.41)

Usucapio Yaron, ‘Reflections on usucapio’, (1967) 35:2 Tijdschrift voor

Rechtsgeschiedenis 191-229 (Heinonline)

Prichard, ‘Early Usucapio’, (1974) 90 LQR 234-245

Prichard, ‘Auctoritas in Early Roman Law’, (1974) 90 LQR 378-395

Daube, ‘Furtum Proprium and Furtum Improprium’, (1936-8) 6 CLJ 217-34

(Heinonline)

Winkel, ‘Usucapio Pro Suo and the Classification of the Causae Usucapionis

by the Roman Jurists’ in Birks (ed.), New Perspectives on the Roman Law of

Property (E.92.N.1)

Daube, 'Doves and Bees' in H. Levy-Bruhl, Droits de l'antiquité et sociologie

juridique, 63 (E.92.L.2)

Texts J.2.1.11-48 (acquiring ownership)

J.2.6.pr-14 (usucapio)

J.2.9.pr.6 (acquiring through another)

* D.41.1 (acquiring ownership)

D.41.3 (usucapio)

D.41.4-9 (specific instances of usucapio)

* D.41.10 (usucapio pro suo)

Questions

1. Was it possible to have a traditio (transfer of ownership) without a traditio (handing over)?

2. How accepting were the Romans of constitutum possessorium? Why?

3. Who thinks traditio was abstract? Why do they think this?

4. What is the relationship between the iusta causa requirement in traditio and usucapio?

5. Make sense of D.41.10.

6. How did classical usucapio differ from its earlier form? Can we explain its development?


Joe Sampson, jws43

Supervision 5 – The Origins of the lex Aquilia

There are two parts to this supervision: 1) when and why was the lex Aquilia enacted? 2) What was its

original scope? Though most of the literature treats these two questions separately, any real account of

the lex’s origins needs to account for both.

Reading

Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 1-12

(H.quev.9.L.1)

MacCormack, ‘Aquilian studies’, in Studia et Documenta Historiae Iuris

no.41 (1975), 1-43 (Civil II box 2 item 29; E.7.S.1) – also on reading list for

supervision 6, so skim for now.

Zimmermann, The Law of Obligations, ch.29-30 (Civil II box 3 items 45

(ch29) and 47 (ch30); M.qq.9.Z.1; most college libraries) – skim for now and

return to relevant bits before each supervision.

When and why? Ibbetson, ‘The dating of the Lex Aquilia’ in Burrows et al (eds), Judge and

Jurist: Essays in Memory of Lord Rodger of Earlsferry (J.g.92.R.1)

Honoré, ‘Linguistic and social context of the Lex Aquilia’, (1972) 7 Irish

Jurist 138 (Periodicals on first floor of Squire) (Civil II box 2 item 28)

Gordon, ‘Dating the Lex Aquilia’, (1976) Acta Juridica 315 (Heinonline)

Daube, ‘The influence of interpretation on writing’, (1970) 20 Buffalo Law

Review 41 (Heinonline)

Sirks, ‘The delictual origin, penal nature and reipersecutory object of the

actio damni iniuriae legis Aquiliae’, (2009) 77 Tijdschrift voor

Rechtsgeschiedenis 303 (Heinonline)

What? Daube, ‘On the third chapter of the Lex Aquilia’, (1936) 52 LQR 253

(Heinonline) (Civil II box 2 item 27)

Jolowicz, ‘The original scope of the Lex Aquilia and the Question of

Damages’ (1922) 38 LQR 220

Kelly, ‘The meaning of the Lex Aquilia’, (1964) 80 LQR 73 (Civil II box 2

item 26)

Westbrook, ‘The coherence of the Lex Aquilia’, (1995) 42 Revue

internationale des droits de l’antiquite 437

Birks, ‘Wrongful loss by co-promisees’, (1994) 22 Index 181 (UL South

Front 2 P250.c.688)

Texts G.2.210-217

D.9.2.1

D.9.2.2.pr

D.9.2.27.5

Questions

1. Critically assess the explanations of the origins of the lex Aquilia provided by: a)

Ibbetson; b) Honoré

2. What is the impact of Daube’s argument in ‘The influence of interpretation on writing’ on

our understanding of the original scope of chapter 1?

3. What was the original scope of chapter 3?


Joe Sampson, jws43

4. ‘Without even a shred of evidence as to the content of chapter 2, there is no point in

discussing the original scope of chapters 1 and 3’ Discuss

5. ‘The lex Aquilia was not the only product of a desire to escape fixed penalties. We see the

same narrative in iniuria, at roughly the same time. As such, any account of the origins of

the lex Aquilia ought to be interwoven with the history of iniuria. It is simply impossible

to see them as separate developments.’ Discuss.

Essay

‘If we knew when the lex Aquilia was enacted, we could probably say why. If we knew why the lex

Aquilia was enacted, we could probably say when. But, knowing neither, we can do little but guess.’

Do you agree?


Joe Sampson, jws43

Supervision 6 – The Scope of the lex Aquilia

This supervision recaps the substantive elements of Aquilian liability, with a particular emphasis on

the boundaries between the various instances of direct and decretal liability.

Reading

Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 14-19 (H.quev.9.L.1) Buckland, Textbook of Roman Law, 589 (E.9.B.39) Jolowicz & Nicholas, Historical Introduction to the Study of Roman Law, 210n.5, 512-3 (E.9.J.5)

Main Andrews, ‘Occidere and the lex Aquilia’, [1987] CLJ 315

Scott, ‘Killing and causing death’, (2013) 129 LQR 101

Stein, Regulae Iuris, 61-67 (E.9.S.71)

Watson, Law of Obligations in the Later Roman Republic, 241-244

(E.9.W.7)

Watson, ‘D.7.1.13.2: The lex Aquilia and decretal actions’ in Watson,

Studies in Roman Private Law, 263 (Civil II box 2 item 32; E.9.W.68)

Barton, ‘The lex Aquilia and decretal actions’ in Watson (ed.), Daube

Noster, 15 (Civil II box 2 item 31; E.92.D.5)

Daube, ‘On the use of the term damnum’, Studi in Onore di Siro Solazzi, 93-

156 (Civil II box 2 item 34; E.92.S.1)


no.41 (1975), 1-43 (Civil II box 2 item 29; E.7.S.1)

Stein, ‘The two schools of jurists in the early Roman principate’, (1972) 31

CLJ 8 (Heinonline)

Norr, ‘Causam mortis praebere’ in The Legal Mind: Essays for Tony Honore

(Civil II box 2 item 33; D.9.M.27)

Questions

1. What was the boundary between occidere and causam mortis praebere?

2. What determined the existence of corrumpere?

3. Compare the approaches of individual jurists to occidere and corrumpere. Do any

patterns emerge? Can we explain these patterns?

4. What differences existed between actiones utiles, actiones in factum and actiones

(utiles/in factum) ad exemplum legis Aquiliae?

5. How did decretal actions differ from actions on the lex Aquilia?

Essay

Trace the juristic approach to the interpretation of "occiderit" and the interrelation between the direct

action on the lex Aquilia and decretal actions insofar as the killing of slaves was concerned. Do we

find a parallel development in the interpretation of "rumpere"?


Joe Sampson, jws43

Supervision 7 – Iniuria and Culpa; Causation

In this supervision we will try to pin down the reasons behind, and the effects of, the shift from iniuria

to culpa. Linked to these considerations is the problem of causation, which was for the most part

analysed in terms of culpa. A recurring problem is whether culpa had a special legal meaning (in the

same way that “fault” in modern English tort law means falling below the standards of the reasonable

man).

Reading

Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 19-34

(H.quev.9.L.1)

Frier, A Casebook on the Roman Law of Delict, 72-107 (Civil II box 3 item

43; E.9.F.40 – on reserve at desk)

Culpa and iniuria Paschalidis, ‘What did iniuria in the lex Aquilia actually mean?’ (2008) 55

RIDA 321 http://www2.ulg.ac.be/vinitor/rida/2008/17.Paschalidis.pdf - 321-

330 is a very good summary of others‘ views

Beinart, ‘The relationship of iniuria and culpa in the lex Aquilia’, in Studi in

Onore di Vincenzo Arangio-Ruiz, vol.1, 279 (E.92.A.4)

MacCormack, ‘Aquilian culpa’ in Watson (ed.), Daube Noster, 201-224

(E.92.D.5 – on reserve behind library desk)

MacCormack, ‘Culpa’, in Studia et Documenta Historiae et Iuris, no.38

(1972), 123 (Civil II box 3 item 37; E.7.S.1)

MacCormack, ‘Fault and causation in early Roman law: An anthropological

perspective’ [1981] Revue Internationale du Droit d’Auteur, 97 (Civil II box

3 item 38; UL West Room L.250.c.167)



Watson, The Law of Obligations in the Later Roman Republic, 236-246

(E.9.W.7)

Norr, ‘Causam mortis praebere’ in The Legal Mind: Essays for Tony Honore

(Civil II box 2 item 33; D.9.M.27)

Rodger, ‘What did damnum iniuria actually mean?’ in Burrows and Rodger

(eds), Mapping the Law (J.qt.92.B.1 – often put on reserve behind the library

desk)

Causation MacCormack, ‘Aquilian Studies’, in Studia et Documenta Historiae Iuris


Pugsley, ‘Causation and confessions in the lex Aquilia’, (1970) 38 Tijdschrift

voor Rechtsgeschiedenis 163 (Heinonline; Civil II box 3 item 36)

Kortmann, ‘Ab alio ictu(s): Misconceptions about Julian’s view on

causation’ (1999) 20:2 Journal of Legal History 95 (available via Taylor &

Francis Online)

Sirks, ‘The slave who was slain twice: causality and the lex Aquilia’ (2011)

79 Tijdschrift voor Rechtgeschiedenis, 313

Sirks, ‘The parallel universes of Baker, Joblin and Julian: Causation and law’

(2013) 17 Edinburgh Law Review, 22 (available via the journal’s website)

A bit of theory Daube, Roman Law: Linguistic, Social and Philosophical Aspects, 131-156

(esp 151 ff.) (E.9.D.35)

Sorabji, Necessity, Cause and Blame: Perspectives on Aristotle’s Theory,

278-81 (Civil II box 3 item 35; UL SW4 182:6.c.95.138)


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MacDowell, Athenian Homicide Law, 73-81 (compare the texts in 9.2)

(EG.9.M.2)

Ibbetson, ‘Wrongs and responsibility in pre-Roman law’, (2004) 25 Journal

of Legal History 99 (available via Taylor & Francis Online)

Hruschka, Imputation (Civil II box 3 item 49) – not really Roman law, but

interesting.

Questions

1. Asterix, a recently enslaved Gaul, has yet to accept his slavery and frequently acts disobediently towards his owner, Gracchus. One day Asterix attempts to escape. What happens in the following scenarios?

a) Gracchus’ neighbour, Ignoramus, catches him prowling through his garden. Thinking that he has caught a thief in action, he kills Asterix.

b) Ignoramus recognises Asterix and, attributing Asterix’s disobedience to Gracchus’ soft nature, decides to help out his neighbour by punishing the wayward slave. As a result Asterix is rendered incapable of working for several weeks.

c) As in b), but the next day Gracchus, moved by Asterix’s desire for freedom, manumits his slave. Two weeks later the wounds inflicted on Asterix by Ignoramus become infected, and he dies within days.

d) As in b), but Gracchus, disheartened by Asterix’s obstinacy, resolves to sell the recalcitrant slave to Vitriolix. As in c), Asterix’s wounds fester and he dies.

e) As an alternative to c) and d), the wounds become infected and leave Asterix incapable of working, though he does not die.

2. Soporifix is a slave tasked with educating the young of a sizable provincial town in the details of Roman law. His classes have a habit of lasting well into the night. On a particularly humid summer evening, his discussion of the condictio sends the class of thirty into a blind rage. Advise Regius, Soporifix’s owner, in the following scenarios:

a) Obsequilis grabs hold of the infirm professor while the rest of the class strike him. One of the blows kills Soporifix, but it is impossible to tell whose.

b) As in a), but the killing blow was clearly inflicted by a particularly frustrated student, Justforkix.

c) As in b). An unwilling participant, Tragicomix, confesses to the killing. He later hears Justforkix boasting about his deed and wants to recant his confession.

3. During the turmoil of the Year of the Five Emperors, Delerius plundered the houses of many of Rome’s wealthy citizens. He buried his illicit gains across his gargantuan estate in Tuscany. For the next four decades Delerius moved up in the world and left the treasure untouched, fearing his ever more eminent houseguests might recognise their family jewels. Upon retiring from public life, Delerius decides it is time to profit from his furtive past. Unfortunately he cannot remember where any of the treasure is buried. He spends years digging holes around his estate in vain. And then...

a) Overoptimistix, a hunter-slave belonging to Crustacius, chases a boar onto Delerius’ land and falls down a hole, breaking his leg.

b) Crustacius’ favourite truffle-identifying pig meets the same fate as Overoptimistix.

c) Crustacius, who has for many years used a path across Delerius’ estate as a shortcut, also falls into a hole. His view was obscured by the large crate of fine cheeses he was carrying. The crate smashed, and the cheeses are now coated in mud.


Joe Sampson, jws43

Supervision 8 – Damages

We’ve saved the hardest topic for last. Chapter one damages are a bit of a nightmare. Please make

sure you leave plenty of time to think about D.9.2.23.1-6 – they may be migraine-inducing, but

they’re worth the effort. Rodger’s articles should help a bit.

Reading

Introductory Lawson & Markesinis, Tortious Liability for Unintentional Harm, 35-6,

160-3 (H.quev.9.L.1)

Zimmermann, The Law of Obligations, 961-2, 969-75 (Civil II box 3 item

45; M.qq.9.Z.1)

Main Daube, ‘On the use of the term damnum’, Studi in Onore di Siro Solazzi,

139-156 (Civil II box 2 item 34; E.92.S.1)

Daube, Roman Law: Linguistic, Social and Philosophical Aspects, 66-71

(E.9.D.35)

Dias, ‘Policy differences in remoteness of damage’ (1976) Acta Juridica 193

(Heinonline)

MacCormack, ‘Aquilian Studies’, in Studia et Documenta Historiae Iuris

no.41 (1975), 9-30, 67-78 (Civil II box 2 item 29; E.7.S.1)

Rodger, ‘Labeo, Proculus and the ones that got away’, (1972) 88 LQR 402

(Civil II box 3 item 44)

Rodger, ‘Labeo and the fraudulent slave’, in Ibbetson and Lewis (eds), The

Roman Law Tradition (Civil II box 3 item 46; E.9.L.39)

Rodger, ‘Damages for the loss of an inheritance’, in Watson, Daube Noster

(E.92.D.5 – probably on reserve behind the library desk if not on shelves)

Jolowicz, ‘The original scope of the lex Aquilia and the question of damages’

(1922) 38 LQR 220

Sirks, ‘The delictual origin, penal nature and reipersecutory object of the

actio damni iniuriae legis Aquiliae’ (2009) 77 Tijdschrift voor

Rechtsgeschiedenis 303 (Heinonline)

Questions

1. What difficulties arose in the assessment of damages under chapter three?

2. Explain D.9.2.23.4

3. Explain D.9.2.23.1

4. Octavius, a lonely teenager, thought a pet might improve his mood. Being a nonconformist,

he opted for a family of moles. Unfortunately he knew little about the critters, and thought a

bit of fencing would be enough to keep them contained. They quickly burrowed out and

invaded an adjacent plot owned by Lepidus. Within minutes, they had upturned a family

grave, undermined a greenhouse containing Lepidus’ prized orchids, and uprooted several

tomato vines. All this digging inevitably created a number of deep holes. Octavius, chasing

the miscreant rodents, tripped on one and broke his arm. Lepidus, hearing Octavius’ cries,

rushed outside. Seeing the ruins of his beloved orchid collection, he punted a nearby mole

into the distance. After chasing Octavius off his land, he asked his good friend Crassus (who,

being a former gladiator, he considered a professional animal slayer) to take care of the

remaining moles, which he promptly did with gusto. Octavius is lonely once more.

Discuss any claims that arise under the lex Aquilia.

Essay

What problems arose in the assessment of damages under chapters one and three of the lex Aquilia,

and how were these resolved by the classical jurists? (Tripos 2012)

civil law ii supervision sheets 2014-15 - srcfnbls.soc.srcf.net/files/files/civil ii/supervision...

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