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On İki Levha Yayıncılık
Yayın tarihi: Aralık 2023
Sayfa: 3 - 30
On İki Levha Yayıncılık
Yayın tarihi: Aralık 2023
Sayfa: 3 - 30
Yazar:
Michael Smith
Editör:Fethi Gedikli, Cihan Osmanağaoğlu-Karahasanoğlu
Aşağıda bir kısmını gördüğünüz bu dokümana sadece Profesyonel + pakete abone olan üyelerimiz erişebilir.
Sayfa 3
Michael Smith…
Abstract…
It is proposed that damages for an actio legis aquiliae under chapter one of the…
Roman law; lex Aquilia; chapter one; damages; loss; remoteness.…
Introduction…
In one of his final lectures as Regius Professor of Civil Law at the University of…
It is proposed that damages for an actio legis aquiliae under chapter one of the…
The year-rule…
At D.9.2.2.pr, it is stated by Gaius:…
Lege aquilia capite primo cavetur: “ut qui servum servamve alienum alienamve quadrupedem…
The first chapter of the lex Aquilia provides as follows: “If anyone kills unlawfully…
At D.9.2.21.pr, Ulpian, in similar language, explains that:…
Ait lex: “quanti is homo in eo anno plurimi fuisset”. quae clausula aestimationem…
The lex Aquilia refers to “whatever was the highest value of the slave during the…
The result of this provision in the lex Aquilia is that, as in D.9.2.23.3:…
… si pretioso pictori pollex fuerit praecisus et intra annum, quo praecideretur,…
… if the thumb of a most valuable painter had been cut off beforehand and within…
The above three texts illustrate the application of the year-rule: the plaintiff…
The reason for this rule was probably to provide complete compensation to the plaintiff.…
This retrospective period of valuation likely attests to the early context of the…
Thus, it seems that the year-rule was reipersecutory in nature. In order to account…
The alternative, that the year-rule was penal in nature, is unlikely for three reasons.…
Thus, the year-rule cannot be explained in terms of penal theory. If not penal, the…
The problem…
If the logic of the year-rule was to fully compensate the plaintiff, it may be that…
At D.9.2.21.2, it is questioned by Ulpian:Sayfa 8…
Sed utrum corpus eius solum aestimamus, quanti fuerit cum occideretur, an potius…
But are we valuing only his body, how much it was worth when he was killed, or rather…
Paul notes a similar idea at the end of D.9.2.33.pr:…
… in lege enim aquilia damnum consequimur: et amisisse dicemur, quod aut consequi…
… For under the lex Aquilia, we sue for the amount of the harm suffered, and we are…
Examples of consequential loss are given by Paul in D.9.2.22:…
Proinde si servum occidisti, quem sub poena tradendum promisi, utilitas venit in…
Thus, if you have killed a slave whom I have promised to hand over under a penalty,…
From these texts, we can distil that the Romans clearly had a concept of consequential…
Alternatively, imagine T, a testator, appoints P’s slave as his heir. T then dies,…
It is improbable that Roman law, a sophisticated legal science, would lead to such…
It is proposed that the law was shaped in such a way that the risk of severe overcompensation…
Evidence of bifurcation…
Admittedly, this bifurcated approach is not explicitly stated in the texts. However,…
At D.9.2.21.pr, Ulpian states:Sayfa 11…
Ait lex: “quanti is homo in eo anno plurimi fuisset”. quae clausula aestimationem…
The lex Aquilia refers to “whatever was the highest value of the slave during the…
D.9.2.21.1 is of no interest to this paper, as it merely details a dispute between…
Sed utrum corpus eius solum aestimamus, quanti fuerit cum occideretur, an potius…
But are we valuing only his body, how much it was worth when he was killed, or rather…
The first thing we should take form D.9.2.21.2 is that Ulpian distinguishes between…
With that in mind, we can properly interpret D.9.2.21.pr. Ulpian starts by quoting…
In effect, then, we have 3 valuations: one total valuation, which is comprised of…
That the jurists expanded upon the statute in this manner is unsurprising.(11)…
Thus, in assessing these two texts, we may conclude that D.9.2.21.pr refers to the…
The same point can be inferred from D.9.2.22. The final line “for not only must a…
It is true that absence of evidence is not evidence of absence. Just because it is…
At D.9.2.23.pr, Ulpian writes:…
Inde neratius scribit, si servus heres institutus occisus sit, etiam hereditatis…
Therefore, Neratius writes that if a slave who has been instituted as heir is killed,…
An inheritance seems to be consequential loss as opposed to attaching to a slave’s…
At D.9.2.23.1, Ulpian continues:…
Iulianus ait, si servus liber et heres esse iussus occisus fuerit, neque substitutum…
