Table 1
Texts that mention the behaviours incendio ruina naufragio
|
Author, work, and fragment |
Date |
Text |
|---|---|---|
|
Marcus Tullius Cicero, Paradoxa Stoicorum 6.51.8 |
46 BCE1 |
Quanti est aestimanda virtus, quae nec eripi nec subripi potest neque naufragio neque incendio amittitur nec tempestatum nec temporum perturbatione mutatur! (how great a value should be set on virtue, of which one can never be robbed or cheated, and which is not lost by shipwreck or fire, or affected by the violence of storms or by stormy periods in politics!). |
|
Marcus Fabius Quintilianus, Institutio Oratoria 8.6.50.3 |
First century CE |
Nam id quoque in primis est custodiendum, ut, quo ex genere coeperis tralationis, hoc desinas. Multi autem, cum initium tempestatem sumpserunt, incendio aut ruina finiunt, quae est inconsequentia rerum foedissima. (Another very important rule to observe in Allegory is to finish with the same type of Metaphor with which you began. Many begin with a storm and end with a fire or the collapse of a house; this is a horrible incongruity). |
|
Marcus Fabius Quintilianus, Declamationes Maiores, 9.16.23 |
First century CE |
Concupivi quandam humanitatis civicam gloriam: periturum hominem, sive ille naufragio eiectus, seu spoliatus incendio sive exutus latrocinio erat, naturae patriaeque restitui. (I aspired to a kind of citizen’s glory for humanity—a man who would have perished when shipwrecked or ruined by fire or stripped by a brigand, I have given back to nature and homeland). |
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Lucius Annaeus Seneca senior, Controversiae; 5.1pr.2; 5.1pr.3 |
First century CE |
Inscripti maleficii sit actio. Quidam naufragio facto, amissis tribus liberis et uxore incendio domus, suspendit se. Praecidit illi quidam ex praetereuntibus laqueum. A liberato reus fit maleficii (An action may lie for an offence not specified in the law. A man who had been shipwrecked, and had lost three children and his wife in a fire at his house, hung himself. A passer-by cut the noose. He is accused of an offence by the man he saved). |
|
Lucius Annaeus Seneca iunior, De Beneficiis 1.5.4.3; 1.5.4.4 |
First century CE |
Amicum a piratis redemi, hunc alius hostis excepit et in carcerem condidit: non beneficium, sed usum beneficii mei sustulit. Ex naufragio alicui raptos vel ex incendio liberos reddidi, hos vel morbus vel aliqua fortuita iniuria eripuit: manet etiam sine illis, quod in illis datum est. (If I have rescued a friend from pirates, and afterwards a different enemy seized him and shut him up in prison, he has been robbed, not of my benefit, but of the enjoyment of my benefit. If I have saved a man’s children from shipwreck or a fire and restored them to him, and afterwards they were |
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|
snatched from him either by sickness or some injustice of fortune, yet, even when they are no more, the benefit that was manifested in their persons endures). |
|
|
D. 44.7.1.4 (Gaius 2 Aur.) |
Second century CE |
Et ille quidem qui mutuum accepit, si quolibet casu quod accepit amiserit, nihilo minus obligatus permanet: is vero qui utendum accepit, si maiore casu, cui humana infirmitas resistere non potest, veluti incendio ruina naufragio, rem quam accepit amiserit, securus est. (…) (And, indeed, he who received a loan for consumption (mutuum) nonetheless will remain bound, even if through some accident he lost what he had received, whereas he who received an article for use will be protected if through inevitable accident which human weakness cannot prevent, such as fire, wreck or collapse of a building, the lost the property he had received). |
|
D. 2.12.3pr. (Ulpian. 2 ad Ed.) |
Third century CE |
Solet etiam messis vindemiarumque tempore ius dici de rebus quae tempore vel morte periturae sunt. Morte: veluti furti: damni iniuriae: iniuriarum atrocium: qui de incendio ruina naufragio rate nave expugnata rapuisse dicuntur: et si quae similes sunt. Item si res tempore periturae sunt aut actionis dies exiturus est. (It is usual, during harvest and vintage time, that justice be administered with respect to matters in which rights are about to be destroyed through lapse of time or death. Examples in which rights are destroyed by death are theft, damage to property, serious injury, cases in which persons are said to have robbed, when there has been a fire, collapse of a house, shipwreck, or the capture of a boat or ship, and similar cases. The same applies if the subject matter of an action is about to be lost through lapse of time or the time within which the action is to be brought has nearly gone). |
|
D. 2.13.6.9 (Ulpian. 4 ad Ed.) |
Third century CE |
Prohibet argentario edi illa ratione, quod etiam ipse instructus esse potest instrumento suae professionis: et absurdum est, cum ipse in ea sit causa, ut edere debeat, ipsum petere ut edatur ei. An nec heredi argentarii edi ratio debeat, videndum: et si quidem instrumentum argentariae ad eum pervenit, non debet ei edi, si minus, edenda est ex causa. Nam et ipsi argentario ex causa ratio edenda est: si naufragio vel ruina vel incendio vel alio simili casu rationes perdidisse probet aut in longinquo habere, veluti trans mare. (The praetor forbids that a banker be forced to exhibit documents because it is also possible for the latter to inform himself from the documents he has in virtue of his occupation. And it is absurd, seeing that he is himself in the legal position of being under a duty to exhibit, for him to ask that task to be given to him. It must be seen whether accounts should not be exhibited to the heir of a banker. And if, indeed, the documents of the banking business are in his possession, exhibition ought not to be made to him; if not, the exhibition should be made by indicating the cause. For an account is to be produced to the banker himself based on the cause being shown, that is, if he shows that accounts have |
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been lost through shipwreck or collapse of a house or fire or some similar chance or that they are in a far-away place, for example, across the sea). |
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|
D. 16.3.1.1 (Ulpian. 30 ad Ed.) |
Third century CE |
Praetor ait: ‘Quod neque tumultus neque incendii neque ruinae neque naufragii causa depositum sit, in simplum, earum autem rerum, quae supra comprehensae sunt, in ipsum in duplum, in heredem eius, quod dolo malo eius factum esse dicetur qui mortuus sit, in simplum, quod ipsius, in duplum iudicium dabo’ (The praetor says: ‘Where property has not been deposited on account of tumult, fire, disaster, or shipwreck, I will give an action for simple damages; but for those cases mentioned above, against the depositee himself I will give an action for double damages, against his heir, where he who has died is alleged to have been guilty of fraud, an action for simple damages, and against the heir who is himself guilty of fraud, double damages’). |
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D. 24.1.32.14 (Ulpian. 33 ad Sab.) |
Third century CE |
Oratio, si ante mors contigerit ei cui donatum est, nullius momenti donationem esse uoluit: ergo si ambo decesserint, quid dicemus, naufragio forte uel ruina uel incendio? et si quidem possit apparere, quis ante spiritum posuit, expedita est quaestio: sin uero non appareat, difficilis quaestio est (…) (The oration meant a gift to have no effect if the recipient has died beforehand. So, what if both parties die in a shipwreck, the collapse of a building, or a fire? Where it can be established which of them died first, the question is easy to answer, but if this cannot be established, the question becomes a difficult one). |
|
PS. 2.4.2 |
Fourth century CE |
Si facto incendio ruina naufragio aut quo alio simili casu res commodata amissa sit, non tenebitur eo nomine is cui commodata est, nisi forte, cum posset rem commodatam salvam facere, suam praetulit (If the property lent should be lost either through fire, the ruin of a house, shipwreck, or any other accident of this kind, the party to whom the property was lent will not be liable on this account, unless when he could have saved it he gave preference to his own). |
|
PS. 5.3.2 |
Fourth century CE |
Quidquid ex incendio ruina naufragio navique expugnata raptum susceptum suppressumve erit, eo anno in quadruplum eius rei, quam quis suppresserit celaverit rapuerit, convenitur, postea in simplum. (Where any property obtained from a fire, the ruin of a building, shipwreck, or the plunder of a vessel, has been stolen or concealed, the party who concealed, stole, or took it by violence, can, within a year, be sued for fourfold damages, and, after the lapse of a year, for simple damages.) (transl. Scott). |
|
C.6.2.18 |
Fourth century CE |
Imperatores Diocletianus, Maximianus. In eum, qui ex naufragio vel incendio cepisse vel in his rebus damni quid dedisse dicitur, infra annum utilem ei cui res abest quadrupli, post in simplum actionem proditam |
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praeter poenam olim statutam edicti forma perpetui declarat. * DIOCL. ET MAXIM. AA. ET CC. DIONYSODORO. *⟨A 294 S. III K. IAN. NICOMEDIAE CC. CONSS.⟩ (Emperors Diocletianus, Maximianus. The rule of the perpetual edict declares that an action for fourfold damages is available for a year to him, whose property is lost and, against him, who is said to have taken or caused any loss to property from a shipwreck or fire, and after that time an action lies for the simple value, apart from the existing statutory penalty. Suscribed December 30th, at Nicomedia, in the Consulship of the Caesars (294 CE)) (Transl. Corcoran et al.). |
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Inst.3.14.2 |
Sixth century CE |
Item is cui res aliqua utenda datur, id est commodatur, re obligatur et tenetur commodati actione. sed is ab eo qui mutuum accepit longe distat: namque non ita res datur, ut eius fiat, et ob id de ea re ipsa restituenda tenetur. et is quidem qui mutuum accepit, si quolibet fortuito casu quod accepit amiserit, veluti incendio ruina naufragio aut latronum hostiumve incursu, nihilo minus obligatus permanet. at is qui utendum accepit sane quidem exactam diligentiam custodiendae rei praestare iubetur nec sufficit ei tantam diligentiam adhibuisse, quantam suis rebus adhibere solitus est, si modo alius diligentior poterit eam rem custodire: sed propter maiorem vim maioresve casus non tenetur, si modo non huius culpa is casus intervenerit: alioquin si id quod tibi commodatum est peregre ferre tecum malueris et vel incursu hostium praedonumve vel naufragio amiseris, dubium non est, quin de restituenda ea re tenearis. commodata autem res tunc proprie intellegitur, si nulla mercede accepta vel constituta res tibi utenda data est. alioquin mercede interveniente locatus tibi usus rei videtur: gratuitum enim debet esse commodatum. (So too a person to whom a thing is lent for use is laid under a real obligation, and is liable to the action on a loan for use. The difference between this case and a loan for consumption is considerable, for here the intention is not to make the object lent the property of the borrower, who accordingly is bound to restore the same identical thing. Again, if the receiver of a loan for consumption loses what he has received by some accident, such as fire, the fall of a building, shipwreck, or the attack of thieves or enemies, he still remains bound: but the borrower for use, though responsible for the greatest care in keeping what is lent him—and it is not enough that he has shown as much care as he usually bestows on his own affairs, if only some one else could have been more diligent in the charge of it—does not have to answer for loss occasioned by fire or accident beyond his control, provided it did not occur through any fault of his own. Otherwise, of course, it is different: for instance, if you choose to take with you on a journey a thing which has been lent to you for use and lose it by being attacked by enemies or thieves, or by a shipwreck, it is beyond question that you will be liable for its restoration. A thing is not properly said to be lent for use if any recompense is received or agreed upon |
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for the service; for where this is the case, the use of the thing is held to be hired, and the contract is of a different kind, for a loan for use ought always to be gratuitous.) (Trans. Moyle). |
Table 2
Key events on the development of the praetors’ edict
|
Date |
Event |
Source(s) |
|---|---|---|
|
367 BCE |
Approval of the leges Liciniae Sextiae. Creation of the urban praetura; the praetor could approve edicts,2 but the development of this source of creation of law as such was not yet fully developed. |
Livy.Epit.6.30–42; D.1.2.2.27 (Pompon. 1 Ench.). |
|
242 BCE3 |
Creation of the magistracy of the praetor peregrinus. |
D.1.2.2.28 (Pompon. 1 Ench). |
|
199–126 BCE |
Lex Aebutia de formulis. Abolition of the legis actionis—except those concerning the centumviri and in the case of damnum infectum—and the introduction of the formulary procedure. The reform was completed with the Leges Iuliae iudiciariae (17 BCE). The reform served to generalise the formulary procedure, which was undoubtedly known before and practised in trials between foreigners. |
G.4.30; Gell.NA.16.10. |
|
c. 140 BCE |
Changes in the substantive law are made not through edicts, but through individual actions. |
Lenel.EP.115 (actio de mandati); EP3.205 (actio in factum adversus nautas, caupones, stabularios); EP3.219 (actio si mensor falsum modum dixerit); EP3.117 (actio Serviana). |
|
140–100 BCE |
They started to approve edicts which modify the ius civile, although it is likely that these would have been limited to restricting the rights of a plaintiff in a civil action. |
D.13.6.5.3 (Ulpian. 28 ad Ed.) edictum de commodatum; D.46.3.81.1 (Pompon. 1 Ench.) edictum de depositum. |
|
100–27 BCE |
These were the years of highest edictal production,4 although the highest peak of development had not reached its greatest development. |
Edictum de convicio (Rhet.Her.4.25.35); edictal clauses providing bonorum posessio for several aims5 (Cic.Quinct. 19.60); edictum de hominibus armatis coactisve et vi bonorum raptorum (Cic.Tul.4.8) edictum de dolo (Cic.Nat.D.3.30.74); edictum de pactis (Cic.Att. 2.9.1). |
Table 3
Legal dispositions approved in the republic that helped to establish the features of the development praetorian edict
|
Legal disposition |
Dating |
Comments |
Sources |
|---|---|---|---|
|
Edictum Nautae caupones et stabularius |
Second century BCE |
It is not possible to date the edict with greater precision. By studying external factors and determining the development of the Roman maritime traffic, I can hypothesise that the disposition belongs to the second century BCE. It was necessary to develop the appropriate legal dispositions to address navigation, bearing in mind that these dispositions were not yet using the locatio operis. Servius Sulpicius Rufus died in 43 BCE, and knew of the edictum ne quid infamandi causa, and of the edict introduced by the actio institoria. If I understand that this actio was older than the actio exercitoria, which in turn is less ancient than the receptum nautarum cauponum stabulariorum,6 I understand that the two edicts relating to these actions should also have existed. |
[D.4.9] Gaius 5 ad Ed. Prov.; Paul. 13 ad Ed.; Paul. 22 ad Ed.; Ulpian. 14 ad Ed.; Ulpian. 18 ad Ed. |
|
Bonae fidei actiones of tutelae, empti, venditi, Locati, conducti, pro socio and mandati |
Second century BCE? |
The order of the development of actions of good faith is still a controversial issue. However, it is admitted by most of the doctrine that the Bonae fidei actiones of tutelae, empti, venditi, Locati, conducti, pro socio and mandati belonged to the second century BCE. Even if unfortunately, the dispositions themselves are not preserved, the commercial developments that Rome experienced during this period serves as an indicator of the development of these provisions. |
[D.19.2] Paul. 34 ad Ed.; Gaius lib. 2 Cott.; 10 ad Ed.Prov.; Pompon. 9 et 6 ad Sab.; Ulpian. 28 ad Ed.; Paul. 32 ad Ed.; Tryph.9 Disp. |
|
Formula Octaviana |
79–76 BCE7 |
A remedy that sought to protect citizens threatened with force or fear. It was a precedent for the actio quod metus causa (D.4.2.14.3). |
Cic.Verr.2.3; 65; 152; Cic.QFr.1.1.21. |
|
Edictum de metus |
78 BCE |
Introduced by the praetor Octavius, consul in the year 75 BCE. This actio was focused on the restitution of property taken, with a penalty of four times its value (as with the formula octaviana). It was only approved in cases of real extortion, and at a later stage the actio quod metus causa covered the cases of third parties. |
Cic.Off.3.29.103; 3.30.110; QFr.1.1.21; Verr.2.3; 65; 152; D.4.2.1 (Ulpian. 11 ad Ed.); D.4.2.5 (Ulpian. 11 ad Ed.). |
|
Edictum de turba |
? |
Its approach is inherited from the Lex Aquilia but focuses on a specific case of damage caused to the property of another in cases of turmoil. |
D.47.8.4pr. D.47.8.4.9 (Ulpian. 56 ad Ed.); EP3 § 188. |
|
Edictum de Luculo |
76 BCE |
Introduced as the iudicium de vi coactis armatisque hominibus, it is probably the origin of the actio vi bonorum raptorum (EP3 § 187). |
Asc.Corn.75; Cic. Tul. 3–12. |
|
Edictum de incendio, ruina naufragio rate nave expugnata |
? |
This civil action addresses the risk by attempting to punish theft using violence (rapina) committed during a catastrophe. |
EP3 § 189; [D. 47.9] Ulpian. 56 ad Ed.; Paul. 54 ad Ed.; Gaius 21 ad Ed.Prov.; Callistrat. 1 Ed. Mon.; Callistrat. 2 Quaest; Nerat. 2 Resp; Marcian. 14 Inst.; PS.5.3. 2; Cic.Parad.51. |
|
Interdicto de vi armata |
73–72 BCE |
This was a provision that sought to regain possession in favour of those who had been violently dispossessed of their property by a group of armed men. |
Cic.Fam.7.13.2; Cic.Caecin.69; Cic. Tul.46.8 |
|
Edictum de dolo malo |
66 BCE9 |
This penalised behaviours committed with bad intent (dolo malo) and introduced an actio in factum for the punishment of these. |
D.4.3.1.1 (Ulpian. 11 ad Ed.); D.43.4.1 (Ulpian. 72 ad Ed.); Cic.Off.3.60; Nat.D. 3.30.74. |
|
Edictum vi bonorum raptorum et armatis coactisve |
131 CE? |
In my opinion, this extension of Lucullus’ edict corresponds to the legislative tendency that is also noticeable in the edict concerning bad intent. It introduced penalties for criminal actions in situations that covered a broad perspective, including many situations that covered cases of robbery with violence. |
EP3 § 188; D.47.8.2pr. (Ulpian. 56 ad Ed.; Paul 54 ad Ed.). |
Table 4
Provisions from the first century BCE that either help dating the edictum de naufragio or focus on violence
|
Legal disposition |
Dating |
Comments |
Sources |
|---|---|---|---|
|
Lex de piratis persequendis |
100 BCE |
Also called Lex de provinciis praetoris, this law is known thanks to two inscriptions found in Delphos and Cnidos and deals with the problem of piracy by labelling these areas as praetorian provinces. |
Crawford et al. 1996, 231–270. |
|
Lex Cornelia de sicariis et veneficiis |
81 BCE |
This provided sanctions for those individuals who caused the death of others through certain means |
D.48.8.1pr. (Marcian. 14 Inst.); Inst.4.18; |
|
|
such as the use of fire. It extended the typical case to other situations such as shipwreck, as can be seen in D.47.9.3.8. |
PS.5.23.1; Cic.Clu.54; CTh.9.14; C.9.16.5; Coll.1.3.1–2. |
|
|
Lex Cornelia de iniuriis |
81 BCE |
This penalised three types of offences caused by violence: pulsare (hit), verberare (whip) and domum introire (forced entry into another person’s house). |
D.47.10.5pr. (Ulpian. 56 ad Ed.); D.48.12.3 (Papir. 1 de Const.); D.48.5.8 (In lib. 2 de Adulteriis Papin. Marcian. notat); PS.5.4.6–7. |
|
Lex Lutatia de vi |
78–77 BCE10 |
Law established against the crimen vis, only referred to in a text by Cicero. The scholarship has long discussed the possibility that the Lex Lutatia and the Lex Plautia were the same.11 |
Cic.Cael.70.1 |
|
Lex Plautia de vi |
78–63 BCE |
Law established against the crime vis committed against the state or an individual subject. It penalised, for example, armed men who entered the Senate or violence committed against magistrates. |
Sall.Cat. 31.4; Cic.Cael.29.70; 70.1; Cic.Mil.13.35; har.Resp.8.15; Fam.8.8; QFr.2.3; Att.2.24; Asc.Corn.55; G.2.45; Quint.Inst. 9.3.56; D.41.3.33.2 (Iulian. 33 Digest.). |
|
Lex Gabinia de bello piratico |
67 BCE |
Law approved in favour of Pompey the Great by which an imperium infinitum was conferred on him to initiate his fight against piracy. |
Cic.De Imp.Cn.Pomp.15–23; Asc.Corn.72; Livy.Per.99; Cass.Dio.36; Eutr.6.13; Val.Max.8.15; App. Mith.94. |
|
Lex Cornelia de Iurisdictione |
67 BCE |
It forbids the praetors from modifying their edict by means of edicta repentina approved during their year of office or acting against the principles established by their edict. |
FIRAII. 1909.69; Cass. Dio.36.40.1–2; Asc.Corn.58. |
|
Lex Pompeia de vi |
52 BCE |
This is a special statute on crimen vis. The probable reason for its enactment was a great riot with fires and massacres at the via Appia. |
Asc.Corn.33; Cic.Mil.6.15; 26.70; and 29.79; App.B.Civ.2.23. |
|
Lex Iulia de vi (publica et privata) |
46–44 BCE |
These are general laws addressing events involving vis. It is likely that there were two statutes on vis publica and privata, and it is debated whether their author was Augustus or Caesar. |
Cic.Phil.1.19–24; Suet.Iul.41.2; 42.3; Cass.Dio.42.25.1. |
Mehl 2002, 39.
Watson 1974, 111, indicates that both the urban and the praetor peregrinus probably had ius edicendi from the moment of creation of their magistracies. He gives the SC of Bacchanalibus (186 BCE) as an example of the consolidation of this right.
According to Brennan 2000, 86–87, the sources and the events of the time indicate that this magistrature was probably approved before the year 242 BCE.
To the sources included in the table, I must add the mentions of other edicts made by jurists of the Republican era, such as Servius Sulpicius Rufus, who died in 43 BCE (Kunkel 2001, 25); Trebatius Testa and Ofilius (both from the first century BCE.). See Watson 1974, 109.
Like qui fraudationis causa latitarit; cui heres non existabit; qui exilii causa solum verterit, all of them created around 81 BCE.
Aubert 1994, 72–73.
Galeotti 2016–2017, 18 provides the same date of enactment.
If Cicero mentions it in his speech as actio vi bonorum raptorum, this reveals that the interdict must be a little earlier.
Cicero indicates that Aquilius Gallus (praetor in 66 BCE) approved this edict, but I know that it dealt with the quaestio de ambitu, which was the reason why the edict should have been approved around that date. Watson 1974, 32 n. 2, says that Gallus had created this edict when he oversaw a quaestio de ambitu. However, Brennan 2000, 463, argues that he had prepared the formula during its charge, but that this edict should have been approved later.
For the dating, see: Labruna 1976, 110; 1986, 1; Cavarzere 1988, 235–238.
Hough 1930, 142–143, thinks that the Lex Lutatia was approved for a particular event and that it dissappeared shortly after its enactment. On the possibility of a Lex Lutatia–Plautia, see Balzarini 1969b, 181–184.