[ULPIANUS libro quinquagensimo sexto ad edictum. ] §47.8.4.prPraetor ait: 'Cuius dolo malo in turba damnum quid factum esse dicetur, in eum in anno, quo primum de ea re experiundi potestas fuerit, in duplum, post annum in simplum iudicium dabo'.
[ULPIANUS, on the Edict, book fifty-six.] The praetor says: 'Against him, by whose malicious intent some damage is alleged to have been caused in a crowd, I will grant an action for double [the value] within the year in which there first was an opportunity of litigating concerning that matter, and after a year, for the single [value]'.
§47.8.4.1Hoc edictum de eo damno proponitur, quod quis in turba dedit.
This edict is put forward concerning that damage which someone has caused in a crowd.
§47.8.4.2Turbam autem appellatam Labeo ait ex genere tumultus idque uerbum ex Graeco tractum ἀπὸ τοῦ θορυβεῖν.
Labeo says that 'turba' (crowd) is so named from the class of 'tumultus' (commotion), and that this word is derived from the Greek, from thorubein.
§47.8.4.3Turbam autem ex quo numero admittimus? si duo rixam commiserint, utique non accipiemus in turba id factum, quia duo turba non proprie dicentur: enimuero si plures fuerunt, decem aut quindecim homines, turba dicetur.
But from what number do we admit a crowd? If two persons have engaged in a quarrel, we certainly shall not accept that it was done in a crowd, because two are not properly called a crowd. But indeed, if there were more, ten or fifteen men, it will be called a crowd.
quid ergo, si tres aut quattuor? turba utique non erit.
What then, if three or four? It will certainly not be a crowd.
et rectissime Labeo inter turbam et rixam multum interesse ait: namque turbam multitudinis hominum esse turbationem et coetum, rixam etiam duorum.
And Labeo most correctly says that there is a great difference between a crowd and a quarrel; for a crowd is a disturbance and gathering of a multitude of men, while a quarrel can be even of two.
§47.8.4.4Hoc autem edicto tenetur non solus, qui damnum in turba dedit, sed et is, qui dolo malo fecerit, ut in turba damni quid daretur, siue illo uenerit siue non fuerit praesens: dolus enim malus etiam absentis esse potest.
Under this edict, not only is he liable who caused the damage in the crowd, but also he who with malicious intent has brought it about that some damage was caused in a crowd, whether he came to that place or was not present; for malicious intent can belong even to an absent person.
§47.8.4.5Hoc edicto dicendum est etiam eum teneri, qui uenit et in turba fuit auctor damni dandi, si tamen et ipse inter turbam fuit, cum damnum daretur, et dolo malo fuit: nam et huius dolo malo in turba damni quid factum esse negari non potest.
Under this edict, it must be said that he also is liable who came and was in the crowd the instigator of causing damage, provided, however, that he himself was among the crowd when the damage was caused, and was there with malicious intent; for it cannot be denied that by his malicious intent also some damage was done in a crowd.
§47.8.4.6Si quis aduentu suo turbam concitauit uel contraxit, uel clamore uel facto aliquo uel dum criminatur aliquem uel dum misericordiam prouocat: si dolo malo eius damnum datum sit, etiamsi non habuit consilium turbae cogendae, tenetur.
If someone by his arrival has aroused or gathered a crowd, whether by shouting or some act, or while accusing someone, or while appealing for pity; if by his malicious intent damage has been caused, even if he did not have the plan of assembling a crowd, he is liable.
uerum est enim dolo malo eius in turba damni quid datum: neque enim exigit praetor, ut ab ipso sit turba conuocata, sed hoc, ut dolo alicuius in turba damnum datum sit.
For it is true that by his malicious intent some damage was caused in a crowd. Nor does the praetor require that the crowd was called together by him himself, but this: that by someone's malicious intent damage was caused in a crowd.
eritque haec differentia inter hoc edictum et superius, quod ibi de eo damno praetor loquitur, quod dolo malo hominibus coactis datum est uel raptum etiam non coactis hominibus: at hic de eo damno, quod dolo malo in turba datum est, etiamsi non ipse turbam coegit, sed ad clamorem eius uel dicta uel misericordiam turba contracta est, uel si alius contraxit uel ipse ex turba fuit.
And this will be the difference between this edict and the previous one: that there the praetor speaks of that damage which was caused with malicious intent by assembled men, or of property taken by force even without assembled men; but here, of that damage which was caused with malicious intent in a crowd, even if he himself did not assemble the crowd, but the crowd was gathered at his shout or words or appeal for pity, or if someone else gathered it, or he himself was one of the crowd.
§47.8.4.7Idcirco illud quidem edictum propter atrocitatem facti quadrupli poenam comminatur, at hoc dupli.
Therefore, that edict indeed, on account of the gravity of the deed, threatens a penalty of fourfold, but this one, of double.
§47.8.4.8Sed et hoc et illud intra annum tribuit experiundi facultatem: post annum in simplum competit.
But both this one and that one grant the opportunity of litigating within a year; after a year, the action lies for the single value.
§47.8.4.9Loquitur autem hoc edictum de damno dato et de amisso, de rapto non: sed superiori edicto ui bonorum raptorum agi poterit.
But this edict speaks of damage caused and of property lost, not of property taken by force; but under the previous edict, an action for goods taken by force can be brought.
§47.8.4.10Amissa autem dicuntur ea, quae corrupta alicui relinquuntur, scissa forte uel fracta.
But things 'lost' are said to be those which, being damaged, are left to someone, as for example torn or broken.
§47.8.4.11Haec autem actio in factum est et datur in duplum, quanti ea res erit: quod ad pretium uerum rei refertur.
But this action is in factum and is granted for double of what the value of that thing shall be; which refers to the true price of the thing.
et praesentis temporis fit aestimatio: et semper in duplum intra annum est.
And the valuation is made of the present time, and it is always for double within a year.
§47.8.4.12Docereque actor in turba damnum esse datum debet: ceterum si alibi datum sit quam in turba, cessabit haec actio.
And the plaintiff must show that the damage was caused in a crowd; otherwise, if it was caused elsewhere than in a crowd, this action will not lie.
§47.8.4.13Si, cum seruum meum Titius pulsaret, turba fuerit collecta isque seruus in ea turba aliquid perdiderit, cum eo qui pulsabat agere possum, quippe cum in turba dolo malo damnum datum sit: sic tamen, si, ut damnum daret, ideo coeperat caedere.
If, while Titius was beating my slave, a crowd was gathered and that slave lost something in that crowd, I can bring an action against him who was beating him, since indeed damage was caused in a crowd with malicious intent; provided, however, if he had begun to strike for the purpose of causing damage.
ceterum si alia causa uerberandi fuit, cessat actio.
Otherwise, if there was another reason for the beating, the action does not lie.
§47.8.4.14Sed et si quis ipse turbam conuocasset, ut turba coram seruum uerberaret iniuriae faciendae causa, non damni dandi consilio, locum habet edictum.
But also if someone himself had called a crowd together so that he might beat the slave in the presence of the crowd for the sake of committing an insult, not with the design of causing damage, the edict has application.
uerum est enim eum, qui per iniuriam uerberat, dolo facere et eum, qui causam praebuit damni dandi, damnum dedisse.
For it is true that he who beats insultingly acts with malicious intent, and he who provided the cause of causing damage has caused damage.
§47.8.4.15In seruum autem et in familiam praetor dat actionem.
But against a slave and against a household, the praetor grants an action.
§47.8.4.16Quae de heredibus ceterisque successoribus in ui bonorum raptorum actione diximus, et hic erunt repetita.
What we have said concerning heirs and other successors in the action for goods taken by force, will be repeated here too.