[ULPIANUS libro octauo decimo ad edictum. ] §9.2.11.prItem Mela scribit, si, cum pila quidam luderent, uehementius quis pila percussa in tonsoris manus eam deiecerit et sic serui, quem tonsor habebat, gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege Aquilia teneri.
[ULPIANUS, from the eighteenth book on the Edict.] Likewise Mela writes that if, while some were playing ball, someone hit the ball with greater force and knocked it into the hands of a barber, and in this way the throat of a slave whom the barber had under his care was cut by the razor being jerked: whoever among them was in fault is liable under the Lex Aquilia.
Proculus in tonsore esse culpam: et sane si ibi tondebat, ubi ex consuetudine ludebatur uel ubi transitus frequens erat, est quod ei imputetur: quamuis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.
Proculus says that the fault is in the barber; and indeed, if he was shaving there, where games were customarily played or where passage was frequent, there is reason for it to be imputed to him; although it is also not poorly said that, if someone entrusted himself to a barber who had his chair in a dangerous place, he ought to complain of himself.
§9.2.11.1Si alius tenuit, alius interemit, is qui tenuit, quasi causam mortis praebuit, in factum actione tenetur.
If one person held [the slave] and another killed him, the one who held him, having as it were provided the cause of death, is liable to an action on the case.
§9.2.11.2Sed si plures seruum percusserint, utrum omnes quasi occiderint teneantur, uideamus.
But if several persons have struck a slave, let us see whether all are liable as if they had killed him.
et si quidem apparet cuius ictu perierit, ille quasi occiderit tenetur: quod si non apparet, omnes quasi occiderint teneri Iulianus ait, et si cum uno agatur, ceteri non liberantur: nam ex lege Aquilia quod alius praestitit, alium non releuat, cum sit poena.
And if indeed it appears by whose blow he died, that one is liable as if he had killed him; but if it does not appear, Julian says that all are liable as if they had killed him, and if an action is brought against one, the others are not released; for under the Lex Aquilia what one has performed does not relieve another, since it is a penalty.
§9.2.11.3Celsus scribit, si alius mortifero uulnere percusserit, alius postea exanimauerit, priorem quidem non teneri quasi occiderit, sed quasi uulnerauerit, quia ex alio uulnere periit, posteriorem teneri, quia occidit.
Celsus writes that if one has struck with a deadly wound, and another has afterwards finished him off, the former indeed is not liable as if he had killed, but as if he had wounded, because he died from another's wound, while the latter is liable because he killed.
quod et Marcello uidetur et est probabilius.
This also seems right to Marcellus and is more probable.
§9.2.11.4Si plures trabem deiecerint et hominem oppresserint, aeque ueteribus placet omnes lege Aquilia teneri.
If several persons have thrown down a beam and crushed a man, the ancient jurists similarly agree that all are liable under the Lex Aquilia.
§9.2.11.5Item cum eo, qui canem irritauerat et effecerat, ut aliquem morderet, quamuis eum non tenuit, Proculus respondit Aquiliae actionem esse: sed Iulianus eum demum Aquilia teneri ait, qui tenuit et effecit ut aliquem morderet: ceterum si non tenuit, in factum agendum.
Likewise, against him who had provoked a dog and caused it to bite someone, although he did not hold it, Proculus gave an opinion that there is an action under the Lex Aquilia; but Julian says that only he is liable under the Lex Aquilia who held the dog and caused it to bite someone; but if he did not hold it, an action on the case must be brought.
§9.2.11.6Legis autem Aquiliae actio ero competit, hoc est domino.
Now, the action under the Lex Aquilia belongs to the master, that is, the owner.
§9.2.11.7Si in eo homine, quem tibi redhibiturus essem, damnum iniuria datum esset, Iulianus ait legis Aquiliae actionem mihi competere meque, cum coepero redhibere, tibi restituturum.
If unlawful damage has been caused to that slave whom I was about to return to you, Julian says that the action under the Lex Aquilia belongs to me, and that when I begin to return him, I must restore it to you.
§9.2.11.8Sed si seruus bona fide alicui seruiat, an ei competit Aquiliae actio? et magis in factum actio erit danda.
But if a slave serves someone in good faith, does the action under the Lex Aquilia belong to him? Rather, an action on the case should be given.
§9.2.11.9Eum, cui uestimenta commodata sunt, non posse, si scissa fuerint, lege Aquilia agere Iulianus ait, sed domino eam competere.
Julian says that he to whom clothes have been lent cannot, if they have been torn, sue under the Lex Aquilia, but that the action belongs to the owner.
§9.2.11.10An fructuarius uel usuarius legis Aquiliae actionem haberet, Iulianus tractat: et ego puto melius utile iudicium ex hac causa dandum.
Julian discusses whether a usufructuary or a user would have the action under the Lex Aquilia; and I think that it is better for an analogous action to be granted in this case.