[ULPIANUS libro octauo decimo ad edictum. ] §9.2.27.16Et non negat fractum et ustum contineri corrupti appellatione, sed non esse nouum, ut lex specialiter quibusdam enumeratis generale subiciat uerbum, quo specialia complectatur: quae sententia uera est.
And he does not deny that what is fractured and what is burnt are contained under the designation of spoiled, but says that it is nothing new for a law, after specifically enumerating certain things, to subjoin a general term by which it embraces those specific things; which opinion is true.
§9.2.27.17Rupisse eum utique accipiemus, qui uulnerauerit, uel uirgis uel loris uel pugnis cecidit, uel telo uel quo alio, ut scinderet alicui corpus, uel tumorem fecerit, sed ita demum, si damnum iniuria datum est: ceterum si nullo seruum pretio uiliorem deterioremue fecerit, Aquilia cessat iniuriarumque erit agendum dumtaxat: Aquilia enim eas ruptiones, quae damna dant, persequitur.
We shall certainly understand that he has broken who has wounded, or beaten with rods or thongs or fists, or with a weapon or any other thing so as to tear someone's body, or has caused a swelling, but only if the damage was caused unlawfully. For the rest, if he has not made the slave cheaper or worse in any value, the Aquilian action is inapplicable and an action for injuries must be brought instead. For the Lex Aquilia pursues those breakages which cause damage.
Ergo etsi pretio quidem non sit deterior seruus factus, uerum sumptus in salutem eius et sanitatem facti sunt, in haec mihi uideri damnum datum: atque ideoque lege Aquilia agi posse.
Therefore, even if the slave was not indeed made worse in value, but expenses were incurred for his recovery and health, it seems to me that damage was caused in respect of these expenses, and therefore action can be brought under the Lex Aquilia.
§9.2.27.18Si quis uestimenta sciderit uel inquinauerit, Aquilia quasi ruperit tenetur.
If anyone has torn or stained clothes, he is held liable under the Lex Aquilia as if he had broken them.
§9.2.27.19Sed et si quis milium uel frumentum meum effuderit in flumen, sufficit Aquiliae actio.
But also if anyone has spilled my millet or grain into a river, the Aquilian action is sufficient.
§9.2.27.20Item si quis frumento harenam uel aliud quid immiscuit, ut difficilis separatio sit, quasi de corrupto agi poterit.
Likewise, if anyone has mixed sand or anything else with grain, so that separation is difficult, action can be brought as if for something spoiled.
§9.2.27.21Si quis de manu mihi nummos excusserit, Sabinus existimat damni iniuriae esse actionem, si ita perierint, ne ad aliquem peruenirent, puta si in flumen uel in mare uel in cloacam ceciderunt: quod si ad aliquem peruenerunt, ope consilio furtum factum agendum, quod et antiquis placuit.
If anyone has knocked coins out of my hand, Sabinus thinks that there is an action for wrongful damage if they have been lost in such a way that they do not reach anyone, for example if they fell into a river, the sea, or a sewer; but if they have reached someone, action must be brought for theft committed by aid and counsel, which also pleased the ancients.
Idem etiam in factum dari posse actionem ait.
He says that an action on the facts can also be given.
§9.2.27.22Si mulier pugno uel equa ictu a te percussa eiecerit, Brutus ait Aquilia teneri quasi rupto.
If a woman, struck by you with a fist, or a mare, struck by a blow, has miscarried, Brutus says that you are liable under the Lex Aquilia as if for something broken.
§9.2.27.23Et si mulum plus iusto onerauerit et aliquid membri ruperit, Aquiliae locum fore.
And if anyone has loaded a mule beyond what is proper and broken any of its limbs, there will be room for the Aquilian action.
§9.2.27.24Si nauem uenaliciarum mercium perforasset, Aquiliae actionem esse, quasi ruperit, Uiuianus scribit.
If anyone has holed a ship carrying merchandise for sale, Vivianus writes that there is an Aquilian action as if he had broken it.
§9.2.27.25Si oliuam inmaturam decerpserit uel segetem desecuerit inmaturam uel uineas crudas, Aquilia tenebitur: quod si iam maturas, cessat Aquilia: nulla enim iniuria est, cum tibi etiam impensas donauerit, quae in collectionem huiusmodi fructuum impenduntur: sed si collecta haec interceperit, furti tenetur.
If anyone has plucked unripe olives or cut down unripe grain or unripe vines, he will be liable under the Lex Aquilia; but if they were already ripe, the Aquilian action does not apply. For there is no injury when he has even spared you the expenses which are incurred in gathering fruits of this kind; but if he has intercepted these after they were gathered, he is held liable for theft.
Octauenus in uuis adicit, nisi, inquit, in terram uuas proiecit, ut effunderentur.
Octavenus adds with respect to grapes: unless, he says, he threw the grapes to the ground so that they were ruined.
§9.2.27.26Idem et in silua caedua scribit, ut, si immatura, Aquilia teneatur, quod si matura interceperit, furti teneri eum et arborum furtim caesarum.
He writes the same also in the case of a coppice, so that if it is immature, he is liable under the Aquilian action; but if he has intercepted it when mature, he is held liable for theft and for trees stealthily cut.
§9.2.27.27Si salictum maturum ita, ne stirpes laederes, cessare Aquiliam.
If anyone has cut a mature willow-bed in such a way that you do not damage the roots, the Aquilian action does not apply.
§9.2.27.28Et si puerum quis castrauerit et pretiosiorem fecerit, Uiuianus scribit cessare Aquiliam, sed iniuriarum erit agendum aut ex edicto aedilium aut in quadruplum.
And if anyone has castrated a boy and made him more valuable, Vivianus writes that the Lex Aquilia does not apply, but action must be brought for injuries, or under the edict of the aediles, or for fourfold damages.
§9.2.27.29Si calicem diatretum faciendum dedisti, si quidem imperitia fregit, damni iniuria tenebitur: si uero non imperitia fregit, sed rimas habebat uitiosas, potest esse excussatus: et ideo plerumque artifices conuenire solent, cum eiusmodi materiae dantur, non periculo suo se facere, quae res ex locato tollit actionem et Aquiliae.
If you gave a diatretum glass cup to be worked on, if indeed he broke it through lack of skill, he will be liable for wrongful damage; but if he broke it not through lack of skill, but because it had faulty cracks, he can be excused. And for this reason, craftsmen are usually accustomed to agree, when materials of this kind are given, that they do not perform the work at their own risk; which agreement removes both the action on the lease and the Aquilian action.
§9.2.27.30Si cum maritus uxori margaritas extricatas dedisset in usu eaque inuito uel inscio uiro perforasset, ut pertusis in linea uteretur, teneri eam lege Aquilia, siue diuertit siue nupta est adhuc.
If, when a husband had given unstrung pearls to his wife for her use, she had drilled holes in them against the husband's will or without his knowledge, so that she might use them threaded on a string, she is held liable under the Lex Aquilia, whether she has divorced or is still married.
§9.2.27.31Si quis aedificii mei fores confregerit uel refregerit aut si ipsum aedificium diruit, lege Aquilia tenetur.
If anyone has broken or broken open the doors of my building, or if he has demolished the building itself, he is held liable under the Lex Aquilia.
§9.2.27.32Si quis aquae ductum meum diruerit, licet cementa mea sunt, quae diruta sunt, tamen quia terra mea non sit, qua aquam duco, melius est dicere actionem utilem dandam.
If anyone has demolished my aqueduct, although the masonry which was demolished is mine, yet because the land through which I conduct water is not mine, it is better to say that a useful action should be given.
§9.2.27.33Si ex plostro lapis ceciderit et quid ruperit uel fregerit, Aquiliae actione plostrarium teneri placet, si male composuit lapides et ideo lapsi sunt.
If a stone has fallen from a wagon and broken or fractured something, it is agreed that the wagoner is held liable under the Aquilian action, if he loaded the stones badly and they fell for that reason.
§9.2.27.34Si quis seruum conductum ad mulum regendum commendauerit ei mulum ille ad pollicem suum eum alligauerit de loro et mulus eruperit sic, ut et pollicem auelleret seruo et se praecipitaret, Mela scribit, si pro perito imperitus locatus sit, ex conducto agendum cum domino ob mulum ruptum uel debilitatum, sed si ictu aut terrore mulus turbatus sit, tum dominum eius, id est muli, et serui cum eo qui turbauit habiturum legis Aquiliae actionem.
If someone has entrusted a mule to a hired slave to guide it, and that slave tied the mule by the rein to his own thumb, and the mule bolted in such a way that it both tore the thumb off the slave and threw itself over a precipice, Mela writes: if an unskilled slave was leased as if skilled, action must be brought on the hire against the owner on account of the injured or disabled mule; but if the mule was startled by a blow or fright, then its owner and the owner of the slave will have an action under the Lex Aquilia against the one who startled it.
mihi autem uidetur et eo casu, quo ex locato actio est, competere etiam Aquiliae.
To me, however, it seems that even in that case in which there is an action on the lease, the Aquilian action also lies.
§9.2.27.35Item si tectori locaueris laccum uino plenum curandum et ille eum pertudit, ut uinum sit effusum, Labeo scribit in factum agendum.
Likewise, if you have leased a vat full of wine to a plasterer to be repaired, and he has punctured it so that the wine was spilled, Labeo writes that action must be brought on the facts.