[ULPIANUS libro uicensimo tertio ad edictum. ] §9.3.1.prPraetor ait de his, qui deiecerint vel effuderint: 'unde in eum locum, quo volgo iter fiet vel in quo consistetur, deiectum uel effusum quid erit, quantum ex ea re damnum datum factumue erit, in eum, qui ibi habitauerit, in duplum iudicium dabo.
[ULPIAN in the twenty-third book on the Edict.] The praetor says concerning those who have thrown down or poured out: "From whatever place anything is thrown down or poured out into a spot where people commonly pass or stand, for whatever damage is caused or done by that act, I will grant an action for double that amount against the person who lived there.
si eo ictu homo liber perisse dicetur, quinquaginta aureorum iudicium dabo.
If it is alleged that a free person has died from that blow, I will grant an action for fifty aurei.
si uiuet nocitumque ei esse dicetur, quantum ob eam rem aequum iudici uidebitur eum cum quo agetur condemnari, tanti iudicium dabo.
If he survives and it is alleged that injury was done to him, I will grant an action for as much as it seems equitable to the judge that the defendant should be condemned to pay for that matter.
si servus insciente domino fecisse dicetur, in iudicio adiciam: aut noxam dedere. ' §9.3.1.1Summa cum utilitate id praetorem edixisse nemo est qui neget: publice enim utile est sine metu et periculo per itinera commeari.
If a slave is alleged to have done this without the knowledge of his owner, I will add to the formula of the action: 'or to surrender the slave for the damage.'" There is no one who would deny that the praetor issued this edict with the greatest utility: for it is of public utility to pass through the streets without fear and danger.
§9.3.1.2Parui autem interesse debet, utrum publicus locus sit an uero priuatus, dummodo per eum uolgo iter fiat, quia iter facientibus prospicitur, non publicis uiis studetur: semper enim ea loca, per quae uolgo iter solet fieri, eandem securitatem debent habere.
Moreover, it should matter little whether the place is public or private, provided that people commonly pass through it, because provision is made for those who travel, not attention paid to public roads; for those places through which people commonly pass ought always to have the same security.
ceterum si aliquando uulgus in illa uia non commeabat et tunc deiectum quid uel effusum, cum adhuc secreta loca essent, modo coepit commeari, non debet hoc edicto teneri.
But if at one time the public did not pass along that way and something was thrown down or poured out then, when the places were still secluded, and it has only recently begun to be traveled, liability under this edict ought not to apply.
§9.3.1.3Quod, cum suspenderetur, decidit, magis deiectum uideri, sed et quod suspensum decidit, pro deiecto haberi magis est.
It is the better opinion that what fell while it was being hung up is regarded as thrown down, and also that what fell after being hung up is to be held as thrown down.
proinde et si quid pendens effusum sit, quamuis nemo hoc effuderit, edictum tamen locum habere dicendum est.
Accordingly, even if something hanging should be poured out, although no one poured it out, it must still be said that the edict applies.
§9.3.1.4Haec in factum actio in eum datur, qui inhabitat, cum quid deiceretur uel effunderetur, non in dominum aedium: culpa enim penes eum est.
This action on the facts is granted against the person who inhabits the place when something was thrown down or poured out, not against the owner of the building; for the fault lies with him.
nec adicitur culpae mentio uel infitiationis, ut in duplum detur actio, quamuis damni iniuriae utrumque exiget.
Nor is there added any mention of fault or of denial of liability so that the action may be granted for double, although the action for wrongful damage requires both.
§9.3.1.5Sed cum homo liber periit, damni aestimatio non fit in duplum, quia in homine libero nulla corporis aestimatio fieri potest, sed quinquaginta aureorum condemnatio fit.
But when a free person has died, the evaluation of the damage is not made for double, because no evaluation of the body of a free person can be made, but a condemnation of fifty aurei is made.
§9.3.1.6Haec autem uerba 'si uiuet nocitumque ei esse dicetur' non pertinent ad damna, quae in rem hominis liberi facta sunt, si forte uestimenta eius uel quid aliud scissum corruptumue est, sed ad ea, quae in corpus eius admittuntur.
These words, moreover, "if he survives and it is alleged that injury was done to him," do not apply to damages which are done to the property of a free person, as if perchance his clothes or something else is torn or ruined, but to those which are inflicted on his body.
§9.3.1.7Si filius familias cenaculum conductum habuit et inde deiectum uel effusum quid sit, de peculio in patrem non datur, quia non ex contractu uenit: in ipsum itaque filium haec actio competit.
If a filius familias had a rented upper room and something was thrown down or poured out from there, an action concerning the peculium is not granted against the father, because it does not arise from a contract; therefore, this action lies against the son himself.
§9.3.1.8Cum seruus habitator est, utrum noxalis actio danda sit, quia non est ex negotio gesto? an de peculio, quia non ex delicto servi venit? neque enim recte serui dicitur noxa, cum seruus nihil nocuerit.
When a slave is the occupant, should a noxal action be granted, because it does not arise from business transacted? Or one concerning the peculium, because it does not arise from a delict of the slave? For it is not strictly called the wrong of a slave, when the slave has done no harm.
sed ego puto impunitum seruum esse non oportere, sed extra ordinem officio iudicis corrigendum.
But I think that the slave ought not to go unpunished, but should be corrected extraordinarily by the office of the judge.
§9.3.1.9Habitare autem dicimus vel in suo vel in conducto uel gratuito.
Moreover, we say that a person "inhabits" either in his own place, or in a rented one, or for free.
hospes plane non tenebitur, quia non ibi habitat, sed tantisper hospitatur, sed is tenetur, qui hospitium dederit: multum autem interest inter habitatorem et hospitem, quantum interest inter domicilium habentem et peregrinantem.
Clearly, a guest will not be held liable, because he does not live there but is only temporarily a guest; but the person who provided the lodging is liable. For there is a great difference between an occupant and a guest, just as much as there is between one who has a domicile and one who is traveling.
§9.3.1.10Si plures in eodem cenaculo habitent, unde deiectum est, in quemuis haec actio dabitur,
If several persons inhabit the same upper room from which something was thrown down, this action will be granted against any one of them,