[ULPIANUS libro uicensimo tertio ad edictum. ] §9.3.5.prSi uero plures diuiso inter se cenaculo habitent, actio in eum solum datur, qui inhabitabat eam partem, unde effusum est.
[ULPIANUS in the twenty-third book on the Edict.] If, however, several persons live in an upper room which is divided among them, the action is given only against the one who was living in that part from which the liquid was poured.
§9.3.5.1Si quis gratuitas habitationes dederit libertis et clientibus uel suis uel uxoris, ipsum eorum nomine teneri Trebatius ait: quod uerum est.
If anyone has given free lodging to his own or his wife's freedmen and clients, Trebatius says that he himself is held liable in their name; and this is correct.
idem erit dicendum et si quis amicis suis modica hospitiola distribuerit.
The same must be said if anyone has distributed modest lodgings among his friends.
nam et si quis cenaculariam exercens ipse maximam partem cenaculi habeat, solus tenebitur: sed si quis cenaculariam exercens modicum sibi hospitium retinuerit, residuum locauerit pluribus, omnes tenebuntur quasi in hoc cenaculo habitantes, unde deiectum effusumue est.
For even if anyone who leases out rooms himself occupies the greatest part of the upper room, he alone will be held liable; but if a lessor of rooms has retained a modest lodging for himself and let the remainder to several persons, all will be held liable as if living in this upper room from which something was thrown or poured.
§9.3.5.2Interdum tamen, quod sine captione actoris fiat, oportebit praetorem aequitate motum in eum potius dare actionem, ex cuius cubiculo uel exedra deiectum est, licet plures in eodem cenaculo habitent: quod si ex mediano cenaculi quid deiectum sit, uerius est omnes teneri.
Sometimes, however, so that it may be done without disadvantage to the plaintiff, the praetor, moved by equity, ought rather to give the action against the one from whose bedroom or sitting-room something was thrown, even though several persons live in the same upper room; but if something was thrown from the common area of the upper room, it is more correct that all are held liable.
§9.3.5.3Si horrearius aliquid deiecerit uel effuderit aut conductor apothecae uel qui in hoc dumtaxat conductum locum habebat, ut ibi opus faciat uel doceat, in factum actioni locus est, etiam si quis operantium deiecerit uel effuderit uel si quis discentium.
If a warehouse-keeper has thrown or poured anything, or the tenant of a storehouse, or anyone who had a leased place for the sole purpose of working or teaching there, there is room for an actio in factum, even if one of the workmen or one of the pupils has thrown or poured it.
§9.3.5.4Cum autem legis Aquiliae actione propter hoc quis condemnatus est, merito ei, qui ob hoc, quod hospes uel quis alius de cenaculo deiecit, in factum dandam esse Labeo dicit aduersus deiectorem, quod uerum est.
But when someone has been condemned under the Lex Aquilia on account of this, Labeo says that an actio in factum against the thrower is justly to be given to the person who was sued because a guest or someone else threw something from the upper room; and this is correct.
plane si locauerat deiectori, etiam ex locato habebit actionem.
Clearly, if he had leased to the thrower, he will also have an action on the lease.
§9.3.5.5Haec autem actio, quae competit de effusis et deiectis, perpetua est et heredi competit, in heredem uero non datur.
Moreover, this action, which is available concerning things poured and thrown, is perpetual and is available to an heir, but is not given against an heir.
quae autem de eo competit, quod liber perisse dicetur, intra annum dumtaxat competit, neque in heredem datur neque heredi similibusque personis: nam est poenalis et popularis: dummodo sciamus ex pluribus desiderantibus hanc actionem ei potissimum dari debere cuius interest uel qui adfinitate cognationeue defunctum contingat.
However, the action which is available concerning a free person who is said to have perished is available only within a year, and is neither given against an heir nor to an heir and similar persons; for it is penal and popular; provided we understand that if several persons demand this action, it should preferably be given to the one who has an interest or who is connected to the deceased by affinity or consanguinity.
sed si libero nocitum sit, ipsi perpetua erit actio: sed si alius uelit experiri, annua erit haec actio, nec enim heredibus iure hereditario competit, quippe quod in corpore libero damni datur, iure hereditario transire ad successores non debet, quasi non sit damnum pecuniarium, nam ex bono et aequo oritur.
But if a free person is injured, the action will be perpetual for him; but if someone else wishes to sue, this action will be for one year, for it is not available to heirs by hereditary right, since what damage is done to a free body ought not to pass to successors by hereditary right, as if it were not pecuniary damage, for it arises from what is good and equitable.
§9.3.5.6Praetor ait: 'Ne quis in suggrunda protectoue supra eum locum, qua uolgo iter fiet inue quo consistetur, id positum habeat, cuius casus nocere cui possit.
The praetor says: "Let no one have anything so placed on the eaves or projection over a place where there is commonly passage or where people stand, the fall of which could injure anyone.
qui aduersus ea fecerit, in eum solidorum decem in factum iudicium dabo.
Against him who does contrary to this, I will give an actio in factum for ten solidi.
si seruus insciente domino fecisse dicetur, aut noxae dedi iubebo. ' §9.3.5.7Hoc edictum superioris portio est: consequens etenim fuit praetorem etiam in hunc casum prospicere, ut, si quid in his partibus aedium periculose positum esset, non noceret.
If a slave is said to have done this without his master's knowledge, I will order him to be surrendered as noxa." This edict is a portion of the preceding one; for it was consequential for the praetor to provide also for this case, so that if anything were dangerously placed on these parts of a building, it would not do harm.
§9.3.5.8Ait praetor: 'ne quis in suggrunda protectoue. ' haec uerba 'ne quis' ad omnes pertinent uel inquilinos uel dominos aedium, siue inhabitent siue non, habent tamen aliquid expositum his locis.
The praetor says: "Let no one on the eaves or projection." These words "let no one" pertain to all, whether tenants or owners of buildings, whether they live there or not, provided they have something exposed in these places.
§9.3.5.9'Supra eum locum, qua uolgo iter fieret inue quo consistetur, id positum habeat. ' accipere debemus positum siue in habitationis uel cenaculi, siue etiam in horrei uel cuius alterius aedificii.
"Have placed over a place where there is commonly passage or where people stand." We must understand "placed" whether in a dwelling or upper room, or even in a warehouse or any other building.
§9.3.5.10Positum habere etiam is recte uidetur, qui ipse quidem non posuit, uerum ab alio positum patitur: quare si seruus posuerit, dominus autem positum patiatur, non noxali iudicio dominus, sed suo nomine tenebitur.
He is also rightly deemed to "have placed" who indeed did not place it himself, but allows it to remain placed by another; therefore, if a slave has placed it, but the master allows it to remain placed, the master will be held liable not by a noxal action, but in his own name.
§9.3.5.11Praetor ait 'cuius casus nocere posset'. ex his uerbis manifestatur non omne quidquid positum est, sed quidquid sic positum est, ut nocere possit, hoc solum prospicere praetorem, ne possit nocere: nec spectamus ut noceat, sed omnino si nocere possit, edicto locus sit.
The praetor says: "the fall of which could injure." From these words it is manifest that the praetor provides not against everything that is placed, but only against what is so placed that it could injure, so that it may not be able to injure; and we do not look to see whether it injures, but if it could injure at all, there is room for the edict.
coercetur autem, qui positum habuit, siue nocuit id quod positum erat siue non nocuit.
Moreover, he who had it placed is punished, whether that which was placed did harm or did not do harm.
§9.3.5.12Si id quod positum erat deciderit et nocuerit, in eum competit actio qui posuit, non in eum qui habitauerit, quasi haec actio non sufficiat, quia positum habuisse non utique uidetur qui posuit, nisi uel dominus fuit aedium uel inhabitator.
If that which was placed has fallen and done harm, the action is available against the one who placed it, not against the one who lived there, as if this action were not sufficient, because he who placed it does not in any case seem to "have placed" it unless he was either the owner of the building or an inhabitant.
nam et cum pictor in pergula clipeum uel tabulam expositam habuisset eaque excidisset et transeunti damni quid dedisset, servius respondit ad exemplum huius actionis dari oportere actionem: hanc enim non competere palam esse, quia neque in suggrunda neque in protecto tabula fuerat posita.
For indeed when a painter had a shield or a panel exposed on a balcony and it fell and caused some damage to a passerby, Servius answered that an action ought to be given on the model of this action; for it is clear that this action itself is not available, because the panel had been placed neither on the eaves nor on a projection.
idem seruandum respondit et si amphora ex reticulo suspensa decidisset et damni dedisset, quia et legitima et honoraria actio deficit.
He answered that the same must be observed if an amphora suspended from a net had fallen and done harm, because both the statutory and the praetorian actions fail.
§9.3.5.13Ista autem actio popularis est et heredi similibusque competit, in heredes autem non competit, quia poenalis est.
Furthermore, this action is popular and is available to an heir and similar persons, but is not available against heirs, because it is penal.