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p383 Damnum

Three articles by George Long, M.A., Fellow of Trinity College
on pp383‑384 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

DAMNUM. Damnum signifies generally any loss or damage which a person has sustained in his property (damnum datum, factum), or damage which he has reason to fear (damnum infectum) (Dig. 39 tit. 2 s2). Damnum actually done is generally called damnum simply. The liability to make good a loss is praestare damnum.

The causes of damage are either chance, accident (casus), or the free acts or omissions of reasonable human beings (Dig. 9 tit. 2 s5 § 2). If the damnum is caused by the just exercise of a right, it is indirect. In any other case it is direct or injuria datum; and when it is injuria datum, there may be neither dolus nor culpa, or there may be either one or the other.

The obligation to make compensation for damage arises either from dolus malus, culpa, and mora, which in fact is included in culpa, and out of contracts. A man is not bound to make compensation for indirect loss or damage (Dig. 39 tit. 2 s26; 47 tit. 9 s3 § 7); nor for direct damage, if neither dolus nor culpa can be imputed to him, as if he be mad (Dig. 9 tit. 2 s5 § 2, 30 §3; Thibaut, System, &c., 9th ed. § 163). As to damage done by an animal, see Pauperies.

DAMNUM INFECTUM, is damage (damnum) not done, but apprehended (Dig. 39 tit. 2 s2). The praetor's edict provided for such cases. If the building of one man threatened damage to another in consequence of its dilapidated state, the owner of the dilapidated property might be required to repair it or to give security against any damage that might be caused by the state of his building. The security (cautio) was demanded by an actio in factum, in all cases where the security could be required. Every person who was in possession of the property that was threatened, whether as owner or in any other right (but not as a bonae fidei possessor) could claim this cautio (Dig. 39 tit. 2 s5 § 2; 13 §5, 18; 13 §4, 9). The owner of the ruinous property or any person who had a right therein, and a bonae fidei possessor, might be required to give this cautio, which might be given by a simple promise or by giving sureties. The complainant had to swear that he did not require the cautio calumniae causa (Dig. 39 tit. 2 s7; IDQUE · NON · K · K · SE · FACERE · IVRAVERIT, Tab. Vel. c. xx).

If the defendant wrongfully refused to give the security, the complainant was empowered to enter upon the property which threatened the damage, and apparently for the purpose of protecting himself against it; if this produced no result, the defendant was ejected, and the complainant was allowed to take possession of the property, and the defendant lost all his rights to it.

If a ruinous house (aedes ruinosae) fell and damaged a neighbour before any cautio had been given, all the right that the damaged person had was to retain the materials that had fallen on his land (Dig. 39 2 ss.6, 7 §§2, 8); but it seems that the owner of the ruinous house could, if he liked, pack up the materials and carry them off (Cic. Top. 4, In Verr. I.56; Inst. 4 5; Thibaut, System, &c. § 274, &c. 9th ed.).

DAMNUM INJURIA DATUM, The most usual form of proceeding in cases of Damnum injuria datum was by the Lex Aquilia (Dig. 9 tit. 2), which repealed all previous legislation on the subject. This Lex Aquilia was a Plebiscitum, which was proposed by Aquilius, a tribunus plebis. If the owner of a damaged thing sued, there might be two cases. The damage might be done by corporeal contact of the wrongdoer (corpore), or by something which he directed, and done to another thing (corpus), so as to impair its value or destroy it; and in this case there was the directa actio Legis Aquiliae. The first chapter provided that if a man killed (injuria, that is, dolo aut culpa, Gaius, III.211) a slave or quadruped (quae pecudum numero sit) which belonged to another, he was bound to pay the highest value that the slave or animal had within the year preceding the unlawful act. If the wrongdoer wilfully denied the fact of damage, he was liable to make compensation to double the value. The third chapter provided for the case of a slave or quadruped (quae pecudum, &c.) being damaged, or any thing else being damaged or destroyed. In this case he had to pay the highest value that the thing had within the thirty days preceding the unlawful act. If the damage was done to a thing (corpus), but not by a corpus, there was an actio utilis Legis Aquiliae, which is also an actio in factum or on the case. Such a case would occur when, for instance, a man should purposely drive his neighbour's beast into a river and it should perish there (Dig. 9 tit. 2 s7 § 3, 9).

If the thing was not damaged, but the owner was damaged, there might be an actio in factum; as, for instance, if a man out of compassion loosed p384another man's slave who was bound and so gave him the opportunity of escaping. A man who was not owner, might have an actio utilis legis Aquiliae or in factum, if he had an interest in the thing, as a fructuarius, usuarius, a bonae fidei possessor, or a person who had received a thing as a pledge.

If a man's slave was killed, the owner might sue for damages under the Lex Aquilia, and prosecute for a capital offence.

(Cic. pro Roscio Comoedo, c11; Gaius, III.210, &c.; Inst. 4 3; Thibaut, System, &c., 9th ed. § 551, &c.; Rein, Das Römische Privatrecht).

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