endarii) in which the centesimae usurae, i.e., I per cent. centesimae usurae was equal to 12 per cent. In Christian imperial times the last-mentioned percentages were equal to 12, 6, 8, since from the solidus, which contained 24 siliquae, for the sake of convenience 3 siliquae were taken as centesimae usurae. The legitimate maximum interest (usurae legitimae, maximae) was according to the Twelve Tables the unciarium foenus; later on it was centesimae usurae, and remained so even after many fluctuations down to the time of Justinian, who reduced it (subject to many exceptions) to semisses usurae. The taking of interest was moreover checked by the prohibition of compound interest (anatocismus), and by the provision that arrears of interest should never increase and run on ultra duplum' (i.e., beyond the amount of the capital lent)." Interest was often reserved in the form of a penal stipulation. -'si die supra scripta summa P. Maevio Mod. Poenam pro usuris stipulari nemo supra ... 1 If upon the above-written day the amount shall not have been paid by P. M. . . . then P. M. has stipulated, and I, Luc. Tit., have undertaken, that so much more shall be given as I shall pay later on, as punishment for thirty days, and for every hundred denarii one denarius. 2 No one can, in lieu of interest, stipulate for a penal sum above the amount of interest permitted. BOOK III. Pt. I. Ch. II. a. 22, 1, 29. BOOK III. Pt. I. Ch. II. a § 136, actio de recepto. § 197. $107. COMPENSATION FOR INJURY, AND DAMAGES. DAMNUM is every detriment to property suffered by any one through some event. If this proceed from mere accident (casus), the person affected has, as a rule, no claim to compensation for the damage (casus a nullo praestantur; casum sentit dominus); still less if he himself is author of it. The legal ground of responsibility to make compensation for damage (damni praestatio) is either Contract or Tort. That is to say, a claim to compensation for damage exists (1) if a third party is under obligation to make reparation for harm done to property (praestatio periculi) by accident (or the act of another) as a result of special agreement (e.g., in commodatum, or independent agreement by way of security) or positive rule of law." (2) If the harmful event can be referred to the illegal will of a third party. In the first case, the compensation for damage can come into consideration as the original and sole object of the obligation; in the latter, it always does when the harmful act of the third party is one in itself illegal or disallowed (delictum). But it can also consist in violation of the special duty imposed upon him by an existing obligation (dolus, culpa, mora of the debtor, refusal to perform the obligation); and accordingly, the compensation for damage forms the consequential and immediate object of the obligation, because it either replaces the original object of performance, or is added to it, extending the principal performance of the debtor as a collateral object. Since in Roman Law there is only a pecuniaria condemnatio, and directly to compel performance of an obligation is not permitted, every obligation (not relating to a definite sum of money), whatever may be its original object, is, as a result of vicarious non-fulfilment and of judicial condemnation, converted into a claim to compensation for damage to property caused by the debtor, ie., to the extent of the pecuniary value of the performance originally owing (litis aestimatio). Pomp.: Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire.-D. 50, 17, 203.1 Paul. Nemo damnum facit, nisi qui id fecit, quod facere ius non habet.-1. 151 eod.2 The damage that a person suffers may (1) either diminish the already existing property in some constituent part,-Positive damage (damnum emergens), or preclude augmentation of the property, -Negative damage, intercepted augmentation (lucrum cessans). Paul. amisisse dicimur quod aut consequi potuimus aut erogare cogimur.-1. 33 pr., D. ad 1. Aq. 9, 2.3 Id. Et sive quid amiserit vel lucratus nou sit, restitutio facienda est, etiamsi non ex bonis quid amissum sit.-D. 4, 6, 27. (2) In both cases the damage may either be the direct result of the harmful event, or that which comes about through special individual circumstances (damnum directum-indirectum). Id. Proinde si servum occidisti, quem sub poena tradendum promisi, utilitas venit in hoc iudicium.-Item causae corpori cohaerentes aestimantur, si quis ex comoedis, aut symphoniacis, aut gemellis, aut quadriga, aut ex pari mularum unum vel unam occiderit: non solum enim per 1 When any man suffers damage in consequence of his own fault, he is not considered to suffer damage. 2 No one does damage save a person who did that which he has no right to do. 3 We are said to have lost what we either could have obtained or are obliged to expend. And whether it be that a man has lost something or has not gained an advantage, restitution must be made, even if nothing has been lost from the property itself. L L BOOK III. Pt. I. Ch. II. empti corporis aestimatio facienda est, sed et eius ratio haberi debet, quo cetera corpora depretiata sunt.-1. 22, D. ad 1. Aq.' : Ulp. Inde Neratius scribit, si servus heres institutus occisus sit, etiam hereditatis aestimationem venire.-1. 23 pr. eod. GROUNDS OF COMPENSATION FOR DAMAGE. § 108. DOLUS AND CULPA. The obligation to atone for damage by reason of the tort supposes blame for the latter as attaching to the wrongdoer (culpa in the wider sense): the harmful result of the act or forbearance must admit of being D. 9, 2, 5, 1; altogether imputed to the author." This culpability may consist either— Gai. iii. 211. (1) in a positive intention directly contemplating the tort (dolus, deceit), or, (2) in negative conduct, as regards the tort, which in violation of such person's duty leaves out of sight the possibility, foreseen or which could be foreseen, or probability of the illegal result of his act or forbearance (culpa in the narrower sense). Under the notion of Culpa falls both the lack of dutiful care and attention on the part of a person who has altogether failed to consider the illegal result of his act or forbearance, although this could have been foreseen (unconscious negligence, remiss 1 If, accordingly, you have killed a slave whom I, under a penalty, have promised to deliver, his usefulness comes into account in respect of this action.-Likewise bodily properties arc at the same time appraised, e.g., if any one has killed an actor, or a singing-boy, or a twin, or a horse from a team of four, or one of a pair of mules. For not merely must we put a value upon the body slain, but account must be taken of how much the rest have lost in value. 2 Ner. therefore writes that if a slave has been killed who was instituted an heir, the value of the inheritance also comes into account. a BOOK III. Pt. 1. Ch. II. ness, thoughtlessness) and wantonness and levity (luxuria, lascivia) of him who incurs the blame of the act, in spite of his having foreseen the possible" See Campbell, illegal result of it (conscious culpa). 'Law of Negligence' (2nd ed.), pp. 2-3. Paul. Si putator ex arbore ramum cum deii- › See generally ceret, hominem praetereuntem occidit, ita tenetur, Austin, i. 441-3 For torts induced by Dolus a person is always responsible. Culpa, as ground of the obligation to make amends. for damage, comes into account only (1) in respect of indirect damage to property by the wrongdoer, which engenders an independent obligatio ex delicto (damnum iniuria datum ex 1. Aquilia) —the so-called 'Aquilian culpa.' It here © § 133consists in illegal positive action (culpa in faciendo), с 1 If a wood-cutter by throwing down a branch from a tree kills a passer-by, he is only liable if the branch fall upon the public road and he has not called out, that its fall might be avoided. But Muc. says, besides, that proceedings could be taken for the negligence even if the same thing had happened on private ground, for that negligence consists in the non-exercise of precaution when such could have been taken by a careful person, or if notice was given when the danger could not be avoided. . . . But if there shall be no road there, compensation ought to be given for bad intention alone, so that the man do not cast the branch on one he sees passing by; for negligence does not attach to him, since he could not foresee whether any one was about to pass through such place. |