Lex Aquilia
(Reference John Crook, Law and Life of Rome, Cornell University Press, c1967.)
The law of damage to property was regulated by a statute known as the lex Aquilia. It was considerably expanded through the interpretation of jurists and by the ius honorarium of the praetors. The offence was not a crime, but grounded action in the civil courts for payment of a penalty. If the defendant admitted the damage he had to pay the assessed value, if he contested and lost, he had to pay double. Only a domini was entitled to Aquilian statutory action, but the praetor gave "utiles actiones" to others, such as peregrines or usufructuaries.
The original statute dealt with two things directly caused by a man with his own hands:
Killing of a man's
slave or cattle; and
Destroying any other property
by burning or breaking.
"Breaking" soon came to cover any kind of ruining. "Actiones utiles," or actions granted by the praetors on analogies drawn on the statute came to encompass many indirect ways of causing damage, harm or loss. These included damage by negligence, contributory negligence (when both parties are partly to blame,) damage by doing nothing at all and damage by doing something one was entitled to do.
Actions that had caused injury to or invaded property were addressed primarily by the interdicts called "quod vi aut clam." This recognized such injuries caused by others on the owner's soil, such as building or demolishing; cutting trees; and polluting wells. If the party persisted against the owner's protest, the owner could have grounds for claiming "violence," entitling him to Aquilian action. Otherwise, available Interdicts included:
"Unde vi" - to get
back into possession if expelled from it; and
"Vi hominibus armatis" -
expulsion by force of arms.
Among various remedies to address prospectively conditions likely to cause future property damage were:
"Operis novi nuntiatio"
or requiring a personal bond or promise in security of ones rights of property or
servitude when a building was to be erected or demolished by another;
"Damnum infectum"
or requiring personal bond or promise in security of ones rights of property or servitude
when another appeared to be neglecting his building or other property in a manner likely
to cause future injury to your property interests;
"Aquae pluviae
arcendae" or requiring personal promise or bond bond in security of one's rights
of property or servitude when another's water works are liable to divert flood waters onto
one's land.
"Furtum," or theft, applied only to moveables and was a penal tort action in civil court. Suit was for the value or return of the property plus substantial monetary penalties. (Although under the Principiate it became both a crime as well as a civil wrong.)
"Vindication" was the
action for recovery of the stolen object;
"Condictio furtiva" was
action for recovery of the stolen object's value (available only to an owner); and
"Actio furti" was
the civil action for the penalty.
