As mentioned in the previous chapter, D. 50.17.203 in classical Roman law had nothing to do with a situation in which both wrongdoer and victim were negligent, or with delictual liability.223 The compilers placed this fragment in
D. 50.17, and subsequently Accursius linked it to the law of delicts in his gloss Quod quis ad D.50.17.203 by the allegation of D. 9.2.31.224 In gloss Quod quis
ad D. 50.17.203, Accursius explained that an injured party’s own negligence
217 See also D. 48.19.5pr.: obviously a person who did not obey notices or the edicts of Governors.
218 See Durantis, Speculum II.III.4; Durantis wrote this ordo iudiciorum, the Speculum
iudiciale (1271), which was of great practical importance as these ordines were applied in the
canonical courts. In addition, his Speculum was the most widely used procedural treatise of the Middle Ages. Durantis studied canon law in Bologna under Bernardus Parmensis and later taught at Modena. Pope Clement IV (1265–1268) made him auditor generalis of the Rota, and he became bishop of Mende in 1286.
219 Nicolaus de Tudeschis, Commentaria, ad X 2.14.5; Nicolaus de Tudeschis (Panormitanus) was the last great canonist in the medieval tradition. He studied canon law in Bologna and Padua. He taught canon law at Bologna, Parma and Siena. In 1421, he was named Auditor generalis of the
Camera Apostolica. Panormitanus was elected Archbishop of Palermo in 1434. In 1440, he was
named cardinal by the antipope Felix V.
220 Ph. Decius, De regulis iuris, edn. 1564, fo. 210v; Philippus Decius (1454–1536) belonged to the school of the Commentators; he was a famous Italian jurist and canon lawyer.
221 Ph. Decius, De regulis iuris, edn. 1564, fo. 211r; - Various examples of the rule of D. 50.17.203 are also given by Hippolytus de Marsiliis (1451–1528) in his Singularia, nr. 350.1.
222 The examples of the rule deal with, e.g., bail, solicitors, interests and mandates; see Albericus de Rosate, Commentarii in secundam Digesti Novi partem, ad D. 50.17.203, fo. 291v and 292r; also Ph. Decius explains D. 50.17.203 by giving examples of the application of this rule (of which the last two were taken from Albericus). Furthermore, he refers to the case of the procurator (D. 3.3.46.5, the case just discussed above). See Ph. Decius, De regulis iuris, edn. 1564, p. 210.
223 Also in the parallel regula iuris in canon law the commentary refers to one person acting culpably; see gloss damnum ad VI 5.12.86 (this gloss will be discussed in section 3.3.6).
224 The older commentaries of Bulgarus and Bertrandus Metensis only cite the problem of the socii.
deprived him of the right to claim damages from someone else. D. 50.17.203 could be read in the sense that it only concerned the negligence of the injured party (quod quis sua culpa damnum sentit); however, the Glossator did not understand it to concern only cases in which the negligence of the injured party was the only factor and in which the negligence of the wrongdoer was not in discussion at all.225 Furthermore, the application of D. 50.17.203 was
extended, as it will be interpreted differently in coherence with other texts from the Digest: when one party acted intentionally (dolus), the negligence of the other party (culpa) would be irrelevant.226 Already Johannes Bassianus
(in gloss quia non debuit ad D. 9.2.9.4) considered that D. 9.2.9.4 dealt with mutual negligence (as explained above in section 3.2.2.1), and Accursius took over this approach in his gloss.227
The Gloss did not provide explicit proof whether or not the Glossators believed that culpae compensatio could only be applied to cases of contributory negli- gence in which both parties had been negligent to the same degree. It has been argued that an assumption in this sense can, however, be made. The general rule of culpae compensatio would be that if the contributory negligence of the injured party amounted to the same degree as the negligence of the wrongdoer, compensation could take place. A small degree of contributory negligence would not lead to compensatio and thus neither to the deprivation of the pos- sibility to claim compensation for damages/fine. According to this view, an exception to this general rule was made in cases of preponderant contributory negligence, which would certainly lead to the denial of an eventual claim.228
The Gloss, however, did not mention this. Plausibly, this refinement was made by the successors to the Glossators (instigated by the canonists).
Unfortunately, as to the contributory negligence of the injured party, no exten- sive commentaries are given by the Commentators discussed in the preceding
225 See gloss non repetet ad D. 10.2.44.5, gloss Quia non debuit ad D. 9.2.9.4 and Quod si quis ad D. 50.17.203. In the same sense, Lange 1955, p. 72.
226 In the event that two persons acted wrongfully with regard to one case, but one acted with culpa and the other with dolus, no compensation could take place. Furthermore, dolus was considered to be more serious than culpa. See (Accursian) glosses omnimodo ad D. 19.1.45.1,
tenebitur ad D. 9.2.9.4, ipso iure ad D. 16.2.10pr. and culpa tua ad D. 17.1.26.7; see Lange 1955, p. 72.
227 See also Jansen 2007, p. 659f.; - The rule of D. 50.17.203 as well as the examples of the rule of D. 50.17.203 discussed above were mainly examples of the injured party’s own negligence (‘Eigenes Verschulden’, only the injured party had been negligent), and not of contributory negligence (‘Mitverschulden’, both parties have been negligent). However, these glosses show that D. 50.17.203 did not apply only to situations in which negligence was due exclusively to the behaviour of the injured party, but that it made it possible to extend the rule to the second area, that of contributory negligence.
subsections; only Paulus de Castro mentioned it briefly. In the cases of the javelin thrower and the barber, the culpa of the wrongdoer was compensated by the culpa of the injured party. However, if the wrongdoer acted intentionally, no compensation took place because dolus was considered to be more serious than culpa. Additionally, there are some new concepts, which I will discuss now, that arose in this period.
On the concept of culpa admixta
The origin of the concept of culpa admixta can be found in the contractual sphere. Defining culpa admixta is difficult. The words culpa admixta (literally ‘mixed fault’) give a legal qualification to the act of the injured party in situations in which a hurtful action by a wrongdoer is mixed with a fault of the injured party. The Consilia of Marianus the Elder (1401–1467)229 and
Bartholomaeus Socinus (1436–1507)230 are relevant. According to consilium
156, in the case of an agreement to buy the future production of salt (qualified as locatio conductio) in return for annual payments,231 because of the
negligence (culpa) of the Pope and the Camera Apostolica, a payment had to be made to the conductor for the amount of interest due. Therefore, the absence of (contributory) negligence on the side of the locator (or venditor) was considered a prerequisite for the admissibility of a claim for compensation. However, if there was admixta culpa on the side of the locator (or venditor), e.g. if he prevented the salt production from being received by the conductor, he would be liable for the total interest sum.232
After the application of the term culpa admixta in a contractual sphere, this application was expanded to the extra-contractual sphere by Cravetta who used it in the situation in which the wrongdoer killed the initiator of a fight, and where there was culpa admixta on the side of the person killed. Cravetta mentioned in a consilium a case in which someone started a quarrel and was killed during the fight, and who was considered to have acted with culpa be- cause he had started the fight. Negligence (culpa) was attributed to the person who started or provoked a fight. The wrongdoer who killed whomever started the fight was not liable, because there was culpa admixta on the side of the injured party.233 In other words, the wrongdoer was not held liable when the
229 Marianus Socinus (the Elder) was a professor of canon law at Padua and Siena. 230 Bartholomaeus Socinus, the son of Marianus, studied law under his father and under Thomas Doctius, in Bologna under Tartagnus and Barbitia, in Pisa under Franciscus Aretinus. He became a professor at Siena, Pisa, Bologna and Padua.
231 See Socinus, Consilia, edn. 1579, cons. 156. nr. 1, fo. 7v.
232 Socinus, Consilia, edn. 1579, cons. 156. nr. 21, fo. 9r; Luig 1969, p. 200.
233 A. Cravetta, Consilia sive responsa, cons. 119, nr. 11 (edn. 1611, p. 215), with reference to Socinus’ cons. 156.
injured party brought danger or risk on himself, because in that case the damage would also result from the contributory negligence of the injured party.234
Another case mentioned by Cravetta is the following. Someone said in a arrogant way that someone else should beware of buying some things. That person responded that he had bought them before. This led to a fight, started by the injured party himself, who died during the fight. In this case, the injured party would have been considered to have died because of his own negligence.235
The concept of culpa admixta was adopted by Hippolytus Bonacossa (1514–1591), who stressed the fact that no liability for any damage exists in the event of culpa admixta of the injured party.236 Thenceforward, this concept is
noticeably cited in relation to the rule of D. 50.17.203, the counterpart of the same text in canon law (VI 5.12.86) and the idea of culpae compensatio until the eighteenth century.237 The use of this term in the legal sources shows that
by applying the fragment from De Regulis Iuris, jurists noticed that it regarded a problem of mutual blame.238
Later, another concept developed out of the same perception, i.e. the concept of a culpa communis. Franciscus Niger Cyriacus (†1637)239 argued that
when two persons both acted culpably in the same way and their negligence was related to the same event, as each deceived the other, their respective faults (culpa mutua) were compensated (ipso iure) and no claim for compensation for damages could be granted to either of them.240 The respective faults were
not really cancelled, however, by way of compensation in the true sense of
234 A. Cravetta, Consilia sive responsa, cons. 119, nr. 11 (Et quod dicitur de eo qui suscipit
in se periculum, quod non tenetur quando culpa partis illud euenit); also interesting are two of
his references here: Bartolus, Commentaria, ad C. 4.33.4 and Baldus, Commentaria, ad C. 4.33.4. Further references can be found in Cravetta’s work (edn. 1611, p. 215).
235 A. Cravetta, Consilia sive responsa, nr. 11 (edn. 1611, p. 215).
236 H. Bonacossa, Quaestiones criminales. De damno dato, uers. ‘damnificans’: Damnificans,
non tenetur pro aliquo damno ex statuto. Quando damnum habet admixtam culpam damnificati
...; see also Massetto 1958, p. 1109.
237 Luig 1969, p. 200; see also Jansen 2007, p. 660; the question of culpa admixta is addressed again in the early modern period; see M. Venturini, Decisiones Rotae Florentinae, decis. 45 nr. 19f. and Stucke & Stucke, Consilia sive responsa, esp. cons. IV nr. 827 (both are discussed in the next chapter).
238 Luig 1969, p. 200f. See also chapter four, especially the section on the usus modernus. 239 Franciscus Niger Cyriacus was a lawyer in Mantua.
240 Luig 1969, p. 201; see also Bartolomaeus à Salyceto, Commentaria in Digestum Vetus, ad D. 16.2.10pr., F. Cyriacus, Controversiae forenses, controv. 197, edn. 1644, n. 21ff. and also esp. nr. 23: Si vero sit culpa, vel dolus communis, sed in negotio, vel re ad tertium spectante, et contra terium;
tunc quia laborans uno vitio non potest illud, alteri obiicere, hinc inde pariter cessat culpae, vel doli allegatio ...
the word (compensatio), but by means of melting together (confusio); though figuratively speaking this cancellation was also called compensation.241
In conclusion, one can state that the term culpa admixta was used to qualify the behaviour of the injured party in a way that led to the exclusion of liability of the wrongdoer. In this way contributory negligence led to a denial of claim without a discussion of the degree of the negligence of each party. The use of the term culpa admixta (or culpa communis) shows that the damage which occurred was considered the common responsibility of both parties.
3.3Canon law
3.3.1Introduction
In addition to secular legal scholarship, the law of the Church, i.e. canon law, was important for the development of the legal concept of contributory negligence. As shown above, in medieval Roman legal scholarship the contributory negligence of the injured party seemed to be regarded as reproachable misconduct that could be sanctioned by a refusal of the claim for damages (more precisely: poena). If both the wrongdoer and the injured party acted negligently, sometimes compensation for their negligence was granted. The idea emerged that the negligence (culpa) of the wrongdoer could be compensated by the negligence (culpa) of the injured party. However, the approach to this problem of ‘contributory negligence’ by the canonists differed from the approach by medieval Roman legal scholarship as depicted above. In this section, this different approach of medieval canon law will be discussed, focusing on the development of the legal concept of contributory negligence in canon law. Firstly, it will be ascertained whether or not a general idea on culpae compensatio existed and, if so, whether such a theory was actually applied in the law of delicts. For a better understanding, some general remarks will be made about negligence and causation in canon law, then examples of accidental homicide will be discussed. Finally, some conclusions as to the contribution of canon law to the concept of contributory negligence will be presented.
In the twelfth century, Gratianus compiled his Concordia discordantium canonum, a compilation of normative texts of canon law, with the purpose
241 F. Cyriacus, Controversiae forenses, controv. 197, edn. 1644, nr. 30ff. Baldus in his commentary on D. 24.3.39 speaks of confessio (I consulted the edition of 1577), while Cyriacus seems to refer to Baldus’ words including confusio. This version seems to make more sense indeed.
of harmonising contradictions between the canones by using the sic et non method of Abaelardus. After this compilation came into being, new papal constitutions (decretales) were promulgated which were later recorded in new legal collections such as the Liber Extra (1234) and the Liber Sextus (1298). Many popes meddled in all areas of law, with the argument and the excuse of avoidance of sins (ratione peccati).242 With regard to medieval canon law,
the sedes materiae on the subject of contributory negligence can be found in three decretals incorporated in the Liber Extra (1234), i.e. X 5.12.8 and X 5.12.9, X 5.16.6, and in one fragment incorporated as regula 86 in the title De regulis iuris of the Liber Sextus (1298), i.e. VI 5.12.86 (the counterpart of D. 50.17.203).