As in medieval Roman law, also in medieval canon law the wrongdoer was only liable when he was at fault (culpa).243 The construction of a general theory
of culpa was undertaken firstly by canonists and then by philosophers and theologians.244 The notion of culpa in canon law was slightly different from the
notion in medieval Roman law, because in canon law the theological notion of sin (moral concept of fault)245 was also taken into account.246
According to the philosophy of Aristotle, which influenced the intellectual cli- mate in the thirteenth century,247 blame did not merely follow from an action,
but also depended on the mental state of the actor during that action; only if
242 For example, in the Liber Extra of Gregory IX, the Church claimed jurisdiction in the field of criminal law for illicit acts such as adultery and rape (X 4.7; X 5.16), bigamy (X 1.21), calumny (X 5.2), injurious libel (X 5.36), false witness (X 5.20), physical violence (X 5.36), homicide (X 5.12) and theft (X 5.18); see Bellomo 1995, p. 76.
243 X 5.36.9: If loss is caused by your own fault (culpa), it is right that you make amends for it. 244 Von Mehren & Gordley 1977, p. 569.
245 The notion of sin was already present in the Judeo-Christian tradition. This can be seen in the writings of St. Augustine of Hippo (354–430), where culpa already had an ethical dimension (Augustine’s writings can be found online at http://www.augustinus.it (last visited on 1 May 2013)). In post-classical development of Roman law, influences from Greek philosophy and Christianity changed the notion of culpa. At a certain point in time, the subjective element of moral blameworthiness came to the foreground; see Aumann 1964, p. 25; see also Stein, in: Parisi 1992, p. x, who writes that ‘the canon lawyers attempted to link the legal notion of
culpa with the moral notion of fault, thus leading to an individualization of the former and the
accentuation of the subjective elements of wrongdoing. Theologians got in on the definition of fault. Judicial discretion came to be recognized as the means for reconciling the moral and legal notions of liability’.
246 On the notion of sin in canon law and the relation between crimen and peccatum, see Katz 1881, p. 1ff.; Kuttner 1935, p. 3ff. On the concept of fault in medieval Roman and canon law, see also Parisi 1992, p. 104ff.
247 In the 13th century, Thomas Aquinas interpreted Aristotle to accommodate ideas taken from Roman and canon law; see Gordley 1995, p. 131ff.
the act was voluntary would the actor be held responsible.248 Therefore, an act
could not be imputed to a wrongdoer unless he could be blamed for it, at least to a certain extent.249 According to Aristotle and his approach of commutative
(corrective) justice, if a person caused a loss to another person, he ought to restore equality or – more modern – pay compensation.250 In the thirteenth
century, Thomas Aquinas (1225–1274) used Aristotle’s theory of human respon- sibility to explain the conclusions of the canonists. By the time Aquinas wrote about this, the canonists decided that a person who injured another person through negligence or lack of due diligence was not only morally guilty, but also stood under a moral obligation to compensate the victim.251 According
to Thomas Aquinas, an actor is liable if he voluntarily caused harm, meaning harm caused either intentionally or negligently.252 A person owed compensa-
tion because he ‘gained’ at another’s expense in the sense that he fulfilled his will with another’s resources.253 Aquinas’ theory of restitution is based on a
statement by St. Augustine, later part of the Decretum Gratiani (C.14 q.6 c.1) and the Liber Sextus (VI 5.12.4): unless a man restores whatever he took away, his sin254 will not be forgiven.255
At the end of the twelfth and the beginning of the thirteenth century, the canonists developed their own notion of culpa that was not exactly the same as ‘acting without due care’, in the meaning it was endowed with in Roman law.256
According to the canonists, the lex Aquilia was based on the general proposition that an action was available for damages caused through fault (culpa), which in Roman law includes both negligent and wilful misconduct.257
According to the canonists, however, culpa has a more extensive meaning.
248 Aristoteles, Ethica Nicomachea, III.1; Ibbetson 2005, p. 9f. 249 Hallebeek 2006, p. 331.
250 This applies when one person’s loss is balanced by another’s gain, but also, by analogy, in a case of physical assault and homicide, as they can also be considered as a gain to the actor and as a loss to the victim; see Aristoteles, Ethica Nicomachea, V.4
251 Gordley 1995, p. 140; 2006, p. 196. 252 See on this topic also Parisi 1994, p. 331. 253 Gordley 1995, p. 138.
254 The ‘taking away’ was interpreted very broadly by the theologians: not only theft, but also killing, the mutilation of someone’s body, destroying someone’s property and damaging someone’s reputation. In all of these cases, the wrongdoer took something away from the victim, and he violated the eighth of the Ten Commandments, i.e. Thou shalt not steal (Exodus 20:15). See Broers 2012, p. 61.
255 See Thomas Aquinas. Summa theologiae, II-II, q. 62, art. 2 ad 2 (edn. 1897, p. 42f.); Broers 2012, p. 61; extensively on the development of the theory of restitution, see Weinzierl 1936; 1939; Wolter 1985, esp. p. 26ff., 30ff., 36ff.
256 This will be discussed below. 257 Von Mehren & Gordley 1977, p. 569.
Already the early canonists (the decretists) had constructed a doctrine on liability for the unintended consequences of unlawful acts; they based themselves on several texts in the Decretum Gratiani, three of which are the most relevant for our discussion. The first text on which the doctrine rested is St. Augustine’s statement that no one can be blamed for having done what is good and lawful (propter bonum et licitum).258 According to the second text,
D.50 c.50, a provision from the Council of Worms (868), a person who cut down a tree which in falling crushed a passer-by while the tree pruner was carrying out some necessary work only had to do penance if he had acted wilfully or negligently. In a third text, D.50 c.37, a priest threw stones and thereby killed a boy. According to the decision of Pope Urban I,259 the priest
should do penance for this homicide but would not be suspended from his functions, as was usually applied to those who were guilty of homicide.260 The
early canonists considered that a priest was not liable if he threw the stone for a reason (causa) or a good reason (iusta causa) and threw with diligence, in a place where people were not walking.261 Later, canonists explained that
the priest had a reason to throw the stone if he was engaged in a lawful activity rather than in an unlawful one. If the priest threw the stone to chase a wild boar or a pig out of a field of grain, he was not guilty, unless he had been careless. In conclusion, according to the canonists culpa could exist either when acting in contravention of legal provisions or when doing something permissible but without using the required diligence (acting with less care than what might be expected was considered as acting with negligentia).262 Thereby, engaging
in an unlawful activity could bring about the basis for liability.263
Did the canonists use a certain kind of causation theory? With regard to causation, the most relevant text in Roman law in the Digest is D. 9.2.30.3. The text describes a case in which a man sets fire to stubble or thorns in order to
258 See C.23 q.5 c.8; Gordley 2006, p. 190. 259 Urban’s pontificate was from 222 to 230 AD.
260 Gordley 2006, p. 190; Kuttner 1935, p. 202, mentions D.50 c.39 instead of D.50 c.37 as the third text on which the doctrine of the earlier canonists rested; in D. 50 c.39 someone had struck another person who, due to that, fell from his horse and broke his neck.
261 Gordley 2006, p. 190.
262 Kuttner 1935, p. 201, 225f.; Bussi 1937, p. 205; Gordley 2006, p. 190f., 196; see also Dondorp 2001, p. 102; Hallebeek 2006, p. 332; on the distinction between res licita and res illicita, see Kuttner 1935, p. 200ff.; see also gloss bonum ad C. 23 q.5 c.8 and dederunt ad X 2.20.9; - Interesting is Covarruvias who mentioned the general theory of the canonists with reference to Thomas Aquinas, i.e. that culpa can occur either when acting in contravention of legal provisions or when doing something permissible without using the diligence one should use. See Diego Covarruvias a Leyva, Opera Omnia. Pars II. § IV. De homicidio casuali, nr. 1.
263 He who engaged in unlawful activity was liable for all consequences; see Engelmann 1965, p. 211ff.
burn them up and the fire escapes further afield and spreads and burns an- other’s crops or vineyard. If he did so on a windy day, he is guilty of mischief, for he who even provides the opportunity is deemed to have done the harm. The latter phrase is of major importance as it became the startingpoint for causality in the medieval period of ius commune. The medieval Roman scholars seem to have accepted a causal connection which is very long, with many links.
Although the canonists based the assessment of liability on the two ele- ments of damnum and culpa without mentioning the causal relation between the damage and the act that caused the damage as a separate requirement, this way of assessment indirectly forced the canonists to consider the problem of causation.264 In some cases found in the decretals, the causal connection
between the damage-causing act and the damage itself is severed as a result of the additional negligence of others, including the injured party. As a general rule, the canonists argued that the person who provided the occasion for the damage to occur had to be considered to have caused it.265 This argument was
used in the twelfth century to account for the punishment of accidents with a fatal outcome (homicidium casuale).266 Ultimately, the reason why someone
was punished was because of his own illicit act, even when the act caused the death of another person by chance.267
The canonists made a distinction between the terms causa and occasio. The fault (culpa) of the wrongdoer had to be the cause (causa) and not merely the occasio of the damage (damnum). An occasio is not a cause (causa) unless it is direct (directa), proximate (proxima), immediate (propinqua), or immediate and tending/oriented towards this outcome (propinqua et ad hoc tendens) rather than remote (remota).268 In this sense, the element of fault with regard
to an action was approached in terms of causality.269 The above-mentioned
adage (qui occasionem damni dat, damnum dedisse videtur)270 now needs 264 Von Mehren & Gordley 1977, p. 570; Parisi 1992, p. 106f.; - According to Luig 1969, p. 201, a range of cases where the causal connection between the damage-causing act and the damage itself is severed as a result of the additional negligence of others, including the injured party, can be found in the decretals; on this Kuttner 1935, p. 193ff.
265 Qui occasionem damni dat, damnum dedisse videtur (adage derived from D. 9.2.30.3); - See also gloss bonum ad C.23 q.5 c.8 and gloss dederunt ad X 2.20.9. A more elaborate treatment of this adage can be found in Massetto 1958, p. 1129f., also including a discussion of the later development of this adage in the early modern period.
266 On the exceptions to this adage, see Bussi 1937, p. 206f. 267 See Dondorp 2001, p. 102.
268 Von Mehren & Gordley 1977, p. 570. 269 See also Parisi 1992, p. 115.
270 The person who created the opportunity that could lead to damage is also deemed to have caused the damage; see W. Durantis, Speculum iudiciale, lib. IV, partic. IV, De Iniuriis et
damno dato, § 2 sequitur, nrs. 14 and 15. The latter number/fragment concerned the case of B
who threw rubbish in front of A’s door, and subsequently A was fined by the public authorities for contravening some kind of statute dealing with waste removal. A was allowed to recover this
further explanation. With causa, the canonists only aimed at a proximate or immediate cause (causa proxima or propinqua), not to a remote cause (causa remota).271 The contrast between propinqua and remota gradually took the
place of the contrast between causa and occasio. Therefore, causa proxima refers to the act that caused the harm, causa remota to the act that occasioned the loss.272
Also in practice this causal way of dealing with causation was applied, as becomes clear from the Consilia of Marianus the Elder and Bartholomaeus Socinus who refer to the meaning of the term ‘occasio’ in the statutes of Pistoia, where it was stated that if someone brought about an occasio that led to damage, he was obliged to provide compensation.273 According to Socinus, two situations
can be distinguished. The first concerns a causa proxima, in which case the statutes are clear; and the second concerns a causa remota, in which case it was not clear whether the effect could be imputed to the causa or not. He referred to Johannes Andreae (ca. 1270–1348),274 who argued that sometimes a certain fine from B on account of the fact that B’s act occasioned A’s loss; see also König 1954, p. 22ff.; Zimmermann 1996, p. 1023. The most extensive interpretation of the adage can be found with Albertus Gandinus († after 1305). Gandinus discussed a provision of statutory law which stated that murder should be punished by destroying the property of the murderer. Apparently, in a certain case the house of the muderer was demolished, but during that activity the adjacent residence was detroyed by a falling wall. According to Gandinus, if the goods are not confiscated by the authorities, the murderer will be liable. Applying the adage very extensively, Gandinus argued that although the murderer did not himself demolish the house, he is nevertheless considered to have caused the damage: by committing a murder, he created the situation that was eventually to result in the damage to the residence of his neighbour. See A. Gandinus,
Tractatus de maleficiis, De bonis malefactorum, §12 (edn. Kantorowicz 1926, p. 355f.) and the
English paraphrase of Hallebeek 2001, p. 95. On the adage, see also the juristic encyclopaedist Bertachinus (†1497), Repertorium juris, ad occasio damni and his commentary ad damnum.
271 Kuttner 1935, p. 190, 195ff.; Bussi 1937, p. 204; Massetto 1958, p. 1129f., Luig 1969, p. 201; see also Descamps 2005, p. 98f.; Jansen 2007, p. 668f.; on the (philosophical) origin of this theory, see Lange 1955, p. 163, and Feenstra 1956, p. 472f.; - The causa finalis is first subdivided into causa propinqua and causa remota by Petrus de Bellapertica; see Lange 1955, p. 163; Feenstra 1956, p. 472; Kurtz-Eckhardt 1977, p. 31, Bruck & Möller 1980, p. 151; - The distinction between
causa propinqua/proxima and remota is already made by Thomas Aquinas; see Schütz 1895, p.
107; Kurtz-Eckhardt 1977, p. 31.
272 See Kuttner 1935, p. 196f.; Bussi 1937, p. 204; Parisi 1992, p. 107; also Von Mehren & Gordley 1977, p. 569ff.
273 See already Roffredus Beneventanus’ Quaestiones sabbatinae, quaestio 22 (Si aliquis
occasione alterius exigatur inuitus an habeat actionem contra eum cuius occasione fuit exactus).
He mentions a case of someone from Pistoia (informatus) who owed a debt to a Florentine, but was unwilling to pay the debt. Another man from Pistoia, Sempronius, went to Florence with his merchandise; the just-mentioned creditor from Florence grabbed Sempronius, robbed and hit him. Sempronius wanted to sue the informatus, because his act (indirectly) caused his damage. He wanted to bring an action because the civitas of Pistoia determined that he who suffers damage because of the occasio of someone else has to be compensated by the person who gave the occasio for the damage.
274 Johannes Andreae was the most renowned and successful canonist of the later Middle Ages. Johannes studied law in Bologna: Roman law under Martinus Sillimanus and Riccardus Malumbra; canon law under Egidius Fuscarariis and Guido de Baysio. He taught canon law at Bologna and Padua.
effect could result from a certain causa remota.275 However, according to Socinus,
one had to interpret the statutes restrictively in this respect. When such a cause (causa) in its entirety had no relation with the consequence, it was not possible to conclude that the cause produced the consequence nevertheless.276
This ‘theory’ of causation could be used to solve cases in which there was contributory negligence. The contributory negligence of the injured party was seen as contributory causation (co-causation), and therefore in such cases one had to decide whether the wrongdoer or the injured party had produced the causa proxima.277 If the causa proxima could be attributed to the wrongdoer,
the injured party received full compensation; if the causa proxima could be attributed to the injured party, he received no compensation at all.278 Appar-
ently, in the latter case the damage is not imputable to the wrongdoer even if his action was one of the causes.279
According to the secondary literature, a small error made by the injured party would only result in an irrelevant causa remota.280 This thought is trou-
bling, as it seems to consider causation here in the meaning of negligence (causa remota as ‘remote negligence’). Some authors, however, made an ex- ception in the case where the wrongdoer acted with malicious intent (animus malignandi), because in such a case every occasio replaced the causa proxima
275 See additio of the canonist Johannes Andreae ad Speculum Iudiciale van Durantis ‘Cum
quis dicitur’.
276 Socinus, Consilia, edn. 1579, cons. 156. nr. 21, fo. 9r.
277 Luig 1969, p. 201; also interesting is 5 Comp. 5.6.2 (not part of the later Liber Extra): While eating, clerics threw peach pits at each other as a joke, and later also water and dirt. One of them threw a little stone and injured an archdeacon below the eye, but not very severely. However, the injury got worse because of the carelessness of the injured party (horse-riding) and as a result of that he died. Pope Honorius forbade the cleric to receive major orders, but forgivingly allowed him to continue to ‘serve the Lord with psalms and sacred canticles’; see also Kuttner 1935, p. 194f.
278 Wacke 1978/79, p. 11; 1979, p. 276; 1991, p. 362f.; it was just a little later that the maior or
gravior culpa was considered. It is, however, not clear to me in what period of time the author
situated this development.
279 Jansen 2007, p. 669, argued that in this thought it is only consistent to reformulate the rule of VI 5.12.86 (Damnum, quod quis sua culpa sentit, sibi debet, non aliis, imputare), as a rule of imputation. Modified as a rule of negligence, this thought found entry in the later period of
ius commune and specified the theory of culpae compensatio. See Mevius, Decisiones super causis praecipuis, I, decisio 221, nt. 7 (discussed in the next chapter).
280 It seems that causation and negligence were not unlinked in this period, nor in the period of early modern times, and that the terms are sometimes used alternately to identify behaviour which makes for responsibility. See also Luig 1969, p. 201 nt. 71, who holds that the dogmatic development of the doctrine of contributory negligence could have been delayed by this interchangeability insofar as when applying the causation in fact only affirmation or denial (all-or-nothing) was possible, and that the recognition of different levels of negligence could also lead to a partition of damage, as Wolff ultimately does. Also Kaufmann 1958, p. 79, remarks that the treatment of contributory negligence in the early modern period gives a rather mixted picture, and that this should not lastly be attributed to the deficient separation of causation and fault.
and thus led to responsibility.281 In this way, an objectively inadequate causal
connection is supplemented by a culpable disposition/attitude, which did not have to include the intention to kill, a general culpa was sufficient.282