The case concerns some people who were playing with a ball (pila).440 The
pila was a little ball made of cloth rags, filled with hair or feathers, weighing about one kilogram. According to tradition, the ball was struck by hand only.441
Near the place where people were playing, a barber set his chair. People of the lower classes were shaved by these itinerant barbers in the open air,442 while
for wealthier people elegant barbershops were available.443 Romans, freeborn
and slaves were frequently shaven after passing their youth. The barbers were street-seller barbers who travelled with chairs at race-tracks and market places,
440 This was also the situation in the case described in Alfenus D. 9.2.52.4. The fact that the Romans played ball can be seen in Seneca, De beneficiis II.17.3-5; II.32; V.8.4; VII.18; on ball games in ancient Rome, see also McDaniel 1906, p. 121ff., and sources mentioned. He also discussed the different sorts of balls used by the Romans, the game trigon (see below) and the fragment of Varro Serapi as recorded by Nonius Marcellus, De compendiosa doctrina. II. De honestis et nove
veterum dictis, 104.28-30 (see Lindsay 1964, I, p. 149: expulsim, dictum a frequenti pulsu. Varro Serapi: ‘recte purgatum scito, quom videbis Romae in foro ante lanienas pueros pila expulsim ludere’); see also gloss quis pila ad D. 9.2.11pr. in Gothofredus/Van Leeuwen 1663; McDaniel 1906,
p. 125, questions the traditional view that these words signify ‘hitting repeatedly against a wall’; he argues that one can hardly doubt that the fronts of the butcher-shops, according to ancient fashion, were open; and that any play against whatever wallspace there may have been [on the supposition, for instance, that at some time in the day their fronts were boarded up; nt. 3] would have interrupted traffic; on the game which Brenkman called ‘il calcio’, see Brenkman, Apparatus ad D. 9.2, note pila (a) ad D. 9.2.11pr. (edn. Van den Bergh/Stolte 1977, p. 263).
441 Wollschläger 1976, p. 132; see also Jansen 2002b, p. 204. On ball games in Rome, see also Mau 1896, col. 2832ff.; Norman Gardiner 1955, p. 230ff.; Reinmuth 1964, p. 817f.; Harris 1972, p. 75ff.; Marquardt 1980, p. 841ff.; Schneider 1929, col. 1680ff. (sphaeristerium): especially the Comitium and Marsfield were favourite places to play ball; see Seneca, Epistulae 104.33 (in
comitio pila lusit); Horatius, Sermones I.6.126; II.6.49 (Campus).
442 See also Wollschläger 1976, p. 133; - Already the humanist Marquardt Freher (1565– 1614) – on M. Freher, see, e.g., Stintzing 1880, p. 680ff., 736 – made the remark that Rome was a busy city in Antiquity and barbers would put their chairs on streets and public roads; see M. Freher, Verisimilium libri duo, ad D. 9.2.11pr. This is proven by some literary fragments mentioned by Freher; see Martialis, Epigrammata, VII.60(61).7-10 and Horatius, Epistulae, I.7.50ff., from which it clearly emerges that barbers shaved persons outside; this conclusion could also be inferred from Juvenalis, Satires, VI.214f. From Martialis’ Epigrams it appears that the grimy shop of the barber monopolised whole streets (together with the tavern keeper, the cook and the butcher) of Rome as one big shop. The Emperor Domitianus tried to change this situation in his municipal policy; in 92 AD he issued an edict in which he forbade stalls protruding into the street, thereby restoring the peace in the streets of Rome; see Ker 1979, p. 465; Shackleton Bailey 1993, p. 127; Galán Vioque 2002, p. 354.
443 Carcopino 2002, p. 209ff.; also Wacke 1977, p. 13; 1979, p. 277; 1991, p. 363; Zimmermann 1996, p. 1012; Knütel 2001, p, 355; on barbers, hairdressers and beard fashions in Antiquity, see Mau 1899, col. 3f., 30ff.; Marquardt 1980, p. 597ff., 604ff.; Blanck 1996, p. 67ff., p. 82ff.
clearly to shave where people were present and/or passed by, in this way trying to maximise their profits.444
When humanists tried to understand the context of the case of D. 9.2.11pr., G. Noodt remarked that a practice such as what occurred in this case was unknown in his own days and also quite unusual in the area where he lived. He even called D. 9.2.11pr. ‘an elegant example that did not occur very often’. However, he made the same remark that it used to be quite usual and com- mon in Rome.445 Also U. Huber called the case ‘rare’.446 Later, J.L.E. Püttmann
(1730–1796) even wrote that although some will laugh after reading the case of Article 146 CCC (the received version of the barber case),447 they will stop
laughing after realising that the case really occurred in Rome (based on the text of D. 9.2.11pr. and the normal practice as it appears from the fragment of Martialis).448
Obviously, in D. 9.2.11pr. the barber’s customer was someone from the first category (i.e. someone of the lower classes), viz. a slave. At a certain moment, one of the ball-players hit the ball quite hard. The ball hit the hands of the barber, who was engaged in shaving the beard of the slave449 and therefore
holding a small knife in a certain position.450 As a consequence, the throat of
the slave was cut and the slave died.
In the following legal conflict two persons were involved: the master of the slave and the barber. The barber was sued before the praetor and for this reason he consulted a jurist. The consultation obviously concerned the applicability of the actio legis Aquiliae. He probably asked whether he was liable and/or wheth- er he was at fault (culpa). It is useful to remember that from the perspective of the litigating parties and their jurists/lawyers, the central question (quaestio)
444 See U. Huber, Eunomia Romana, ad D. 9.2.11pr., nr. 2 (edn. 1724, p. 408).
445 G. Noodt, Ad legem Aquiliam liber singularis, c. VII. See also J. van der Linden, Annotatio ad Voet D. 9.2, nr. 17.
446 However, according to Huber, this case could be used (by analogy) to solve other cases; see U. Huber, Eunomia Romana, ad D. 9.2.11pr., nr. 1, p. 408: Casus in hoc loco l. xi. propositus,
est historia sine dubio, rara quidem; sed cujus analogia ad alios similes extendi poterat: ideoque decisioni utiliter admovendus.
447 Art. 146 of the criminal code of Charles V will be discussed in chapter four. 448 J.L.E. Püttmann, Adversariorem juris universi, liber I, 16.6, p. 249f.
449 Many authors regard habebat as interpolated and believe that it has to be radebat; see,
e.g., Longo 1958, p. 65; Von Lübtow 1961, p. 106; this conjugation is already used, in Greek, in B.
60.3.11, as mentioned in section 2.5.1, on p. 79.
450 Also the words adiecto cultello are suspected as being interpolated; see Schulz 1954, p. 41; Longo 1958, p. 65; Von Lübtow 1971, p. 106 (a redundant gloss). According to Beseler 1930, p. 31, adiecto does not fit, and adiecto cultello should be between sic and servi. Furthermore, he qualifies adiecto cultello as superfluous. Differently Albanese 1950, p. 144, who does not consider it as an interpolation and who reminds us of the theme of strict interpretation of occidere; Longo 1958, p. 65, also proposes to add alieni after servi (so it becomes sic alieni servi).
of the conflict involves a matter of quality (status qualitatis).451 Three decisions
of jurists were mentioned. The decisions were given in different times, as the jurists lived in different periods (as discussed before).452 Because a slave was
killed, the first chapter of the lex Aquilia had to be applied. To hold someone li- able under the lex Aquilia, the damage had to be the result of a direct act of the wrongdoer. This would be the case, if he had committed the act directly with his body (corpore). Apparently the act, according to Ulpian, could be qualified as killing (occidere), but it is uncertain whether this also holds for the reply of Mela, as probably a part of Mela’s original text is missing.453 Possibly, as some
authors suggest, Mela was discussing the question whether the action should be granted as an actio directa or as an actio in factum?454 In the part of Mela’s
reply that was quoted by Ulpian, it seems as if there was sufficient causal con- nection between the act of either the ball-player or the barber and the damage to justify an actio legis Aquiliae (directa).455
The decision of Mela
The decision of Mela, as summarised by Ulpian, was that in quocumque eorum culpa sit, eum lege Aquilia teneri. Some authors – mainly, although not exclusively, writing in the first half of the twentieth century – consider in quocumque eorum culpa sit as interpolated.456 The argument Mela used,
namely, that whichever of them had culpa was liable under the lex Aquilia, can be considered to be obvious.457 By such a formulation a concrete decision 451 See Quintilianus, Institutio Oratoria, V.10.38-40; - From the perspective of the judge, the question was, of course, whether the accused person should be condemned/punished or not.
452 According to MacCormack 1974, p. 215, the case of D. 9.2.11pr. was a stock and much discussed case in classical law; differently Zwalve 2008, p. 16, who argued that the example could have been derived from the standard cases used as materials in Roman schools for rhetoric, as it would be a typical case to practise in utramque partem dicere. As there is something to be said for all points of view, one can – unhindered by any knowledge – argue whatever one wants.
453 MacCormack 1974, p. 223, states that the text probably has been preserved only in an abbreviated version: there is, according to MacCormack, no recorded final decision by Ulpian and the report of Mela and Proculus appears truncated; - See Kunkel 1929, p. 177f.; Ziliotto 2000, p. 136.
454 See Pollock 1929, p. 615; Kunkel 1929, p. 177f.; Lawson 1968, p. 88f.; also Albanese 1950, p. 144, believes the problem in this case was ‘la corporalità del danno’; already Powell 1951, p. 208, argues that whether the player or the barber had culpa, and thus was liable under the lex Aquilia, or not, it was a direct action. In the case of the barber, if he was liable at all, because the wound was inflicted by the instrument in his hand; in the case of the ball-player, the question could be relevant because it could have been evaluated that there was no direct contact between the ball- player and the slave; see Powell 1951, p. 208 nt. 47.
455 MacCormack 1975, p. 48; Watson 1984, p. 242 nt. 4; Zimmermann 1996, p. 1011, however, notices that the ball-player could hardly have caused the damage directly (corpori), but then he only provides the question whether Mela was contemplating an actio in factum without answering it; - Differently Beseler 1930, p. 32.
456 Albertario 1923, p. 506f. nt. 4; Beseler 1930, p. 31; Albertario 1936, p. 87 nt. 1; Schulz 1954, p. 42; Schipani 1969, p. 331f.; on this topic, see also Piro 2004, p. 91.
is avoided.458 Besides, the fragment seems to have concerned the liability
of the barber and of the slave, but not of the ball-player; strangely enough, because under the lex Aquilia the latter would be the first possible responsible person since the damage could not have occurred without his act. Possibly, Mela pointed this out and the compilers changed the text into in quocumque- teneri: any of the people involved can be held responsible, depending on their negligence (culpa).459
From the facts it became obvious that a number of people independently from each other contributed to the joint result that a slave was killed by their actions.460 Mela stated that whoever acted with culpa was liable under the lex
Aquilia. The word eorum does not refer to the several ball-players,461 but just to
one player, namely, the one who hit the ball, and to the barber.462 The phrase in in this text does not refer to quocumque but to the preceding quis (the ball-player). However, as they correctly state, it is not plausible that Mela first notices/uses the term culpa in order subsequently to exclude the legal importance of it; - ‘Wertlos’, according to Von Lübtow 1971, p. 107. According to Von Lübtow, Mela would have given an actio in factum against the ball-player because there was no direct physical act. In that perspective, one has to see the fact that he suspected the words lege Aquilia as being a post-classical interpolation and wanted to replace them by in factum actione; see Von Lübtow 1971, p. 106f.
458 Rotondi 1922, p. 487.
459 ibid., p. 487f. According to Rotondi, in the actual redaction of the text the responsibility of the barber at the end is excluded in practice (see A. Faber, Rationalia in Pandectas, ad D. 9.2.11pr.). Differently Albanese 1950, p. 144, who argues that in quocumque eorum in the original text (the text without all interpolations) refers to one of the ball-players, and not to the ball- player, barber or slave as could be understood from the actual text; also already Coppa-Zuccari 1909, p. 32, argues that it was the ball-player who (according to Mela) was held by the lex
Aquilia. The reference of eum to the ball-player emerges from the antithesis of the first part of
the decision (eum Aquilia teneri) with the second, namely, the decision of Proculus (Proculus in
tonsore esse culpam). Furthermore, Coppa-Zuccari rightly states that Mela, in his responsum,
does not suppose that the barber shaved at a dangerous place (namely, one used for playing ball). However, this factor cannot be implicitly decisive for the exclusion of the negligence of the player and for the recognition of the negligence of the slave and the barber.
460 Van den Heever 1944, p. 58. 461 See Schipani 1969, p. 331.
462 Albanese 1950, p. 144, argues that the original (genuine) text did not allow the actio
legis Aquiliae against the tonsor. The barber did act corpore because of adiecto cultello, but the
ball-player activated the act. After stating that no actio legis Aquiliae was possible against the
tonsor, the text mentioned the possibility of an actio utilis against the ball-player. Actio utilis,
because the act was performed non corpore; the compilers changed it into the normal action based on the lex Aquilia and thus deleted the related relevant question of the corporality of the act/the question of occidere; differently Schipani 1969, p. 332; Watson 1984, p. 242 nt. 4; - According to Powell 1951, p. 208, the liability of the ball-player was considered by the jurists; but it would not have been considered as an alternative to that of the barber, in spite of the ambiguity in in quocumque eorum culpa sit. If both were negligent, the master of the slave has an action against both; see Lawson 1968, p. 89; Powell 1951, p. 208: ‘The fact that we do not know the decision reached by the jurists about the liability of the ball player, does not mean that his liability can be ruled out on the ground that the culpa of the barber, if proved, would exclude the liability of the ball player. Proof of the culpa of the barber would make the barber liable, but the ball player could still be liable for his own act.’
quocumque – teneri seems to mean that either the ball-player or the barber, but not both, might be liable.463 It seems to indicate that Mela held the essential
question to be one of culpa, but also that he felt unable to determine whether culpa should be imputed to the ball-player or to the barber.464 Whether the
barber or the ball-player had culpa and was thus liable must have been the main problem for the three jurists.465 The remainder of the existing fragment,
however, is only about the liability of the barber and the ‘contributory negli- gence’ of the injured person, while the ball-player is not mentioned anymore. Some authors argue that Mela considered the ball-player to be negligent.466 The
first indication would be the use of the comparativus vehementius,467 instead
of the more neutral vehementer.468 However, the fact that the ball-player threw 463 MacCormack 1975, p. 48; differently Wollschläger 1976, p. 131; Longo 1958, p. 65, has replaced the phrase in quocumque eorum culpa sit, eum lege Aquilia teneri by tonsorem lege
Aquilia non teneri; Longo, just like Rotondi 1922, p. 487f., qualified all the references to the motive
of culpa as interpolated as well as the foundations of decisions based on the motive of culpa. Therefore, he also considers another part of the fragment, esse culpam - de se queri debere, as interpolated; see Longo 1958, p. 64; already Beseler 1930, p. 31, regarded culpa sit and esse culpam as interpolated; see also Von Lübtow 1971, p. 116, who deleted the references to culpa as post- classical glosses (he deleted in quocumque eorum culpa sit and replaces in tonsorem esse culpam
et sane by et tonsorem teneri).
464 MacCormack 1975, p. 48; Wacke 1977, p. 14; on this topic, see also Ziliotto 2000, p. 135f.; - As Ulpian referred to the view of Proculus, who was a younger jurist than Mela, one can deduce that Proculus’ view (that the barber was liable) was not defended by Mela; see Krüger 1912, p. 160 (Proculus berichtigt Mela) and Knütel 2001, p. 356; the latter argues that if that is true, it is not unprobable that Mela already pleaded for the third solution as descibed in D. 9.2.11pr.
465 According to Kunkel 1929, p. 177, the fact that this case concerned more contributing acts to the rising damage connects it with the following texts (D. 9.2.11.1ff.); - According to Piro 2004, p. 92, the case as described by Mela, and as discussed by the three jurists, is complicated by a set of variables: the excessive behaviour of the player, the negligent behaviour of the barber in placing his chair at such a dangerous spot, the superficiality of the client in not having considered the risk; therefore the relevance of the culpable component plays a crucial role in the dynamics of the event.
466 Tassin 1912, p. 50; Jansen 2002a, p. 104; 2002b, p. 204. See also De Robertis 2000, p. 74; differently Knütel 2001, p. 355f., who argued that from the word item it can be inferred that the same basic idea as in the previously discussed case of the javelin thrower applies here: sports activities at a sports field (apart from the intentional infliction of harm) do not lead to the reproach of negligence, even in the case when in the heat of the battle or in trying to measure one’s own strength, a third party is injured.
467 According to Longo 1958, p. 64, 66, vehementius is interpolated and has to be deleted from the fragment. This is understandable when following his theory. As stated in note 463, Longo wanted to change the text of D. 9.2.11pr. so that Mela explicitly stated that in this case the barber was not held liable by the lex Aquilia (‘… tonsorem lege Aquilia non teneri’). Longo is, namely, of the opinion that the original classical fragment could not have permitted an actio
utilis against the ball-player (differently in that perspective Albanese 1950, p. 144, who argues
that the fragment could have permitted an actio utilis against the ball-player); therefore, the word
vehementius has no important role anymore and has to be deleted; - On the word vehementius, see
also Cannata 1966, p. 15; according to Del Castillo Santana 1994, p. 31, vehementius corresponds with tam vehementer, which appears in other texts (see Ulp. D. 19.2.13.4; Gai. Inst. 3.219).
468 Jansen 2002a, p. 104; 2002b, p. 204; - The case once described by Mela is entirely attributed to Ulpian in the Greek text of the Basilica. Furthermore, as stated above, the word
the ball rather hard, possibly somewhat more forcibly than was (normally) customary, does not necessarily constitute culpa. This was something that could be expected in the neighbourhood of fields where people were used to playing ball. In a game, it is normal that the ball flies out of the play area. Spectators of plays have to take into account such circumstances near a (playing) field.469 A second indication can be found in the nature of the ball
game. Possibly it was a game called Trigon,470 played with nine people who
threw or hit balls to each other (more than one ball at the same time). It was a hard and fast game.471 Therefore, players could be blamed if they did not take
enough care when choosing an appropriate place to play. Less likely, because it seems contrary to tradition which stated that the ball (pila) was struck by hand only, it could also have been a hockey-like game that was played using sticks.472 This may follow from the words pila percussa of which the literal
meaning is ‘hit ball’.473
The decision of Proculus
The second jurist, Proculus, only stated that the negligence (culpa) was to be