Despite the fact that in canon law the problem of the scope of contributory negligence was discussed explicitly for the first time, the canonists did not seem to have pursued this approach. In later developments, questions of contribu-
414 Azo, Summa Codicis, III.35.8.
415 Hostiensis referred to the case of D. 9.2.9.4: the thrower was not held liable because the guilt was imputed to the slave who should not have crossed the field at such an inappropriate time, unless the thrower intentionally threw a spear at the slave, because playing a dangerous game implied culpa. Also the death of the slave in the case of D. 9.2.11pr. had to be imputed to the injured person because this person entrusted himself to the barber who put his chair in such a dangerous place. Neither the barber – unless the barber cut the throat of the slave intentionally – nor the thrower were held responsible; see Henricus de Segusio (Hostiensis), Summa. De damno
dato. Quando locum habet hec actio, edn. 1537 (reprint 1962), fo. 266r.
416 X 5.16.6, the decision of Pope Gregory IX in VI 1.21.1, Dynus de Mugello ad VI 5.12.65 and by Hostiensis in his Summa on the title De damno dato.
417 Although this part of Animal does not refer to the problem of dispensation, it does refer to 1 Comp. 5.10.9 (X 5.12.8). As discussed above, the case of X 5.12.8 came to be regarded as a case concerning an irregularitas ex delicto. Following this line of thought, a dispensation could be granted by papal authority.
tory negligence were usually solved with the help of D. 50.17.203, which, how- ever slightly different but probably more precise, found its counterpart in the compilation of Pope Boniface VIII,418 i.e. the Liber Sextus (1298) in VI. 5.12.86.419
Idem. Reg. LXXXVI. Damnum, quod quis sua culpa sentit, sibi debet, non aliis, impu- tare.420 The same [=Pope Bonifacius VIII]. Regula 86. One has to impute damage,
which someone suffers due to one’s own negligence, to himself, not to others.
Several examples of this maxim are provided by scholars such as Johannes Monachus Picardus (†1313), Dynus de Mugello and Johannes Andreae (1270– 1348) in their commentaries as well as by the Glossa Ordinaria on VI 5.12.86, which shows421 that the rule of VI 5.12.86 (just as the rule of D. 50.17.203) was
used in a wide range of cases. The following picture appears.
Although the rule of VI 5.12.86 has its origin in fact in D. 50.17.203, Dynus de Mugello referred as general confirmation of this rule to some other Digest texts, namely, that of D. 46.8.22.4, D. 14.3.7.2 and D. 10.2.44.5.422 The (other) examples
of the maxim of VI 5.12.86 are partly the same as those already mentioned by the Glossators and by the Commentators in their comments on D. 50.17.203;423
apart from those, the following examples (of the maxim of VI 5.12.86) can be quoted. A first example of the maxim is the case in which a person who lost his trial was not obliged to pay certain costs which took place after the litis contestatio to the victor, namely, those which the victor paid or had to pay due to his contumacy (disobedience to judicial order).424 Secondly, the already fre-
quently mentioned case of the tree pruner.425 Thirdly, the bailiff who paid un-
due interest and thus suffered damage because of his own negligence (culpa), and therefore he could not recover this interest from the debtor.426 Fourthly,
the case in which a cleric was suspected of an enormous crime. He was in the presence of his bishop when the bishop gave sentence in accordance with the
418 Pope Bonifacius VIII, born Benedetto Gaetani, held the pontificate from 1294–1304. 419 Lange 1955, p. 72f.; Luig 1969, p. 203.
420 Friedberg 1881, col. 1122.
421 See gloss damnum ad VI 5.12.86 and what has been written before the gloss: glo[ssa]
seq[uens] dicit unde sumpta: et tota instat in exemplis.
422 Sometimes the damnum could be imputed to someone other than the wrongdoer (see D. 17.2.55) due to participation in the cause of the damage; in other cases this was not possible. In the first case D. 17.2.55 applies, in the second case VI 5.12.86; see Dynus de Mugello,
Commentarius, ad VI 5.12.86.
423 See, e.g., Dynus de Mugello, Commentarius, ad VI 5.12.86.
424 W. Durantis, Speculum. De expen. § Nunc de expensis, uers. ‘ceterum’. 425 Johannes Andreae, Novella Commentaria, ad VI 5.12.86.
426 The question whether the bailiff could recover from the debtor the interest, paid to the creditor, is extensively dealt with by Johannes Andreae in his Novella Commentaria, fo. 14r and v.
crime: life imprisonment. To evade this judgment and prison, he threw himself from his horse on the ground in front of his bishop and thereby was injured and died. His death had to be imputed to the cleric himself (C.23 q.4 c.38). Fifthly, the case in which a cleric to whom the prospect of receiving a prebend was given.427 One has to keep in mind that before there was a vacancy, a cleric was
already appointed. Only when the person holding the prebend died leading to a vacancy, did it become necessary to decide whether or not he could be given the prebend. In this specific case, the cleric negligently did not claim it when he could have done so, and as a result of this the prebend went to someone else. This cleric could not claim from the recipient428 nor could he claim the next
prebend which became vacant because he had to blame himself for his own negligence in that he had not claimed the first vacant prebend (VI 3.4.11).429
That the rule continued to be applied to a wider range of cases than those currently understood by contemporary scholars to fall under the scope of the problem of contributory negligence can also be seen in some examples from the early modern period. This will be shown in the following chapter. In later canon law, it seems likely that a theoretical debate on contributory negligence, based on the principles mentioned above, did not occur.430
3.4 Short comparative remarks
3.4.1Structure and purpose
The cases of contributory negligence in Roman and medieval law have been extensively discussed in this chapter and in the previous one. Little attention has been paid in the sources of law beyond the learned law as taught at uni- versities and law schools. As some are remarkably interesting from a compara-
427 The right of someone presented a beneficium by a patron for a beneficium, but who is not yet confirmed (ius ad rem petendam, non in re). See Feenstra 1979, p. 15f. Apparently, it is a kind of right of expectation that can be placed somewhere between a right in rem and a personal right. See on this topic and on the concept of ius ad rem, among others, Landau 1971, p. 81ff.; Dondorp 1991, p. 285ff.; 1997, p. 553ff.
428 J. Monachus Picardus, Glossa aurea, ad VI 5.12.86.
429 On the question in VI 3.4.11 whether the cleric who forgot to make an effort to receive the first vacancy also limits the power of the executor (of the papal mandate), i.e. whether the cleric could apply for the next prebend or whether the (papal) gratia is thereby void, see Hitzbleck 2009, p. 68ff.; - Finally, the case of a purchaser of a piece of land who did not show up at the trial and lost the land due to eviction, this purchaser could not bring an action against the vendor (C. 8.44.8); in the Glossa Ordinaria Johannes Andreae even provided more examples of the rule of VI 5.12.86; see casus ad VI 5.12.86 and gloss damnum ad VI 5.12.86.