The Roman jurists did not treat concurrent negligence in a dogmatic way; the Glossators, however, did.29 They took the respective negligence of both parties
into account. If two parties acted negligently to some extent, sometimes compensation for their negligence was granted. In that respect D. 39.2.40.1 is relevant: because of a defect in a party-wall, the wall fell down and led to damage. According to D. 39.2.40.1, one common owner does not have to pay the other anything since it was through a defect in jointly owned property that the damage occurred. Sabinus argued that if the wall collapsed due to too heavy weight, placed upon it by both parties, both were equally at fault. In the event that one of them lost more property or property of greater value than the other party, neither of them would be entitled to bring an action against the other, since they had both placed the same burden on the party-wall.
Indeed, according to the (Accursian) Gloss, when both parties were the cause (causa) of the damage to the same extent, the negligence of both parties had to be compensated.30 However, it was not appropriate to compensate culpa
by dolus. Only dolus could be compensated by dolus and culpa by culpa.31 The
fact that the negligence of party A was nullified by the negligence of party B was called culpae compensatio in later times.32
Two allegations were frequently put forward in support of the later called doctrine of culpae compensatio, namely, D. 16.2.10pr. and D. 24.3.39. Although the concept of culpae compensatio was present, the term was not yet used as such (this was an invention of nineteenth-century Pandectism, as will be shown later). The doctrine was built on the words ipso iure compensatione neglegentiae facta of D. 16.2.10pr. and the sentence Paria enim delicta mutua pensatione dissoluuntur of D. 24.3.39.33 According to the gloss paria enim ad
29 In the same sense Wollschläger 1976, p. 117. 30 Gloss onera ad D. 39.2.40.1.
31 See D. 4.3.36; see gloss quamuis ad D. 2.10.1.2.
32 Luig 1969, p. 197; Zimmermann 1996, p. 1030; Jansen 2002a, p. 105f.; 2002b, p. 205. 33 See also Thomas 2001, p. 352f.; according to Wollschläger 1976, p. 117, the ‘gemeinrechtliche’ concept of ‘Kulpakompensation’ is embossed after the expressions compensatio doli, compensatio
neglegentiae and compensatio criminis. He refers to Eisenbach’s De compensatione circa maleficia, uel quasi, occasione legis xxxvi. Dig. de dolo malo (also extensively discussed in the next chapter); on this
work, see also Aumann 1964, p. 53ff.; Luig 1969, p. 215; according to Kaser & Knutel 2003, p. 221, based on the rule of D. 50.17.203, since the gloss, the so-called theory of ‘Kulpakompensation’ developed into the later dominant opinion in the ‘gemeine Recht’, that each instance of contributory negligence of the injured party excluded any claim for compensation, unless the actor acted deliberately.
D. 24.3.39,a delictum could be compensated by another delictum.34 Similar,
but more elaborate, is the Accursian gloss dolo compensando ad D. 2.10.3.3,35
according to which dolus is compensated by (another) dolus (see D. 4.3.3636
and D. 18.1.57.3). A delictum is compensated by (another) delictum (see D. 24.3.39), negligentia by negligentia (see D. 16.2.10pr.)37 and pena by pena (see
D. 50.17.154).38 Apparently, the same sort or degree of negligence had to be
attributed to both parties, otherwise there could be no culpae compensatio.39
As to the origin of the doctrine of culpae compensatio, it is not clear whether the Glossators themselves already formulated their doctrine as a general theory to the entire law of obligations or even to the law of delicts and what the range of application of that theory was. Possibly they already formulated the beginning of the concept of culpae compensatio and not only applied it to cases of mutual insults or adultery (D. 24.3.39) but also to cases in which the negligence of the injured person contributed to the occurrence of the damage.40 Some scholars
even argue that the concept of culpae compensatio obtained an independent position in Roman law and the ius commune, next to the so-called compensatio delictorum (which had an explicit regulation in the Digest). With compensatio delictorum two similar delicts could be cancelled out by mutual compensa- tion.41 In both concepts (that of culpae compensatio and that of compensatio
delictorum), the wrongdoer and the injured party were considered to have acted in a reproachable way. However, it seems that the two situations are dif- ferent. In the case of compensatio delictorum, two delictual acts produced two different injuries. In the case of culpae compensatio, one injury is inflicted by two different acts: the act of the wrongdoer and the act of the injured party.42
34 Accursian gloss paria enim ad D. 24.3.39; see also the Accursian gloss deteriore ad D. 2.7.2. 35 Accursian gloss dolo compensando ad D. 2.10.3.3.
36 A cross reference to this text already occurs in the margins next to D. 9.2.9.4 and D. 9.2.11pr. in Ms. Trier SB, 838/1634, fo. 98vb and fo. 99ra.
37 See also Accursian gloss ipso iure ad D. 16.2.10pr.
38 However, according to the aforementioned gloss dolo compensando ad D. 2.10.3.3, no compensation of pudicitia by pudicitia could take place; see D. 48.5.2.5 and D. 48.5.14(13).5.
39 Also Luig 1969, p. 199; - According to Accursian gloss ipso iure ad D. 16.2.10pr., if one person injured another person negligently (culpa), and in another event the latter wounded the former intentionally (dolus), a compensation could take place. Not, as in the (last situation described in the) case of D. 9.2.9.4, when the negligent act of one person and the intentional act of another person concern the same event.
40 Luig 1969, p. 199.
41 Jansen 2002a, p. 106; 2002b, p. 205; D. 24.3.39: Paria delicta mutua pensatione dissolvuntur. Concrete examples could be found in D. 16.2.10pr. and D. 18.1.57.3.
42 Jansen 2002a; p. 106; 2002b, p. 205. In the next subsections, I discuss whether or not the theory of culpae compensatio is applied by the Glossators to cases of contributory negligence in cases of damnum iniuria datum; according to secondary literature, the idea of culpae compensatio was applied to the situation of the contributory negligence of the injured party at a later date; see
The contributions of the Commentators
According to the doctrine of compensation of faults as just described, when two people wounded each other in a quarrel, and it was not clear who had provoked the quarrel, the delicta of both persons would be cancelled out (set off) by way of mutual compensation.43 Also, if two people committed an act
with dolus, they could not sue each other because the dolus of both parties was mutually compensated.44 This compensation did not take place upon request
of one of the litigating parties, but ipso iure.45 Of course this was different if
one of the parties committed a second delict or repeatedly acted with dolus.46
A new consideration was made by Baldus de Ubaldis (1327–1400),47 according to
whom the word ‘compensation’ was sometimes used in the true meaning of the word, and sometimes not. A compensation of debts (debita), as in D. 16.2.10pr. (ipso iure), is a compensation in the true sense of the word, i.e. when claims cancel each other out. In the event of a compensation of delicts, however, it would not mean a compensation in the true sense of the word (compensatio), but some kind of acknowledgment (confessio); this is the case in D. 24.3.39 in which the two delicts cannot really cancel each other out.48
Jansen 2002a, p. 106; 2002b, p. 205; see also Pernice 1895, p. 90ff.; in the next section it will be argued that possibly Paulus de Castro was the first to do so.
43 See, e.g., Corvinus, Digesta per aphorismos strictim explicata, edn. 1642, p. 171f., with references; Bartolus, Commentaria, ad D. 16.2.10pr.; see also R. Fulgosius, In primam Pandectarum
partem commentariorum, II, ad D. 16.2.10pr.
44 Baldus, Commentaria, ad D. 4.3.36. An example of a legal application of this rule to a specific case can be found in Jacobus de Ravannis, Lectura super Codice, ad C. 8.4.1: Dicitis quod
ex interuallo non possum te expellere: immo quia compensatur dolus cum dolo, et paria crimina mutua compensatione tolluntur, ut ff. de do. l. Si duo [D. 4.3.36] et ff. so. ma. l. Virum [=Viro; D.
24.3.39]; dicunt quidam uerum est, dolus latens cum dolus latenti potest compensari secus est in dolo
qui est in uiolentiane deterius contingat dolus cum dolo in eodem facto commissus compensatur, unde licet unus haberet maius damnum et alius minus. Licet non inspiceremus: immo dolus cum dolo compensabitur, nisi in continenti, sed ubi ex interuallo, ut expense non compensatur dolus cum dolo, sed damnum cum damno, quia ex deiectione primus est obligatus, ex secunda secundus, et non debitum cum debito compensaretur, unde agenti ex una obligatione compensaretur debitum ex alio, sed dolus cum dolo non compensaretur non in continenti dictum est uim ui repellere ubi certum est quod uis patitur uiolentiam. …
45 See on this topic Pichonnaz 2002, p. 337ff.
46 See the additio of Alexander de Imola on Bartolus, Commentaria, ad D. 16.2.10pr. 47 Baldus studied Roman law as a student of Bartolus’, and he studied canon law under Federicus de Petruciis. He taught at Perugia, Pisa, Florence, Pavia and Padua.
48 Baldus, Commentaria, ad D. 24.3.39; - A crimen is opposed by way of an exceptio; see, e.g., Albericus de Rosate, Commentarii in primam Infortiati partem, ad D. 24.3.39: Sed hic erat crimen
The situation became more complicated when – with regard to the same event – one party acted with dolus and the other with culpa. Already Baldus argued that in such a case no compensation should take place.49 He stated that
a compensation ipso iure could only occur when culpa or dolus were equal on both sides.50 As to this compensation, dolus was considered more serious than
culpa, and culpa in acting more serious than culpa in refraining. The situation was different when totally different obligations (diversas obligationes) oc- curred, because then dolus and culpa were compensated to the same extent.51
It seems that in the last case, as far as the amount of the two claims agree, a compensation can place place: for example, when one claim was 100 and the other 80, 80 can be compensated and a claim for 20 will remain.
Apparently, cases in which acts concerned the same matter and cases in which acts concerned different matters have to be distinguished. It seems that a compensation of delicts on both sides was only possible when two persons committed a delict with dolus with regard to the same matter. If two persons committed different delicts with dolus, no compensation could take place and therefore both persons were punished because they both acted with dolus.52
To conclude, regarding the situation is most relevant in cases in which the injured party contributed to the occurrence of his own loss, i.e the situation in which one person acted with culpa and the other with dolus, could both ‘blame- worthy acts’ be compensated by setting one off against the other?53 Jacobus
Butrigarius (ca. 1273–1348)54 argued that in the event two persons acted with
regard to the same matter and one party acted with dolus and the other with culpa (or negligentia), dolus absorbs culpa, and so the person who acted with
49 Baldus, Commentaria, ad D. 16.2.10pr.
50 Possibly Paulus de Castro had a different view as he seems to be convinced that culpa could be compensated by dolus. It could be that his commentary has to be understood in such a way that the intentional act and the culpable act concern different cases; see Paulus Castrensis,
In secundam Digesti Veteris partem, ad D. 16.2.10pr.
51 Baldus, Commentaria, ad D. 16.2.10pr.
52 See J. Butrigarius, In primam e secundam veteris Digesti partem, I, ad D. 4.3.36.
53 The situation in which the actions of two persons do not regard the same case is different (no compensation for actions done with dolus or culpa in that case); see for that situation, e.g., R. Fulgosius, In primam Pandectarum partem commentariorum, II, ad D. 16.2.10pr.; J. Butrigarius, In
primam et secundam veteris Digesti partem, II, ad D. 16.2.10pr. See also J. Bertachinus, Repertorium,
s.v. compensatio; Albericus de Rosate, Commentarii in secundam Digesti Veteris partem, ad D. 16.2.10pr.; also Albericus de Rosate, Commentarii in primam Infortiati partem, ad D. 24.3.39. This theory of compensatio delictorum can also be placed in a procedural perspective as Angelus Aretinus de Gambilionibus (†1450) does; see Angeli de Aretio, In quattuor Institutionum, ad Inst. 4.13pr., nr. 29.
54 Jacobus Butrigarius was an Italian jurist, a professor of Roman law at Bologna, who stood in the tradition of the Commentators as he was a student of Bartolus’.
culpa was not held liable, but the person who acted with dolus was.55 Albericus
de Rosate (1290–1354/1360)56 agreed when he stated that if one person acted
with dolus and the other with negligentia with regard to the same matter, no compensation could take place, since dolus was considered to be more serious.57
3.2.2.1The case of the javelin throwers The view of the Glossators
The facts of this case were discussed in the previous chapter. In summary, some people were javelin-throwing58 and in doing so killed a slave. The Glossators
treated the question whether the wrongdoer was liable or not in a scholastic way, i.e. they made distinctions between various situations to determine in which situation the wrongdoer would be liable and in which situation he would not. To find out for what reason these distinctions were made and whether or not a doctrine such as culpae compensatio was applied, these situ- ations and distinctions have to be discussed.
The first Glossator who seems to explicitly argue on the problem of contributory negligence of the injured party is Johannes Bassianus (†1197).59
He formulated the view that culpa (of the wrongdoer, i.e. the javelin thrower)
55 J. Butrigarius, In primam et secundam veteris Digesti partem, II, ad D. 16.2.10pr.
56 Albericus de Rosate was an important 14th-century practising lawyer who belonged to the school of the Commentators.
57 Albericus de Rosate, Commentarii in secundam Digesti Veteris partem, ad D. 16.2.10pr.; - An exception was made with regard to the fact that dolus was considered more serious than culpa: in a criminal case, dolus or culpa on the side of one party did not cancel out the dolus or culpa of the other party. The criminal cases brought by the State and these were no longer accusatory procedures. These ideas of Alexander de Imola have to be regarded purely theoretically. See Alexander de Imola, Consilium LXXVII, nr. 12f.
58 ‘Somewhere’, see gloss ad iaculantibus in Mss. Biblioteca Vaticana, vat. lat. 1405, fo. 77v; Biblioteca Vaticana, vat. lat. 1408, fo. 106vb; Biblioteca Vaticana, vat. lat. 2511, fo. 76r; Paris BN, lat. 4459, fo. 90va; Bamberg, Jur 11, fo. 115rb (with siglum az.); London BM, Royal 11.C. III, fo. 93r; München Clm 3887, fo. 92ra; Torino BN, E.I.4, fo. 139va; Paris BN, lat. 4458, fo. 72rb; Stockholm KB, B 680, fo. 101v: (sc.) alicubi; - Affirmation can be found in gloss aiaculantibus with siglum az. in Biblioteca Vaticana, Ottobon. lat. 1605, fo. 124ra: scilicet alicubi (later changed into alibi quam)
ut consuetus est., and gloss occisus in Ms. Padova BU, 941, fo. 88rb: in loco non solito ad ludendum,
according to which the first situation distinguished in D. 9.2.9.4 was that of javelin throwers not playing at a place where it was not customary to play. The second situation described in D. 9.2.9.4 would be that of a field for javelin-throwing; see gloss ad campo in Mss. Leipzig, Univ. Bibl., 873, fo. 76v; Biblioteca Apostolica Vaticana, vat. lat. 1406, fo. 80v: scilicet iaculatorio.
59 Johannes Bassianus, a professor at Bologna, lived at about the end of the 12th century (Rose 1857, p. 332) and took an important position within the tradition of the Bolognese glossators. He was a student of Bulgarus’ and at the same time the master of Azo; - Information on the medieval civilians (Glossators and Commentators) mentioned in this chapter can be found in Von Savigny 1956, esp. volumes IV/V/VI; Cortese 1995; Lange 1997; Lange & Kriechbaum 2007; therefore, no references to these general works will be made each time, but only if necessary to a specific point; additional literature will be mentioned where necessary.
could be compensated by culpa (of the injured party, i.e. the slave) and be neutralised: for that reason the javelin thrower was relieved from his own culpa.60 Consequently, it may be assumed that he was also relieved from any
liability. Furthermore, Johannes Bassianus noted that if the thrower threw at the slave intentionally, the act could be seen as performed with dolus.61
He argued that culpa nullifies culpa, but culpa (of the injured party) does not nullify dolus.62 Accordingly, if the injured party acted negligently, his
negligence (culpa) was set off against that of the wrongdoer, and thus the injured party could not claim compensation from the wrongdoer.63
A similar case about javelin throwers, already mentioned above, is Inst. 4.3.4.64
In Inst. 4.3.4, a situation is described in which a person acts lawfully (iure): the soldier while exercising in his exercising ground, or where such practice is usu- ally conducted, and who killed a slave who passed by.65 Later Glossators do not 60 Gloss quia non debuit with siglum Io. ad D. 9.2.9.4 in Mss. Paris BN, lat. 4459, fo. 90va; Biblioteca Vaticana, vat. lat. 1408, fo. 106vb; Biblioteca Vaticana, Barb. lat. 1459, fo. 88rb; Biblioteca Vaticana, Ottobon. lat. 1605, fo. 124rb; Leipzig 877, fo. 96va; London BM, Royal 11.C. III, fo. 93ra; Bamberg, Jur 11, fo. 115rb; München Clm 3887, fo. 92ra; Torino BN, E.I.4, fo. 139va; Troyes 135, fo. 95vb; Paris BN, lat. 4458, fo. 72rb; Trier SB 838/1634, fo. 98vb [siglum: Accursius]; Stockholm KB, B 680, fo. 101va: Ergo culpe culpa compensata dissoluitur, ut infra de compe. Si ambo [D. 16.2.10pr.]
et infra so. ma. Viro [D. 24.3.39]; adopted by Accursius in his gloss quia non debuit ad D. 9.2.9.4;
Johannes Bassianus refers to D. 16.2.10pr. and D. 24.3.39. These two fragments also contain a certain compensation: D. 16.2.10pr. is an example of a set-off of mutual obligations between associates (socii), compensatio neglegentiae, and D. 24.3.39 contains a compensation of delicta.
61 Apparently, dolus and data opera are synonymous. See also gloss ad data opera in Ms. Paris BN, lat. 4461, fo. 101v: id est in dolo; also Scott 1984, p. 168 nt. 18.
62 Gloss tenebitur ad D. 9.2.9.4: Quia dolus praeponderat. Azo. Et sic nota quod hoc casu
solus dolus uenit in Aquilia non culpa, ut infra eodem Si putator [D. 9.2.31], et infra de aq. re. do. Homo liber § Item [D. 41.1.54.1-2]. Et est ratio ut dixi, quia culpa culpam abolet, set non dolum, ut infra eodem Qui foueas § Hec tamen actio [D. 9.2.28.1] secundum Io[annem] [Bassianum]; see
also a gloss in Biblioteca Vaticana, Ottobon. lat. 1605, fo. 124rb: dolus preponderat culpe, and in the same Ms., a gloss with siglum az. next to gloss tenebitur (the gloss at the beginning of this footnote): Nota quod dolus preponderat culpe.
63 Also Wieling 1970, p. 223; the glosses damnum ad VI. 5.12.86 and commentum ad VI 1.21.1 are also relevant in this perspective, and will be discussed in the section on canon law; Azo,
Brocarda, fo. 189v, explains that it is the preceding culpa that neutralises the following culpa; so
the culpa of the injured party has to precede the culpa of the wrongdoer; in that case the later
culpa (i.e. the culpa of the wrongdoer) is neutralised. There are also references to various texts in
the Authenticum.
64 See also a gloss to Summa Vindobonensis, IV.3 (Itaque si quis …).
65 See already the Summa Trecensis, the oldest anonymous Summa on the Codex, from the middle of the 12th century (Genzmer 1987, p. 30; see also Kantorowicz & Buckland 1969, p. 146ff.); see Summa Trecensis XIII.2: … aut cum rationabiliter excusatur, ut miles qui in campo
iaculatorio stans [seruum] transeuntem interfecit …; - A somewhat different starting point is
given by the author of Lo Codi (ca. 1170), also an anonymous Summa of the Codex, originally written in the Provençal language. The relevant part concerns the problem of the limits of the
lex Aquilia. In describing situations in which there is no culpa of the wrongdoer and therefore
no delictual liability, the following example is also given. A soldier was crossing a place where other soldiers were used to crossing over, and during a game he or his horse killed or inflicted damage on a person. According to the author of Lo Codi, if the soldier did not inflict the damage