Analyzing The Roman Law's Case 61 Using Mela and Upian's Example.

One of the most famous cases in Roman law is Case 61 in our casebook also known as “A barber cuts a slaves throat”. In this case, a barber was shaving a slaves face in an area where people were playing ball. One of the players hit the ball “quite hard” and the ball proceeded to hit the barber causing his hand to slip, slitting the slaves throat. This situation causes a difficult problem with deciding who is liable for this loss, whether it be the ball players, the barber or the slave itself.

The two main viewpoints of this case are those of Ulpian and Mela. Mela holds that the culpa lay with the barber, therefore making him liable. Culpa is a question of whether an action was wrongful due to a parties negligence, recklessness, or violation of duty of care. In this situation Mela claims that the barber could have participated in Culpa by choosing to perform a dangerous action (shaving the slaves face) in an area where ball is typically played. Mela states that since the barber chose to conduct his “dangerous” business in an area where it might not necessarily be safe, then he should be liable for any damages that occur as a result of his Culpa. This decision would have an effect on Roman society as it would prevent barbers from opening their business in an area where it would be deemed unsafe. Ulpian disagrees in that he believes some of the blame should be placed on the slave. Ulpian believes that by accepting to get his haircut in an area where ball was typically played, the slave himself is participating in recklessness and therefore the barber should not be held fully responsible. That is to say that the recklessness of the slave is the primary issue, as he should never have entered into that dangerous situation where he would allow his face to be shaved in an area was ball was typically played.

Though both these Jurists have good points, the culpa should not entirely lie with either the barber or the slave. Both of them participated in some sort of recklessness and therefore neither of them should be wholly responsible for the loss that occurred. Certainly the barber participated in recklessness by setting up his business in an area where ball was typically played but the slave also participated in recklessness by allowing his face to be shaved in a place where danger was likely to happen. In addition, both Mela and Ulpian’s decisions have consequences which lack what is to be desired. For example, if Mela was to be held right and the barber was held fully responsible then barbers would have to be extremely careful about where they performed their service. Also the number of people willing to perform this service would go significantly down as the risk of having to pay full compensation for this loss would be too great a danger for many. However, Ulpian’s decision also has unseen consequences. If the slave was to be held fully responsible for the loss incurred the owner of the slave would receive no compensation for the slaves death. This decision burdens the slave owner with the loss suffered when he participated in no form of Culpa at all. By holding both the slave and the barber partially responsible this prevents either party from suffering the full effect of the losses suffered and prevents these consequences from occurring.

Cases 54 and 56 deal with a situation in which a slave is mortally wounded by one person, and is later killed by someone else before the wound inflicted by the first party can take effect. These cases are interesting because the second attack caused the slaves death, but the first attack would have also caused the slaves death, had it been allowed to follow its course. The second attack clearly directly caused the slaves death; the issue that is less clear is whether the first attacker would be held to have caused the slaves death at all. Even once that is decided, the issue is should both parties be held liable and to what degree.

Celsius makes the claim that the first attacker should not be held liable for killing the slave, but merely for injuring it. The second attacker meanwhile would be held completely liable for the death of the slave since the wound he inflicted directly cause the death of the slave. By saying this, Celsius is endorsing the notion that since the wound inflicted by the first attacker did not directly lead to the slaves death than he is not at all liable for the death of the slave. However, since the first attacker did inflict a wound on the slave and therefore cause its owner loss, the first attacker would be liable for his attack and the wound he inflicted. Julian has an opposing view on this sort of incidence which he explains in case 56. Julian claims that in a scenario such as this, both attackers would be responsible under the Lex Aquilia. Julian shows the two attacks as completely unrelated incidences. He claims the first attacker should be liable as the wound he inflicted was surely mortal and under the Lex Aquilia a person is liable if the cause a wound to a slave and later they die as a result of that slave. In addition the second attacker would be liable as he directly caused the slaves death therefore causing its owner loss. However, though both attackers would be fully liable for the slaves death, in many cases they would be liable for different amounts. This occurs because the first attacker would be liable for the slaves maximum in the past year from the initial attack, while the second attacker would be responsible for the slaves maximum value in the past year from the point of the slaves death. Julian believes this is a better system as if only one of the attackers was held liable then he would go unpunished (for the death) for a misdeed that he was guilty of.

Though Julian’s system has some merits, the system devised by Celsius seems more useful for this case. The main reason for this is that Celsius’ system seems more practical and easier to implement in the Roman world. If Julian’s system were adopted than citizens could be held liable for the death of a slave when they inflict a wound that would not have caused their death. In a society where medical practice was underdeveloped it would be very difficult to decide whether the actions of attacker one would have eventually led to the death of the slave. In Celsius’ system the first attacker still would be held responsible for his misdeeds (in the form of liability for the wound he inflicted) without the conflict over whether the wound inflicted by attacker one would have caused the slaves death. Celsius’ system allows both the owner of the slave and the first attacker to be treated fairly. The owner of the slave is compensated for his loss (by attacker two), and the first attacker is treated fairly as he is responsible only for the loss he inflicted, and not the loss he may have inflicted had not attacker two intervened.

The above case was argued using a system of negligent liability, but would it be better settled using a system of strict liability. A strict liability system is a system in which an individual is responsible for any loss they cause; regardless of if it was wrongful. This eliminates defenses such as self-defense, negligence of the victim, etc. The proponents of using this system for the case about the barber would argue that since the case includes multiple semi-negligent parties, then it would be more easily resolved by using the system of strict liability. That is to say, instead of trying to decipher who was more negligent, the barber or the slave, instead we would merely show that since the actions of the ballplayers caused this loss they are responsible for it. Obviously the benefit of using this system for cases such as this is that it makes it significantly easier to assign blame for the loss. It is much easier to simply find who caused the loss (in this case the ball player) than to decide whose negligent or reckless actions caused the incident to occur. Though this system appears to make this case significantly easier to handle, this is not the best system to use for cases such as this.

A system of strict liability would not produce a better solution to this case as it punishes those who were not acting wrongfully due to actions that occurred as a result of other parties’ reckless actions. If a system of strict liability were adapted for this case, then the individual who hit the ball (causing the barbers razor to slip) would be held liable for the loss, meanwhile the two parties who were reckless (barber and slave) would face no liability for the loss. This seems strange as the ball player was in an area where ball was commonly played. His actions were completely within the norm and he was not at all reckless or negligent. The incident occurred due to the recklessness of both the barber and the slave due to their choice of where they performed a dangerous act (shaving of slaves face). A decision like this could have consequences that far exceed the facts of this case. For example, if the Roman people were aware that they could be held liable in a situation like this, it is highly doubtful that anyone would play ball (or any sort of activity) in a place where there was even a slight chance that they might cause loss to someone. In using strict liability you are stating that as long as a party causes the loss (whether wrongful or not) then they are liable for the loss. This would cause society to be overly careful as they know that they would be held liable for any sort of loss that might occur as a result of their actions, whether their actions were wrongful or not. Though using a strict liability system in a case like this might be more efficient in the short run, it would have wide ranging effects that could severely inhibit a societies inability to function. For this reason, a system of strict liability should not be used for cases such as that of the barber and the ball player.