Quod dolo malo factum esse dicatur - ein Beleg für culpa-Haftung in der lex Irnitana?

Translated abstract

Chapter 84 of the lex Irnitana excludes a number of iudicia from municipal jurisdiction. In the list of excluded actions we find the following in lines 9 and 10: neque pro socio autfiduciae aut mandati quod dolo malo factum esse dicatur. In an article in the Savigny-Zeitschrift (2007) Dieter Norr argues that this is a proof of liability for culpa in the three relevant contracts (societas, fiducia and mandatum). According to Norr, in respect of none of those contracts was a claimant excluded from initiating an action before the municipal court, if he declared in iure that his claim was based not on dolus, but merely on culpa. This assumption implies that in all three contracts liability for culpa already existed in the first century AD. The present contribution approaches the question from the perspective of the classical law of societas. Whereas the traditional view of twentieth-century scholars was that liability was limited to dolus, a different picture has been painted recently. Even if there are traces of liability for culpa in at least some hypotheses (for example in the case of a partner who has pledged to contribute a specific skill to the partnership), the matter seems to have been still unresolved in the early second century AD (cf. D. 17,2,52,2). It therefore seems unlikely that the lex Irnitana (promulgated in the last decade of the first century AD) already presupposed liability for culpa in general. More importantly, the wording of the lex Irnitana is rather puzzling. It is not clear whether the phrase quod dolo malo factum esse dicatur refers only to mandate or to societas and fiducia too. Even if the latter is assumed, various possible translations are possible. Norr reads it as a restrictive clause (in the sense of "if it is said that something was done with dolo malo'"). Yet it could also be understood as a mere explanatory remark ("because it is said that something was done with dolus malus"), which means it could definitely not be understood as a proof of liability for culpa. This paper explores the new hypothesis that quod dolo malo factum esse dicatur could be a hint of an - until now not clearly identified - formula in factum concepta, which included a reference to a factum dolo malo. The conclusion drawn is that continuing uncertainties do not allow us to view the lex Irnitana as a proof of a generally accepted liability for culpa in the contracts of societas, fiducia and mandate during the first century AD.