oa Fundamina : A Journal of Legal History - Die durchschnittene Kehle

Special issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



The case of a slave whose throat was cut by a barber when a ball was thrown against his hand was widely discussed in antiquity. Ulp. D. 9.2.11 pr. describes the case and suggests three possible solutions, considering the last to be the best. Ulpian asserted that the barber was not liable, because the slave should have realised that it was not appropriate to be shaved close to a place where people were playing ball. However, the Basilics (B. 60.3.11) and especially the scholium of Hagiotheodorita argued that denying the barber's liability was not an equitable solution, because both the barber and the player who kicked the ball could have been liable. According to Hagiotheodorita, a better solution would be to hold at least the barber responsible. The joint liability of more than one person ("Quotenteilungsprinzip"), which several European legal systems adopt today in similar cases, was not permissible in Roman formulary procedure. However, Mela's solution in Ulp. D. 9.2.11 pr. seems to tend in that direction.

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