rhe distinction between the two wrongs is t ital because of the difterence in the damages awarded; twice the \ alue of the propert\’ stolen for non-manifest theft, four-fold for manifest theft. And what was stolen was what was wrongfulh' touched, not what was remot ed. I'he distinction in the Digt’st 'is meaningless because, e\ en after a milieunium, Justinian had not fullv decided what the distinction was! And the problem for classical law is e\en more set (Uit in G. ^.ifi^ff It has been suggested that the difference was of little importance because thie\ es generalK' ha\ e no money. But at Rome and in Byzantiumthie\es would often he shnes, and the action la\' against the slates' owner, who normalh' would hate money. But cwamples can he multiplied. One more w ill be adduced here, d'he A'.y Aquilia, traditionally dated to 286 b.c:. ga\ e an action to an owner w hose slat e or four-footed herd animal had been wrongfullt killed.'" The jurists drew a distinction between killingand furnishing a cause of death.'* 'I'he former gat e rise to an action on the lex Aqiiilid, the latter to an action on the facts. The reason for this distinction being drawn is unclear. For some, notahlt Dieter Nörr, this residted from an early t iett of causation." 1 disagree, first because the distinction is not found in criminal law for murder such as the lex Coruflid dc sicdHis ct vaiificiis, second because the distinction does not seem to he original hut to haye emerged in the early Empire.'' My suggestion, no more than that, is that the distinction was drawn to a\oid the worst consequences (if the actio Icgis Aquiliac, the highest \ alue the slat e or beast had had in the past year. But here my concern is not w ith that. It is with the patent absurdity of the distinction in theJustinianic sources. 'Fhey show no understanding of any ratio16 See, e.g. Kaser, Privatrecht 1, p. 161. 17 See in general D. 9.2. 18 'Causam Mortis Praebere' in The Legal Mind, edd. Neil MacCormick and Peter Birks (Oxford, 1986), pp.203ff. 19 Alan Watson, The Law of Obligations in the Later Roman Republic {Oxford, 1965), pp. 24iff 52
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