New Perspectives in the Roman Law of Property: Essays for Barry Nicholas

By Peter Goodwin Birks | Go to book overview

13
The Position of aquae ductus in the Praetor's Edict

ALAN RODGER

The essay which follows is a token of appreciation for the unfailing kindness which Barry Nicholas showed to me during my years in Oxford.

In title 39.3 of the Digest nearly all the material from the edictal commentaries comes from Ulpian 53 ad edictum and Paul 49 ad edictum. Most of the texts from these sources are concerned with the actio aquae pluviae arcendae (a.a.p.a.), the action for damage due to rain-water. There are a few texts, however, which have no real connection with that topic, but deal with the servitude of aqueduct (aquae ductus) and related matters. It was Burckhard1 who first pointed out that the existence of these two separate strands in the edictal commentaries meant that both the a.a.p.a. and aquae ductus must have been found close to one another in the album of the praetor's edict. A couple of years later Lenel adopted Burckhard's observation and, in his reconstruction of the edict, he inserted a title XXX DE AQUA ET AQUAE PLUVIAE ARCENDAE containing first the edict and a formula on aquae ductus and secondly the formula for the a. a.p. a.2 A few years after this Lenel deployed the material in his Palingenesia3 according to the same plan.

Since that time scholars appear to have accepted this arrangement which is followed, for instance, by Riccobono in the Fontes.4 My aim in the present paper is to suggest that none the less Lenel was wrong and that, contrary to what he thought, the a.a.p.a. in fact came immediately before, rather than after, aquae ductus in the practor's edict. My principal arguments are (1) that Lenel's view implies that the editing of the Digest title 39.3 was extremely perverse; (2) that the alternative assumption offers a better explanation for the position of the aqueduct texts in the Digest title; and (3) that one would in fact expect the a.a.p.a. to come first in the edict.

© Alan Rodger 1989.

____________________
1
H. Burckhard, Ausführliche Erläuterung der Pandecten Serie der Bücher 39. und 40. Dritter Theil ( Erlangen, 1881), 35 ff. esp. at pp. 38 ff.
2
O. Lenel, Das Edictum Perpetuum (1st edn., Leipzig, 1883), 300 ff. (3rd edn., Leipzig, 1927), 373 ff. Further references (EP) are to the 3rd edn.
3
O. Lenel, Palingenesia Iuris Civilis ( Leipzig, 1889), i. 1057-60 and ii. 752-6.
4
S. Riccobono, Fontes Iuris Romani Anteiustiniani (2nd edn., Florence, 1941), i. 366.

-177-

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