Some remarks on the liability for «custodia» in classical Roman law

Abstract

In our study, some problems of liability for “custodia” in classical Roman law are treated. First of all, the most important views on “custodia”-liability in Roman law literature are briefly summarized. The author accepts basically the objective interpretation of “custodia”-liability with some subjective aspects. Then some different significations of the word “custodia” in sources of Roman law are briefly analyzed. This expression means not only the liability for “custodia”, but the terminus technicus “custodiam praestare” means the activity of guarding and the objective liability as well in the legal sources. In author’s opinion, the liability for “custodia” was born in preclassical Roman law, probably in the contractual practice of “commodatum”. The “custodia”-liability for theft is only briefly analyzed in our study. Regarding the liability for “damnum ab alio iniuria datum”, in the author’s opinion, one cannot speak of an objective liability for “custodia“, but only of a liability for “culpa”. “damnum iniuria datum” can be regarded, in our view, as a so-called « casus medius » which would be a new dogmatic category between “casus minor” and “casus maior”..