Oldradus de Ponte:
No. 92 (Questio)
(1478 Printed Edition: fol. 62va-b)
Oldradus de Ponte was a jurist working in the papal curia from 1310 till his death
after 1337. He was the first of the medieval jurists to write a large number of consilia.
His collection of consilia and questiones written in the style of consilia,
created in the mid-fourteenth century (probably not by Oldradus himself) helped establish
the consilium as the most important genre of later medieval jurisprudential
Although many of the items in the collection were actual consilia, i.e., they
were written to resolve court-cases or as preliminaries to legislation or administrative
decisions, they were "anonymized" for pedagogical reasons, to provide jurists
with models for the writing of consilia, and to provide law-students with problems
for classroom discussion and debate. The issues raised in Oldradus's consilia and questiones range from quotidian legal disputes, to matters of high politics, to more fanciful
Item No.92 in Oldradus's collection appears to be a questio rather
than a consilium. The "abstractness" of the issue and the way in which
related issues are raised and not much discussed make it appear to be a thing of the
classroom rather than the courtroom. The issue in this questio was the responsibility of a
knight who had been entrusted with a castle while a war was going on. That knight gave
custody of the castle to someone else who then lost it to the enemy. Was the original
knight liable for the castle's loss? Oldradus dealt with it as what is called a bailment in common law. What is the responsibility of someone who undertakes to keep something safe
for someone else? On this point, the Roman law was not perfectly consistent. Several
jurists held that the bailee could indeed be responsible for damage done by a third party
to an entrusted object (Notes 15, 19, and 28), although others held that he could not
(Notes 18 and 19). According to Oldradus, the weight of opinion came down such that he
could be held liable, and then the issue devolves into a question of negligence. In this
case there were two standards. Oldradus says that according to the ius nobile of
France, so long as the knight gave custody to a noble, he could not be held liable for the
castle's loss. If he gave custody to a non-noble, he was ipso facto liable for the
loss. This was consonant enough with the ius commune, which focused on competence
rather than status as a standard. The rest of the questio treats in summary form
several related questions.
Oldradus's No.92 (Questio):
Latin Text and Translation
|Rex habebat castrum et cum haberet guerram cum hostibus
conuenit cum quodam milite quod custodiret eum sibi et pro mercede certum sibi salarium
constituit. Miles ille commisit custodiam cuidam hostes uenerunt et occupauerunt castrum
culpa illius. Modo queritur utrum teneatur miles. Et est de iure nobilium terre nostre
quod si commisit nobili non tenetur; si innobili tenetur. Et satis consonum est iuri
communi, ar. ff. de custodia reorum, l. finali, in principio, C. eodem, l. Ad
commentariensem, et ar. ff. naute caupones, l. finali § Hac actione. Set posito
quod commisit nobili numquid tenetur eum presentare regi, C. locato, l. Ex diui. Et
uidetur quod sic ar. sumpto a contrario littere in dicta l. Ad commentariensem. Vel forte
etiam si non presentet uidetur liberatus quia cum tempore commisse custodie diligens et
sufficiens reputaretur non debet nocere si postea mutauit mores, ar. eorum que dicuntur de
magistratibus qui dant tutores, ff. de magist. conuen. l.i. § Si magistratus, et de
negotiis gestis l. Litis § Si pecunie, et de admin. rerum ad ciuit. pertin. l.iii. §
Si eo tempore, ff. commodati, l. Argentum.
||A king was holding a castle and when he had a war with
<his> enemies he made an agreement with a certain knight that he would guard it
himself and for payment he established a certain salary for him. That knight committed
custody <of the castle> to a certain person. The enemies came and occupied the
castle by the fault of that one. Now it is asked whether the knight would be held
<liable>, and according to the law of the nobles of our land: if he committed
<custody> to a noble, he is not held <liable>, if to a non-noble he is held
<liable>. And it is consonant enough to the ius commune, as is argued in the
beginning of the final chapter from the Digest title on bailments, in the chapter, Ad
commentariensem, from the Code, and it is argued by the paragraph Hac actione from the Digest title on sailors and shopkeepers. But given that he committed
<custody> to a noble, is he not held to present him to the king, as in the chapter Ex
diui from the Code? And it appears that he is, as is argued (as it has been placed)
by the contrary letter in the said law, Ad commentariensem. Or else by chance even
if <the knight> did not present <him>, he appears freed <of liability>
because custody should be considered to have been committed diligently and sufficiently
for a period of time. One ought not to do harm if afterwards one has changed the rules, as
is argued of those things which are said concerning magistrates who give tutors, as in the
paragraph Si magistratus, and in the paragraph Si pecunie from the Digest
title on unauthorized administration,, and from the third law under the Digest title on
carrying on public business. and in the chapter Argentum from the Digest title
on loan for use.
|Sed pone quod miles per se amisit; numquid tenetur et si dolo
non est dubium? Et licet lata culpa in criminibus dolo non equiparetur, ut not. ff. de
uerb. sig. l. Magna negligentia, tamen fallit hic, ut ff. de custodia reorum, l.
Milites, in principio, et l. Ad commentariensem, C. eodem. Item et tenetur de leui
quia mercedem recepit, ff. commodati, Si ut certo. Item et de leuissima si certa
custodia fuit adhibita, ff. locati, l. Mercedem, licet uideatur quod non sit ita
grauiter puniendus, ut ff. de custodia reorum, l. Milites, et l. finali. Set numquid
tenetur de uiolentia? Et uidetur quod non quia est casus fortuitus, ut probatur ff.
commodati, l. In rebus, in principio, qui nullo humano iudicio prouideri possunt non
uidetur teneri, ff. de admin. rerum ad ciuit. pertin. l.ii. § Si eo tempore, C. de
pigner. act. l. Que fortuitis; et quia nulla custodia fieri potest ne damnum iniuria
detur, ff. commodati, l. Ad eos, ff. locati, l. Set de damno.
||But what if a knight looses <the castle> by himself; is
he not held <liable> even if there is no doubt (of bad faith)? And although the
fault born in crimes does not compare to bad faith, as is noted by the chapter Magna
negligentia from the Digest title on the meaning of words; nevertheless, here he
failed, as in the beginning of the chapter Milites, from the Digest title on
bailments., and by the chapter Ad commentariensem. And moreover he is held
<liable> slightly because he received payment, as in the chapter Si ut certo,
from the Digest title on loan for use, and moreover very, very slightly if certa
custodia had been agreed to. Although it would appear that he would not have to be
punished severely, as in the chapters Milites and the final chapter from the Digest
title on bailments. But is he not held concerning the violence? And it appears not
because it is a fortuitous case, as is proven in the beginning of the chapter In rebus under the Digest title on loan for use. For one does not appear to be held
<liable> for what cannot be anticipated by human judgment, as in the paragraph Si
eo tempore in the second chapter under the Digest title on carrying on public
business, the chapter Que fortuitis under the Code title on the action for
pledge; and because no custody can happen such that a condemnation for iniuria would be given, as in the chapter Ad eos under the Digest title on loan for
use, <and> the chapter Set de damno under the Digest title on hire.
|Tu dic quod aut culpa precessit uiolentiam et tunc tenetur ut
quia non habebat tot homines in castro sicut erat conuentum uel non habebant arma uel
uictualia deficiebant tenetur, ar. ff. locati, Si merces § Culpe, ff. commodati, Si
ut certo § i. Maxime si culpa fuit preordinata ad casum, ar. ff. de lege Rhodia de
iactu, l. finali, et semper presumitur culpa nisi ipse probet contrarium, ut ff. de
custodia reorum, l. finali, et ibi not. et ff. de edendo, Si quis ex argentariis §
finali, et not. Dy. ff. soluto matrim. l. Si mora. Si culpa non precessit uidetur
per iura superius allegata quod non tenetur, tamen de iure nobilium tenetur. Et uidetur
posse probari de iure nam cum rex custodiam sibi commiserit obtentu uiolentie, uidetur
etiam de uiolentia teneri, ar. optimum, ff. commodati, l.i. et quod ibi not. Iaco. de
Aren. Et quod tacite agitur pro expresse habendum est, ff. si certum petetur, l. Cum
quid. Nam et caupo recipiendo res etiam de damno uidetur se obligare, ff. naute
caupones, l. Nauta § finali.
||You say that either the fault preceded the violence, and then
he is held <liable> so that because he was not holding as many men in the castle as
had been agreed, or they did not have weapons, or the supplies were deficient, he is held
<liable>, as is argued at the paragraph Culpe in the chapter Si merces under the Digest title on hire, <and> in the first paragraph in the chapter Si
ut certo under the Digest title on loan for use. Most of all if the fault was
preordained to the case, as is argued in the final law under the Digest title on the
Rhodian sea law. And fault is always presumed unless that one would prove the
contrary, as in the final law under the Digest title on bailments; and there it is
noted, and in the final paragraph in the chapter Si quis ex argentariis under the
Digest title on formal pronouncements. and as Dynus noted on the chapter Si mora under the Digest title on marriage dissolution. If the fault did not precede, it
appears through the laws alleged above that he is not held <liable>; nevertheless,
he is held <liable> from the laws of the nobility. And it appears to be able to be
proven de iure, for since the King committed custody to him while fighting was
underway, he appears to be held concerning violence. The best argument is at the
first law under the Digest title on loan for use, and what Iacobus de Arenga noted
there. And what is done tacitly must be held <as if it had been done> expressly, as
in the chapter Cum quid under the Digest title on fixed claims. For a
shopkeeper in having received a thing, appears to obligate himself even concerning damage,
as in the law Nauta under the Digest title on Sailors and Innkeepers.
 Dig. 48.3.14: Modestinus says that the custody of a prisoner should not
lightly be given to an inexperienced person, for if the prisoner is lost, the blame rests
on the one who entrusted the prisoner.
 Cod. 9.4.4.
 Dig. 4.9.7.§.4 (§ Hac autem actione): Ulpian says that the liability of a
shipowner may depend on who he employs on the ship. He is responsible to employ competent
help. But if he employs his own slaves, the owner can only be noxally liable for damage or
 Cod. 4.65.4.
 Dig. 27.8.1.§.11: Ulpian says that if magistrates appoint incompetent
tutors they are liable for losses caused by those tutors. But if the tutors were sound at
the time of appointment, but then lose money, the magistrates are not liable because the
loss would be due to an unforseeable chance occurence.
 Dig. 3.5.36(37).§.1: Paul says that anyone engaging in moneylending has to
bear the responsibility both for the interest and the risk on the loans he himself has
arranged unless, as the result of misfortunes, the debtors lost their property and so were
insolvent at the time of joinder of issue of this action.
 Dig. 50.8.2.§.7: Ulpian says that if a person who is eligible for a
position ends up loosing his wealth and costing the community as a result, that person's
nominator is not liable because chance disasters are not humanly forseeable.
 Dig. 13.6.20.
 Dig. 50.16.226: Paulus says gross negligence is fault (culpa), gross
fault is bad faith (dolus).
 Dig. 48.3.12: Callistratus notes that, according to a rescript of Hadrian,
soldiers who allow prisoners to escape should be put to death if their negligence is very
great, but that they should receive lesser punishment if their negligence is less. He
mentions another of Hadrian's recripts stating that the loss of prisoners due to
drunkenness should result in corporal punishment and diminished duties, and that such a
loss due to accident should not be punished at all.
 Cod. 9.4.4.
 Dig. 13.6.5: regarding loan for use arrangements, details of time and place
are to be considered by the judge.
 Dig. 19.2.25 (Si merces).
 Dig. 48.3.12 et 14.
 Dig. 13.6.18: Gaius says that a borrower is not liable for events that
cannot be prevented or forseen.
 Dig. 50.8.2.§.7.
 Cod. 4.24.6.
 Dig. 13.6.19: Julian says that those who lend or borrow for use are not
responsible if a third party wrongfully damages what is loaned or borrowed.
 Dig. 19.2.41: Ulpian notes that Julian held that one cannot bring an action
against a bailee for damage done by a third party, but that Marcellus held the opposite
opinion. Marcellus held that the bailee had a duty to protect his charge against harm.
Ulpian agrees with Marcellus's view.
 Dig. 19.2.25.§.4: Gaius says that it if a neighbor cuts down a tree on
property leased to the occupier due to a quarrel with the same, that the occupier could be
liable for the damage, apparently because he might be responsible for the quarrel.
 Dig. 13.6.5.§.1.
 Dig. 14.2.10: Paul discusses the case of a ship captain who transfers his
cargo to another ship, knowing that the owner of the cargo would have opposed this. If
that other ship goes down, the captain is liable. If both ships go down, he is not.
 Dig. 48.3.14.
 Dig. 2.13.6.§.10: Ulpian notes that the preator has ordered that one
should not give over something to someone who makes a second request <for the same
material or item> without showing cause.
 Dig. 24.3.9: Sabinus says that if a wife is slow to accept back her dowry
from her ex-husband, the ex-husband is responsible for dolum malum, but not for culpa,
so that he cannot be responsible to cultivate fields which are part of such a dowry
 Dig. 13.6.1: does not appear to be relevant.
 Dig. 12.1.3: Pomponius says that even if there is no specific provision in
a loan for consumption (mutuum), the thing returned should be of the same quality.
The debtor cannot return something of inferior quality: likeness in kind and quality is
 Dig. 4.9.5: Gaius says someone who receives something for safekeeping has
to keep it safe from theft and from damage.
For an explanation and of the citations of Medieval Canon and Roman Law jurisprudence,
please ORB Online
Encyclopedia: Law: A Guide to Online Resources.
Mario Ascheri, "Analecta manoscritta consiliare (1285-1354)," Bulletin of
Medieval Canon Law 15 (1985) 61-94.
Ingrid Baumgärtner, ed. Consilia im späten Mittelalter: Zum historischen
Aussagewert einer Quellengattung (Studi/Schriften des Deutschen Studienzentrums in
Venedig 13; Sigmaringen 1995).
B.McManus, "The Consilia and Questiones of Oldradus de Ponte," Bulletin
of Medieval Canon Law (Forthcoming in 1998).
Peter Pazzaglini and Catherine A. Hawks, Consilia. A bibliography of holdings in the
Library of Congress and certain other collections in the United States (Washington,
D.C. 1990) xiii-xxiv.
Peter Riesenberg, "The consilia literature: A prospectus," Manuscripta 6 (1962) 3-22.
Eduard Will, Die Gutachten des Oldradus de Ponte zum prozeá Heinrichs VII. gegen
Robert von Neapel (Abhandlungen zur mittleren und neueren Geschichte 65;
Norman Zacour, Jews and saracens in the consilia of Oldradus de Ponte (Pontifical Institute Studies and Texts 100; Toronto/Buffalo 1990).
Transcription, translation, and notes by Brendan McManus, Ph.D. [email@example.com].
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© Paul Halsall June 1998