152 



HAROLD M. WIENER^ LL.B., ON THE 



India as in Babylonia to differential treatment of the physician's 

 failure. Want of skill or success is more heinous wlien the 

 victim is great than when he is little. 



Of the intellectual element in the law we have already seen 

 something, but an example may be taken of the way in which 

 a principle relating to property is worked out. We may select 

 for this p.urpose the aphorism res domino perit — if property is 

 destroyed, the loss falls on the owner. In the simplest cases 

 the principle is so obvious that no question can possibly arise. 

 If I accidentally drop my handkerchief into the fire, I am the 

 only person on whom the loss can fall. The same holds good 

 if my corn or my sheep are destroyed by a storm or a lion 

 while in my custody. But not all the cases that may arise are 

 as clear as these. For instance, A's field is being cultivated by 

 B, who in return gives him a proportion of the produce. If 

 the calamity occurs to that which remains in the field after A 

 has received his proportion, what is to be done ? Here 

 Hammurabi rightly decides that the ownership is definitely 

 fixed at the time of the receipt. Therefore, the produce 

 remaining in the field had become B's, and B's only. 

 Consequently it is on B alone that the loss must fall (§ 45). 

 If, on the other hand, A had not received his share, the two are 

 joint owners, and the loss must be divided " according to the 

 tenour of their contract" (§ 46), i.e., proportionately, as 

 Mr. Pinches renders it. In each case the loss falls on the 

 owner. Again, suppose that A's slave dies of purely natural 

 causes while in the house of B, who has lawfully distrained on 

 him. Here again res domino perit ; the owner must bear the 

 loss (§ 115). Or if B has hired A's ox and " God has struck it 

 and it has died," or again in the case already cited, if by the 

 act of God or vis major, A's sheep have perished while under 

 the charge of C, a shepherd, the rule is the same (§§ 249, 266). 

 On the other hand, in some cases of purchase thei'e was a right 

 of rescission within a given time (§ 278), and here the principle 

 is subject to this rule. The adoption and application of 

 principles of this sort are necessary incidents of the growth to 

 maturity of any legal system, but they show the sound sense 

 and grasp that characterise certain portions of the Babylonian 

 code. 



On the other hand nothing very satisfactory can be said of 

 the general treatment of the intellectual element in offences. 

 The limits of Babylonian reflection on the matter are only 

 too clearly shown. The authors of the code are usually willing 

 to excuse anybody who acted under compulsion or under a 



