#3561 - Delict - Roman Law

• Wrongs against a person, his family, or his property – private law.

• Delict arose from a wrongful or intention act/omission.

• Under early law, there would have been some sort of vengeance allowed. Sometimes it was retaliation, enslavement etc.

• Actions in personam – they end in death, unless the praetor grans the heir a right.

• If many committed a delict, each was personally liable for the full damage.

INJURIA

• “The residual delict for intentional wrongs to the personality with a comprehensive range – assault and battery, defamation, trespass, exercise of servitude without a claim of right, etc.” – Thomas

• Wilful and unjustifiable violation of the rights of a freeman to freedom, safety and reputation – corpus, fama and dignitias.

• The claim is for personal insult – it’s not defamation where there has to be damage.

Penalty:

• Under XII tables asses for a broken bone, but retaliation for limb.

• Praetor introduced the actio injuriarum:

  • C estimated his damage and the judge ruled what was reasonable.

  • Limitation period of one year.

  • Not available for mere negligence (intention only) and self defence could be argued. Note that there could be mistaken injuria

  • Each person affected by the act could bring their own action.

  • A slave had no action but his master could raise personal injuria.

• In later law, consequent damage could be claimed.

Requirements:

• Contumelia – insult

• Intention to insult – note the reference to the bootmaker in D.9.2.5.3 whose purpose is not to insult but to teach.

• The insult was not justified

• C had hurt feelings – later relaxed so he could claim if he heard of the insult later.

Injuria atrox:

• Especially outrageous harm resulted in higher damages: ex persona because of a person’s position e.g. senator, ex facto because of the nature of the act, ex loco because of the public nature of the incident, or ex loco vulneris because of the vulnerable nature of the body part injured.

DAMNUM INJURIAM DATUM

• Wrongful damage to property causing pecuniary loss.

• Was compensatory for the claimant and penal to the wrongdoer (although Zimmermann questions its penal function).

• Governed by the lex Aquilia:

  • first chapter deals with killing of slaves and four-footed beasts. Liable for highest value of the thing in the past year.

  • third deals with all other property damage. Liable for highest value of the thing in the previous thirty days.

• Note that a person who denied liability was liable in duplum.

Requirements:

• Intentional or wrongful act – positive act. No liability for omissions except where a task undertaken was improperly completed. Thus intention was not a full requirement. There was no liability without fault and contributory negligence was a full defence.

• Wrongful – no legal justification e.g. self defence.

• Pecuniary loss – caused by the act. No pecuniary loss meant no claim.

Extensions:

• The praetor extended the scope by granting actions based on the lex:

  • Actiones in factum and utilis allowed the pledgee, usufructary, bona fide possessor, tenant and coloni to bring claims in various circumstances – these people had rights in rem.

  • Where the corpore corpori requirement was not fulfilled, the praetor may grant an actio in factum.

    • Where the damage was inflicted indirectly.

    • Rumpere was interpreted as corrumpere which meant spoil/make worse and thus extended greatly.

    • Where there was not necessarily damage to the property but it was lost – corpore non corpori – e.g. coins knocked into a river.

Causation issues:

• Romans had little concept of factual/legal causation. D had to cause the damage – the verb implied the causation issue.

• For concurrent causes, there is debate. Julian settled that if a slave was mortally wounded, it didn’t matter if a chariot then delivered the killer blow– a fatal wound would attract chapter 1 liability regardless of when death occurred and both would be liable as such. Ulpian disagreed.

• Not a particularly complicated lex. Written in three chapters. The second was out of use by the classical period, but the first and third remained:

  • First deals with wrongful killing of slaves and grazing animals.

  • Third provided a remedy for all other wrongful damage to property.

• The lex allowed a shift from fixed penalties to more readily assessable damages according to the wrong.

Calculating the wrong

• The rule about getting the highest value in the past year took account for the fact that a slave may have died from a wound sustained some time before which would have reduced his value, but to give that value would not compensate the owner. From a practical perspective, it saved having to value the slave at any one point in time.

• Liability under chapter three differed:

  • The period is 30 days, not a year

  • Seemingly not retrospective but prospective. But juristic interpretation turned it retrospective.

  • The word ‘plurimi’ is missing – highest.

  • It is the real value that is considered, so it would seem that the wrongdoer might have to compensate far more than the extent of his damage. David Daube points out that this equated damage with destruction, which is illogical. Instead we interpret it as the value of the damage.

• The original meaning of the third chapter was being ignored almost completely by the time of Sabinus.

• There was no liability for omissions, although there could be liability for failing to properly complete a task e.g. remove teeth but not provide the aftercare for healing etc.

• A lack of skill by a professional was treated as negligence and could generate liability.

The nature of the actio legis aquiliae

• Perfect example of an action which is both penal and reipersecutory. Seeks to both compensate the injured party and punish the wrongdoer.

• But the punishment aspect of the actio was perhaps questionable, since the wrongdoer did not have to pay duplum etc. like for furtum. In reality this only applied to wrongdoers who admitted liability – those who denied and were found against would be liable in duplum.

  • Surely all that was therefore punished was an unwillingness to confess?

• Justinian realised this inconsistency. What happened was some cases there would be an award for more than the value of the damaged item and that became a penal element. But it surely only affected a small number of people. Justinian seems to have been attempting to rationalise an irrational method.

Harmful result:

• Chapter one applied to slaves and four-footed beasts. Gaius said to be classes as such they had to go about in herds – example are sheep, goats, horses, mules and asses. Pigs were not included at first but were later.

• It had to be shown that D’s action was, directly or indirectly, ‘occidere’ i.e. the killer. Causation was a problem and there was debate over the distinction between one who killed and one who caused death. The latter, however, did not escape liability as they would have an actio in factum against them, authorised by the praetor.

• Occidere was much more someone who killed body to body/hand to hand. This would allow the actio legis aquiliae to be awarded.

• Ofilius is the first known praetor to have granted an actio in factum. It seems to have pre-dated him but cannot go back further than 2^nd c. BC.

• Note that rumpere was eventually taken to mean to spoil/make worse, which widened the extent of the act significantly to, for example, stained and torn clothes, or grapes that were not ripe were cut from the vine.

  • Limits to this: it required deterioration to result – there would be no claim if you castrated a slave and made him more valuable. It also had to change the thing in some way (can’t just sow someone else’s corn in your own field and bring the actio).

Causation issues

• The Roman’s didn’t have a coherent conception of factual and legal causation. There doesn’t even seem to be much discussion of ‘but-for’ in the texts – each of the modes of damage implied causation through the words: occidere, urere, fragere, rumpere.

• Concurrent causation was difficult: X is mortally wounded by A but, before dying, receives a...