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Delict Notes

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Supervision 8 The Law of Delict

DAMNUM INIURIA DATUM

Evolution A number of actions concerned with damage to property are known to have existed in early Law however no general delict of wrongful damage existed in this area. The decisive step in the evolution of this delict occurred sometime in the middle Republic with the enactment of the lex Aquilia. There is dispute as to precisely when, but most writers favour 287 BC. A law on property damage would seem likely given the civil disturbance and it is possible that a major purpose of the legislation was to redress plebeian grievances against the patricians. Professor Honore argues for a later date in the economically uncertain and inflationary period that followed the Punic War in around 200 BC. Liability under the lex Aquilia Divided into sections known as chapters, only 1 and 3 were relevant. CHAPTER ONE - "It is provided that whosoever shall have wrongfully killed a slave, male or female, or a four-footed beast of cattle shall be condemned to pay the owner money equal to the highest value that the property had attained in the preceding year" CHAPTER THREE - "In respect of other things apart from slaves and cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking, or spoiling his property, let him be condemned to pay the owner the value which the thing shall prove to be worth in the next thirty days" An act - mere omission did not render a person liable under the Act, but one who assumed to do a thing had to carry it out to its proper completion. Which is wrongful - the act of the defendant must be wrongful, in other words the damage must have been caused through an iniuria. At first, this word mean a lack of lawful excuse, but for Classical jurists it implied that there was dolus or culpa aka intentional or negligent conduct.

Caused - causation has always been a problematic area. It is hardly surprising that in Roman law there was no clear test emerging; the approach was casuistic, attempting to provide solutions to individual problems. Ulpian asks if, when people are playing with a ball, one hits it hard and knocks the hand of a barber with the result that he cuts the throat of the slave he has been shaving, who is at fault. Proculus adds the barber is at fault if he shaves in a place where it is customary to play games. Ulpian says it is the slave's fault for getting into a dangerous chair. Ulpian adds that if a man gave a slave a mortal wound and left the slave dying and then another came along and in fact killed him, the first man was liable under Chapter III and the second under Chapter I. Ulpian reports that if a man gave a slave a mortal wound and a falling stone then killed him, the man is liable under Chapter III. Julian says that if one person wounded and the other despatched, they would both be liable under Chapter I. The egg shell skull applies in Roman law. Damage - master/owner had to suffer pecuniary loss. This could be damnum emergens which covered the immediate loss e.g. less valuable for losing an eye or killed and consequential loss e.g. medical bills; whole group of musicians less valuable or lucrum cessans for loss of profit. Defences - necessity; self-defence; consent e.g. sports; exclusion clauses in contracts; contributory negligence by the claimant. This was discussed at length in the texts and examples such as a slave crossing a field in which people were known to practice javelins and was killed with a javelin, his master would have no redress. Contributory negligence was a complete defence. There was the actio legis Aquilae for double damages

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