Animus iniuriandi

(a) Presumption of animus iniuriandi

"Zelus pietatis", "privatus affectus": these are subjective criteria, taking us into the field of what was usually referred to as animus iniuriandi.

"Injuriae fundamentum est animus injuriandi":¹³³ the intention to inflict contumely iniuria (that is: to impair the person, dignity or reputation of another) was the gist and hallmark of the actio iniuriarum.¹³ This pronounced emphasis on a purely mental element had been introduced into the sources—here as elsewhere—by Justinian's compilers ("nam maleficia voluntas et propositum delinquentis distinguit")¹³⁵ and was therefore bound to become part of the heritage of the ius commune. Highly commendable under ethical auspices, animus iniuriandi as the decisive criterion for establishing iniuria is, however, unwieldy in practice: for it is often difficult, if not impossible, for the injured plaintiff to prove the specific intention behind the alleged wrongdoer's behaviour. From the time of the gloss, lawyers were therefore intent on alleviating the plaintiffs predicament and established a presumption that prima facie defamatory acts were committed with an intention to defame.¹³⁶ Thus it was incumbent upon the defendant to show that animus iniuriandi had been absent from his mind:

"Sin tales fuerint prolati sermones qui per sc ct propria significations contumeliam inferunt, injuriandi animus adfuisse creditur, eique, qui ilia protulit, probatio incumbit, injuriae faciandae consilium defuisse.”¹³⁷

Certain situations were, however, always recognized where such a presumption did not operate. Persons in a position of authority ('’magistratus”), for instance, were not presumed to have acted animo

¹³ Lauterbach, Collegium theoretico-practicum.

Lib. XLV1I, Tit. X, XIX.

¹³ "Quicquid enim fit animo ct intentione iniuriandi aliumque aut commovendi, aut laedendi" (Van Damhoudcr, Praxis Remm Criminatium, Cap. CXXXV); "... met ecn oogmerk om te beledigen, tot schending van iemands ecr" (Joannes van der Linden, Regtsgeleerd, practicaal en Koopman's handbook (Amsteldam, 18(16), I. Bock, XVI Afd., § IV). For detailed analyses, see Ranchod, op. cit., note 90, pp. 34 sqq., 75 sqq.; Pauw, Persooniikheidskrenking, pp. 37 sqq., 77 sqq.; cf. also Bartels, op. cit., note 112, pp. 75 sqq.

¹³ Paul. D. 47, 2, 54 pr.; Ranchod, op. cit., note 90, pp. 21 sqq. For a good summary cf. Jolowicz, as quoted by Ranchod, p. 21; "The compilers had no doubt a predilection for animus, particularly in the sense that when there was doubt as to the existence of a legal relationship they tended to seek the criterion in the intention of the party or parties concerned to bring about the particular relationship as it was known to the law, whereas the classical jurists had been content to decide the matter by applying objective legal rules to the facts, including of course the intention of the parties."

⁰⁵ Barrels, op. cit., note 112, pp. 81 sqq., 84 sqq.; Ranchod, op. cit., note 90, pp. 36 sqq.; Pauw, Persooniikheidskrenking, pp. 48 sqq.

⁰⁷ Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, XX; cf. also Lauterbach. Collegium theoretico-practicum, Lib. XLVII, Tit. X, XIX: "Quod cum directe per testes aut instrumenta fieri nequeat, proin conjecturae et praesumptiones quoque admittuntur; puta ex verbis et factis sua natura vel loci consuetudine injuriosis." iniuriandi.'³⁸ This was usually justified with reference to D. 47, 10, 13, 1: "Is, qui iure publico utitur, non videtur iniuriae faciendae causa hoc facere: iuris enim cxecutio non habet iniuriam." Thus it was up to the plaintiff to establish abuse of authority on the part of the public official.

Similar considerations prevailed in the case of teachers and other persons standing in loco parentis, who administered a (reasonable) chastisement to their charges. Nor could a person who had been consulted in his professional capacity be presumed to have acted with the intention to insult: a doctor (mistakenly) advising his patient that he suffered from leprosy^{^[5574]} or an astrologer calling his client a thief.^{^[5575]}'^{^[5576]} Again, the behaviour of clergymen posed a problem: what, for instance, if they embraced a woman and gave her a kiss? Not everybody, after all, is fond of such intimate contact with his pastor.^{^[5577]} Yet, according to many, the clergyman was presumed to have acted benedicendi causa; others credited him with a (perhaps somewhat exaggerated) charitable zeal ("... quod clericus, si deoscultetur mulierem, facere id praesumatur zelo charitatis").^{^[5578]} Some authors, however, were opposed to any kind of preferential treatment accorded to the clergy; "a tali charitate libera nos Domine", they exclaimed and proceeded to grant the actio iniuriarum.^{^[5579]}

(b) Rebuttal of the presumption

If, then, apart from such exceptional cases, a presumption operated in favour of the plaintiff "nuta ex verbis et factis sua natura vel loci consuetudine injuriosis", ^[5580] what could the defendant do in order to rebut it? He could show, for instance, that he had acted merely in jest.^[5581] Mistake, too, could be a valid defence, though not, apparently, error in persona.^[5582] Violent anger was sometimes taken to negative the defendant's animus iniuriandi, and thus he was not liable under the actio iniuriarum for "quod calore iracundiae vel fit vel dicitur^1,148 unless he had persisted in these acts or statements after having had time to cool down.

A blow inflicted in a sportive combat was not regarded as iniuria nor (interestingly) a swearword uttered by a chess-player against his opponent.¹⁴⁴ Furthermore, a person could escape liability for an insult inflicted on another if he could show that he had merely retaliated (retorsio).^[5583] ^{^[5584] ^[5585] While it was argued by some that, given the nature of human beings, one could hardly expect them to control themselves when provoked by the other person's defamatory statement,^[5586] others maintained that the retorsion had not so much been made animo iniuriandi as rather honoris tuendi gratia.^[5587] Truth could also constitute a valid defence against an actio iniuriarum, but the exact scope of the defence was much disputed.^[5588] The prevailing view seems to have been that defamatory statements entailed liability, even if they were true. Only if exposure of the matter concerned was in the public interest, was the actio iniuriarum excluded^[5589]—for here it could be presumed that amor iustitiae,^[5590] and not the desire to insult the other, had induced the defendant to make his allegation. Thus, for instance, the statement that someone is a leper constituted iniuria if that other person had already been identified as such by the authorities in charge of public health. If, on the other hand, his exposure led to his identification and subsequent removal from the community, the same statement did not give rise to an actio iniuriarum.^[5591] Not infrequently, insulting remarks appear to have been accompanied by a protestation to the effect that no offence was intended: someone called another a thief, a robber or a forger "salvo honore" (without prejudice to his character); or he added the clause "absit dicto contumelia".^[5592] Such a protestation did not rebut the presumption that the speaker had acted animo iniuriandi: "[n)am si actus sit potentior protestatione, haec nihil operatur."^[5593] Nor, incidentally, could a person who merely repeated a slanderous comment escape liability under the actio iniuriarum by giving the name of the person from whom he had heard it; "nam injurias ab alio auditas proferens famam non minus laedit".^[5594] ^{^[5595] Many writers referred in this context to the old German maxim "Wehrmann haben hilft nicht" (it is of no use to have a warrantor ).^m>}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Animus iniuriandi

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