Contractual Liability

From an early period Roman law set forth various standards or norms of conduct for assessing the liability of parties to a contract. As the Roman jurists tended to decide casuistically (from case to case), the relevant standards varied in accordance with the type of juristic act at issue and the subjective interests of the parties concerned, although in later times there was an attempt to develop a general system.

Classical Roman law recognized three basic forms of liability: dolus, culpa and custodia.

The concepts of dolus and culpa were abstract and generalized, representing a failure to comply with the objective standards of, respectively, good faith (bona fides) and the diligence exhibited by a reasonable man (diligentia boni patrisfamilias). Custodia, by contrast, was defined in a much more concrete and casuistic way. Liability for custodia arose in the situation where the debtor had in his possession property belonging to the creditor that he was obliged to return. The law then dictated that the property in question should be kept in careful custody (custodia) until its return. This represented a very strict form of liability as the debtor was liable not only for loss or damage caused by his dolus or culpa but even for fortuitous loss or damage (casus or casus fortuitus) caused in certain typical ways (e.g.

To understand the operation of the contractual liability norms in classical law reference must be made to the familiar distinction between negotia stricti iuris and negotia bonae fidei. In the case of the former, the debtor was liable when the non­performance or malperformance of the obligation was caused by his fault (dolus or culpa). In respect of obligations arising from negotia bonae fidei, on the other hand, the debtor was liable only for dolus malus or deliberate improper conduct that conflicted with the requirements of good faith.^[635] However, those debtors who had a duty of safe keeping (custodire) could be held liable for non-performance even in cases where no dolus malus existed on their part. As noted above, these debtors were held liable for everything except vis maior or an act of God.

In the course of time and under the influence of Greek philosophical thought on the one hand and Christianity on the other, the tendency developed to ground liability exclusively on the element of guilt. As a result, in the post-classical age liability for custodia faded away while dolus and culpa were clearly distinguished and underwent a number of refinements. During the same period, the law schools of the East endeavoured to devise a general system and it is probable that this system was adopted and extended by the compilers of Justinian’s law codes. Nevertheless, the terminology of the Corpus Iuris Civilis is neither very precise nor consistent and an array of concepts (dolus, culpa, culpa lata, culpa levis, omnis culpa, exactissima diligentia and such like) are used in a rather loose manner.

In the law of Justinian, dolus denoted an intentional, malicious or fraudulent action (dolus malus) of the debtor while culpa was understood to encompass any reprehensible conduct falling short of dolus.

Culpa lata denoted gross negligence or, as it is stated in a text, ‘not knowing what everyone knows’, and, for all practical purposes, was equated to dolus.⁶'⁷ A person liable for this degree of negligence exhibited a lack of care and diligence so gross as to suggest bad faith.

Culpa levis in abstracto refers to a failure to exhibit the degree of care expected of a prudent and diligent head of a family (bonus et diligens paterfamilias). This degree of culpa implied that one’s conduct was assessed on the basis of an abstract or objective standard. When such standard was applied, the person concerned was expected to show the highest degree of care (exactissima diligentia) and hence he could be held liable for the slightest negligence (culpa levissima). This relatively strict form of liability applied to those persons who, in classical law, would normally be liable for custodial

Finally, culpa levis in concreto occurred when a person failed to exercise the same degree of care as he would normally have exercised in respect of his own affairs (diligentia quam suis rebus adhibere solet). This level of liability implied that the conduct of the person concerned was tested against a purely subjective criterion. An example of this type of culpa was to be found in the contract of partnership (societas).^[639]

It should be noted that the sources are often inconsistent as to the standard of liability required in specific types of contract. In general, the incidence of culpa levis or culpa lata appears to have depended on whether or not the party concerned received a benefit under the relevant contract.^[640]

4.3.6