Culpa

(a) In general

About the only requirement of Aquilian liability that remained essentially unchanged was culpa {in the sense of fault). It could take the form of intention (dolus) or negligence (culpa in the narrow sense, as it was conceptualized in the Justinianic sources¹⁹⁶).

^M Or. more precisely: ad operas, "quibus caruit aut cariturus est" (Gai. D. 9. 3. 7). On the operarum aestimatio see. again. Feenstra. in: Schrage, op. cit.. note 110. pp. 223 sqq.

“ Lauterbach. Collegium theoretlco-practlcum. Lib. IX. Tit. II. XXIV.

■ Voet. Commentaries ad Pandectas, Lib. IX. Tit. II. XI. Cf. also Vinnius. Institutionss. Lib. IV, Tit. Ï1, 13, n. 2; and, in particular, Grotius, Inleiding. Ill, XXXIV, 2 ("De smert ende ontciering van't lichaem, hoewcl eighentlick niet en zijn vergoedelick, werden op geld geschat, soo wanneer sulcks vcrsocht word"); Gluck, vol. 10, pp. 388 sqq.; as far as pecunia doloris is concerned, cf. also Stryk, Usus modemus pandectamtn. Lib. IX, Tit. Ï, § 10 (on the basis of an analogy to art. 20 of the Constitutio Criminalis Carolina). For a discussion cf. Robert Feenstra, "Over de oorsprong van twee omstreden paragrafen uit de Inleidinge van Hugo de Groot (Ø, 33, 2 en Ø, 34, 2)", 1958 AdaJuridica 27 sqq.; idem, Fata iuris romani. pp. 323 sqq.; Wieling, Interesse und Privatstrafe, pp. 133 sqq.; Pieter Pauw, "Aspects of the origin of the action for pain, suffering and disfigurement", 1977 TSAR 244 sqq.; Olivier, op. cit., note 108, pp. 135 sqq., 162 sqq.; Boberg, Delict, pp. 516 sqq.; Hoffa v. SA Mutual Fire & General Insurance Co. Ltd. 1965 (2) SA 944 (C) at 950 sqq.; Government of the Republic of South Africa v. ÙèÜàïå 1972 (2) SA 601 (A) at 606A-611 A. Feenstra, loc. cit., has drawn attention to the fact that this development was inspired not only by local customs but (particularly in the person of Hugo Grotius) by concepts of the law of nature, as formulated by 16th-century Spanish writers on the basis of medieval canonist doctrine (particularly the doctrine of restitution); cf.

For the position in the 19th century, see Windscheid/Kipp, § 455, 7; Wieling, Interesse und Privatstrafe, pp. 147 sq.; today cf. § 847 BGB. On the recoverability of dommage moral in French law, see Genevieve Viney, in: Jacques Ghestin, Tratte de droit civil. Les obligations. La responsabilite: effets (1988), nn. 142 sqq.; Pauw, Persoonlikheidskrenking, pp. 139 sqq.

¹⁹⁴ Cf. still Dernburg, Pandekten, vol. II, § 132, 1.

¹⁴⁵ Cf. Jacobus de Ravanis, as quoted by Pauw, 1977 TSAR 244.

¹⁹⁶ For a historical analysis, cf. Bert Krikke, "Rechtshistorische en dogmatische Problemen rond het eulpa-begrip", in: Straf recht in perspectief (1980), pp. 201 sqq. liable for all possible degrees of culpa, including culpa levissima.^|y7 Imperitia was still equated to culpa.¹⁹⁸ Wrongfulness remained an essential prerequisite for delictual liability, but was terminologically not distinguished from fault.¹⁹⁴ A general theory of causation was never

¹⁹⁷ Cf.. for example, Voct, Coinmviltariiis ad Pandectas, Lib. IX, Tit. II, XIII; Rotondi, Scritti. vol. II, op. cit., note 124. pp. 513 sq.; Kaufmann, Lex Aquilia, pp. 74 sqq.: for the 19th century cf. Ogorck, Gvfahrdimgshciftung, pp. 37 sqq. It was frequently argued, though, that liability for culpa levissima was excluded if the damage had been done within a contractual relationship which, in turn, did not impose such a strict degree of diligence on the parties; in other words, the special, contractual standard of diligence could modify what was generally (under the law of delict) expected of a person. Example: "... si depositaries in rebus suis negligens ex levissima culpa damnum dederit in re deposita, ad illud resarciendum, cum locum non habeat depositi actio, multo minus haec poenalis" (Lauterbach, Collegium theorctico-practicum. Lib. IX, Tit. II, IX—not taking into account, though, that the Aquilian action was no longer penal, but purely reipersecutory, as he himself acknowledged in other places, cf.

^lyH In discussions concerning imperitia, liability for medical malpractice played a particularly prominent role. What the lawyers of the usus modernus had to say about the medical profession, in this context, was not particularly flattering. For Stryk, the medical profession was full of sycophants ("... nulla ars plures habeat Sicophantcs quam medicina, et plerumque hie barbitonsorcs et pharmacopolae officii sui limites excedant..."; he then proceeds to report a case of "pillutarum imperite adhibitarum contra chirurgum"); Lauterbach regretfully reported that negligent doctors were only rarely brought before a court of law and that they were therefore the only people who might kill with impunity ("Raro...

¹⁹⁹ Cf., for example, Struve, Syntagma. Exerc. XIV. Lib. IX, Tit. II, XXI ("Quod si nee dolus ncc culpa intervenit, non intelligitur damnum injuria datum..."); Voet, Commentarius ad Pandectas, Lib, XLVII, Tit. I, I; Glück, vol. 10. pp. 319 sqq; Kaufmann, Lex Aquilia, pp. 73 sqq. As far as damages caused by an act which is "licit and permitted by law" (a traditional ball game) are concerned, cf. the interesting decision of the Rota Fiorentina of 1780, discussed by Gino Gorla, (1Y75) 49 Tulane LR 346 sqq. The decision, inter alia, refers to D. 9, 2, 11 pr. (the barber case). The case of the barber also features prominently (art. 146) in the Constitutio Criminalis Carolina of 1532, the codification that heralded a new era in the science of criminal law.

developed or applied.^[5357] The difference between causam mortis dare and occidere continued to be discussed, although it had lost any significance.^[5358] What mattered was whether the wrongdoer had provided occasionem damni, but that enquiry was often linked to the broader problem of fault.^{[5359] [5360] [5361]}

(b) Culpa in omittendo

Discussion of the knotty question of liability for omissions was also conducted, from the time of the glossators/⁰³ in terms of the culpa requirement.

wrongdoer;^[5366] others were even prepared to drop any distinction between faults of commission and omission: "Sufficit autem, culpa levissima damnum illatum esse,... sive committendo, sive omittendo."^[5367]

(c) Concurrence of fault

Of central importance for the discussion of contributory negligence were the cases of thejavelin-thrower and the barber;^[5368] both were now interpreted in the light of the Justinianic regula iuris "[q]uod quis ex culpa sua damnum sentit, non intellegitur damnum sentire"^[5369]—which in turn was taken to imply that fault on the part of the victim of a wrong had the effect of excluding any claim for compensation against the wrongdoer (unless, of course, the latter had acted dolo). While, therefore, the Roman all-or-nothing approach^[5370] was retained, the problem was now conceived in terms of a concurrence of fault:

"Cum itaque moraliter nemo damnum sentire videatur, qui sua culpa damnum sentit,...

The fault of the plaintiff/victim was, in a way, "set off" against that of the defendant/wrongdoer, with the result that "culpa culpam abolet".²'^[5372] Hence the expression of compensatio culpae or culpa compensation^[5373]'⁶ that came to be used to label the uncompromising approach to the problem of contributory negligence. Whether every contributory fault on the part of the victim—even culpa levissima— was originally taken to deprive him of his remedy is not quite clear. In the later usus modernus, at any rate, the issue appears to have been decided on the basis of a preponderance of fault:^[5374] only if he had displayed the same or a greater degree of negligence than the wrongdoer did the victim lose his claim. Where, on the other hand, his negligence was less significant, when compared with that of the wrongdoer, his claim for damages remained completely unaffected.

IV.