4. DAMNUM INIURIA DATUM

While the essence of the delict of iniuria was insult, the essence of damnum iniuria datum (loss wrongfully caused) was loss {damnum}, and while iniuria, like other delicts, required a wrong­ful intent, it was sufficient for damnum iniuria datum that the loss should have been caused by culpable conduct, whether intentional or merely negligent.

Lex Aquilia. The foundation and framework of the delict were provided by two provisions, or ‘chapters’, of the lex Aquilia, passed probably in the third century b.c. The first chapter of the lex dealt with the killing of slaves and cattle, and imposed a penalty of the highest value that the slave or animal had had in the year preceding the killing. The purpose of this mode of calculation was probably to protect the plaintiff from fluctuations in market values, but it also had the result, for example, that if a man killed a slave who was blind when killed, but who had lost his sight only within the previous year, he would be liable for a great deal more than the loss he had actually caused.

The third¹ chapter was more general and therefore eventually more important. It provided that, in cases not covered by the first chapter, if a man caused loss to another by ‘burning, break­ing, or destroying’ his property, he should be liable for the loss he had caused, the assessment being in this instance made at the highest point in the last² thirty days.

Essential elements of the delict.

¹    The second dealt with a different matter.

² Or the next? The provision would then have been intended to allow for the possibility that the full extent of the injury to a slave or animal might not be apparent at once. On this and other difficulties see F. H. Lawson and B. S. Markesinis, Tortious Liability for Unmtenional Harm (1982) vol. 1 pp. 5 ff. with references.

thing damaged must be the property of the plaintiff. All these elements were, in varying degrees, the subject of juristic or Praetorian extension in the centuries which followed the passing of the lex.

(i)   The act. The earliest extensions were the work of the jurists, but these amounted to little more than an admission that the word ‘smash’ {vumpere) must be allowed to include other forms of direct physical damage {corrumpere}. The jurists were soon relieved of the need to force the words of the lex any further by the intervention of the Praetor, who granted an action on the analogy of the lex {actio utilis, also referred to as actio in factum} where the damage had been caused only indirectly. The jurists were thus faced with the need to distinguish between direct damage which would found an action on the lex {actio directa) and indirect damage for which the actio utilis was the appro­priate remedy.^[95] The Digest preserves many of the examples which they debated. If a midwife gave a slave-woman a drug from which she died, this was admitted (by interpretation to be ‘killing’ if the midwife administered the drug with her own hands, but if she gave it to the woman for her to take it herself it was only the ‘providing of a cause of death’ and therefore actionable by the actio utilis.

It is obvious, particularly in the last example, that the sub­stantial issue is one of causation, and that there is a third pos­sibility, that the damage may be so indirectly related to the act as to found no liability at all, even under the actio utilis. The jurists’ approach is characteristically casuistic. The texts present a large number of hypothetical cases. From the choice of these cases and the decisions to them the jurists’ analysis is allowed to emerge. Moreover the question whether the act was the cause of the damage can also be expressed as one of whether the actor was at fault or not. For example, the case is put of the man who, while playing a game, hits the ball so hard that it hits the hand of a barber who is shaving a slave, and the slave’s throat is cut. The discussion is of which party was at fault.

A related question is that of the distinction between an act and an omission. Clearly an omission could not found liability under the lex, but was it sufficient for the actio utilis? Here again the Roman contribution consists rather in the posing of the question than in the formulation of the answer. Nor is the answer easy, as modern systems have found. To penalize omis­sions is to impose a duty to act—a positive duty—and it is arguable that, in the absence of a contract, the policy of the law should be to impose only negative duties. To impose on me a duty to act whenever, in the infinitely variable circumstances of life, my failure to do so is likely to result in loss or injury to another, is to impose—so the argument runs—an unwarranted restriction on my freedom.

Such questions apart, there remained outside both the action on the lex (for direct physical damage) and the actio utilis (for indirect physical damage) a third category of loss, namely that which is caused without there being any physical damage to property of the plaintiff.

¹ See above, p.

(ii)   Iniuria. The act must be done iniuria. This originally meant simply non iure—without justification. The actor was liable unless he could show some justification, such as self-defence, necessity, or lawful authority. But it was apparently early admitted that it was sufficient to show that the damage was unavoidable; and from ‘I could not help it’ it is a short step to ‘It was not my fault’. At any rate, in classical law style='font-style:italic'>iniuria was treated as equivalent to dolus or culpa (fault), and it was for the plaintiff to show one or the other. Questions of culpa are, as we have seen, not always easily distinguishable from questions of causation, and the treat­ment is again casuistic. Culpa is in one text defined as a failure to foresee what a careful man could have foreseen, but the jurists otherwise prefer to delimit its meaning by the decision of typical cases. If a man digs a bear-trap into which another’s slave falls and is injured, he is liable if he dug it where people commonly go, but not if he dug it in a place where such traps are commonly placed—and so forth.

(iii)  Damnum. The plaintiff must have suffered loss. We saw that at least in the late law an action lay for loss without damage, but at no time did an action lie for damage without loss. Normally of course damage results in loss, but exceptional cases are possible. To give a slave a black eye is to damage him but his master will not necessarily suffer any loss.

(iv)  The plaintiff’s title. The thing damaged must be the property of the plaintiff. A usufructuary, therefore, or a pledgee had no action on the lex, although he had suffered loss. But in these and similar cases the Praetor allowed an actio utilis. A much more important consequence of the strict rule was that there was no action for negligent injury to a free man not in potestate. ‘For no one can be said to be owner of his own limbs.’ (A wilful injury would constitute the delict of iniuria.') The free man who was negligently run down and injured in the streets of Rome had therefore no remedy. Even in this case, however, an actio utilis was eventually given, but probably not until the time of Justinian.

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