Damnum Iniuria Datum

Without doubt the most important of all Roman delicts was wrongful damage to property (damnum iniuria datum).^{^[940]} This delict originated in the lex Aquilia, a plebiscite passed probably in the third century bc.^{^[941]} Prior to the enactment of this law, the Law of the Twelve Tables and other leges provided remedies for several instances of wrongful damage to property.

For example, there was the actio de vitibus succisis, granted against a person who cut down the vines of another (this was in time extended to apply to the chopping down of trees as well); the actio de pastu pecoris, employed against the owner of cattle which trespassed and grazed upon another person's land; and the actio pluviae arcendae, available when an owner of land initiated constructions by which the flow of rainwater was redirected in such a way as to cause damage to neighbouring property. All these specific delicts were superseded by the lex Aquilia, which introduced provisions of a general character relating to wrongful damage to property.^{^[942]}

The lex Aquilia was divided into three sections or chapters. The first and third chapters dealt with wrongful damage to property while the second chapter dealt with the adstipulator, a special kind of surety or joint creditor in a stipulatio?'^{^[943]} In the course of time the provisions of the second chapter fell into desuetude,^{^[944]} and for present purposes the discussion may be limited to the first and third chapters.

The first chapter of the lex Aquilia provided that whoever wrongfully killed another person's slave or four-footed grazing animal (pecus)^{^[945]} should be condemned to pay the owner the highest value that such slave or animal had in the year preceding the killing.^{^[946]} This chapter is limited in primitive style to a specific kind of damage inflicted on particular kinds of property.

The use of the verb occidere (to slay) indicates that killing effected in another way, in principle, fell outside the ambit of the provision. The word pecus introduced a further limitation, since animals that were neither four-footed nor grazing in herds were excluded from the provision.^{^[947]} The third chapter, by contrast, manifests a striking advance in juristic thinking: it introduces a general concept of loss (damnum) brought about in ways that are described in such a general way that any material damage to property could be said to be covered. This chapter provided that, in cases not covered by the first chapter, if a person caused damage to another by wrongfully burning (urere), breaking (frangere) or destroying (rumpere) his property, he should be condemned to pay to the owner the highest value which the relevant thing had during the preceding thirty days. Although the modes of damaging another's property were initially limited to burning (urere), breaking (frangere) or destroying (rumpere), in the period following the enactment of the lex Aquilia the ambit of chapter three was extended by way of interpretation. Thus, the word rumpere (destroying) was construed to mean corrumpere in the sense of spoiling in general. Furthermore, the terms occidere (as encountered in the first chapter), urere and frangere were likewise extended in scope thereby rendering any form of harm caused by positive conduct to fall under the Aquilian law.^{^[948]}

The chief requirements of the delict of wrongful damage to property, in its pre- classical form, were that some form of physical damage had occurred entailing economic loss (damnum); such damage had been caused wrongfully (iniuria), without lawful justification; and moreover, it had been caused directly by a positive act of the wrongdoer to a tangible object (damnum corpore corpori datum). Thus damage caused indirectly or through omission (omissio) did not fall within the scope of the relevant provisions.

Further, it should be noted that fault in the form of intent (dolus) or negligence (culpa) was not originally a prerequisite of liability under the lex Aquilia. This fact can be explained on the grounds that the notion of wrongfulness (iniuria) initially referred only to an act carried out unlawfully or without justification (non iure or contra ius). As this suggests, liability in the absence of a valid justification (such as self-defence, necessity or lawful authority) was absolute. At a later stage, probably before the end of the Republic, it was recognized that liability for damage was contingent on the existence of fault (culpa) in its widest sense^{^[949]}. However, no clear distinction between the elements of fault and wrongfulness was made. Finally, liability under the Aquilian law presupposed that the object damaged was the property of the plaintiff. Other interested parties who may have suffered loss, such as a usufructuary or a pledgee, had no remedy under this law.

The standard action available to the person who suffered injury under the Aquilian law was the actio legis Aquiliae, which was a mixed action (actio mixta) insofar as it aimed at recovering the damage inflicted and also punishing the wrongdoer. The punitive element in this action is shown by the fact that the action could not be instituted against the wrongdoer’s heirs, unless they had been enriched as a consequence of the wrongful damage to property.^{^[950]} It also appears from the fact that the wrongdoer was held liable for the highest value of the damaged property in the preceding year or thirty days rather than for the actual value of such property at the time of the damage.^{^{size=2 color=black face="Times New Roman">[951]}} Although the aim of the relevant provisions was to punish the wrongdoer by compelling him to pay more than the actual damages suffered, in some cases the practical result might possibly have been contrary to this goal.

Finally, the punitive nature of the actio legis Aquiliae is manifested by the fact that where more than one person committed damnum iniuria datum the liability was cumulative, i.e. each wrongdoer had to pay the full amount of damages owed to the victim.

Notwithstanding the broadening of Aquilian liability in the pre-classical era, there remained instances of wrongful damage to property with respect to which the lex Aquilia did not provide any redress. Consequently, during the classical period the field of application of this law was further extended and adapted to the needs of a developed society. This evolution is displayed by the fact that the actio legis Aquiliae, which was originally granted only to the owner of the damaged property or to his heir, was later rendered available (usually in the form of a praetorian actio in factum or actio utilis)^{^[952]} to other interested parties who had suffered financial loss, such as the bona fide possessor, usufructuary, pledgee, usuary and leaseholder.^{^[953]} Furthermore, contrary to the original lex Aquilia that provided a remedy for damage only to a tangible thing (res) and not to a person, the relevant action was extended to incorporate physical injury inflicted on a free-born person.^{^[954]} Another development of importance, largely derived from the contribution of the jurists, related to the assessment of damages. Whereas the amount of compensation initially depended upon the objective value of the damaged or destroyed object, it was later calculated by reference to the extent to which the interest of the aggrieved party (id quod interest) had been affected. This amount was then construed to include consequential damages (damnum emergens) as well as lost profit (lucrum cessans).^{^[955]} In this way, the actual loss suffered by the prejudiced person became redressable.^{^[956]}

As previously noted, the lex Aquilia originally required that the damage had been caused directly by means of a physical act.

However, as Roman society evolved this requirement was considered too restrictive. Thus, the requisite link between cause and effect was discerned even in cases where damage had been caused indirectly and consequently the scope of Aquilian liability was considerably extended. Such a link was recognized, for example, in a case where a slave had been locked up in a barn and died of starvation, or where one helped a slave to escape. In such cases the praetor granted actiones in factum or actiones utiles, since the actio legis Aquiliae applicable under the ius civile was not allowed. No general rule was laid down but these praetorian actions were made available, in a casuistic fashion, whenever the causal link between the wrongdoer’s conduct and the damage was recognized by society as existing and not being too remote. A mere omission to act did not give rise to delictual liability. However, this rule was subject to the qualification that a person who had previously made a positive undertaking had to carry it through to its proper completion.^{^[957]}

Finally, although initially Aquilian liability only required that the damage caused was done unlawfully (iniuria), the jurists began to interpret iniuria in a broader sense involving both wrongfulness and fault (dolus or culpa) as two distinct elements. This development, which culminated in the post-classical era, was probably precipitated by the extension of the casual link from direct to indirect causation. An action causing damage to property was wrongful if it had been committed with intention (dolus) or negligence (culpa).^{^[958]} Furthermore, such action had to be done without lawful justification or excuse. The main defences that could be pleaded by the defendant were self-defence,^{^[959]} necessity,^{^[960]} acquiescence or consent,^{^[961]} incapacity^{^{New Roman",serif;color:black'>[962]}} and lawful exercise of disciplinary authority.^{^[963]}

4.10.4

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

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