Delictual and quasi-delictual liability

If, therefore, the four quasi-delicts have left hardly any traces in modern legal science, the systematic niche carved out for them in Justinian's Institutes, too, was ultimately bound to wither away.

Throughout the centuries scholars hypothesized inconclusively about the distinctive characteristic of quasi-delicts, as opposed to delicts.^[5920] Some authors, rather vaguely, suggested "culpa aliqua" as the basis of quasi-delictual liability,^{[5921] 5} others referred to wrongs by construction of law where "waerelick geen misdaed en is"^[5922] or of "factum omne ex quo qui convenitur,... quod sit maleficio fmitum"^[5923] or "quod maleficio est proximum".^[5924] Some jurists of the usus modernus tried to argue that liability, in the one case, is based on the fault of the defendant himself, in the other on culpa imputativa.^[5925] Others argued that only the intentional infliction of harm gives rise to delictual liability, whereas obligationes quasi ex delicto are characterized by negligence ("culpa propria").^[5926]" Occasionally, the category of the quasi-delicts was also regarded as a kind of legal ragpicker which could be used conveniently to accommodate all instances of noiWquasi-contractual liability, that did not fall under either the lex Aquilia or the actio iniuriarum. Thus, in particular, liability under the actio de pauperie was often said to be of a quasi-delictual nature.^[5927] But whatever new turn the discussion took, it became increasingly apparent that its practical significance was rather limited. Liability, as a rule, was based on fault, and as long as this remained the fundamental precept (as it did, particularly prominently, in the 19th century),^[5928] it mattered little whether an action was classified as delictual or quasi-delictual.^[5929] Isolated instances of no-fault liability, insofar as they still existed,^{[5930] [5931]} tended to be regarded as rather anomalous and antiquated elements of the Roman heritage, as ius singulare based on "positive"²⁵⁵ rulings of the praetor rather than on any principles with wider implications.^[5932] By the time the BGB was drafted the dogmatic category of "quasi-delict" was regarded as defunct and useless; it did not, therefore, commend itself for reception into the new code.

Nor did any of the traditional instances of no-fault liability, except one: the actio de pauperie. Even this rather peripheral remedy, however, was cut down in scope, for the notion of strict liability was preserved only with regard to damage done by so-called "luxury animals".^[5933] But apart from that, the principle of no liability without fault reigned supreme and the law of delict in the BGB, in that respect, neatly reflects the prevailing doctrine of 19th-century German legal science.^{[5934] 8}

IV.

More on the topic Delictual and quasi-delictual liability:

1. III. QUASI-DELICTUAL LIABILITY
2. Quasi-contractual and quasi-delictual obligations
3. The Example of Delictual Liability for Others
4. Fault as the basis of delictual liability
5. Delictual liability: from revenge to compensation
6. In modern law a distinction is drawn between delict (or tort) and crime, or between the delictual (or tortious) and criminalaspects of an act.
7. A fourth category of obligations referred to in the Institutes of Justinian are the obligations arising from quasi-delicts (obligationes quasi ex delicto or quasi ex maleficio).
8. Quasi delicts
9. The Content of the Quasi Categories
10. 2. Liability for others in Roman law (apart from noxal liability)
11. The Ideas behind the Quasi Categories