Delictual liability: from revenge to compensation

The carving out of the concept of an "obligatio" and the development of a law of obligations was one of the great contributions of classical Roman jurisprudence to the science of law.

Fritz Schulz refers to it as

¹ Epistuiae adM. Bmtum 1, 18, 3: see Schulz, CRL. pp. 45S sqq.

" The same connotation is inherent in the Dutch (and Afrikaans} word for obligation: " verb m ten is".

⁵ Inst. Ill, 13 pr. On the origin of this definition cf., most recently, Bernardo Albanese, "Papiniano eia defmizionedi 'obligatio' inj. 3, 13, pr.", (1984) 50 SDHI166 sqq. According to him, it is attributable to Papinian.

⁴ See, for example, Peter Birks, "Obligations: One Tier or Two?", in: Studies in Justinian's Institutes in memory oj'J.A.C. Thomas (1983). pp. 19 sq.

"[a] unique achievement in the history of human civilisation".^[5] Indeed, the concept of "obligatio" is a very advanced and refined one which was not part of the primitive thinking patterns of archaic Roman law (let alone any other legal system), but which stood at the end of a long evolution.^[6] Like Greek or Germanic law, Roman law in its early stages can be conceived of, by and large, as the law of the family units^[7] which constituted the ancient rural community. Family relationships, succession and property: these were the main areas with which the law had to concern itself—all of them as part and parcel of a broadly conceived family law and under the umbrella of the extensive powers of that almost absolute monarch of each familia, the paterfamilias. However, already at an early stage it was recognized that certain situations did not fit into the internal power structure of the familia: situations where, for instance, a person in one familia was allowed to exercise a legal power over a paterfamilias of another familia.

The purpose of exercising this power was not to incorporate this other person into the family unit but to expiate a wrong which might have been inflicted and for which the other party was "liable". Thus, the early roots of liability in private law lie in what we today call delict. At a time when State authority was still too weak to enforce law and order, and either to administer criminal sanctions or to develop a system according to which a wronged party could be compensated, the individual had to take the law into his own hands. Whoever had committed a wrongful act against the body or property of another person was exposed to the vengeance of the victim of this wrong. The wronged party gained a right of seizure over the body of the wrongdoer, in order to execute his vengeance.

Initially this execution took the harshest possible form, namely the infliction of death. It is obvious that for the community at large such a state of affairs in which its members were allowed to kill each other was hardly satisfactory. Soon, therefore, we find the State interfering. On the one hand, seizure of the wrongdoer was tied to formal proceedings under State supervision (manus iniectio); on the other, the powers of the victim were reduced. In the case of membrum ruptum, the lex talionis^[8] ^{^[9] ^[10] took the place of killing: if the wrongdoer had broken the victim's limb, the victim was allowed only to break the wrongdoer's limb in return — to let him inflict a graver injury than he had received himself now seemed to be excessive satisfaction. However, taliation (even though historically introduced as a means of mitigation) was still a relatively crude way of dealing with the consequences of wrongful acts. Therefore, already at a time before the XII Tables were drafted, the victim's right to vengeance was made redeemable: at first he was allowed, later expected, and finally indirectly forced, to accept a composition consisting of a sum of money (earlier on, probably cattle)⁹ which either the wrongdoer himself or somebody else—usually a relative—might offer¹⁰ in order to make the victim abstain from taking vengeance." This was a development which the State tried to support by standardizing the amount of the composition for various delicts.}

At that stage, liability for dchct began to be seen increasingly in financial rather than retaliatory terms.^[11] ^{^[12] Still, however, the law focused on the aspect of liability: the wrongdoer had the option of "buying-off" the right of vengeance, but if he was not able to do that and if nobody else was willing to redeem him either, manus iniectio was granted, i.e. the victim was now allowed to exercise his power of seizure. If the worst came to the worst, the wrongdoer was liable to be sold into slavery (trans Tiberim) or even to be cut into pieces.^[13] ^{^[14] ^[15] 3.}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Delictual liability: from revenge to compensation

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