3. INIURIA

Classical scope of the delict. In its widest sense the word iniuria denotes simply unlawfulness or the absence of a right.

As the

¹ See above, p. 170. ² See below, p. 229.

name of a particular delict, however, it bears in the classical law a more specific, but still compendious, meaning. If it is to be translated by a single English word, ‘insult’ or ‘outrage’ may serve, but neither suggests the full width of the Roman idea, which embraced any contumelious disregard of another’s rights or personality. It thus included not merely physical assaults and oral or written insults and abuse, but any affront to another’s dignity or reputation and any disregard of another’s public or private rights, provided always that the act was done wilfully and with contumelious intent. It was iniuria, for example, to prevent another, without lawful justification, from moving freely in a public place, or from fishing in the sea or other public water. It was likewise iniuria to interfere with his use of his property or to enter unauthorized into his house or on to his land. Again, it was iniuria to affront a woman’s modesty. Indeed such an affront might lay the wrongdoer open to more than one actio iniuriarum: if the woman were married, but still in patria potestas, not only she, but her husband and her father as well, could sue, since the affront was considered to affect them all. And iniuria might take more devious forms: we are told that maliciously to claim payment from my surety when I am solvent, or falsely to advertise a pledge for sale as being mine, is actionable, since my credit is impugned. Even an insult to a corpse or the defamation of the dead was actionable as an affront to the heir, though, as we have seen, an iniuria committed in the lifetime of the dead man gave no right of action to the heir.

Earlier development.

The width and flexibility of the classical delict was the result, however, of a remarkable process of Praetorian and juristic development. The Twelve Tables provided only for physical assaults, retaliation being, as we have seen, the penalty for grave wounding, and fixed money payments for lesser injuries. In the later Republic retaliation had long been obsolete, and the fall in the value of money had deprived the fixed penalties of their efficacy. This is aptly illustrated by the story of the Roman who devised a novel amusement for himself. Followed by a slave with a purse, he went about slapping the faces of respectable persons and bidding the slave tender to each the statutory penalty of 25 asses. This, we are told, drove the Praetors to intervene. They did so by providing an action not for a fixed penalty but for damages. There was here no extension of the delict, but simply the provision of an alternative remedy, which caused the penalties of the Twelve Tables to fall into disuse. Subsequently, however, other remedies were introduced into the Edict for specific acts, such as public insults, affronts to the modesty of a woman, and more generally, and therefore more fruitfully, any attack on the reputation of another which might cause him to suffer infamia.¹The structure of the Edict necessarily left these, and the original remedy in damages for iniuria, as specific and unrelated provisions, but before the end of the Republic the jurists had undertaken their characteristic work of interpretation and generalization. They held that the various acts dealt with by the Edict were simply particular applications of a general principle, implicit in iniuria and therefore in the original action for damages, that any affront to the dignity of the individual was actionable. It was this fertile generalization which gave birth to the classical law of iniuria.

Penal character. Although the Praetorian remedy was for what we should call damages, the essence of the delict was not loss but insult, and therefore the money payment must usually have represented not compensation in the ordinary sense, but rather solace for injured feelings or affronted dignity.

The action had also, of course, all the other characteristics of a penal action, with the additions already noticed^{^[92]}^{^[93]} of active intransmissibility and one year’s limitation. Moreover if the Praetor considered the iniuria to be aggravated (atrox), either by the nature of the affront or by the place in which it was offered (e.g. an insult in the theatre) or by the disparity of social standing of the parties (e.g. assault on a senator by a man of low degree, or on a patron by his freedman), he would intervene to fix the damages at an enhanced figure. It would thus, in principle at least, be atrox iniuria to shout abuse at the Consul in the forum, whereas in English law, in which damage to the reputation and not insult is the essence of defamation, it would be no tort to offer a similar affront to the Prime Minister.^{^[94]}

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

3. INIURIA

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