Iniuria

The term iniuria in its widest sense signified wrongfulness in general or the absence of a right. As the name of a particular delict, however, it had a more specific meaning: it denoted the intentional and unlawful infringement of the body, honour or reputation of a free person.^[964]

Originally there was no general delict of iniuria, but the Law of the Twelve Tables recognized a diversity of specific cases in which remedies were granted for attacks on a person's right to his personal integrity.

In the course of time, the early forms of delict involving injury to person elaborated in the Law of the Twelve Tables were superseded by a general delict of iniuria—a development precipitated by the activities of the praetor and completed by the jurists.^[967] A pivotal point in this process was the introduction by the praetor of the actio aestimatoria iniuriarum in place of the obsolete talio and the fixed monetary penalties that had become derisory as a result of inflation. This legal device was a penal action (actio poenalis) by means of which the victim could claim an amount assessed in accordance with the circumstances of the case as well as the judge's views on a just and equitable outcome.

The principal element of iniuria was contumelia: a wrongful infringement of another person's bodily integrity, honour or reputation that ultimately encompassed even wanton interference with another person's public or proprietary rights.^[969] It was required that the victim had suffered a discernible injury to his feelings or senses. Thus, if the victim did not show immediate resentment it was assumed that he did not feel the injury and the relevant action would not lie.^[970] Furthermore, the infringement had to be committed intentionally or deliberately (i.e. with animus iniuriandi: an intention of injuring).^[971] The delict of iniuria did not encompass a negligent or fortuitous act that could cause harm to another person.^[972] Finally, the injury-causing act had to be unlawful, i.e. it was committed without a recognized justification or defence. Such defences included the lawful exercise of disciplinary authority,^[973] retortion or self-defence,^[974] mistake,^[975] incapacity,href="#_ftn976" name="_ftnref976" title="">^[976] acting in the heat of the moment,^[977] acting in jest or joviality,^[978] or telling the truth.^[979]

Delictual liability for iniuria could arise directly or indirectly, for example by insulting the wife, children or other dependants of another and thereby injuring the husband, father or master.

As already noted, the action available to the aggrieved person was the actio aestimatoria iniuriarum (also referred to as actio iniuriarum) in terms of which the judge was required to determine the amount of the penalty in light of all the surrounding circumstances.^[981] In this action the injured party made an initial assessment of the amount of the penalty and the judge was instructed to sentence the defendant to what seemed to him as right and equitable (bonum et aequum), but not to a larger sum than that demanded by the plaintiff.^[982] The iniuria could be assessed as slight or grave (iniuria atrox), depending on the circumstances in which it was committed. An injury might be atrox by reference to the manner in which it was inflicted (ex facto); the place where it occurred (ex loco); the status of the victim (ex persona); and the part of the body injured (ex loco vulneris).^[983] In the case of iniuria atrox the praetor prescribed a sum for which the defendant was required to provide security (vadimonium). Such security served as assurance that the defendant would appear in court and defend the action. From this security the sum due to the plaintiff, if the latter won the case, was also paid. The actio iniuriarum, being penal, could be brought only by the aggrieved person himself against the wrongdoer personally but not against his heirs.^[984] Furthermore, the action was cumulative against accomplices and accessories, i.e. each offender had to pay the full penalty.^[985]

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