Injury (iniuria)

The delict of outrage or injury (iniuria) was a product of the development of Roman delictual obligations. Grounded on the Twelve Tables (VIII.1a-4) and expanded by praetorian edicts and jurisprudential interpretation, the delict of injury punished any intentional and unlawful infringement of the body, honor, or reputation of a free person.

Contumelia means “scratching” or “deriding” (Ulpian, D. 47.10.1pr.). It covered any affront to another’s reputation, honor, and good name. Every contumely was inflicted on the person and could be perpetrated either by acts (e.g., assault) or by words (e.g., insult). Contumely could be inflicted on someone personally (e.g., an abusive letter seen only by the victim) or through others (e.g., when the affront was to one’s children or when the corpse of a departed person to whom one was heir was treated insolently). There could be no injury against a slave. Ulpian says that if someone inflicted an outrage against a slave, it was done to his master, and the master could bring the

The law of obligations: delicts 213 action for insult in his own right (D. 47.10.15.35). The praetor also granted an action to the master against the person who thrashed or tortured the master’s slave (Ulpian, D. 47.10.15.34).

The delict of injury demanded intentionality. It had to have been committed deliberately. Negligent acts or accidents did not produce injury, although a mistake regarding the identity of the victim did not exclude liability for outrage. For instance, Titius perpetrated an affront against Caius, thinking that he really was Sempronius; what really mattered was that Titius had insulted Caius (Paul, D. 47.10.18.3).

Originally, the delict was concerned with physical assaults. The Twelve Tables (VIII.1-4) made some provisions for different forms of physical aggression: magical incantation with the purpose of producing physical harm, amputation or mutilation, and assault, among other things. Because of infla­tion, pecuniary penalties became ridiculously inadequate.

Hence, the praetor issued a general edict introducing an all-inclusive action for injuries (actio iniuriarum). A series of special edicts extended the action to other forms of outrageous behavior: public abuse against another, violation of chastity, and defamation. The actio iniuriarum was penal in nature and therefore cumulative against joint wrongdoers. It also offered the alternative of surrender when the delict had been committed by a person in power or by a slave. It had to be brought within one year after the wrongful act had occurred. It was not only passively nontransmissible but also actively so, in the sense that if the victim died, his heirs could not bring action, owing to the strictly personal character of the outrage (Gaius 4.112). The praetor allowed the plaintiff to make his own assessment of the injury, and the judge, after taking into consideration significant circumstances, could condemn to the limit of that assessment but never beyond it (Gaius 3.22).

An injury could be deemed to be aggravated (atrox iniuria) either by an actual deed (e.g., flogging a man), by the place in which the outrage was effected (theater or marketplace), or by the status of the victim (e.g., a magis­trate or a senator) (Gaius 3.25). Like the delict of wrongful loss, the civil delict of injury was supplemented by criminal prosecutions for personal assaults and for entry into dwellings by force as introduced by the lex Cornelia de iniuriis (81 bce). In later law, criminal procedures were usually preferred.