Insulting behaviour

(Inst.Gai.3.220.-5., Inst.4.3.2-3„ 4.4pr., D.47.10., C.9.35.)

This delict consisted of an iniuria, which in this context meant any act that delib­erately affronted the dignity of another person (cf.

10.4.1 Historical development

Iniuria was initially very narrow in scope (see Birks, P., 'The Early History of Iniuria' (1969) 37 TR, 163-208). The Twelve Tables laid down somewhat primitive penal­ties for various types of physical assault (see Du Plessis, P. J., 'An Infringement of the Corpus as a Form of Iniuria: Roman and Medieval Reflections’, in Iniuria and the Common Law, 141-53, as well as Birks, Obligations, 237-43). For a maimed limb, retaliation was allowed if the parties could not settle. For less serious assaults, a tariff system operated: 300 asses for the broken bone of a freeman; 150 for that of a slave; twenty-five for the least serious assaults (the as was a unit of currency) (see Watson, A., 'Personal Injuries in the XII Tables' (1975) 43 TR, 213-22; Halpin, A. K. W., 'The Usage of Iniuria in the Twelve Tables' (1976) 11IJ, 344-54). The monetary penalties in the Twelve Tables remained unaltered and it seems likely that they eventually became worthless because of the falling value of money.

10.4.2 The essentials of iniuria

Iniuria occurred when a person intentionally upset the feelings of another by unjus­tifiable and insulting behaviour (see Plescia, J., 'The Development of "Iniuria" (1977) 23 Labeo, 271-89 as well as Ibbetson, D-, 'Iniuria, Roman and English', in Iniuria and the Common Law, 33-45, and Birks, Obligations, 234).

10.4.2.1 The insulting act

The plaintiff had to prove insulting behaviour on the part of the defendant. Illustrations from the Digest demonstrate the wide range of behaviour that was considered to be an affront to the dignity of the victim:

Ulpian, Praetor's Edict, book 1: If a freeman be seized as being a runaway slave, the action for insult lies. (D.47.10.22.)

Ulpian, Edict, book 57: If, to annoy me, someone interrupt me in an insulting manner when speaking before some court, I can bring the action for insult. (D.47,10.13.3.)

Ulpian, Edict, book 57: If someone prevent me from fishing in the sea or from lowering my net... can I have the action for insult against him? There are those who think that I can. And Pomponius and the majority are of opinion that the complainant's case is similar to that of one who is not allowed to use the public baths or to sit in a theater seat or to conduct busi­ness, sit or converse in some other such place, or to use his own property; for in these cases too, an action for insult is apposite.... (D.47.10.13.7.)

Ulpian, Edict, book 77: The question is also raised by Labeo whether, if a person derange another's mind by a drug or some other means, the action for insult lies against him; and he says that it does. (D.47.10.15pr.)

Among other forms of insulting behaviour described in the Digest we find: raising a tumult against a person; wrongful!)' appropriating another's assets; and falsely pub­licizing a debtor's inability to pay his debts (cf. Inst.Gai.3.220.). It could be iniuria to wear filthy clothes in some circumstances or to let the beard grow unkempt (see fol­lowing). Sexual harassment of various forms constituted iniuria, e.g. making obscene advances, or followingpeople aboutif done 'contrary to goodmorals': D.47.10.15.22-3. As a general rule, anything that lowered a person's reputation was iniuria:

Ulpian, Edict, book 77: The praetor bans generally anything which would be to another's disrepute. And so whatever one do or say to bring another into disrepute gives rise to the action for insult.

Defamation was actionable; indeed, it was the subject of a specific praetorian edict. That such an edict was required in the late Republic suggests that defamatory abuse had possibly become a problem in Roman society: the abuse of men in public life was common. But there is little evidence that the lampooning of public figures resulted in much litigation. If you were in the public eye, it would not be good form to sue everyone who was defaming you—a certain amount of abuse was to be expected and tolerated in public life, then as now. It was not essential to prove that the defamatory words had been published to a third party. The insult was enough: the delict was concerned primarily with hurt feelings rather than damaged reputations.

10.4.2.2 Insult must be unjustifiable

An insulting act was not actionable if it was considered justifiable. Consequently, ah assault in the course of self-defence did not constitute iniuria; nor did defamatory words if they were true (but see Descheemaeker, E., '"Veritas non est defamatio?" Truth as a Defence in the Law of Defamation' (2011) 31 Legal Studies, 1-20); nor raising a tumult against a person in legal disgrace; nor indecent proposals to a pros­titute or to a woman dressed as one. And acting in the execution of legal powers was not actionable (e.g. mamts iniectio'):

Ulpian, Edict, book 57: A person who does something under the public law will not be treated as having done it with a view to affront; there is no wrong in the administration of the law. (D.47.10.13.1.)

10.4.2.3 Intention

Iniuria required an intentional act: it could not be committed negligently. Further, the defendant must have intended to insult the plaintiff (presumably established from the facts of the case).

(a) Children An insult to a child-in-power enabled the paterfamilias to sue for the 'indirect' insult to himself as well as for the insult to the child. The child could have the action in certain circumstances, e.g. where the paterfamilias was unable or unwilling to bring the action:

Ulpian, Edict, book 57: But we believe that the action for insult should sometimes be granted to the son even though the father waive the affront, for instance, if the father be vile and abject, while the son is a decent man; for a grossly debased father should not evaluate the insult to his son by the standards of his own turpitude. (0.47.10.17.13.)

(b) Wives A husband could sue for an insult to his wife; she too could sue, and so could her paterfamilias—insulting someone's wife was really best avoided as it could be a very costly business:

Ulpian, Edict, book 56:... sometimes the action for insult will lie to three people in respect of the one affront, and the right of action of none will be consumed by reason of proceedings by one. Suppose that my wife who is a daughter-in-power be affronted; the action for insult forthwith becomes available to me, to her, and to her father, (D.47.10.1.9.)

What of the converse case—could wives sue for insults to their husbands?

Paul, Edict, book 50: But if a husband suffer affront, the wife does not have an action: for it is right that wives should be defended by their husbands but not husbands by their wives. (D.47.10.2.)

Such reasoning might no longer find universal acclamation. Similar rules applied to the betrothed: fiances could sue for insults to their fiancees, but not vice versa.

(c) Slaves Could you insult a slave? Not really—how can a thing be insulted? However, as an exception (as mentioned In the codified version of the edict), the slave's master could bring an action for iniuria if, for example, the slave had been tortured or severely beaten, whether or not there had been any intent to insult the master (see 10.4.1).

Ulpian, Edict, book 77: If someone so inflict outrage upon a slave that it be done to his master, in my view the master can bring the action for insult in his own right; but if the beating was not directed to the master, the outrage perpetrated upon the slave as such should not be left unavenged by the praetor, especially if it occurred through a thrashing or through torture: for it is obvious that the slave himself feels such things. (D.47.10.15.35.)

(d) Heirs Improper behaviour at a funeral could amount to iniuria, as could showing disrespect for the dead, e.g. desecrating the deceased's grave. Such behav­iour was regarded as insulting either to the heirs or to the inheritance, depending on the circumstances:

Ulpian, Edict, book 56: Now whenever there be any affront at the testator's funeral or to his corpse, if it occur after the inheritance has been accepted; it must be said that in a sense, the

insult is to the heir (for it is always the heir's obligation to vindicate the reputation of the deceased); but if it be before acceptance, the insult is rather to the inheritance itself and it is thus through the inheritance that the heir will acquire the action,,.. (D.47.10.1.6.)

10.4.2.4 Hurt feelings

The plaintiff had to prove that his feelings had been hurt, i.e. that he had actually been upset by the insult. If he had not been upset, he could not sue even though the defendant had intended to Insult him. There had to be some evidence of hurt feelings:

Ulpian, Edict, book 57: The action for insult is one based on what is good and equitable and will not lie in the event of dissimulation by the victim. For if someone ignore the affront, that is, as soon as he suffers it, he does not direct his mind to it, he cannot, on second thoughts, revive the affront which he let pass. (D.47.10.11.1.)

Thus, if you wanted to sue, you must not have stifled your emotions, or adopted a 'stiff upper lip' attitude, or tried to negotiate a settlement with the wrongdoer when the insult occurred. In some exceptional situations, however, iniuria could occur even though the plaintiff was absent when the insulting behaviour took place, e.g. where a mob raised a tumult against someone who happened to be absent at the time. In such cases the plaintiff had to prove that he was upset when he learned of the offending behaviour. On this, see the fascinating chapter by Mitchell, P., 'Dissimulate', in Iniuria and the Common Law, 97-117.

to.4.3 Remedies

10.4.3.1 The action for iniuria

The action (the actio iniunarum) had to be brought within one year. This was hardly surprising—if the plaintiff took any longer, it could be argued that he was not par­ticularly upset by the offending behaviour. A defendant who was found liable was subject to infamia. The action did not pass to or against the heirs of the parties (D.47.10.13pr.). If two or more participants committed the insult, whether as prin­cipals or accomplices, the usual rule applied—each was fully liable:

Gaius, Provincial Edict, book 13: If several slaves together beat someone or shout abuse at them, each commits his own offence and, the more of them there are, the greater is the affront. Indeed, there are as many insults as there are participants. (D.47.10.34.)

The action had to be very specific in its allegations because of the subjective nature of the claim, (i.e. hurt feelings) and because of the gravity of the consequences for the defendant:

Ulpian, Edict, book 57: In his edict, the praetor said: 'He who brings the action for insult must particularize what has been done that is affronting'; for one who brings an action which entails infamy should not be vague, at the peril of another's reputation, but should specify and set out in detail the affront that he claims to have suffered. (D.47.1O.7pr.)

How were damages assessed? How do you compensate someone for hurt feelings?. Under the formulary procedure, the plaintiff would state in his formula the amount: that he claimed. The praetor would normally indicate the maximum damages; which could be allowed by the judge (or recuperatores), taking into account factors such as the gravity of the insult and the standing of the respective parties (see Inst.,: Gai.3.224.-5.). The court would make an appropriate reduction of the plaintiff's. claim if it was considered excessive. In cases of aggravated insult («box iniuria) the praetor normally assessed the damages himself. An insult could be considered atmx if the person who was insulted was of important status (or one deserving respect); or if the nature of the insult was extreme; or if the place where the insult occurred was public or prestigious. The following passage suggests that time could be a factor that made an insul t aggravated, but it is likely that it was the concurrence of time and place which was crucial:

Ulpian, Edict, book 57:Labeo says that an affront may be aggravated by virtue of the person, the time, and its very nature, it is aggravated by virtue of the person, when inflicted on, say, a magistrate, one's parent, or patron; by reason of time, if inflicted at the games or in full view; for Labeo says that it is of great importance whether the affront be perpetrated in the view of the people or in private, the former being aggravated. Labeo says that it is aggravated by its very nature if, say, a wound be inflicted or someone receive a blow in the face. (D.47.10.7.8.)

10.4.3.2 The lex Cornelia

The violence and unrest of the late Republic led to the passing of the lex Cornelia de iniuriis 81 BC, which provided a criminal process for certain types of insulting behaviour:

Ulpian, Edict, book 56: The lex Cornelia on contumelies applies to one who wishes to bring the action for insult on the ground that he deciares himself to have been beaten or thrashed or his house to have been entered by force, (D.47.10.5pr.)

What was the relationship of the lex Cornelia to the action for insult? It is prob­able that the victim always had a choice whether to pursue the civil or the crimi­nal remedy (they were mutually exclusive). It is not clear what the sanction was under the lex Cornelia, although Justinian refers to it as an 'extraordinary penalty' (possibly very severe) (Inst.4.4.10.). Since the prosecutor (i.e. the victim) kept the penalty, the most plausible view is that it consisted of a penal pecuniary award, exceeding the damages that would be awarded under the action for insult. This may explain why process under the lex Cornelia seems to have been the more popular option. Moreover, the statute appears to have been extended in the classical period to include all insulting behaviour of a physical nature.

The 'named' delicts discussed thus far are all mentioned in the Institutes of Justinian, but they do not represent the full spectrum of delictual liability known to Roman law. Apart from these, other delictual relationships also existed in Roman law, though these seemingly did not fit neatly into the Institutional scheme. Some of these were remnants of early law found in the Twelve Tables (e.g. unlawfully cut­ting down another's trees), others were Praetorian or statutory inventions. Of these, the most important were Praetorian delicts and noxal liability for damage caused by animals.

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