Introduction

A delict, as one of the main sources of an obligation, can be defined in broad terms as a wrongful act which causes damage to someone's personality, his family, or his property, and for which the victim or his heirs is entitled to compensation.

Why was the lawof delicts penal? The traditional explanation is that in early Roman law, as in other legal systems, there was no clear distinction between crimes and civil wrongs (delicts). In modem legal systems the distinction is reasonably clear: crimes are usually prosecuted by the State whereas civil wrongs result in private redress, normally damages. But even then, some confusion may arise from the fact that certain wrongful acts may be both crimes and civil wrongs, e.g. physical assault. In early Rome, there were certainly some wrongs that attracted a purely criminal sanc­tion imposed by the State. But the criminal law was generally less developed than the civil law: it lacked specific content, largely because crimes tended to be dealt with by individual magistrates in the exercise of their power to punish for matters falling within their jurisdiction. So the law of delict partly fulfilled the role of a penal law until the late Republic, when criminal jurisdiction was given a more specific content through the introduction of quaestionesperpetuae, i.e.

Originally, it seems that the remedy for the commission of wrongs was largely a matter of custom. Private revenge could be exacted on the wrongdoer, a primitive custom which in time needed to be regulated. Rules were introduced allowing some wrongdoers to avoid retaliation by agreeing to pay compensation. That in turn led to the development of a civil procedure under which the seeking of monetary compensation in the courts became the normal (and, finally, the only permissible) mode of redress. But, the law of delict never entirely threw off its early penal flavour.

Liability in delict generally depended on fault (originally dolus only, later also culpa), a principle that was hardly surprising in view of the penal character of delict (see Ankum, J. A., 'Actions By Which We Claim a Thing (res) and a Penalty (Poena) in Classical Roman Law' (1982) 24 BIDR, 15-39). In some delicts, e.g. theft or insulting behaviour, proof of fault necessitated showing that the defendant had acted inten­tionally; in others, e.g. wrongful damage to property, negligence sufficed (see Cursi, F., 'Roman Delicts and the Construction of Fault', in Obligations in Roman Law, 296-319).

The actions available to the victim in each of the delicts discussed in this chapter have been classified collectively as 'penal actions' as they exhibit a number of com­mon features. Unlike the case with contracts, liability in delict was strictly personal. The death of the wrongdoer ended his liability; it could not be imposed on his heir except to the extent that the heir had benefited from the wrongdoing:

Pomponius, Sabinas, book 29: Just as the heir of a dead person cannot be bound to pay the penalty arising from a delict, so he cannot benefit from it either if anything came to him as a result of the affair in question.

On the other hand, the death of the victim did not end the wrongdoer's liability: as a general rule, the victim's heir could maintain a delictual action against the wrong­doer. The principle that liability was personal (and penal) is illustrated by the rule that if a delict was committed jointly, each wrongdoer was personally liable in full, i.e. as if he alone were responsible:

Ulpian, Edict, book 18: But if several people do a slave to death, let us see whether they are all liable as for killing. If it is clear from whose blow he perished, that person is liable for killing; but if it is not clear, Julian says that all the assailants are liable as if they had all killed; and if the action is brought against only one of them, the others are not released from liability; for under the lexAquHio what one pays does not lessen what is due from another, as it is a penal law. (D.9.2.11.2.)

There was an absence in the Roman law of delicts, even in its most developed state, of fundamental principles of general application. Nor did any one delict come to dominate litigation. To that extent it was a law of delicts rather than delict—a number of discrete actions, each with its own specific rules (cf. Inst.Gai.3.182. and Inst.4.1pr,), One could liken the position to the English law of torts prior to the emergence of negligence as the dominant tort in practice.

There were four major 'Institutional' delicts: wrongful damage to property, theft, robbery, and insulting behaviour (see Diagram 10.1).

Diagram 10.1 The Roman law of delict

10.2