In modern law a distinction is drawn between delict (or tort) and crime, or between the delictual (or tortious) and criminalaspects of an act.

In general, the distinction is between an act that endangers the order or security of the state, and one that violates an individual’s rights to his person, property or reputation.

In Roman law the corresponding distinction was between delictum and crimen. The term delictum or maleficium denoted an unlawful act that caused loss or injury to the person, property, honour or reputation of another. From this act there arose an obligation on the part of the wrongdoer to pay a penalty or compensate the victim for the harm suffered. The word crimen, on the other hand, signified a wrongful act that was directed against the state or the community as a whole, and prosecuted by state organs. Examples of crimina recognized from an early age included treason (perduellio), murder (parricidium), sacrilege and arson.

Nevertheless, Roman law did not clearly distinguish between the law of delicts and criminal law: the law of delicts, besides being concerned with compensation for the victim, sought also to inflict punishment on the wrongdoer. This can be explained on the ground that the sum payable to the injured party originated as the formalization of the primitive right of revenge.

The dual nature of the Roman law of delict is clearly shown by the types of action the injured party (i.e. the creditor) could institute against the wrongdoer (i.e. the debtor). A distinction is usually drawn between three types of action: actiones rei persecutoriae, directed at restoring the victim to the financial position he would have possessed had the harmful event not occurred; actiones poenales, by means of which the plaintiff sued for payment of a penalty; and actiones mixtae, which as the name denotes combined punitive and compensatory functions. An example of an actio rei persecutoria was the condictio furtiva, by means of which the victim of theft (furtum) could claim the recovery of the stolen property. This action should be distinguished from the actio furti, a penal action (actio poenalis) directed at the payment of a monetary penalty the amount of which depended on the kind of theft committed.^[916] Finally, an example of an actio mixta was the actio legis Aquiliae that arose from wrongful damage to property.

As previously noted, a delict was a wrongful act that gave rise to an obligation between the wrongdoer and the victim. This, however, does not mean that every act whereby a person caused harm to the person or property of another engendered an obligation. For an act to qualify as a delict certain important requirements had to be met.

Originally, the law required that the relevant injury had been caused by a direct physical act. In later law, however, remedies were granted even in a case of indirect causation of damage or, in exceptional circumstances, in the case of an omission. Furthermore, the injury must have been the result of a wrongful act (damnum iniuria datum)—iniuria in this context meant no more than unlawful­ness (non iure), i.e. there must have been no lawful defence for the relevant act as there would be, for example, in the case of justifiable self-defence. In primitive Roman law, the element of fault was not expressly required for delictual liability as someone causing harm to the person or property of another was presumed to have acted willingly. In time, however, intent (dolus) became an explicit requirement of all delictual liability. Thus, delicts were punishable only if the wrongdoer had committed the relevant act knowingly and intentionally. Negligence (culpa) constituted a requirement of liability under the lex Aquilia, which was concerned with damage to property. At the final stage of this legal development, the element of fault (dolus and culpa) was treated as distinct from wrongfulness which was thus recognized as a separate requirement of delictual liability.name="_ftnref918" title="">^[918]

The Roman delicta privata developed casuistically and the Roman jurists did not formulate an abstract concept of delict. Justinian follows Gaius in classifying the principal delicts into four categories: theft (furtum), robbery (rapina), wrongful damage to property (damnum iniuria datum) and insult (iniuria). There were many other forms of delict (civil and praetorian)^[919] but for present purposes this discussion may be restricted to these four categories.

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