Obligations

The law of obligations covers a vast area of Roman private law. Structurally and conceptually, the various subdivisions of this branch of the law of 'things' are held together by the notion of the obligation.

Inst.Gai.III.88 Let us now proceed to obligations. These are divided into two main species: for every obligation arises either from contract or from delict. [translation: Handouts]

This text, while interesting, does not provide us with a definition of what an obligation is. It merely tells us that the sources of obligations are contract or delict. Thus, by entering into a contract or committing a civil wrong against another person or his property, an obligation arises by law. Why does Gaius not define an obligation? The most plausible reason seems to be one which we have already mentioned earlier, namely that the jurists of the classical period did not feel the need to define concepts since definitions (in the modern sense) did not form part of their mode of reasoning.

Gaius' statement makes it clear that the sources of obligation are contract and delict, but as the following text shows, this mode of classification seems to have been fluid and open to revision:

Gaius, Golden Words, book 2 Obligations arise either from contract or from wrongdoing or by some special right from various types of causes. [translation: Handouts]

Although the obligation is never defined as such by Gaius, it is important to appreciate that to him a close conceptual link existed between the obligation and the action which had to be used to enforce it (especially under the formulary procedure). Take the following statements:

Inst.Gai.IV.1-V.1. It remains to speak of actions. Now, to the question how many genera of actions there are the more correct answer appears to be that there are two, in rem and in personam....

Notice the word genus here. We have come across it before. Think about what it means in this context. Using this text, we can see that the action used to enforce an obligation was in personam and was called a condictio. We also get a sense about the content of the obligation namely to 'convey, do, or answer for something'. This is the essence of an obligation in Roman law, succinctly summarised subsequently by the jurist Paul:

D.44.7.3pr (Paul, Institutes, book 2). The essence of obligations does not consist in making some property or a servitude ours, but binding another person to give, do, or perform something for us. [translation: Handouts]

The first part of our discussions about the law of obligations will focus on obligations created by contract. Gaius tells us the following:

Inst.Gai.III.89. First let us consider those that arise from contract. Of such there are four genera: for an obligation by contract arises either re (by delivery of a res: real contract), by words (verbal contract), by writing (literal contract), or by consent (consensual contract). [translation: Handouts]

We do not know what motivated Gaius to divide contracts into four groups. It may well be that he created this division personally (but the word genus is telling). Be that as it may, for the purposes of his discussed, Gaius wished to stress that it was possible to classify the different contracts which existed at that point in Roman law into four categories on account of a constituent element which bound these groups together. Phrased differently, one could say that the contracts 're' were all classified as such on account of them having the transfer of a thing as a constituent element.

A recurring theme in the Roman law of contracts during our period is the tension between the formalism inherited from the republican period and the need for greater flexibility on account of the expansion of commerce. Furthermore, as with most areas of law, the enactment of the Constitutio Antoniniana in 212 CE which gave citizenship to most free inhabitants of the Roman Empire had an effect on the Roman law of contracts, especially those contracts initially only available to Roman citizens. We will now briefly examine the four categories of 'named contracts' together with the individual contracts which resorted under these categories.

Among the verbal contracts, the most important was stipulatio. It was a contract created through a solemn, ritual question and answer using specific words. It was of considerable antiquity and its use was initially restricted to Roman citizens. Gaius tells us some of these words that could be used in the following text:

Inst.Gai.III.92. A verbal obligation is created by question and answer in such forms as: 'Do you solemnly promise conveyance? I solemnly promise conveyance': 'Will you convey? I will convey': 'Do you promise? I promise': 'Do you promise on your honour? I promise on my honour': 'Do you guarantee on your honour? I guarantee on my honour': 'Will you do? I will do.' [translation: Handouts]

Notice that Gaius' account of these words does not include the legally relevant reason why something is being promised or conveyed.

Inst.Gai.III.93. Now the verbal obligation in the form dari spondes? spondeo is peculiar to Roman citizens; but the other forms belong to the ius gentium and are consequently valid between all men, whether Roman citizens or peregrines. And even though expressed in Greek... they are still valid between Roman citizens, provided they understand Greek. [translation: Handouts]

Here we can see a relaxation of the insistence upon the rule that only certain Latin words could be used for a stipulatio. It is interesting to note that Gaius uses the concept of the ius gentium

(the law of nations) to argue for a relaxation of the rule, most likely on commercial grounds. Roughly a century later in the time of Ulpian, this rule has become even further watered down as we can see from the following text:

D.45.1.1.6 (Ulpian, Sabinus, book 48). It makes no difference whether the reply is made in the same language or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled. Whether we extend this rule to the Greek language only or even to another, such as Punic or Assyrian or some other tongue, is a matter for doubt. The writings of Sabinus, however, allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other's language, either of their own accord or by means of a truthful interpreter. [translation: Handouts]

The rules on language were not the only elements of the stipulatio that were relaxed during the classical period.

D.45.1.1pr-2 (Ulpian, Sabinus, book 48). A stipulation can only be effected when both parties can speak, and therefore neither a mute nor a deaf person nor an infans can contract a stipulation: nor, indeed, can someone who is not present, since they should both be able to hear. If, therefore, such a person wishes to take a stipulation, he does so through a slave who is present and acquires an action on stipulation. Also if someone wishes to be bound by an obligation, let him order it, and he will be bound in respect of the order. 2 If a man asks, ‘will you give', and the other replies, ‘why not', he will certainly be in the position of being bound, but not if he has nodded assent without speaking. For it is a matter not only of civil but also of natural law that a man who nods assent in this way is not bound: and for that reason it is right to say that a guarantor on his behalf is equally not bound. [translation: Handouts]

During the course of the classical period, the scope of the stipulatio was progressively narrowed as the Roman law of contracts developed further and more of the 'named' contracts were recognised. This factor, together with the unique Roman nature of a contract based on a ritual question and answer led to its demise as a form of contracting by the end of the classical period. We can see this from the following text by Ulpian:

D.2.14.7.12 (Ulpian, Edict, book 4). With regard to the clause commonly inserted at the end of a pact, - 'Titius asked, Maevius promised,' - these words are not understood as only making a pact, but as making a stipulation equally well, consequently an action ex stipulatu arises on them, unless the contrary effect is expressly proved, that is, that the words were used with the intention of making a bare agreement, and not a stipulation. [translation: Handouts]

Here, the stipulatio is nothing more than an afterthought.

The literal contract which was created by recording debts in your household ledger entries owed to you by other people was still in existence in the first century CE. Gaius tells us how it works:

Inst.Gai.III.128. A literal obligation is created by transcriptive entries. A transcriptive entry is made in two ways: a re in personam or a persona in personam. 129 It is made a re in personam where, for instance, I enter to your debit what you owe me on account of a purchase, a hiring, or a partnership. 130 It is made a persona in personam where, for instance, I enter to your debit what Titius owes me, provided, that is, that Titius has assigned you to me as debtor in his place. 131 The entries known as cash­entries are of a different nature. For in their case the obligation is real, not literal, since their validity depends on the money having been paid, and payment of money creates a real obligation. This is why it is right to say that cash-entries create no obligation, but merely afford proof of an existing obligation. 132 It is therefore incorrect to say that even peregrines are bound by cash-entries, because what they are bound by is not the entry itself, but the payment of money; the latter form of obligation is iuris gentium. 133 But whether peregrines can be bound by transcriptive entries is questioned with good reason, because this kind of obligation is in a way iuris civilis. Nerva held accordingly, but Sabinus and Cassius considered that peregrines as well as citizens are bound if the transcriptive entry is a re in personam, but not if it is a persona in personam. 134 Furthermore, a literal obligation appears to be created by chirographs and syngraphs, that is to say documents acknowledging a debt or promising a payment, of course on the assumption that a stipulation is not made in the matter. This form of obligation is special to peregrines. [translation: Handouts]

Owing to its cumbersome nature and a decline in the practice of keeping household accounts, it ceased to exist as a contract by the end of the classical period. One can also deduce from Gaius' comment here that the recording of debts in household ledger entries was a peculiarly Roman practice which, when confronted by the accounting practices of non-Romans, struggled to adapt. It may well be that such an accounting practice was not conducive to the demands of Empire-wide commerce.

It is commonly accepted that the 'real' contracts (loan for consumption, loan for use, deposit and pledge) were all in existence by the start of the classical period, even though loan for consumption (mutuum) is the only one of this category mentioned in Gaius' Institutes (3.90) (Schulz, Roman Law, 519). The reason for this is most likely that, of the four named contracts, loan for consumption had a practical use as a way in which to lend money. Take the following example:

Lupus Carentis said that he personally accepted and will accept from lulius Alexander 50 denarii which he ought to return to him without any controversy [place of the transaction]. (FIRA III, §120) [translation: mine]

X, a money-lender, lent out 50 denarii to Y for whatever purpose. If X wanted to ensure that he could reclaim the money if Y were to fail to pay it back according to the terms of their agreement, they would have to enter into a loan for consumption. The name of the contract is an indication of its operation. The debtor, Y, acquired ownership of the money by virtue of the loan. He was not obliged to return the exact same coins, but the exact equivalent amount. The money-lender could enforce the repayment of the loan, if the debtor failed to pay according to the agreement, through a legal action known as a condictio (for a certain amount of money or things). Curiously, even though the loan for consumption was used for money-lending, it had to be 'in theory' for the return of the amount of money/things only. Thus, one could not charge interest on the amount of money lent (most likely owing to its origin in friendship). As this would not be good financial practice, the Roman jurists developed a legal 'fudge' by adding the interest to a stipulatio linked to the contract. This preserved the 'no-interest' idea, while allowing the creditor to obtain interest from the loan. An analogous loan of money for a voyage (fenus nauticum) arose during the classical period. Although it appears to be related to loan for consumption, it was treated in Roman legal sources as an independent contract. The most important legal development in the contract of loan for consumption during the classical period was the Senatusconsultum Macedonianum of c. 50 CE which deprived creditors, who had made loans of money to sons in power, of an action. This meant that money-lenders could not recover these debts through the courts at all, even after the son had become legally independent.

The loan for use (commodatum), which shares many of the features of the loan for consumption, was probably the last of the real contracts to emerge. In essence, the parties agreed to an object being lent out gratuitously to be returned at a future point in time. It was recognised in law as a separate contract by the time of the redaction into statute of the Praetorian Edict under the Emperor Hadrian in the first half of the second century CE. No real innovations seem to have been introduced into this contract in the classical period apart from the granting of an action against a ward who had entered into this contract without authorisation.

The contract of deposit, where someone agreed to accept a specific object for safekeeping for a specified period of time, also seems to have been substantially developed by the start of this period (Schulz, Roman Law, 518). It remained gratuitous throughout the classical period and the only development was the recognition of the irregular deposit of fungible things (depositum irregulare) (contra Schulz, Roman Law, 519-20).

The contract of pledge (pignus) continued to exist and develop alongside its more antiquated form fiducia throughout the classical period (Buckland/Stein, Roman Law, 431, 474). We have already mentioned this contract before in relation to 'limited real rights'. The main legal developments in the contract of pledge were the recognition of an implied right to sell the object of pledge if the borrower defaulted in the repayment of the loan and certain developments in the right to foreclosure. It also seems that an extension in the scope of the actio serviana, the action available to the creditor to enforce the hypothec, occurred in the related contract of hypothec.

Classical Roman law recognised four named consensual contracts, namely sale, letting and hiring, partnership and mandate. Gaius explains the underlying reason which binds this category together:

Inst.Gai.III.135 Obligations are created by consent in sale, hire, partnership, and mandate. 136 The reason why we say that in these cases the obligations are contracted by consent is that no formality whether of words or writing is required, but it is enough that the persons dealing have consented. Hence such contracts can be formed between parties at a distance, say by letter or messenger, whereas a verbal obligation cannot be formed between parties at a distance. 137 Further, in these contracts the parties are reciprocally liable for what each is bound in fairness and equity to perform for the other, whereas in verbal obligations the one party puts and the other gives the stipulatory promise, and in literal contracts the one party by entering the debit imposes and the other incurs the obligation. [translation: Handouts]

From this text one can see that the two most important elements in this category were consent and reciprocity. Notice also that the extent of the parties' obligations was determined by notions of ‘fairness and equity'. These terms allude to the formula of the actions which were available in relation to each of the contracts.

Let us take an example of a Roman sale dating from 77 CE and recorded on a papyrus from Egypt to explain how the contract of sale worked:

Gaius Valerius Longus, knight of the Aprian flank [of the army] bought a black Cappadocian horse for the price of 2600 drachmas from Iulius Rufus, centurion of the twenty- second legion. [description of the horse and an attestation that it is in good health] And should someone evict him [i.e. successfully claim ownership of the horse] [penalty clause]. Gaius Iulius Rufus says that he has accepted and that he holds the 2600 drachmas from Gaius Valerius Longus the purchaser and that the above-mentioned horse has been transferred to him. [date and place of transaction]. (FIRA III, § 136) [translation: mine]

Here we can see that for a consensual sale to come into existence, the parties must have agreed on the object (and its description to avoid any mistake) as well as on the price. The Roman jurists spent much time analysing these elements. Thus, for example, they frequently discussed the types of mistake which could occur in relation to a sale (mistake regarding the person, the object of sale, the price) and whether these would terminate the consent on which the contract was based. Furthermore, they were also interested in the rules relating to the price and finally settled on a number of broad ideas. The price had to be in money, it had to ascertained or at least ascertainable from the agreement and finally it had to reflect the value of the object sold (it could not be a sale for a token price of one denarius). This resembled a gift, which to the Romans was never a commercial contract.

Several legal innovations occurred in the contract of sale during the classical period. Rules on risk and error developed during this period as well as further refinement regarding the purchaser's guarantee against eviction and the seller's liability for latent defects. This is particularly evident in the sale of slaves which was governed not only by the general law of sale, but also by specific rules originating from the edict of the aediles, the officials in charge of the marketplace. The edict stated the following:

That part of the edict of the aediles which covers the sale of slaves is phrased as follows: ‘Let care be taken that the bill of sale for each slave be written in such a way that it can be known exactly what disease or defect each one has, and which one is a runaway or wanderer, or not innocent of any offence.' (Aulus Gellius, Attic Nights 4.2.1) [translation: Shelton §199].

Let us see how these rules translate into contractual practice. Take the following contract for the sale of a slave recorded in Egypt in 129 CE, which we have seen before:

Agathos Daemon, the son of Dionysius and Hermione, who resides in the city of Oxyrynchus, by this document acknowledges to Gaius Julius Germanus, son of Gaius Julius Domitianus, that he accept as valid the handwritten sales contract which they made concerning the female slave Dioscouros, about twenty-five years old and without distinguishing marks. Julius Germanus took possession of her from Agathos Daemon just as she was. She is nonreturnable, except for epilepsy or external claim. The price was 1200 drachmas of silver which Agathos Daemon received in full from Julius Germanus when the handwritten sales contract was made out. For this amount Julius Germanus paid the sales tax on the aforementioned slave. A warranty on this slave has been given by Agathos Daemon according to all the claims made in the sales contract. (P.Oxy. 95) [translation: Shelton §200]

From this contract between a Roman and a Greek, we can see that the parties were careful to record all the details as required by law. Failure to do so presumably meant that the sale could be voided within a certain period of time.

D.21.1.28 (Gaius, Edict of the Curule Aedile, book 1). The aediles, if a seller will not enter into formal verbal contract concerning the matters provided by their edict, promise an action of redhibition [i.e. an action for the return of the property] against him within two months and an action for the buyer's damages within six. [translation: Handouts]

In time, the provisions of the edict were applied to other types of sale as well. We can see the development of this idea in the following two texts:

D.21.1.1pr (Ulpian, Edict of the Curule Aedile, book 1). Labeo writes that the edict of the curule aediles applies just as much to sales of land as to sales of inanimate or animate property. [translation: Handouts]

D.21.1.63 (Ulpian, Edict of the Curule Aedile, book 1). It should be understood that this edict relates only to sales, though to sales not of slaves only, but of everything else. It used to be considered strange that no edict is issued concerning the contract of hire, but the explanation given is that either the aediles never had jurisdiction over this contract, or that matters are ordered otherwise in hiring than in sale. [translation: Handouts]

In the contract of hire there was an increased sophistication of certain aspects of urban and agricultural tenancy during the classical period. Like sale, the contract of letting and hiring provide fascinating glimpses into Roman commercial practice. Take the following two examples. The first is a rental notice from Pompeii scribbled on a wall:

This lodging is available for rent. [it contains] a dining room with three couches. (FIRA III § 144) [translation: mine]

This is not a contract as such. It is merely a notice that the property is available. For a contract of letting and hiring to exist, the parties had to agree on the object to be rented and the price. From the snippets of information (since no rental contract for property has been preserved in its entirety) we know that these contracts could often be quite detailed and could spell out in minute detail what the tenant was permitted and not permitted to do in the rental property. The Roman jurists, in their discussions of this contract, spent much time on these rights and duties of the parties to the contract and also paid much attention to contracts which did not quite fit the mould, but could be said to be either sale or letting and hiring.

The fundamental distinction in the Roman contract of letting and hiring lay between the letting of an object (locatio conductio rei) and the letting of the services of a person (i.e. not a slave) (locatio conductio of operae). Take the following text from a contract for the services of a miner in the Roman province of Dacia dating from 164 CE:

Flavius Secundinus wrote, at the request of Memmius Asclepi who is illiterate, that he [Memmius Asclepi] lets out his services to the Aurelius Adiutor, manager of the gold mine, from this day in the Ides of November, for seventy denarii plus food.... (FIRA III §150) [translation: A. Berger, 'A labor contract of AD 164: CIL, III, P. 948, No. X, CPh (1948) 43: 231-42]

This fascinating text provides us with much detail about Roman contractual practice. It also demonstrates how the concerns and pre-occupations of the Roman jurists translated into legal practice. Towards the end of this period certain forms of perpetual lease aimed at provincial land started to develop. Little can be said about this development. It was almost certainly connected in some way to the crisis of the third century CE.

The contract of partnership, which had developed during the Republic, undergoes little change in the classical period. Take the following example:

Between Cassius Frontinus and Iulius Alexander a money­lending partnership is created.. [The partnership] has been formed in such a way that whatever profit or loss may arise out of it, they shall bear it in equal portions. (FIRA III, §157) [translation: mine]

This text provides us with all the essential elements of the partnership contract. It shows the type of partnership, the date on which it was created and the distribution of profit and loss. During the classical period unequal shares in profit and loss was permitted by law.

The contract of mandate undergoes little change in the classical period. Let us take an example from 148 CE from Egypt in the form of a letter. After the usual salutations the letter states:

I instruct you by this letter to administer my property which lies in the parish of Arsinoe [a description of all of the tasks which have to be undertaken].... [FIRA III, §159] [translation: mine]

The letter ends with a very formal exhortation that the writer trusts his agent to fulfil his instructions. By looking at this example of mandate we are able to identify all of the requirements which the jurists discuss in abstract terms. Mandate was an instruction to manage affairs, usually over a distance. It implies a pre-existing relationship of trust between the person sending the instructions and the agent who is tasked with completing them (think for example of the correspondence between Cicero and his trusted friend Atticus). Owing to this pre-existing bond, the jurists insisted that a mandate had to be gratuitous. It could not be undertaken in exchange for money. An interesting area analogous to the notion of mandate which evolved during the late Republic and continued to influence Roman commercial law during the course of the Empire was the use of slaves as business agents (and by analogy also to sons in power). A slave could not be an agent in the way described above as it was not deemed to have legal standing for the purposes of Roman private law. Slaves could nonetheless be useful in commercial dealings, especially where they exhibited business acumen. Thus the praetor devised a number of actions which enabled the slave to operate as a business agent on behalf of his master while at the same time providing assurance to third parties transacting with the slave that the master would honour such debts. Gaius tells us how these actions evolved:

Inst.Gai.4.70. Firstly, where the transaction has been entered into with the authorisation (iussum) of the father or master, the praetor has provided an action [the actio quod iussu] against the father or master for the full amount due (in solidum). [translation: Handouts]

So where the slave had full authority to enter into the transaction, he was nothing more than an extension of the master who, for whatever reason (distance/other commitments), could not be present at the transaction. Thus, any debts incurred as a result of the transaction could be enforced in full against the master. Two further actions were eventually added to deal with specific type of authorisation:

Inst.Gai.IV.71. On that same principle the praetor has provided two other actions, the actio exercitoria and the actio institoria.... The actio exercitoria applies when the father or master has put his son or his slave in charge of a ship... it has been considered entirely equitable that the action is given for the full amount due. The formula institoria applies when a man has put his son or slave. in charge of a ship or of other business. this formula too is for the full amount due. [translation: Handouts]

One can clearly see that these two actions were introduced to deal with scenarios akin to the one covered by iussum. In the case of the ship, one could argue that the distance and the continuous nature of the commercial undertakings which a ship's captain had to engage in may have necessitated the creation of these actions.

This concludes our discussion of the 'named' contracts according to Gaius' scheme. There were of a course a number of other contractual agreements which were recognised by Roman law, but which did not come under this scheme. These are best reserved for a technical manual of Roman law but a brief survey will be provided. Agreements that would be grouped under Justinianic law into the category of quasi-contracts were seemingly in existence by the classical period, but were not yet regarded as a homogeneous category. Quasi-contracts resembled 'named' contracts, but lacked some of the essentials. The existence of innominate contracts during the classical period for long remained a matter of some controversy. Modern scholarly opinion states that although this category did not exist in classical Roman law, the agreements eventually contained therein already existed (e.g. sale or return, barter, settlement of a claim or lease at will) (Diosdi, Contract, 49­50, Johnston, Roman Law, 78-9). Indeed, the classification of these agreements according to the nature of the performance dates from this period (D.19.5.5pr). The innominate contracts fell into one of two types, either where the agreement resembled an existing contract, but where it was unsure which one or where the agreement resembled a mixture of one or more contract. If one party to such an agreement fulfilled their obligations, an innominate contract came into existence and jurists were prepared to allow ad hoc or factual actions to protect the other party to the agreement. It is evident that these agreements would have had a rather limited existence next to the accepted types of contract and the fact that no attempt was ever made to elevate it into the fourfold division of contract in classical Roman law is an indication of its limited scope of application.

Informal agreements such as pacts were generally unenforceable as contracts during this period, but the classical period witnessed a development in the legal recognition of pacts (Schulz, Roman Law, 470-1). Not only was it recognised towards the end of this period that ancillary pacts could vary existing obligations, but the so-called 'clothed pacts' that were unconnected to an existing contract was in the process of being granted legal recognition as unofficial contracts in the post-classical period.

Suggested further reading·.

The following works provide a more detailed overview of specific aspects of the Roman law of contracts·

Andreau, J. Banking and Business in the Roman World (Cambridge 1999)

Aubert, J.-J. Business Managers in Ancient Rome (Leiden 1994) Buckler, W. The Origin and History of Contract in Roman Law Down to the End of the Republican Period (reprint) (Charleston CL 2009) Diosdi, G. Contract in Roman Law: From the Twelve Tables to the Glossators (Budapest 1981)

Kirschenbaum, A. Sons, Slaves and Freedmen in Roman Commerce (Washington DC 1999)

Riccobono, S. Stipulation and the Theory of Contract (translated from Italian) (Amsterdam 1957)

Watson, A. The Contract of Mandate in Roman Law (Oxford 1961) Watson, A. The Law of Obligations in the Later Roman Republic (Oxford 1965)

Zimmermann, R. The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town 1990)

Delicts

Delicts are civil wrongs which give rise to an obligation at law. This means that they are wrongful actions which have caused loss to the victim and which are not remedied through prosecution by the state, but rather through private civil prosecution by the victim or his family. In the scheme set out in Gaius' Institutes, four named delicts are mentioned. These are theft (furtum), robbery (rapina), wrongful damage to property (damnum iniuria datum) and insult (iniuria). Of these, theft and robbery would in modern law be classified as ‘crimes' which are prosecuted by the state on behalf of the victim, but to the Romans they were first and foremost civil wrongs which had to be the subject of private litigation. Why did the Romans regard these as private wrongs rather than crimes? The answer to this is not clear. It is conventionally assumed that criminal law was underdeveloped in the Roman Republic, when most of these civil wrongs developed, and that these remedies therefore filled a gap created by the absence of state machinery to prosecute crimes. This is certainly plausible as we see from the sources that during the classical period, as criminal law develops, the Roman jurists begin to comment that alongside private litigation on account of a delict it has also become possible to prosecute the wrongdoer through the criminal courts. With that said, the absence of state machinery and the underdeveloped nature of Roman criminal law might not be the full reason for the development of the Roman law of delict in the sphere of private law. It is also clear that many of the 'named' delicts are uniquely Roman and are intimately related to their understanding of themselves and their property. Most of the named delicts can in fact be traced back in origin to the Twelve Tables which, if it is indeed no more than an account of the more controversial areas of Roman custom, shows that these delicts are firmly rooted in ancient Roman custom. Gaius' comment on the structure of the Roman law of delicts provides interesting insights as to the origins of these wrongs:

Inst.Gai.III.182. Now let us pass on to obligations arising from delict, as where theft or robbery is committed, or damage to property is done, or injury to the person. Obligations from these sources all belong to one genus, whereas as we have already explained, obligations from contract are distributed among four genera. [translation: Handouts]

This statement contains two important pieces of information. First, Gaius mentions only the four 'named' delicts. We know from other legal sources that the praetors had also begun to develop other 'Praetorian' delicts by this time, but since Gaius does not mention them we must assume either that they were still in development or that they fell outside the scope of his book. More importantly, however, Gaius obliquely mentions that obligations arising from delict all belong to one genus, unlike obligations arising from contract which belong to four genera. What does this mean? Let us take the final part of this sentence first. We have already seen that the Roman jurists divided their law of contracts into four categories (genera) in which individual contracts were grouped together based on their most prominent element (handing over of the object, consent etc.). If we assume that this is what Gaius meant with the term genus (category), then he is saying that all of the 'named' Roman delicts basically belong to one category, that is, they are unified by one thing. As is typical of Gaius, he does not say what this is, but reading between the lines one must assume that he meant that they are all 'wrongs' (iniuria), that is unlawful conduct which generates an obligation on the part of the wrongdoer or his family to compensate the victim for the loss suffered. As we will presently see, the Roman law of delicts had a penal element built into the amount which a victim or his family could claim for the wrong suffered. The penal element was mainly expressed in terms of the size of the claim with double or fourfold the damages being awarded to penalise the wrongdoer for his conduct.

Let us now look at these four delicts in turn. There are two peculiar features of the Roman law of theft. The first is that by the classical period it had become a very broad concept which included not only the actual theft of another's property, but also any dishonest handling of the property of another. This expansion of the concept is mostly likely related to an acknowledgement in law that more people than just the owner could have a legal interest in the property which required protection. Secondly, the Roman law of theft is mostly aimed at claiming financial compensation for the theft rather than the recovery of the object. One would imagine that this narrowed the potential of litigating against a thief, especially those who did not really have any money, but in a patriarchal society in which men were connected by complex webs of patronage and friendship together with the social opprobrium brought about by being convicted of theft (it was one of the actiones famosae which brought with it infamia, social disgrace) likely made it a particularly useful remedy. As mentioned before, specific rules on theft may be traced as far back as the Twelve Tables. Reconstructions of the Twelve Tables combined with Gaius' statements suggest that the two main forms of theft recognised in this period were manifest and non-manifest theft. Manifest theft seems to have consisted of cases where the thief was caught in the act, while non-manifest theft was everything else (by the time of Gaius there is clearly some debate over the meaning of these terms, see Inst.Gai. III.184-5). Gaius tells us the following about the punishment of manifest theft in the time of the Twelve Tables:

Inst.Gai.III.189. Under the Twelve Tables the penalty for manifest theft used to be capital. A free man was scourged and then solemnly assigned by the magistrate to him from whom he had stolen; whether by the addictio the thief was made a slave, or was placed in the position of a judgment debtor, used to be disputed by early lawyers. A slave, after being similarly scourged, was put to death.... [translation: Handouts]

These are very harsh penalties. In both cases, the thief would be scourged (severely beaten/flogged) followed by further penalties. As one can see from Gaius' comment, written in c. 160 CE, he was no longer clear what the exact status of the free thief would be after being assigned to the victim and whether the thief in fact lost his liberty (the most precious commodity in Roman society). The motivation for the killing of the slave thief probably lay both in deterring other slaves from doing the same and also in removing a potential threat from a society based in a small city-state. But what of those cases of theft where the victim had good reason to suspect that he may have been burgled by a specific person but had not caught them in the act? Gaius tells us about this as well. Apparently, the victim could insist on searching the house of the suspected thief:

Inst.Gai.III.192. The Law of the Twelve Tables... ordains that one wishing to search must do so naked, girt with a licium and holding a platter; if he finds anything, the law says it is to be manifest theft. 193 What, it has been asked, is the licium? Probably it is some sort of cloth for covering the private parts. The whole thing is ridiculous. [translation: Handouts]

Gaius, who is usually interested in legal history, seems dismissive of the ancient practice here. Why should that be? In all likelihood, this procedure had long fallen into disuse, and it is clear from his musings on the term licium that he did not really understand what it meant. This can only mean that Gaius found the idea of stripping down to your underwear to search the house of a suspected thief a bit silly. But for all Gaius' scorn over this procedure, it should not be dismissed off hand. The ritual described above (and it clearly is a ritual) may have had a very specific purpose. By stripping down to one's underwear, there could be no suggestion from the suspected thief that the alleged victim had somehow 'planted' allegedly stolen goods in the house in order to satisfy some grudge which he might hold against the victim. Given the seriousness of the penalties for theft in the Twelve Tables, this must have been a serious concern. Secondly, it seems likely that the platter may have been employed to demonstrate the stolen object to the world at large, but this is purely conjecture. It should not be forgotten that in the time of the Twelve Tables there was as yet no clear concept of 'defamation', such as falsely accusing someone of theft. Finally, for non-manifest theft, the penalties were less severe and consisted of damage amounting to double the value of the thing stolen (Inst.Gai.III.190).

From this brief discussion of the rules on theft in the Twelve Tables it should be clear that the concept was a very literal one. Theft, in this period, consisted of the physical carrying off of a piece of movable property owned by another. From these literal foundations, the jurists of the classical period spent much time expanding the concept through their interpretation to adapt to the changes in Roman society. Let us take a look at how this was done.

First, there is the issue of defining theft. There are two definitions of theft in Roman legal sources of the classical period. The earlier one is by Labeo, a jurist of the time of Augustus, and the second one is by the jurist Paul, a contemporary of Ulpian who lived during the reign of Alexander Severus in the early third century CE. Let us look at these two 'definitions'

D.47.2.1pr (Paul, Edict, book 39). Furtum (theft), says Labeo, is so called from furvus, that is, 'black', because it is committed secretly and in the dark and generally at night; or from fraus, as Sabinus says: or from the word to carry (ferre) or carry away (auferre) or it comes from the Greek, in which language a thief is called phor indeed the Greeks themselves derive their own word from pherein. [translation: Handouts]

D.47.2.1.3 (Paul, Edict, book 39). Furtum is the dishonest handling of a thing in order to make gain either out of the thing itself or else out of the use or possession thereof. From such conduct natural law commands us to abstain. [translation: Handouts]

Of these two definitions, most of us will agree that the second one is closer to what we would call a definition in modern terms. The first one seems somewhat speculative as it never really defines what theft it. But to the Roman jurists of the early classical period, the first definition would have been the more comprehensible one. This is because jurists of the early (and even mid) classical period did not see the need to define terms in the way that we see in the definition of Paul. Where a concept required further elucidation, this was done using etymology (as we can see in the first definition). By exploring the etymology (albeit spurious), the jurists formed a 'sense' of the term which was sufficient for their purposes. Such 'definitions' also worked well under the formulary system where the second part of the civil suit was conducted by advocates trained in Roman rhetoric rather than legal dogmatics. So why the need for a second definition towards the end of the classical period? The answer for this most probably lies in the change in court procedure from the formulary procedure to the cognitio in which etymological 'definitions' such as the one offered by Labeo were less useful, but a definition which encapsulated the essential elements of the concept served more of a purpose (We will return to this matter later.)

The jurists of the classical period focused on four areas of the Roman law of theft. These are (a) what constituted theft; (b) who could commit theft, and related to this (c) intent to steal, and finally (d) what could be stolen. Let us investigate these with reference to a number of texts. On the matter of what constituted theft, take the following two texts:

Inst.Gai.III.202. Sometimes a man is liable for theft of which he is not the actual perpetrator; we refer to one by those whose aid and counsel the theft has been carried out, for instance a man who knocks coins out of your hands, or obstructs you, for another to make off with them, or who stampedes your sheep or cattle for another to catch them. So the old lawyers wrote of one who stampeded a herd with a red rag. [translation: Handouts]

D.47.2.67.2 (Paul, Plautius, book 7). Where a man maliciously summoned a mule-driver to answer a case in law, and in the latter's absence the mules were stolen, the old lawyers held the man was liable for furtum. [translation: Handouts]

In these texts we are not so much concerned with the chronology of the authors, but their references to the 'old lawyers' (veteres). This term is usually reserved for lawyers of the republican period and it shows us how the idea of theft evolved. In the Twelve Tables theft only occurred where a movable object had been physically moved by the thief to another location. In time, this requirement was relaxed to include the 'facilitating' of stealing, as in the mule-driver case (notice the similarity here between facilitating theft and 'furnishing a cause of death' under the Lex Aquilia). This would eventually mature into the notion of 'interference' which did not require any physical moving of the object stolen.

As for point (b), the Roman jurists were here mostly concerned whether the person who committed the theft appreciated the nature of their actions (think back to the Roman law of persons and family - 'status'). Take the following example:

Inst.Gai.III.208. Finally be it noted that it has been a question whether a person below puberty commits theft by removing another's thing. Most lawyers hold that, since theft depends on intention, the child is only liable on such a charge if he is approaching puberty and so understands that he is doing wrong. [translation: Handouts]

Closely related to this is the notion of the intention with which theft is committed. We can see the development of this element in a number of texts from the classical period:

Inst.Gai.III.197.... [T]heft is not committed without dishonest intention. [translation: Handouts]

Inst.Gai.III.202.... But if it is a mere prank without intention of furthering a theft, the question will be whether an actio utilis should be given, since even negligence is punished by the LexAquilia. [translation: Handouts]

D.47.2.52.20 (Ulpian, Edict, book 37). If a man drives off a stallion belonging to me, and turns him in among his own mares for breeding purposes, and with no other intention, this is not furtum, unless there is the intention to steal... [translation: Handouts]

It could be difficult to assess the intention in some factual situations, especially where some mistake had crept in. The jurists therefore spent some time exploring the effect of mistake on intention and whether there could still be theft if a person believed that he did not have the permission of the owner to take the object, but in fact did. These rules need not detain us here.

As for the object of theft, in the time of the Twelve Tables it appears to have been limited to movable objects. This element was retained even though the jurist Sabinus in the early classical period tried to make a case that land (immovable property) could also be stolen. His view was not supported, most probably because the 'theft' of land could be dealt with under the Praetorian Interdicts and other property-law remedies such as the vindicatio.

There were a number of legal actions which could be brought to obtain redress on account of the theft. These were initially only available to the owner of the property stolen, but by the classical period this had changed, no doubt owing to the recognition in the area of property law that more people than just the owner could have an interest in the property:

Inst.Gai.III.203. The action of theft lies at the suit of one who has an interest in the safety of the thing, though he be not its owner. [translation: Handouts]

There is no doubt that this expansion of the action was linked to the recognition of other forms of theft such as theft of use or enjoyment, as explained in Inst.Gai.III.196. But what were the remedies for theft? We have already seen that there were two actions (one for manifest and one for non-manifest theft) in the Twelve Tables, and that these had different consequences. For manifest theft, the consequence of a successful suit used to be enslavement or death, but Gaius tells us that eventually under praetorian influence it was changed to fourfold damages. Thus, both for manifest and non-manifest theft, the penalty was financial (Inst.Gai.IV.7). At some point, this was expanded:

Inst.Gai.IV.4. It is true that out of hatred of thieves and in order to multiply the actions in which they are liable, it has become accepted that, in addition to the penalty for

double or quadruple, they are liable also for an action on recovery of the thing in the form 'if it appears that they ought to convey', notwithstanding that the action claiming ownership of the thing lies against them as well. [translation: Handouts]

From this text we can see that there could be at least three actions brought against the thief. It should also be mentioned that in Inst.Gai.III.192 there is mention of an action which could be brought to prevent a ritual search of your house to find stolen goods. By the third century CE, criminal proceedings for theft were also possible. Ulpian tells us that this was primarily done to provide a deterrent to people accusing others of theft without any evidence to prove it. A criminal claim of theft did not preclude a civil action being brought as well.

A brief observation may be made about robbery. Although it is mentioned by Gaius in his fourfold division of the 'named' delicts in Roman law, robbery never captured the imagination of the jurists of the classical period in the same way as theft. Our information is sparse and it would seem that the robbery shared many of the elements of theft. Gaius, our main source, reveals that the praetorian action on robbery was introduced under very specific circumstances:

Inst.Gai.III.219. He who takes another's property by violence is also liable in theft. For who more truly handles another's property against the will of its owner than the one who robs him with violence? Thus he has rightly been described as an outrageous thief. However, the praetor has introduced a special action which lies for fourfold within a year, and after that for simple value. This action is available even if the robbery is of but a single thing of insignificant value. [translation: Handouts]

This text shows the conceptual relationship between theft and robbery. To Gaius, robbery was merely 'outrageous theft'. We can also clearly see that the praetorian remedy specifically introduced was based on policy decisions. It was designed to curtail robbery, irrespective of the value of the object. It is commonly believed that this action was introduced during the last century of the Republic at a time when Italy was in a turbulent political state. It would certainly fit with other remedies introduced during this period such as the Lex Tulia de Iniunis of c. 81 BCE which prohibited violent home invasions and dealt with specific examples of physical assault.

Wrongful damage to the property of another, the second named delict, is one of the most fascinating areas of Roman law. Unlike theft, this area of law was governed by a statute, the Lex Aquilia, which was enacted most likely sometime in the third century BCE. The origin of this statute is the subject of much speculation and it may have been enacted in response to civil unrest in the fledgling Roman Republic, but other (economic) arguments have also been offered. Whatever the motivation for this statute may have been, it rendered the system of compensation for wrongful damage to property which existed in the Twelve Tables obsolete and replaced them with a short statute which dealt with the matter in a novel manner. The text of this law has not been preserved, but the bulk of juristic commentary on it permits us to make a fairly accurate reconstruction of the text. The law consisted of three short statements, commonly known as chapters. Chapter 1 stated that if anyone should unlawfully kill the slave or four-footed animal classed as cattle, let him be condemned to pay to the owner the highest value of the object in the year preceding its destruction. Chapter 2 dealt with an antiquated form of mandate and fell into disuse when the contract of mandate arose. Chapter 3 stated that for all other things (apart from slaves and cattle) if anyone shall unlawfully cause loss to the property of another through burning, breaking or rendering asunder, whatever the matter in issue shall be worth in the thirty days preceding/next (the text is ambiguous), let him be condemned to pay to the owner.

It does not take much to realise that these two provisions cover vastly different things and cater for different forms of loss. Chapter 1 is essentially concerned with the total destruction of a certain class of property of another (slaves and four-footed animals classed as cattle). In this case, the owner is able to recover the highest value which these objects had in the year before their destruction. Such a method of calculation would inevitably mean that the owner was able to recover more than the mere (objective financial) value of the object at the point of its destruction. This mode of assessing the quantum of the loss has been justified by modern scholars with reference to the penal nature of the Roman law of delict. It is in effect equivalent to recovering twice or four times the value of the object as in the cases of theft in order to punish the wrongdoer for his unlawful conduct. Why slaves and four-footed animals classed as cattle? The statute was enacted in the mid-Republic when these assets would have had significant economic value and thus presumably warranted specific protection. Chapter 3 has a much wider scope. It applies whenever someone has caused wrongful damage to those assets mentioned in chapter 1 and also to all other movable property. This chapter describes the way in which the damage had to be inflicted - through burning, breaking or rendering asunder. Why did the legislator feel it necessary to include these words? Most likely to reinforce the point that the damage to the object had to be severe and not merely a scratch or a dent.

One of the most fascinating areas of the Lex Aquilia is its interpretation. Since the text of the statute can be reconstructed with some certainty, it is possible when looking at the sections on wrongful damage to property in the Digest and in the Institutes to gain a picture of the way in which the praetors and the jurists reinterpreted the wording of the statute to cover new situations which were not envisaged by the original drafters. This was primarily done by stating that in a given case (which fitted some, but not all of the requirements of the original law) an actio in factum or actio utilis would be available. It is sometimes difficult to distinguish from the texts what the difference was, but it may be said that in broad terms an actio in factum was given where the specific facts warranted legal relief whereas an actio utilis was given when in an analogous situation legal relief was already available. To succeed with the statutory action under the Lex Aquilia (the actio legis aquiliae), one had to prove a number of elements: (a) wrongful; (b) destruction of/damage to; (c) the object of another; (d) which could be causally linked to the actions or omission of the wrongdoer; and which (e) caused financial loss to the victim. Let us examine how these elements were reinterpreted during the classical period.

The first element is that of wrongfulness. In the original text of the law, the term iniuria (without right) is used. During the classical period, this term had come to be reinterpreted to mean 'fault'. Take the following text by Gaius:

Inst.Gai.III.211. He is deemed to kill wrongfully (iniuria) by whose malice (dolus) or negligence (culpa) the death is caused. There being no other statute which visits damage without fault, it follows that a man who, without negligence or malice, but by some accident (casus), causes loss, goes unpunished. [translation: Handouts]

A similar point of view is raised by Ulpian:

D.9.2.5.1 (Ulpian, Edict, book 18). Now we must... understand iniuria here... as something that is done not according to the law (non iure), in short, contrary to the law, that is, if one kills negligently (culpa): and so the two actions, on the Lex Aquilia and for iniuriae, sometimes concur, but there will be two assessments of damages, one for loss and the other for insult. We shall therefore take iniuria to mean here loss caused negligently (culpa) even by one who intended no harm. [translation: Handouts]

While concepts such as 'malice' and 'negligence' are useful to describe the wrongdoer's state of mind when committing the act, it should be appreciated that they are little more than labels that are capable of more specific interpretation based on the facts of the case. Thus, what constituted 'malice' or 'negligence' or 'accident' depended on the facts of the case as well as the case-law which had built up around these concepts and the Roman jurists spent much time debating the intricacies of these terms.

The second element is that of destruction/damage. Here, the jurists paid specific attention to the meaning of 'damage' according to chapter 3. Take Gaius' statement:

Inst.Gai.III.217. The third chapter deals with all other loss. Accordingly, it provides an action if a slave or a four-footed beast of the class of cattle is wounded, or if a four-footed animal other than cattle, such as a dog, or a wild beast like a bear or a lion, is either wounded or killed. It also gives a remedy for wrongful damage to all other things and to any inanimate things. [translation: Handouts]

In this text, Gaius is clearly giving us an account of how the term should be understood in his time. It has been argued, based on the final sentence, that the scope of chapter 3 was expanded to cover also inanimate things during the classical period (the view of David Daube expressed in his article in 1936 (52) LQR, 253-68). This, in turn, had an effect on the mode of calculating the loss under chapter 3, but we will return to this presently. Even before the time of Gaius, it is clear that the jurists of the classical period were widening the interpretation of the word 'damage' in chapter 3. Take the following text by Ulpian in which he recounts the opinion of Celsus, a jurist of the early classical period who lived during the reign of Hadrian (117-138 CE):

D.9.2.27.15 (Ulpian, Edict, book 18). Of course the Aquilian action, Celsus says, can be brought against a man who adulterates wine or spills it or turns it into vinegar or otherwise worsens it, because even spilling and turning into vinegar are included in the term 'spoiling' (corrumpere). [translation: Handouts]

D.9.2.27.13 (Ulpian, Edict, book 18). The lex says ruperit (break off). Almost all the older jurists understood the word to mean corruperit (spoils). [translation: Handouts]

As one can see from these two statements, the verbs expressing the way in which loss had to be caused of chapter 3 underwent a reinterpretation during the classical period. Whereas before they referred to serious damage (short of destruction) to animate objects, by the classical period these verbs had been reinterpreted to mean 'spoiling' through actions which were less serious. As for the requirement of the 'object belonging to another', the jurists of the classical period debated whether others who were not the owner, but who had some kind of legal interest in the property damaged or destroyed could also use the action (a similar development occurs in relation to theft):

D.9.2.11.6 (Ulpian, Edict, book 18). Now the action on the Lex Aquilla belongs to the erus, that is, the owner. 9 Julian says that one to whom clothes have been lent cannot bring the Aquilian action if they are torn, but the action belongs to the owner. 10 Julian discusses whether a usufructuary or usuary has the action on the Lex Aquilia. I think it is better to be an actio utilis in these circumstances. [translation: Handouts]

Ulpian's view (articulated in the final sentence) that the actio utilis should be granted shows that he thought that these holders of real rights such as the usfructuary or the usuary should be given an action by analogy as they were in many respects like the owner of the object.

Causation remains one of the most complex areas of the Roman law of wrongful damage to property. The texts show that the jurists of the classical period took a very practical and context-based approach to the idea of causation (as one would expect). This meant that consequence (the loss) had to be traceable to the actions or omissions of the wrongdoer. If the consequence was too remote, no action was given. However, if the consequence was somewhat remote, but close enough to warrant legal relief, actions based on policy or on the facts of the case were awarded. Take the following examples:

Inst.Gai.III.219. It has been decided that there is an action under the statute only when a man has caused loss with his own body; consequently policy actions are granted if the loss has been caused in some other way, for example if one shuts up and starves to death another man's slave or cattle... [translation: Handouts]

D.9.2.7.6 (Ulpian, Edict, book 18). Now Celsus says it makes a great deal of difference whether a person kills or furnishes a cause of death, seeing that one who furnishes a cause of death is liable, not to the Aquilian action but to an action in factum. Thus he mentions the case of a man who gave poison instead of medicine and says that he furnished a cause of death, just like one who holds out a sword to a lunatic.... [translation: Handouts]

One final point to consider is that of loss. To succeed with any of the actions available under the Lex Aquilia, it had to be shown that the owner of the object had suffered loss which could be quantified in money. This excluded cases where the owner could not be said to have suffered loss. Take the following examples:

D.9.2.27.28 (Ulpian, Edict, book 18). And if a man castrates a slave boy, and so increases his value, Vivianus writes that the Aquilian action does not lie, but one should bring the actio iniuriarum or sue under the edict of the aediles or for four times the value. [translation: Handouts]

D.9.2.33pr (Paul, Plautius, book 2). If you kill my slave, I do not think that personal feelings should be taken into account, as when someone kills your natural son whom

you would be willing to buy for a high price, but only what he would be worth to all the world. Sextus Pedius agrees that the prices of things are taken not in accordance with personal feelings or convenience of individuals, but in a general way. [translation: Handouts]

These two examples show the complexity of a society in which slavery was a daily reality. We are not told why a castrated slave boy is worth more, and in the second text the reference to 'natural children' is to those of children of the owner by a female slave.

The Roman law of insult, another of the named delicts, is a wide-ranging delict which covers both physical assault and non­physical infringement of one's good name, reputation or integrity. The physical element of insult (assault) is commonly viewed as being the earliest form recognised by Roman law. It is present in the Twelve Tables where a mixture of talion and fixed penalties is set to compensate the victim for the assault. Sometime during the mid-second century BCE, the original actions deriving from the Twelve Tables were rendered obsolete when the praetors intervened to create a new action whereby the compensation for insult suffered would be calculated with reference to the circumstances of the case rather than based on the fixed penalties of the Twelve Tables. The motivation for the introduction of this action has long baffled scholars, but in all likelihood the change was necessitated by economic problems which rendered the fixed penalty system less useful. Gaius tells us about the quantification of the loss under this new action:

Inst.Gai.III.224. But the system now in force is different. For the praetor allows us to make our own assessment of the outrage, and the iudex (judge) may, at his discretion, condemn in the amount of our assessment or in a lesser sum.... [translation: Handouts]

During the course of the first century BCE, the general action on iniuria created by the praetors was augmented by a number of specific actions. There were four of these: raising a clamour; accosting the virtue of a matron by enticing away her attendant; defamation and iniuria inflicted upon slaves. It is generally assumed that these were only classified as iniuria during the classical period. Let us look at each of these in turn:

D.47.10.15.2 (Ulpian, Edict, book 77). The praetor says: 'I will grant an action against anyone who raises an outcry against another contrary to good morals or who causes this to be done.' Labeo says that to raise an outcry amounts to iniuria. [translation: Handouts]

The reference to the Augustan jurist Labeo supports the notion that these specific actions were only classified as iniuria during the classical period.

The second action, 'accosting the virtue of a matron' could take one of two forms. It consisted either of making uncouth remarks about a matron or by following her around. Take the following three texts:

D.47.10.15.20 (Ulpian, Edict, book 77). To 'call out' for this purpose is to make improper suggestions or alluring proposals - this is not like raising a clamour, but it is contrary to good morals. [translation: Handouts]

D.47.10.15.15 (Ulpian, Edict, book 77).... Still, if a woman was not dressed in matronly clothes, anyone who calls out to her or who entices away her chaperone is liable to an action for iniuria. [translation: Handouts]

D.47.10.15.22 (Ulpian, Edict, book 77). It is one thing to call out or accost someone, and another thing to follow them about; for he who accosts a woman attacks her virtue by his speech, whereas he who follows her constantly, even silently, dogs her steps.. [translation: Handouts]

These texts reveal quite a bit about Roman attitudes to women. Given the patriarchal nature of Roman society, the existence of such rules comes as little surprise. According to Roman men, women, respectable women that is, deserve protection. They should not be subject to humiliating 'calls', be followed around or be left without a chaperone (since no respectable woman appeared in public without an attendant). In each case, the facts would be tested against the requirement that the act had to be 'contrary to good morals'.

As for the third action, defamation, Ulpian gives us an account of the wording of the action:

D.47.10.15.25 (Ulpian, Edict, book 77). The praetor says: 'Nothing shall be done to bring a person into hatred, ridicule or contempt, and if anyone violates this rule, I will punish him according to the facts of the case.' Labeo says this edict is superfluous, for we can anyway bring a general action for iniuria: but it also appears to Labeo himself (and this is indeed correct) that the praetor, having examined this matter, wished to make special mention of it, for it seems that when public acts do not have attention specifically drawn to them they tend to be forgotten. [translation: Handouts]

Although the justification given in the final sentence of this text is not overly convincing, one can see from this that during the early classical period jurists such as Labeo questioned the relationship between this edict specifically developed for defamation and the general praetorian action on insult. Ulpian, in the latter part of the classical period, cites Labeo's view with approval. As for iniuria inflicted upon slaves, a curious overlap exists between these two delicts. The Lex Aquilia provided a remedy for the killing or wounding of a slave done wrongfully. This part of the delict iniuria provided a remedy for slaves which had been beaten (verberare) or interrogated without the permission of their owners, provided that both these had been done 'contrary to good morals'. Finally, an additional praetorian remedy catered for the 'corruption of slaves', the scope of which seems to have been mainly psychological rather than physical.

During the classical period, the specific cases of iniuria was conceptually reformed into one notion, that of contumely (contumelia) which included both physical and non-physical acts which were done with the intention to cause insult. This intention became an important point of discussion among the jurists:

D.47.10.4 (Paul, Edict, book 50) Nor [is it an iniuria] if I, intending to strike my slave with my fist, should unwittingly hit you when you were standing nearby. [translation: Handouts]

Conceptual thinking about iniuria also led to discussions among the jurists about whether an insult which has been ignored can be said to be iniuria, whether those who do not have the capacity to form the appreciation that they are insulting or being insulted can be sued for iniuria and whether the delict can be committed vicariously.

No discussion of the Roman law of delict would be complete without mentioning other cases of delictual liability which, although not recognised as one of the four named delicts in classical Roman law, nevertheless existed. The first of these is the category of 'quasi-delicts' which were classified as such only in Justinianic Roman law, but which already existed as individual cases during the classical period. There were four examples of 'quasi-delict', namely (a) the erring judge; (b) liability of the occupant of a house or apartment for loss caused by things which had been hung or suspended above a public walkway; (c) liability of the occupant of a house or an apartment for loss caused by things thrown or poured out of windows; and finally (d) the liability of the innkeepers, the stable keeper or the ship's captain for loss suffered by their clients. This is a perplexing category which combined a number of disparate situations which cause loss. The most commonly accepted rationale is that they are united by the idea of 'loss' which, although not technically the fault of anyone, nevertheless had to be compensated. Thus the legal order assigned liability to a given party. There are, however, other explanations as well.

Another appendage to the law of the delict covers cases of 'noxal'. In certain instances, a slave-owner could restrict his liability on account of the delicts committed by his slaves (for which he was legally responsible) by handing over the slave in ownership to the victim rather than paying the penalty under the law of delict. Related to this idea was the notion of liability for damage caused by animals. Under Roman law, the owner of the animal could be held liable for the loss provided it could be shown that the animal had acted out of character. Furthermore, a specific rule of the aediles dealt with liability for damage caused by wild animals which had been kept near a public road. To these may be added examples of delicts created through praetorian innovation. These include defences against acts entered into by extortion or through fraud as well as matters such as the corruption of slaves. The rules on these are detailed and are best investigated in works which contain more detailed accounts of Roman law.

Suggested further reading

Frier, B.W. A Casebook on the Roman law of Delict (Oxford 1989) Descheemaeker, E. The Division of Wrongs: A Historical and Comparative Study (Oxford 2009)

3.3.