Penal actions (actiones poenales)

Roman jurists classified as penal those actions derived from delicts to punish the wrongdoer. In general, the three main features of most penal actions were passive intransmissibility, cumulative liability, and noxal liability.

Passive intransmissibility meant that the penal action did not survive beyond the wrongdoer’s death. Gaius (4.112) says, “There is no more certain rule of law than that penal actions... never lie or are granted against the wrongdoer’s heir.” On the other hand, penal actions could be granted in favor of the victim’s heirs, except in cases where the action was strictly personal (e.g., offenses against the good reputation of a Roman citizen).

Cumulative liability meant that if joint perpetrators caused the wrong, each one would have to compensate the victim. The more persons who had parti­cipated in the delict, the more compensation would be paid out to the victim. The reason for this cumulative compensation was that the penalty was about punishment as well as recompense. Each wrongdoer had to be punished by the law, so the number of perpetrators was irrelevant to the monetary penalty leveled against each of them.

As mentioned in chapter eight, noxal liability meant that where the wrongdoer was a person under parental or dominical power, the paterfamilias could either pay the penalty as if he himself had committed the delict or surrender the offender to the injured party (Gaius 4.75). Noxal liability was

The law of obligations: delicts 207 established either by statute (e.g., applied by the lex Aquilia to wrongful damage of property) or by praetor’s edict (e.g., for outrage or robbery) (Gaius 4.76).

Actiones mixtae and rei persecutoriae

Some actions were purely penal in nature - i.e., their purpose was exclusively to punish the wrongdoer without taking into consideration compensation for damages.

A common reipersecutory action was the rei vindicatio, which could be brought against the thief and any other possessor of the stolen thing for recovery of the item or its value. When the thing stolen was money or had been destroyed, the condictio rather than the rei vindicatio fulfilled the reipersecutory func­tion. Since compensation and penalty were different in nature, reipersecutory actions could be added to penal actions.

In later law, however, some actions called actiones mixtae served both the penal and the compensatory two functions. They penalized the wrongdoer but also compensated the injured party. Justinian (Inst. 4.6.19) provided the example of an action for robbery in which the penalty was quadruple the value of the thing stolen: triple its value was considered the penalty, and the simple value of the thing was paid in compensation for damages.