Purely patrimonial loss

(a) Roman law and Inst. IV, 3, 16 i.f

Other changes were even more significant, though unrelated to the (reipersecutory or penal) nature of the claim de damno dato. As far as the possible objects of Aquilian protection were concerned, Stryk's rather comprehensive formulation ("omnium damnorum reparatio ex hoc petatur") suggests that all limits had come to be abandoned.

This was indeed the case. For, firstly, the lex Aquilia had been extended, rather surreptitiously, to cover purely patrimonial loss as such. No specific precedent for this development was available in the Roman sources. Wherever a Roman lawyer (including Justinian's compilers) had been prepared to grant the actio legis Aquiliae, or an actio in factum, the defendant's conduct had to have related to a specific corporeal asset in the plaintiff's property. Corruption of a res was not necessarily required;^15f but even where the lawyers awarded damages sine laesione corporis, these damages were still the result of the plaintiffs having been deprived of a particular item of his property, not purely patrimonial loss as such. This appears quite clearly, for instance, from the example provided by Justinian: a person, moved by pity, releases somebody else's slave from his bonds and the slave runs away.^[5325] ^{^[5326] ^[5327] Obviously, the plaintiff could recover patrimonial loss, but it was the patrimonial loss that resulted from the loss of the slave. When he tried to describe this kind of case in an abstract formula, however, Justinian used a very broad and rather equivocal phrase. "(Sjcd si non corpore damnum fluent datum neque corpus laesum fuerit, seef alio modo damnum alicui contigit... placuit eum qui obnoxius fuerit in factum actione teneri",
he said,¹⁶⁰ and this passage, if taken out of context, could indeed be taken to imply that any form of damnum was recoverable, irrespective of whether a specific res had in any way been affected or interfered with.
(b) Damnum datum, sed non in corpus
This wide interpretation gained ground in the Middle Ages; in Wilhelm Durantis' influential Speculum iudiciale we find the following instructive example:
"Quid si propter faeces quas proiccisti in viam ante domura meam, condemnatus sum in decern secundum statutum loci Die, quod agere possum contra te ad ilia deccm: quia qui occasionem damni [dat damnum dedisse videtur]."'"¹
B throws rubbish in front of A's door, and A is subsequently fined by the public authorities for contravening some kind of statute dealing with waste removal. A is allowed to recover this fine from B on account of the fact that B's act occasioned A's loss. It does not appear to have struck Durantis as particularly problematic that A merely suffered purely patrimonial loss; the lex Aquilia is applied without any apparent realization of the momentous implications of this step. Courts and writers of the usus modernus perpetuated this interpretation of Inst. IV, 3, 16, they, too, in the belief that they were merely following in the footsteps of the Roman lawyers.^[5328] Of course, it was not the original actio legis Aquiliae itself that covered cases of this nature, it was a praetorian extension of it, an actio in factum, or, as it was sometimes put rather clumsily, an "actio subsidiaria in factum Praetoria ad exemplum actionis legis Aquiliae".^[5329] But since it was generally recognized that no practical difference existed between actio directa, actio utilis and actio in factum ("inter haec nihil interessc"^[5330]), this was an entirely irrelevant matter merely of nomenclature; relevant alone was the fact that Aquilian protection had become available in cases of purely patrimonial loss. "Fundamentum et causa hujus actionis est damnum injuria datum,... quo patrimonium sen res aliena dolo, aut culpa diminuitur" was a 17th-century definition of the Aquilian delict^[5331] ^{^[5332] which sums up contemporary opinion on the matter.}
Cases of purely patrimonial loss could arise, for instance, from the bad advice or the unsatisfactory conduct of a case on the part of an advocate, as is apparent from the discussion by Lauterbach; "... Praetor ex aequitate contra ilium dat actionem subsidiariam in factum; e.g. si Advocatus per imperitiam parti damnum dederit"; and he adds: "quod etiam procedit in aliis casibus, ubi quis damnum dedit sua culpa; sed non in corpus.^1,166 It was as a consequence of this extension of delictual liability that the lex Aquilia came to make deep inroads into the province of contractual liability. More particularly, it covered all the cases for which we are accustomed today to use the rather artificial term of "positive malperformance". ^[5333] Purely patrimonial loss, according to the German BGB, can be recovered within a contractual relationship only and by way of a contractual claim for damages. This would apply, for instance, in the case of the incompetent advocate:^[5334] he could be held responsible by his client only on the basis of a breach of contract.^[5335] The jurists of the usus modernus do not seem to have known or respected such boundaries. Irrespective of whether or not contractual relationships existed between the parties concerned, the actio legis Aquiliae was applied in all cases of damnum culpa datum.^[5336]" It was thus clearly on its way to becoming the general comprehensive remedy available for the recovery of damages.^[5337] 7.}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Purely patrimonial loss

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