Quasi-contractual and quasi-delictual obligations

But what did the two residual categories consist of? Under the heading of "obligationes quasi ex contractu" we find, most importantly, indebitum solutum; furthermore, negotium gestum, tutela, communio and legatum per damnationem^[85] ^{^[86] (i.e.}

obligations arising from unjustified enrichment, from (unauthorized) management of (another's) affairs, from the tutor's conduct of his ward's affairs, from the relationship between co-owners and from specific instructions contained in a will).⁸⁵ The four cases of quasi-delictual liability, on the other hand,^[87] referred to the judge who, through breach of his official duties, caused damage to another person (iudex qui litem suam fecit; literally "thejudge who makes the trial his"),^[88] to anybody from whose dwelling something was thrown down or poured onto the street so as to injure another person (deiectum vel effusum),^[89] or from whose building objects placed, or suspended, on an eave or projecting roof fell down and endangered the traffic (positum vel suspensum),^[90] and to sea carriers, innkeepers and stablekeepers, whose employees had stolen or damaged the property of one of their customers (furturn vel damnum in navi aut caupone aut stabulo).^[91] To find a common denominator for what has been lumped together here, is not at all easy. In the case of quasi-contractual obligations it was probably the fact that—just as in contractual situations — some kind of negotium had taken place. Thus, the actions granted to enforce quasi-contractual obligations were all very closely modelled on specific contractual actions.^[92]

As far as the "obligationes quasi ex delicto" are concerned, Buckland has ventured the proposition^[93] that they were based on the idea of vicarious liability.

But that does not explain the iudex qui litem suam fecit. A striking feature of at least the three last-mentioned quasi-delicts is, however, that liability was imposed regardless of fault: where the contents of a chamber-pot were emptied on the head of whoever just happened to pass by,⁹³ where a flower-box embellishing the eaves was blown down onto the street, or where the trusting traveller was stripped of his belongings by the chambermaid, the person in charge of the place where the disaster had occurred was liable irrespective of whether he had been negligent or not.⁹⁴ True: Justinian, who generally liked to stress and strengthen subjective elements in the law and who, more particularly, carved out "culpa" as the cornerstone for delictual liability, tried to rationalize the cases of quasi-delict on this basis and therefore implanted culpa elements in this (as in other) area(s): nautae, stabularii and caupones were held liable, because they were presumed to have been negligent in the choice and supervision of their employees (culpa in eligendo),⁹⁵ and in the case of deiectum vel effusum, too, negligence on the part of the person in charge was presumed ("culpa enim penes eum est").⁹⁶ Classical lawyers, on the other hand, generally emphasizing more objective criteria of liability, did not have any difficulty in taking these situations for what they were: namely, cases of strict liability. Inhabitatores, stabularii, etc. were held to be responsible because they were in charge of the place where or from where the injurious act occurred. In other words, they were in control of a potential source of danger to other people's lives, health and property. If this aspect was originally the connecting link between three out of the four quasi-delicts, it may possibly also have applied to the fourth one: for the liability of the judge in classical law was not

® As there was no refuse collection in Rome, it seems that one usually got rid of one's garbage by throwing it out of the window.

Furthermore, many people apparently found it amusing to throw things down on passers-by. As the Roman streets were narrow and the houses fairly tall (five to six storeys were by no means uncommon), one can understand Juvenal's caustic warning that it would be frivolous to walk to a supper invitation without having made one's last will first. On all this cf. Juvenal, Satura III, 268 sqq.; Carcopino, pp. 57 sqq.; cf. also the eloquent and comprehensive note by Johannes van der Linden, printed in translation by Percival Gane, The Selective Voet, vol. II (1955), pp. 596 sqq.

^w Whether there was strict liability in the case of positum aut suspensum, is, however, questionable. It depends on the interpretation of Ulp. D. 9, 3, 5, 10. Perhaps this case was classified as a quasi-delict because it was so closely related to the actio de deiectis vel effusis and because there did not have to be an injury for liability to arise. The habitator was therefore liable for the danger he had created. Strict liability is also disputed as far as the iudex qui litem suam fecit is concerned: see Peter Birks, "The Problem of Quasi-Delict", (1969) 22 Current Legal Problems 172 sqq.; idem, (1984) 52 TR 373 sqq. Birks himself argues that the key to quasi-delict "may lie in [thej possibility of liability without misfeasance from which flows the need for the assumption of a special position" ((1969) 22 Current Legal Problems 174). One of the decisive questions is how to interpret texts such as Gai. IV, 52, where no reference to the judge's state of mind is made. Did a presumption of dolus operate in these cases? Contra, inter alios, A.M. Honore, Gaius (1962), p. 102.

⁹⁵ Cf. Inst. IV, 5, 3. As to the concept of culpa in eligendo, cf. Geoffrey MacCormack, "Culpa in ehgendo", (1971) 18 RIDA 525 sqq. (here specifically pp. 547 sqq.).

⁹⁵ Ulp. D. 9, 3, 1, 4; for the liability of the iudex {"licet per imprudentiam"), Gai. D. 44, 7, 5, 4.

dependent either on whether he had negligently (or possibly even intentionally) given the wrong judgment. Thus, one can argue that here, as well, the person held liable was the one who was in control of, or supposed to be in control of, the vagaries and risks connected with a lawsuit.^[94]

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

Quasi-contractual and quasi-delictual obligations

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