Quasi-deiict

(Inst.4.5.)

This designation comprised a group of actions of no obvious similarity yet classi­fied by Justinian as analogous to delictual obligations. For an interesting hypothesis regarding the internal coherence of this category, see Descheemaeker, Division, chs.

10.7.1 Things hung or suspended

(D.9.3.)

Ulpian, Edict, hook 23: The praetor says: 'No one shall place anything on an eave or projecting roof over a spot where the public pass or congregate which would injure anyone if it fell. If anyone is in breach of this regulation, I will grant an actio in factum against him for ten solid?. (D.9.3.5.6.)

In this situation, an action could be brought by anyone against the occupier of the building, even if he was totally blameless, the purpose being to prevent harm— the action lay even though no damage had occurred. The occupier, if found liable, had to pay a fixed fine. If the suspended thing actually fell and caused damage, there could be liability under the lex Aquilla if the person who had placed or sus­pended the thing had acted negligently. The action for res suspensae did not lie against the heirs of the defendant. For a summary of the relevant texts, see Frier, Casebook on Delict, 228-32.

10.7.2 Things poured or thrown

(D.9.3.)

Ulpian, Edict, book 23: If anything should be thrown out or poured out from a building onto a place where people commonly pass and repass or stand about, I will grant an action to be brought against whoever lives there for double the damage caused or done as a result. If it is alleged that a freeman was killed by whatever fell, I will grant an action for fifty aurei. If he is alleged to be injured, but survives, I will grant an action for whatever it seems right to the judge that the defendant should be condemned to pay.

A praetorian edict introduced this action, imposing strict liability on the occupier of premises (for twice the value of the loss caused), even if he was absent when the wrongful act occurred. An occupier could seek to recover the damages that he had paid from the actual wrongdoer. If it could be proved who did the throwing or pour­ing, the person responsible might incur liability under the lex Aquilia. If a freeman was killed, there could be a number of potential plaintiffs as the action in such a case was popularis, i.e. open to informers. Preference would be given, however, to the victim's relatives or to those with a special interest in the matter. (See Stein, P. G., 'The Actio de Effusis vel Dejectis and the Concept of Quasi-Delict in Scots Law' (1955) 4 ICLQ, 356-75; see also Frier, Casebook on Delict, 228-32.)

10.7.3 Shippers, innkeepers, stablekeepers

(D.4.9., compare D.47.5.)

Ulpian, Edict, book 14: The praetor says: 'I will give an action against seamen, innkeepers and stablekeepers in respect of what they have received and undertaken to keep safe, unless they restore it.' [1] This edict is of the greatest benefit, because it is necessary generally to trust these persons and deliver property into their custody. (D.4.9.1pr.-1.)

Liability under this edict lay in respect of theft or damage committed by the employees of shippers, innkeepers, and stable keepers. In addition, innkeepers were liable for the acts of permanent residents, but not casual guests or travellers. The distinction was justified, according to Ulpian, in that the innkeeper was regarded aS choosing his permanent residents, but not passing travellers (D.47.5.1.6.). We are concerned here with vicarious rather than strict liability: the defendant cannot be regarded as without fault if he has employed persons who steal or damage property that has been entrusted to him. The action lay for double the loss that was caused. It survived for the benefit of heirs but not against them.

10.7.4 Erring judges

(D.44.7.)

A judge could be sued si litem suam fecerit—'if he made the case his own', i.e. if he acted in a partial manner, and not as a judge. The development of this rule in early law owed much to the absence of a general system of appeals. It allowed some recourse against a judge who had reached a perverse verdict: he was liable for the loss he had caused thereby. The judge’s liability was not founded on supposed errors in reasoning, since the nature of the Roman trial did not require the judge to reveal any more than his (oral) decision. Instead, his liability was based on his visible han­dling of the trial. (See MacCormack, G., 'The Liability of the Judge in the Republic and Ptincipate' (1982) 14 ANRW II, 3-28; Birks, P,, *A New Argument for a Narrow View of Litem Suam Facere' (1984) 52 TR, 373-87; Robinson, O.F., 'The ludex Qui Litem Suam Fecit Explained' (1999) 116 ZSS (rA), 195-9; Robinson, 0. F., 'Justinian and the Compiler's View on the ludex Qui Litem Suam Fecit', in Status Familiae 389-96.) The judge might also be subject to a criminal sanction, e.g, taking bribes was a capital offence under the Twelve Tables.

The erring judge had to pay whatever the plaintiff had lost through the perverse judgment. What degree of blame was required of the judge? In early law, it seems that the judge was liable only for giving a deliberately wrong judgment; but later, negligence sufficed. It is possible even that strict liability was imposed in the classi­cal period: the judge was liable for any wrong judgment.

Gaius, Golden Words, hook 3: If a judge has made a cause his own, he does not, properly speak­ing, seem to be liable in delict, but because he was not found in contract either, yet surely is considered to have done wrong in some way, albeit through imprudence, he is regarded as liable in quasi-delict. (D.44,7.5.4.)

The operation of this quasi-delict in practice remains a matter of some speculation. For example, it is not clear which criteria were applied in deciding whether a judg­ment was perverse or wrong, especially in the absence of a proper appeal system until the later Empire. See Frier, Casebook on Delict, 237-8.

10.7.5 A common link?

It is difficult to find a satisfactory explanation why Justinian classified these cases as a separate group. Strict liability has been suggested as the common link; so has vicarious liability. But neither suggestion is convincing. Perhaps a more satisfactory

approach is to view these quasi-delicts as situations where the defendant has been entrusted with the 'safety' of a thing (cf. Descheemaeker, Division, 99). The judge is entrusted with the safety of the case he is trying; the innkeeper with the safety of the property of guests at the inn; the occupier with the safety of his home. Admittedly, in the last case the concept of entrusting has to be stretched somewhat; nevertheless, it can be viewed as a form of public duty that occupiers should ensure the safety of their premises—the occupiers are 'entrusted' with making them safe.

The notion of responsibility for the safety of things as a basis for delictual or quasi-delictual liability can be found in Article 1384 of the Code Civil: a person is liable not only for damage caused by his own acts but also for that caused by the acts of persons for whom he is responsible, or by things in his keeping. This provi­sion has been interpreted as encompassing strict liability, apart from damage caused by overwhelming force. See Zimmermann, Obligations, 1141-2, and generally on quasi-delict in modern law, 1126 ff.

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