QUASI-DELICT

The Institutes add the category (which in the Digest is attributed to a work of Gaius) of obligations which arise quasi ex delicto.^{^[98]}^{^[99]} Four of these are listed.

The judge who misconducts a case or gives a wrong decision (qui litem suam fee er it, meaning literally ‘who makes a suit his own’) is liable to the party who is thereby prejudiced. The occupier of a building is liable for double the damage caused by anything thrown or poured out of the building, no matter by whom, on to a public place. He is similarly liable to a penalty, at the suit of anyone who cares to claim, if he keeps any object suspended from the building which would do damage if it fell. Finally, a ship-owner or the keeper of an inn or stable is liable for any theft or damage caused by slaves or employees, or, in the case of the innkeeper, of permanent residents.

Why were these four cases, and these four alone, placed in this category? This question has been debated down the centuries, but no wholly satisfactory answer has been found. The most influential, in that it has found its way into French law and some of the systems derived from it, and into Scots law, is that a delict is an intentional wrong, and a quasi-delict a merely careless one. The obvious objection to this answer is the fact that damnum iniuria datum did not require a wrongful intent.¹ Another answer is that the essence of quasi-delict is vicarious liability: the occupier of a building, the innkeeper, &c., are liable for acts committed by others. But, on the one hand, noxal liability should then also have been included, and, on the other, the liability of the judge can be treated as vicarious only by a rather forced interpretation—that by ‘making one party’s suit his own’ he assumed that party’s liability.

A third answer is that the essence is strict liability, i.e. liability without fault, but to this the case of the judge is again an obstacle. For the texts attribute to him at least imprudence or lack of skill, and, as we have seen, lack of skill was treated as culpa. In the classical law, however, it seems that his liability was indeed strict, and if the Digest’s attribution of the category to Gaius is correct this may have been its original basis, but in the time of Justinian it must have been forgotten. For the text as it is presented in the Digest and in the Institutes offers both the first and the second of the answers given above, but without explaining how they are to be reconciled. The first is used to explain the cases of the judge and of the ship-owner, innkeeper, and stable-keeper (the latter should have chosen their employees and permanent residents with more care), and the second to explain the others.

¹ The devices adopted to escape this difficulty cannot be discussed here. On this and other points, see an article by P. Stein in International and Comparative Law Quarterly, 4 (1955), pp. 356 ff.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

QUASI-DELICT

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