1. "Mine honour is my life..

All in all, I think one can agree with Fritz Schulz:¹⁰¹ the actio iniuriarum afforded a strong and efficient protection against injuries to immaterial interests, and in particular against insulting behaviour of any kind.

Reflecting, as it did, the high value attributed to the respect or esteem which a person enjoys within society,¹⁰² it was bound to appeal to medieval lawyers: glossators, ultramontani and commentators alike.¹⁰³ They lived within a society that prized good name, dignity and honour even more highly and imbued it with the spirit of the feudal codes of chivalry. For the source of the chivalrous idea "is pride aspiring to beauty, and formalized pride

Which is, however, unlike in Roman law, confined to two specific cases: injury to the body or health and deprivation of liberty. In particular, it docs not apply to situations where honour or reputation are impaired: cf. infra, p. 1092.

⁵⁸ This provision is widely criticized, however, and its abolition has been recommended de lege ferenda: cf. Hans-Joachim Mertens, in: Mutichener Kommentar, vol. Ill, 2 (2nd ed., 1986), §§ 52 sqq.; Gerhard Hohloch, in: Gutachten und Vorschläge гиг Überarbeitung des Schuldrechts, vol. I (1981), pp. 442 sq. For South African law, see Scott, op. cit., note 94, pp. 190 sq. Here the old English adage of "actio personalis moritur cum persona" has occasionally been referred to, quite wrongly, as Scott, (1976) 39 THRHR 288 sqq. shows.

® Cf. Lend, EP, pp. 397 sqq.; Selb, 1978 Acta Juridica 29 sqq. As to the criteria applied, cf. Inst. IV, 4, 7. Details of the procedure are described by Gaius III, 224: "[P]ermittitur enim nobis a praetore ipsis iniuriam aestimare, et iudex vel tanti condemnat quanti nos aestimaverimus, vel minoris, prout illi visum fuerit"; cf. also Paul.

Coll. II, VI, 1. The matter was different, though, in cases which were referred to as iniuria atrox. Here it was not the plaintiff who made his own assessment of the injury (which the iudex could then reduce, at his discretion); it was the praetor who determined the appropriate amount (which the iudex in turn did not venture to reduce (cf. Gai. Ill, 224, second half))- The category of iniuria atrox was also used to determine when a libertus could sue his patronus (to whom he owed reverentia, pietas and obsequium; cf., for example, Ulp. D. 37, 15, 9) for contumelia: cf. Ulp. D. 2, 4, 10, 12; Ulp. D. 47, 10, 7, 2 and 3. For a classification of iniuriae atroces (ex facto, ex persona, ex loco), see Gai. III. 225; Ulp. D. 47, 10, 7, 8. For a general discussion, see Raber, Injurienanspruche, pp. 91 sqq. Occasionally it has been maintained (wrongly) that all injuries below the level of atrox were eliminated from the scope of the actio iniuriarum: cf. Manfred Herrmann, Der Schutz der Personlichkeit in der Rechtslehre des 16.-18. Jahrhunderts (1968), pp. 12 sq.

^1,10 Gai. IV. 182.

ⁿ CRL, p. 599.

¹⁽¹ The technical term was "exisrimatio": cf. Call. D. 50. 13. 5. 1: "Existimatio est dignitatis inlaesae status, legisbus ac moribus comprobatus, qui ex delicto nostra auctoritate legum aut minuitur aut consumitur."

⁰³ For an analysis cf. Robert Mainzer, Die astimatorische Injurienklage in dergeschichtlichen Entwicklung (1908), pp. 61 sqq.; Ranchod, pp. cit., note 90, pp. 32 sqq.; cf. also Herrmann, op. cit., note 99, pp. 17 sqq.

gives rise to a conception of honour, which is the pole of noble life".^[5545] "The purest treasure mortal times afford/", says Shakespeare,^[5546] "is spotless reputation; that away/Men are but gilded loam or painted clay./A jewel in a ten-times-barr'd-up chest/Is a bold spirit in a loyal breast./Mine honour is my life; both grown in one;/Take honour from me, and my life is done."

Given the violent tenor of life in the Middle Ages, and the extreme excitability of medieval man,^[5547] it is not surprising that honour and revenge were closely tied up with each other; in fact, the duel as a ritualized form of obtaining satisfaction for outraged honour survived, within certain segments of society, until well into our century.^[5548] But revenge is a crude form of private self-help that can hardly be tolerated within any developed community.

It is one of the principal functions of public authorities to see to it that disputes are settled in a peaceable manner.^[5549] This can occur only if a satisfactory set of legal remedies is available; and just as, therefore, the actio legis Aquiliae came to be received for the recovery of damnum iniuria datum, so the actio iniuriarum (aestimatoria, as it was usually called) was adopted from the Romans in order to provide protection against interference with man's (non-material) interest in his dignity and honour.^{^[5550]} The penal nature of the actio iniuriarum tied in well with the traditions of Germanic customary law,^{^[5551]} but its inherent flexibility rendered it superior to the system of fixed penalties prevailing in the latter. Thus, it was the more convenient aestimatio of the penalty that was taken over from the Roman sources, but, in its wake, the substantive concept of iniuria followed suit.^{^[5552]}

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

1. "Mine honour is my life..

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