The decline of the actio iniuriarum aestimatoria

To a certain extent, the latter argument applied to the actio iniuriarum aestimatoria too. Since it had lost its penal function, it could serve only to compensate the victim for any damage sustained as a result of the iniuria.

On account of an attack against his honour, no damage could, however, have been caused, for his honour was in no way detrimentally affected. Only if his reputation was impaired was there any possibility ot damages. As far as pecuniary damages were concerned, special provision was made in the penal code,²⁹⁹ and the ^[5687] ^{^[5688] BGB, too, was to allow for their recovery.³⁰⁰ Usually, however, the damages are of a non-material, or sentimental, nature; and the main function of a sustained actio iniuriarum would thus have been to afford the plaintiff some compensation in the form of a solatium in order to assuage his injured feelings. But then one would have had to express the value of these feelings in financial terms; and it was exactly this kind of trade-off that repelled the contemporary sense of decency. Freiherr von Kreittmayer, the famous "father" of the Bavarian Civil Code of 1756, gave the argument a slightly nationalistic slant: assessment of a person's point d'Honneur, he maintained,³⁰¹ was completely alien to German tradition and mentality; hence the low esteem in which the actio aestimatoria was held among decent and reputable people. The Romans may have regarded the person convicted under an actio iniuriarum as infamous;³⁰² yet in Germany it was rather the person bringing such a "squalid" action who exposed himself to ridicule and disrepute. The same ideas still prevailed when the BGB was drafted.³⁰³ Immaterial interest, in the opinion of the German gentleman, cannot be weighed up against money. Honour and good reputation are of an inestimable value, and whoever is prepared to "trade them in" against a sum of money can hardly be a man of honour who deserves to be respected anyway.³⁰⁴ The BGB therefore does not include honour and reputation ¹¹¹ § 823 II BGB imposes an obligation to make amends upon anyone who violates a statutory provision intended for the protection of others.
Among these "protective norms", are the provisions of the penal code dealing with insult and defamation (§§ 185 sqq. StGB). Cf. also § 824 BGB. ³³ Cf. Mainzer, op. cit., note 103, p. 93. On the concept of honour in the late 18th and in the 19th centuries, see also Slawig, op. cit., note 107, pp. 14 sqq.; Kiernan, op. cit., note 107, pp. 152 sqq., 223 sqq. (on the views presented by Walter Scott and later British writers).
^ASupra, p. 1062 (note 100).
Cf. "Protokolle", in: Mugdan, vol. II, p. 1119; "Kommissionsbcricht", in: Mugdan, vol. II, p. 1297; also, for example, G. Hartmann, "Der Civilgesetzentwurf, das Aequita'tsprincip und die Richterstcllung", (1888) 73 Archivfiir die civilistische Praxis 364: "It runs counter to the most profound German sensibilities to assess the most sacred emotions in terms of base mammon and to compensate every culpable interference with those feelings by means of a money payment" (trans.: Handford, (1978) 27 Comparative and International Law Quarterly 855).
³³¹ It was the same "psychology of honour" that kept alive the institution of duelling as an alternative social mechanism to settle disputes relating to a point of honour: cf. the analysis by Kiernan, op. cit., note 107, pp. 152 sqq.; cf. also pp. 116 sqq. (detailing the "grudges and grievances" that could give rise to a duel). Duelling was not confined to officers or to the nobility ("Barons from head to toe, in every drop of blood the fruit of sixty-four equal marriages, and in every glance a challenge!": as Friedrich Engels saw it; cf. Kiernan, p. 271) but had spread to the top echelons of the bourgeoisie. It had become an upper-class phenomenon; doctors, lawyers, statesmen and newspaper editors were among the highly represented groups. Involvement in duels or challenges included, among many others, Napoleon, La Fontaine, Voltaire, Heinrich Heine, Otto von Bismarck, and at least five men who were destined to become British prime ministers: Lord Bath, Lord Shelborne, William Pitt, George Canning, the Duke of Wellington and Sir Robert Pee] (who was twice in the role of challenger).
Alexander Pushkin and the German socialist Ferdinand Lassalle were killed in duels. For details, see Schwartz/Baxter/Ryan, (1984) 13 Journal of Legal Studies 325; Kiernan, op. cit., note 107, pp. 6 sqq., 216, 277 sqq. and passim; cf. also Kohut, op. cit., note 269, pp. 69 sqq. In Germany, a country [hat was "succumbing to atavistic within the list of rights or interests enumerated in § 823 I BGB;^{^[5689]} furthermore, it specifically provides that compensation for non- pecuniary loss may be claimed only in the case of injury to body or health, or in the case of deprivation of liberty.^{^[5690]} Over and above that, § 253 BGB contains an express prohibition against awarding non- pecuniary damages in any cases other than those specified by law.^{^[5691]} 6.}

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

The decline of the actio iniuriarum aestimatoria

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