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1. The different forms of iniuria

(a) Convicium

Convicium was probably the oldest of the four, having already had a forerunner in the XII Tables.25 Ulpian quotes the praetor in the following terms:

"[Q]ui adversus bonos mores convicium cui fecisse cuiusve opera factum esse dicetur, quo adversus bonos mores convicium fieret: in eum indicium dabo'V and he refers to Labeo for the proposition that "convicium iniuriam esse".[5470] [5471] We are dealing here with a kind of stylized defamation, with roots both in the realm of magic and in traditional forms of people's justice.[5472] A number of people were called together and assembled at somebody's house in order to raise an insulting and abusive clamour.

Not every kind of verbal abuse was thus convicium. It had to be bawled aloud ("id solum, quod cum vociferatione dictum est"),[5473] and it had to be voiced within a crowd of people ("... quod in coetu dictum est").[5474] In order to constitute a delict, the clamour had to be raised against a specific person (the word "cui", according to Ulpian, was not added by the praetor without reason, "nam si incertae personae convicium fiat, nulla executio est"),[5475] but it was not necessary that the addressee be present while he was thus insulted ("Convicium non tantum praesenti, verum absenti quoque fieri posse Labeo scribit").[5476] Finally, an action could be brought only if the convicium had been at variance with the moral standards of the community concerned ("adversus bonos mores huius civitatis")[5477] and was apt to bring the person exposed to it into disrepute or contempt ("quae... [sc: vociferationem] ad infamiam vel invidiam alicuius spectaret").[5478]

(b) De adtemptata pudicitia

The edict de adtemptata pudicitia[5479] was designed to protect the moral reputation of honest women and of young Romans who still wore the toga praetexta.[5480] It covered three closely related situations: "Tenetur hoc edicto non tantum qui comitem abduxit, verum etiam si quis eorum quern appellavisset adsectatusve est."[5481] Abducere comitem was the removal, or abduction, of the companion, without whom a lady could not in all propriety appear in public.

Adsectari literally means to follow somebody about, appellare to accost a person. Both types of conduct, however, gave rise to an actio iniuriarum only if they infringed the boni mores[5482]" (whereas comitem abducere appears to have been regarded as immoral—and thus unlawful—per se).[5483] Thus, for instance, to follow a boy or woman could be a merry prank or even constitute an honourable service.[5484] What was damaging to the reputation, and thus objectionable, was a constant and silent pursuit ("adsidua[5485] enim frequentia quasi praebet nonnullam infamiam"[5486]); it permitted the inference that one could take one's liberties with that particular person. Appellare, in turn, was confined by virtue of the contra bonos mores requirement to the kind of accosting that constituted an attempt upon a person's chastity: "Appellare est blanda oratione alterius pudicitiam adtemptare."[5487]

But just as a clamour raised against infamous persons did not amount to iniuria,[5488] so not every woman could complain if exposed to indecent proposals. For a certain group of women this was in fact part of their business; and it is thus obvious that prostitutes did not possess the chastity that could have been infringed by an appellare, even in the narrow, technical sense.[5489] But how could a potential customer see whether he was dealing with a decent woman or a lady of the night? Usually the dress she wore gave him some indication. A prostitute was not allowed to walk around matronali habitu (wearing the clothes of a respectable materfamilias, more particularly the long stola);[5490] instead she was normally dressed in a short tunica and preferred colourful and often quite transparent silk designs.[5491] In time, however, these differences of garment became blurred. Thus it could happen that a man accosted a respectable woman who was dressed non matronali habitu, but meretricia veste.

Did he commit an offence? Yes, according to Ulpian, but only a very minor one.4" Slightly more serious was an insult to a virgo, dressed as a slave,[5492] [5493] [5494] for even the pudicitia of a slave enjoyed the protection of the law, though not quite to the same extent as that of a freeborn woman.“ "[SJi igitur non matronali habitu femina merit et quis earn appellavit vel ei comitem abduxit, iniuriarum tenetur"[5495] is the summarizing comment by Ulpian, which does, however, not appear to tie in particularly well with the line of argument developed in the two examples concerning ancillaris and meretricia vestis.[5496] The text (our most interesting and important source dealing with de adtemptata pudicitia) has therefore often been declared spurious[5497] and various attempts have been made to provide an amended version. Thus, for instance, the word "non" has been added between "iniuriarum" and "tenetur";[5498] alternatively, "matronali habitu" has been read in place of "non matronali habitu".[5499] Cornells van Bynkershoek[5500] argued that the sentence may originally have been meant as a question, which Ulpian, in turn, might quite possibly have answered in the negative. More recently, it has been suggested that some lines contained in the original text may have been dropped by mistake.[5501] None of these hypotheses can be proved and the question regarding the exact circumstances under which the actio iniuriarum could be brought against a person who had accosted a woman not wearing matronly clothes must therefore ultimately remain open.

(c) Ne quid infamandi causa fiat

The most general of the edictal provisions dealing with iniuria was couched in the following terms: "[N]e quid infamandi causa fiat, si quis adversus ea fecerit, prout quaeque res erit, animadvertam."[5502] Any act which was apt to bring another person into disrepute gave rise to an actio iniuriarum.[5503] As we have seen repeatedly, the Romans tended to be remarkably sensitive when it came to questions of honour and reputation, and the range of behaviour falling under the edict ne quid infarnandi causa fiat was therefore rather wide.

Thus, for instance, the malicious use of mourning dress or filthy clothes, allowing one's beard to grow unkempt or one's hair to hang down in an untidy manner could constitute the edictal offence.6" These were all signs of mourning, displayed not only when a close relative had died or a great public calamity had happened[5504] [5505] but also by a person who was formally charged with a crime.[5506] In the latter case close relatives were allowed also to express their sympathy by way of vestis mutatio; but if other people joined in, their behaviour was taken to constitute an insult to the prosecutor.[5507] Mourning attire was also inappropriately used by a person who followed around, "sordidatus", the man whom he suspected to be his father's murderer.[5508] Carmen conscribere vel proponere vel cantare aliquod quod pudorem laedat[5509] were further acts that could give rise to an actio iniuriarum: the composition, publication or recitation of a song that hurt another's honour. A person who, in a petition presented to the emperor, attacked the reputation of another, committed an offence,[5510] and so did a person who pretended to be able to influence the outcome of a lawsuit by bribing the judge concerned with the matter.[5511] Interference with somebody else's property could affect that person's reputation too.[5512] Thus, the actio iniuriarum was available to a debtor whose goods had been wrongfully taken into possession by his creditor:[5513] the inference obviously being that the former was not prepared to honour his obligations and could only be got at by way of self-help. Injurious also was the public announcement of the sale of a pledge which a person pretended to have received from another;[5514] again, the impression was created that this other person had commitments which could be honoured only by selling a pledge that he had—ostensibly—given.

(d) Servum alienum verberare

Finally, there was the edict dealing with the beating or torturing of another person's slave:

"Praetor ait: Qui servum alienum adversus bonos mores verberavisse deve eo iniussu domini quaestionem habuisse dicetur, in eum iudicium dabo, item si quid aliud factum esse dicetur, causa cognita iudicium dabo."[5515]

Of course, it was not so much the insult to the slave that mattered as that inflicted on his master: "... spectat enim ad nos iniuria, quae in his fit, qui... potestati nostrae... subiecti sint."[5516] Beating[5517] somebody else's slave was thus a typical example of what came to be referred to as an indirect iniuria.[5518] Again, however, not every verberatio fell under the provisions of the edict: there had to be an infringement of the boni mores. This requirement for liability was not satisfied, for instance, if the blows had merely been inflicted corrigendi aut emendandi causa;[5519] hence, incidentally, Julian's statement that the shoemaker who had knocked out his apprentice's eye[5520] was not liable under the actio iniuriarum.[5521]

(e) Residual cases

However liberally one was prepared to interpret the provisions of the special edicts, certain cases were bound to crop up which, though not being covered by any of them, still required to be remedied by means of an actio iniuriarum.[5522] Entering another man's house without his permission was one such case; if it happened vi, the lex Cornelia de iniuriis was applicable, but if the intruder had not used force, the actio iniuriarum was granted.74 Preventing a person from using his own property could constitute another example, as where the owner of a house situated lower down created smoke in order to fumigate his neighbour's dwellings higher up.8" Dogmatically, the action was probably based on what the classical Roman lawyers referred to as the "edictum generale";[5523] [5524] [5525] [5526] [5527] [5528] [5529] in actual fact, however, it marks an advance (a rather cautious one) beyond the confines of the edict.

2.

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

More on the topic 1. The different forms of iniuria:

  1. 4. DAMNUM INIURIA DATUM
  2. 1. Iniuria in the XII Tables
  3. Iniuria
  4. 2. The definition of iniuria
  5. The concept of iniuria
  6. The essential elements of iniuria
  7. 3. INIURIA
  8. Injury (iniuria)
  9. Damnum Iniuria Datum
  10. Wrongful loss (damnum iniuria)
  11. Forms of testaments
  12. 10 Iniuria (Contempt)
  13. I. THE EARLY HISTORY OF INIURIA
  14. The main Roman delicts divide the field in this way: furtum and damnum iniuria datum have to do with wealth.
  15. Analytical Dimension 2: Myths as Different Forms of Narrative
  16. Other Forms of Delict
  17. Early Forms of Will
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