The essential elements of iniuria

(a) Contumelia; contra bonos mores

What were the common elements justifying the grouping together of the special edicts, and their eventual absorption into a so-called "edictum generale", under the common denominator of iniuria? In the first place, of course, the disregarding of another person's personality was common to all the situations examined above: iniuria in the sense of contumelia.^[5530] Secondly, the offender's act constituted an infringement of the boni mores.^[5531] This was either expressly stated in the specific edict or implicit in the description of the offence.

(b) The problem of the animus iniuriandi

Thirdly, it has often been maintained that animus iniuriandi, the intention to insult, was an essential requirement for the actio iniuriarum in all its emanations.^{^[5532]} But this is an inadmissible and ahistorical generalization. Only some of our texts can possibly be taken to lend support to such a view; but even they are usually not unambiguous. Nor can one be certain whether they have not been interpolated by Justinian's compilers who, as we know, generally favoured subjective criteria to determine legal consequences. Thus, in particular, there is Ulpian's statement that "iniuria ex affectu facientis consistat" (consequence: madmen and persons under the age of puberty—"impube[re]s, qui doli capa[ces] non [sunt]"—cannot be liable under the actio iniuriarum),^{^[5533]} but this text is taken from Ulpian's commentary on the lex Cornelia de iniuriis, not on iniuria in terms of the praetorian edict;^{^[5534]} and even apart from that, it does not state clearly what exactly was meant by the term "affectus". Considering the context within which the phrase appears, it is not necessarily synonymous with animus iniuriandi but may simply have been used to indicate that the offender had to have been able to form a legally relevant will;^{^[5535]} since unless a person is able to distinguish between good and evil, the results of his actions are not attributable to him in law.

Reference has also often been made to a variety of texts adverting to the offender's animus iniuriae faciendae. We may think, once again, of the shoemaker's case where liability under the actio iniuriarum is excluded "quia non faciendae iniuriae causa percusserit, sed monendi et docendi causa".^{^[5536]} Had he chastised iniuriae faciendae causa, one could be inclined to conclude, he would have been held responsible. But it would be wrong to isolate a purely subjective criterion and to assume that its presence was essential to establishing liability. The reason why the boy was beaten was relevant within the wider enquiry of whether the shoemaker's action could be labelled "contra bonos mores"; and it was this rather more objective criterion that ultimately mattered, as is stated specifically, for cases of this kind, by Ulp. D. 47, 10, 15, 38:

"Adicitur 'adversus bonos mores', ut non omnis omnino qui verberavit, sed qui adversus bonos mores verbcraverit, tencatur: ceterum si quis corrigendi animo aut si quis emendandi, non tenetur."

A purely subjective mental element was thus, to put it cautiously, not indispensable for purposes of liability, and it is quite in accordance with its rather limited function that many texts do not even mention it.^[5537] Proof that he lacked the intention to insult did not (in any event not necessarily) exclude the wrongdoer's liability. Objective and subjective ingredients were inextricably interwoven within the concept of iniuria, and the relative weight attached to each depended, furthermore, on the type of injury in question. This makes it impossible to generalize. The most one can probably say^{^[5538]} is that here, as in many other instances, the Roman lawyers did not think in terms of specific, isolated requirements for liability that had to be satisfied, but tended to look at the typicality of a situation. Thus it is obvious from the examples contained in the Digest that the delict of iniuria only covered situations where dolus on the part of the offender could typically be presumed to have been present.

"Conduct", in the words of Ranchod,^{^[5539]} "which was classified as iniuria usually did not occur without some form of dolus"; and while it would therefore be quite in order to refer to dolus as a characteristic ingredient of the different forms of contumelia iniuria, it would at the same time be wrong to assert that liability under the actio iniuriarum was strictly and necessarily confined to persons who could be shown to have acted with the intention to insult.

Fourthly, the actio iniuriarum, on whatever basis it was granted, was of a purely penal nature.^[5540] Like all other actiones poenales, it was therefore passively intransmissible.^[5541] Unlike the others, however, it was also actively intransmissible,^[5542] that is, it could not be brought by the heirs of the deceased victim of the insult. The actio iniuriarum was thus a strictly personal remedy; it was only the injured party himself who deserved to receive compensation for the disregarding of his personality.^[5543] Although this compensation was of a financial nature, the claim was not held to be part of the injured party's property: "Iniuriarum actio in bonis nostris non computatur, antequam litem contestemur."^[5544] Modern legal systems still retain this principle; thus, according to § 847 I 2 BGB, the claim for compensation in money for

immaterial damages⁹⁷ does not pass to the heirs, unless it has been acknowledged by way of contract or an action has been instituted.⁹⁸ Finally, condemnation under the actio iniuriarum was for "quantam pecuniam... bonum aequum videbitur"⁹⁹ and involved infamia.¹⁰⁰

III.

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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 essential elements of iniuria

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