The Law of Delicts

Modern law draws a distinction between delict and crime. The former is a wrong against an individual, for which the wrongdoer must render compensation follow­ing a private action brought by the victim.

Justinian follows Gaius in classifying the principal delicts into four categories: theft (furtum), robbery (rapina), wrongful damage to property (damnum iniuria datum) and insult (iniuria).

3.4.2.1 Furtum

One of the oldest forms of delict known to Roman law was furtum, generally translated as theft.

A distinction was drawn between three basic forms of theft: furtum rei, furtum usus and furtum possessionis. The first, furtum rei, was the unlawful appropriation of another person’s movable property. This existed as the most frequently occurring form of theft. Furtum usus, or theft of use, consisted of the improper use of a thing belonging to another where the thing was obtained from the owner for a specific purpose and was in the possession of the thief. Examples of this kind of theft included those of the depositarius who used an object deposited with him for his own purposes, or of the commodatarius who used an object handed over as a loan for a purpose different from that for which it had been lent. The third form of theft, furtum possessionis or theft of possession, arose when an owner improperly removed his own thing from the possession of another person who had the right to hold it (e.g. a usufructuary or a pledgee).

Furthermore, as early as the time of the Twelve Tables, theft was divided into manifest (furtum manifestum) and non-manifest (furtum nec manifestum). The former meant that the thief was caught in the act, and originally if he were a slave, he was flogged and thrown from the Tarpeian Rock; if he was a freeman, he was flogged and allocated to the person he had wronged as a bond servant. The penalties prescribed under the Law of the Twelve Tables fell into disuse as the praetor introduced the actio furti manifesti, a penal action for four times the value of the stolen property. For non-manifest theft the relevant action was the actio furti nec manifesti, directed at payment of twice the value of the stolen property.

the second century ad, by a clause of the Twelve Tables, a thief caught stealing at night could lawfully be killed.^[415]

In addition to the actio furti, the owner of the stolen property could institute a real action for the recovery of such property or its value. One such action was the actio rei vindicatio, by means of which an owner could reclaim the possession of his property from whoever may have held it without right. Alternatively, he could bring the condictio furtiva, an attractive action because it could be instituted against the thief and his heirs.

3.4.2.2     Rapina

Rapina (robbery) came to the fore when a person appropriated a moveable corpo­real object belonging to another with the use of violence (vis). It was instituted as a distinct delict by the peregrine praetor Marcus Licinius Lucullus in 76 bc, with an action (actio vi bonorum raptorum) in terms of which the robber was liable for four times the value of the property that had been taken.^[416] If there was more than one robber, liability was cumulative and so each robber had to pay the full penalty. In the classical period the victim of robbery could institute, cumulatively with the actio vi bonorum raptorum, a real action, such as the rei vindicatio, for the recovery of the stolen property or its value.^[417]

3.4.2.3     Damnum Iniuria Datum

Damnum iniuria datum, or wrongful damage to property, was dealt with by the lex Aquilia, a plebiscite passed probably in the third century bc.^[418] The lexAquilia was divided into three sections or chapters.

The first chapter of the lex Aquilia provided that whoever wrongfully killed another person’s slave or four-footed grazing animal (pecus)^[419] should be condemned to pay the owner the highest value that such slave or animal had in the year preceding the killing.^[420] ‘Wrongfully’ originally meant without rightful cause, but by the end of the republican age it generally meant that the killing was malicious or negligent. In the classical period the action was construed restrictively and lay only if the defendant had killed, not if he had simply furnished a cause of death.

The third chapter provided that if someone wrongfully burned, broke or frac­tured inanimate or animate things (except slaves and herd animals) belonging to another, the wrongdoer should be condemned to pay to the owner the highest value which the relevant thing had during the preceding 30 days. The damage had to be caused directly by the wrongdoer, by means of a positive act—damage caused indirectly or by way of omission did not fall within the scope of the enactment.

The action provided for by the Aquilian law (actio legis Aquiliae) was a mixed action insofar as it aimed at recovering the damage inflicted and also punishing the wrongdoer.

During the imperial age the field of application of the lex Aquilia was extended and adapted to the needs of a developed society. This evolution is displayed by the fact that the actio legis Aquiliae, which was originally granted only to the owner of the damaged property or to his heir, was later rendered available (usually in the form of a praetorian actio in factum or actio utilis)^[421] to other interested parties who had suffered financial loss, such as the bona fide possessor, usufructuary, pledgee, usuary and leaseholder. Furthermore, contrary to the original lex Aquilia that provided a remedy for damage only to a tangible thing and not to a person, in post-classical law an actio utilis legis Aquiliae was granted for damage resulting from wounding a free person.

3.4.2.4     Iniuria

The term iniuria, personal injury, denoted the intentional and unlawful infringe­ment of the body, honour or reputation of a free person. Originally there was no general delict of iniuria, but the Law of the Twelve Tables recognized a diversity of specific cases in which remedies were granted for attacks on a person’s right to his personal integrity. Thus, for membrum ruptum, the mutilation or permanent dis­ablement of a limb, the victim could inflict the same injury unless a compromise was reached. For osfractum, the breaking of a bone, the action was for 300 asses (copper coins) if the victim were a free man, 150 if he were a slave. For minor assault the action was for 25 asses. Depreciation of the value of money made the awards absurdly low, and in the third century bc the praetor introduced the actio aestimatoria iniuriarum, a penal action by means of which the victim could claim an amount assessed in accordance with the circumstances of the case. Originally the action was promised as a separate action in each particular case, but at a later stage it was made applicable to all cases of iniuria. At the same time, a series of edicts induced an expansion in the meaning of iniuria to include not only physical assaults but also an ever-growing range of offences against a person’s honour or reputa­tion.^[422] The injury-causing act had to be committed intentionally or deliberately and had to be unlawful in the sense that it was committed without a recognized justification or defence.^[423] Delictual liability for iniuria could arise directly or indirectly, for example by insulting the wife, children or other dependants of another and thereby injuring the husband, father or master.

3.4.2.5     Praetorian Delicts

The above-mentioned delicts were regarded as belonging to the ius civile and praetorian interventions were only aimed at extending or improving redress.

Metus came to the fore when a person was induced by threats of violence to enter into a legal act to his own detriment. If the legal act originated in the ius civile, the duress had no effect on it and the act remained perfectly valid in all respects. To rectify this unsatisfactory situation, the praetor intervened and a number of legal remedies were made available to persons subjected to duress, provided the force or threat of force used was of such nature that a reasonable person would have feared imminent danger to his person, property or family. Thus, a person forced by duress to conclude a legal transaction arising from the ius civile was granted the exceptio metus causa as a defence against any person seeking to profit from the transaction in question. Where the transaction had already been executed and loss had been suffered as a result, the praetor made available to the aggrieved person a restitutio in integrum whereby the latter could request the restoration of the legal situation that existed prior to the conclusion of such transaction. A much stronger remedy was the actio metus causa, a penal action applicable whenever someone incurred financial loss as a result of duress and that pursued a payment of four times the value of such loss. With the introduction of this action towards the end of the republican age, metus was granted recognition as an independent delict.

Dolus denoted any fraud, deceit or contrivance employed to induce a person to enter into a legal transaction to his own detriment. Just as in the case of duress, dolus did not invalidate a transaction that arose from the ius civile and the victim had no remedy against the defrauder. However, in the first century BC the praetor intervened and granted the exceptio doli to the person who had been conned into concluding a legal transaction as a defence against an action aimed at enforcing such transaction. When the transaction had been executed and loss had already been suffered, the praetor granted restitutio in integrum to the defrauded party. This remedy was apparently assimilated at an early stage by the actio doli and dolus was elevated to the status of an independent delict. The actio doli was applicable whenever somebody suffered financial loss as a result of fraud and lay for redress for the actual loss suffered.^[424] It should be noted, however, that this action was a subsidiary action (actio subsidiaria) since it could be employed only if no other remedy of any kind was available.

3.4.2.6     Quasi-Delicts

The term quasi-delict (quasi-delictum) denoted a wrongful act that did not qualify as a delictum but which nevertheless engendered an obligation between the aggrieved person and the actor, even though the latter may not in fact be blame­worthy. Justinian enumerates four kinds of wrongdoing under the heading of quasi­delicts: the judge who gave a wrong judgment either deliberately or negligently (iudex qui litem suamfacit, meaning literally ‘the judge who makes a suit his own’) was liable to the party who was thereby prejudiced; the occupier of a dwelling was liable for double the damage caused by anything thrown or poured out of the dwelling (even without his knowledge) on to a public place (res deiectae vel effusae); the occupier of premises incurred liability when something was suspended or placed in such a way as to be a danger to passers-by (res suspensae vel positae); and, finally, a ship-owner or the keeper of an inn or stable was liable for any theft or damage to the property of their clients committed by their slaves or employers or, in the case of the innkeeper, of permanent residents.

3.4.2.7     Noxal Liability

When a son in potestate or slave committed a delict without the knowledge of the paterfamilias or master, the victim could institute the action that arose from the delict against the latter in the form of an actio noxalis.^[425] When such an action was instituted, the paterfamilias or master had two alternatives: he could deliver the wrongdoer to the aggrieved party (noxae deditio); or, defend the action and, in the case of condemnation, pay the penalty and/or damages claimed. A special form of actio noxalis was the actio de pauperie, an action that under certain circumstances lay against the owner of an animal. When an animal acted contrary to its nature and caused damage in circumstances in which the owner could not be held at fault, the victim could institute the actio de pauperie against the owner. The latter then had the option to either pay for the damage done or to surrender the animal.^[426]

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