The nature of the remedies available

(a) Actiones poenales and reipersecutoriae

The availability of actiones poenales was an important and character­istic feature of the Roman law of delict. But the desire of the injured party to obtain redress for the loss that he had suffered was also catered for.

"Sequens ilia divisio est, quod quaedam actiones rei persequendae gratia comparatae sunt, quaedam poenae persequendae, quaedam mixtae sunt."^lhy

There was thus a threefold subdivision: actions were either purely penal in nature, or purely "reipersecutory", or both penal and reipersecutory at one and the same time. An actio ad poenam tantum persequendam (or simply: an actio poenalis) served merely to penalize the wrongdoer. Actiones ad rem persequendam (literally: actions to recover a (or the) thing) had a completely different function: they aimed exclusively at compensation. "[I]llae autem rei persecutionem continent", as Paulus put it,^{[4683] [4684] "quibus persequimur quod ex patrimonio nobis abest." Since, as we know,[4685] restitution in kind could never be sued for in classical Roman law, condemnation always led to the award of a specific sum of money. Determination of the sum depended, of course, on the formula of each particular action, but by and large it was designed to cover the plaintiffs (typical) loss. In any event, there was no penal element involved in the assessment. A typical reipersecutory action was, for instance, the rei vindicatio. It could be brought against a thief (as against any other non-owner) who was still in possession of the stolen object and it lay for "quanti ea res erit, tantam pecuniam..}

Contractual actions were of a purely reipersecutory nature too.^[4686] If someone damaged a sedan chair that he had hired, he was liable under the actio locati, and here the iudex was invested with a very wide discretion to assess the lessor's actual damages... quidquid ob earn rem... dare facere oportet et bona fide, eius..." read the crucial passage of the formula: it focused exclusively on the injury to the plaintiff, without including—as the English lawyer would put it—a punitive award. Apart from such more general remedies, which could be used in a delictual context, the Roman lawyers sometimes also made purely reipersecutory actions available to deal with a specific wrong: the condictio ex causa furtiva in the case of theft was one of the most prominent examples.^[4687]

(b) Actiones mixtae

Thirdly, then, there was a group of actions which was taken to serve both a penal and a reipersecutory function at one and the same time: actiones quibus rem et poenam persequimur or, in Justinian's terminology,^[4688] actiones mixtae. The sum to be awarded was a penalty, but it was understood also to compensate the plaintiff for his harm. If that sum happened to be a multiple of the value of the object in question, it normally far exceeded the plaintiffs actual loss; and to this excess a compensatory function could, of course, hardly be attributed. Not unnaturally, therefore, the opinion came to prevail^[4689] that the whole award had to be split into a reipersecutory simplum and the (purely penal) amount by which the award exceeded the simple value. Justinian's exposition of the action for robbery provides a good example: "Vi autem bonorum raptorum actio mixta est, quia in quadruple rei persecutio continetur, poena autem tripli est."^{[4690] [4691]} According to the original praetorian provision, the defendant was liable to pay quadruphim, and in classical law there had never been any doubt that one was dealing with poena quadrupli (although there had been some doubt as to whether the action was purely penal or also reipersecutory in character).^[4692] Justinian came down in favour of an actio mixta, but for him this entailed that only the triplum exceeding the simple value could be regarded as a penalty.

(c) Concurrence of actions

The classification of the remedies according to the aim pursued by them was of particular importance when several actions were available on account of one specific delict. "Bis de cadem re agere non licet" was the general procedural rule determining all questions of concurrence:^[4694] litis contestatio prevented the plaintiff from bringing any other action in the same matter. This meant, in the present context, that the wrongdoer could not be punished twice; likewise, of course, the victim of the wrong was not to receive his compensation more than once. No plaintiff could thus avail himself of two (private) penal actions^[4695] with regard to one and the same delict; nor could he use two reipersecutory remedies. Once he had sued the wrongdoer, all subsequent actions pursuing the same aim were barred. On the other hand, however, no obstacle existed which could have prevented the plaintiff from cumulating a penal and a reipersecutory remedy. The imposition of a penalty and compensation for the harm suffered were not eadem res, and thus the one action did not "consume" the other. It followed logically that actiones mixtae could be cumulated neither with an actio poenalis nor with an actio ad rern tantum persequendam: an actio mixta covered (and thus consumed) both aspects peculiar to the Roman law of delicts and left no room for any other remedy.¹²²

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