The origins of delict in Roman law

The law of delict originated in private vengeance.⁷⁹ A person who was wronged by another acquired a pledge-like power of seizure over the wrongdoer's body. It gave him the right, at first, to kill the wrongdoer; later, to inflict no more than the same form of harm that he had suffered (lex talionis).

In addition, the victim's power of seizure came to be tied to formal, State-controlled legal proceedings {manus iniectio). Then the right of vengeance was made redeemable: the victim of the wrong was encouraged, and later required, to abstain from avenging himself by accepting a composition paid either by the wrongdoer himself or by his relatives. This composition consisted first in cattle (pecus), later in a sum of money (pecunia); in the beginning freely negotiable, the amount to be paid was ultimately fixed by the State. Thus, for each specific wrong "atonement tariffs" came to be established and they were known as "poenae". Early, and prominent, examples are contained in the XII Tables ("Manu fustive si os fregit libero CCC, si servo CL poenam subito" (8, 3); "Si iniuria alteri faxsit, XXV poenae sunto" (8, 4)), but this enactment also still contains rules representing earlier stages in the development of delictual liability ("Si membrum rupsit, ni cum eo pacit, talio esto" (8, 2))."' In tab. 8, 3 and 4 the poena consisted in an arbitrary amount that was fixed across the board. Usually, though, and particularly with regard to property-related offences, the estimated value of the particular piece of property concerned was taken as a point of reference, the amount of the poena thus being either the estimated value itself^A' or a multiple thereof:⁸² the double, treble, or even quadruple value. Occasionally, the determination of the sum into which the defendant was to be condemned was left to the discretion of the judge; thus, the formula of the actio iniuriarum merely referred to "quantam pecuniam recuperatoribus bonum aequum videbitur".⁸³ By the time of classical Roman law this system of (private) poenae had become firmly established and they were no longer regarded as a means

^7H Buckland/McNair, p.

XIV; cf. also Markcsinis, (1977) 93 LQR S3 sqq.⁹ For what follows see supra, pp. 1 sqq. ^{8not also actively intransmissible. Whilst, therefore, they could still be brought by the victim's (i.e. the creditor's) heir, they never lay against the heir of the wrongdoer (i.e. the debtor). Once, of course, litis contestatio had taken place, the wrongdoer's death was no longer of any consequence ("Sciendum est ex omnibus causis lites contestatas et in heredem... transire"),^{^[4666]} ^{^[4667] ^[4668] ^[4669] ^[4670]} for under the rules of Roman civil procedure a plaintiff was entitled to receive what was due to him tempore litis contestatae. In the second place, joint perpetrators of the wrong were, in principle, liable cumulatively and the injured party could thus receive the full composition several times over.^[4671]’ This sounds odd to us, for it means that the victim turned out, in the end, to be the better off, the more persons had participated in the infliction of the injury. But the explanation is simply that each individual person's act resulted in an obligation to expiate the wrong; and no such expiation could be taken to have occurred in relation to someone who had not paid the full statutory sum in question. No distinction was drawn between mere aiding and abetting on the one hand and joint perpetration of the wrong on the other: any form of participation entitled the victim to sue for the whole amount.
(b) Noxai liability
And thirdly: where the wrongful act had been committed by a person in power (films- or filiafamilias and slave),^[4672] the actio poenalis lay as a noxai action against his or her paterfamilias. Liability was thus in the alternative: the paterfamilias could either defend the action and, ultimately, render payment as if he had himself committed the offence, or he could simply surrender the actual offender to the injured person.^[4673] Surrender tended to be regarded in classical law as a means of avoiding the (primary) obligation to pay the composition;^[4674] but this was an inversion of the original principle.^[4675] When, in the olden days, the victim wanted to wreak his vengeance upon a person in power, the paterfamilias' potestas posed a serious obstacle: any attempt to avenge the wrong would normally have interfered with it.
Hence the request to surrender the wrongdoer. Later on, the State favoured abstention from vengeance and fixed specific penalties. But, of course, an obligation to pay such penalties could be imposed neither on slaves nor on sons or daughters in power. It was their paterfamilias to whom all property belonged and who was thus the only possible addressee for a claim to pay the fine. Yet, since he himself had not committed the wrong, it was regarded as inappropriate to expose him to liability without, at least, retaining for him the option of surrender. "Summa autem ratione permissum est noxae deditione defungi: namque erat iniquum, nequitiam eorum ultra ipsorum corpora dominis damnosam esse":^[4676] this is how Justinian rationalized the legal position. If the poena was particularly high, the paterfamilias could escape liability by giving up the wrongdoer; if, on the other hand, he had an overriding interest in keeping the latter, he could justly be taken to have attracted the liability to pay the penalty upon himself. Although, therefore, the defendant in a noxal action was always the paterfamilias, it was still the slave who was regarded as the wrongdoer. Liability was thus seen, as the Romans put it, to "follow his (i.e. the slave's) head": noxa caput sequitur.^[4677] If the slave or child in power was transferred into somebody else's patria potestas, the noxal action followed suit. The person to be proceeded against was thus (oddly, perhaps, in our view) whoever just happened to have the wrongdoer in his power at that particular moment, not his master at the time when the wrong had been committed; hence, for instance, the concern of Roman purchasers, reflected in the provisions of the aedilitian edict, that slaves be free from noxal liability. ² If the person in power attained his freedom before action was taken, he became liable himself and the (former) master's noxal liability fell away. 8.}

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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 origins of delict in Roman law

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