2. The penal character of the remedy

The penal aspect of the lex Aquilia, on the other hand, was slightly less straightforward. True: the actio legis Aquiliae displayed the characteristics of a typical actio poenalis.

It was passively intransmissible and could therefore not be brought against the wrongdoer's heirs: "... in heredem... haec actio non dabitur, cum sit poenalis."^[5037] When several persons had been involved in the act of killing a slave, each of them was liable under chapter one, unless it could be established which of them had dealt the mortal blow.^[5038] The plaintiff could cumulate his actions and the fact that one of the co-delinquents paid the full amount did not release the others from their liability: "nam ex lege Aquilia, quod alius praestitit, alium non relevat, cum sit poena."^[5039] Furthermore, when the delict described in chapters one or three had been committed by a son in power or a slave, the paterfamilias was liable under an actio noxalis: he either had to pay the sum that was due as a result of the delict himself, or he had to surrender the delinquent.^[5040] ^{^[5041] But despite all this: was it really appropriate to state that the wrongdoer was punished by the actio legis Aquiliae ("[i]n hac... actione... dolus et culpa punitur") V³⁷⁷ After all, unlike in the case of furtum,^[5042] the wrongdoer did not have to pay duplum or quadruplum, but merely the simple value of (as far as chapter one was concerned) the slave or grazing animal. Gaius therefore pointed to the provision that the sums under chapters one and three had to be doubled if the defendant denied liability.^[5043] "Infitiando lis crescit in duplum" is a rule that dates back to the days of the legis actio per manus iniectionem.^[5044] Manus iniectio could be granted only if the defendant's liability had already been established, for instance by a previous trial.
The creditor was now allowed to exercise his power of seizure over the debtor. However, a third party (referred to as vindex) was still able to intervene and to dispute the creditor's right of seizure. Another trial between vindex and creditor ensued. But since the vindex had disputed what had already previously been placed beyond doubt and what was therefore manifest, he was made to pay duplum if defeated in the second trial. Litiscrescence was thus a penalty imposed for litigating under circumstances where litigation appeared to be unwarranted. Similar considerations must have prompted the drafters of the lex Aquilia to include a provision on the doubling of damages contra infitiantem.^[5045] As a result thereof, only the defendant who confessed in iure was liable for simplum; if the suit was defended, the wrongdoer had to be condemned in duplum.^[5046] The lex Aquilia dealt with matters that were very obviously wrong and a person who was charged with an offence under this statute and who denied liability must have been regarded with some scepticism.^[5047] ^{^[5048] ^[5049] All this reveals, however, that what was penalized by doubling the amount of damages was the defendant's reluctance to confess, not the Aquilian delict as such. If Gaius' somewhat unfortunate intimation in IV, 9 were to be accepted as correct, the actio legis Aquiliae in simplum could not have been penal: which is, however, manifestly wrong.^{1 5} This was seen by Justinian's compilers, who therefore drew attention, in addition to litiscrescence, to the "quanti id in eo anno plurimi fuit" clause of chapter one.'⁴" Usually under this provision the plaintiff merely received a compensation for his loss; as a result of the necessity to assess the highest value within the last year before the injury, it could, however, sometimes^[5050] happen that the award went far beyond this limit. It was this surplus that could no longer be reconciled with the reipersecutory nature of the lex Aquiiia and that therefore contributed the penal element inherent in this action.
But what a strange kind of penalty we are dealing with!^[5051] It can have affected only a very small number of delinquents and these, in turn, were hit in an entirely arbitrary manner. Whether two, or four, or perhaps ten times more than the actual value of the dead slave or animal had to be paid did not depend on the extent of the wrongdoer's blameworthiness, or similar criteria, but on completely unrelated considerations. A penalty implying such absurdities is in fact so odd that we can hardly attribute it even to a legislator of the 3rd century B.C.^[5052] It was, as we have seen, for entirely different reasons that the calculation was thrown into the past,^[5053] ^{^[5054] and Justinian's explanation looks like a not particularly successful attempt to rationalize the ambiguity that undoubtedly existed between an action that was penal in its legal characteristics, but compensatory in its normal result.⁴⁵¹ The real answer appears to be, quite simply, that poena did not necessarily imply that something was recoverable in excess of compensation.^[5055] One and the same sum could have a dual function: it could be poena in the guise of compensation. IV.}}}

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

2. The penal character of the remedy

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