The penal nature of the remedy
As a result of the odd assessment clauses, it could happen that the award in Roman times went far beyond the plaintiff's interest. It was this surplus which in Justinian's view contributed the penal element inherent in the sctio legis Aquiliae.138 Apart from that, only litiscrescence could possibly (if somewhat vaguely) be taken to constitute a non-compensatory component of the remedy, justifying its classification as actio mixta.1 9 Once it had lost these two features, the Aquilian action was bound to change its character.
This was widely recognized by the authors of the (later) usus modernus, "Actio legis Aquiliae hodie non poenalis est, sed rei persecutoria" was the principle enunciated by Groenewegen,[5306] and it was approved of even by some of those who continued to apply infitiando lis crescit in duplum:'[5307] .. per accidens fit mixta [sc: non sua natura]", as was explained by Lauterbach.4.
More on the topic The penal nature of the remedy:
- 2. The penal character of the remedy
- Penal actions (actiones poenales)
- 1. The reipersecutory character of the remedy
- RESCISSION AS A REMEDY FOR BREACH OF CONTRACT
- The nature of the remedies available
- The nature of Directives
- The nature of lease
- 1. The nature of suspensive conditions
- The nature of pignus
- The nature of Regulations