Wrongful loss (damnum iniuria)

The delict of “loss wrongfully caused” (damnum iniuria datum) was developed in the lex Aquilia de damno (D. 9.2 and Gaius 3.210-219), a plebiscite of unknown date, but probably enacted before 217 bce.

The lex Aquilia introduced general provisions on wrongful damage to property and largely superseded old provisions and specific cases mentioned by the Twelve Tables and other statutes (Ulpian, D. 9.2.1). Two of its three chapters are relevant to the development of this delict. chapter one of the lex

Aquilia condemned the killing of slaves (male and female) and grazing animals - sheep, oxen, horses, mules, goats, and donkeys, among others, but not wild animals. Wild beasts, even if tamed, and dogs, whose legal position often changed with the law, were outside this category (Gaius, D. 9.2.2.2). The penalty that this statute imposed on a violator was the highest value that the slave or animal had had in the year before the killing. Chapter three was more general. It penalized cases not covered by chapter one in which a man caused loss to another by burning (urere), breaking (frangere), or destroying (rumpere) his property. The penalty imposed was the highest value of the damaged thing within the previous thirty days.

The action of the lex Aquilia was available to the owner (Ulpian, D. 9.2.11.6). Originally its scope was limited. For instance, the loss inflicted on the owner had to be the result of a wrongful, physical, and direct act of a wrongdoer upon a tangible thing (corpore corpori). Damages caused indirectly (e.g., opening the door of a stable with the result that a horse would bolt) or simple omissions created no liability under the statute. Furthermore, interested parties, such as a usufructuary or pledgee, who may have suffered economic loss, were not originally protected under the lex Aquilia.

By way of interpretation and praetorian extensions, however, the application of the lex Aquilia was expanded to new situations created by a developing society. By the later Republic, Roman jurists interpreted chapter three to cover all cases of damages not falling within chapter one. They read the Latin term rumpere (to destroy) as equivalent to corrumpere (to spoil, to ruin, and to hurt), including all kinds of deterioration or damage to an item. On the other hand, the word iniuria was understood not only as unlawful but also involving both fraud (dolus) and negligence (culpa).

Justinian described the standard civil action derived from the lex Aquilia as a mixed action (Inst. 4.16.9), because the perpetrator of the damage had to pay the highest value the thing had had during a period of time and not its value when it was damaged. The actio legis Aquiliae could be combined with other actions deriving from contracts. For instance, if a depositary damaged an item deposited with him, the depositor could bring two actions: the action resulting from the deposit and the action concerning the Aquilian law. As a penal action, the Aquilian action was not passively transmissible, and when there were more than one perpetrator, all of them had to pay the complete penalty. The compensation, which originally depended on the objective value of the thing, was later fixed, taking into consideration the actual interest of the injured party, including consequential damages (damnum emergens) and lost profit (lucrum cessans).

On the basis of Aquilian law, the praetor granted praetorian actions (sometimes utiles, sometimes in factum) in cases where damages had been caused only indirectly: e.g., by locking up a slave in a barn so that he died of starvation, driving a mule so hard that it was injured, or pushing one man so that he damaged the property of another. Ulpian (D. 9.2.9pr.) reports a decision of Labeo arguing that the praetorian action should be granted

The law of obligations: delicts 211 against a midwife who provided medicine to a female slave for her to take by herself, from which the slave died.

The praetor also extended protection to interested parties other than the owner who had suffered economic loss (e.g., the possessor in good faith, the usufructuary, the pledgee). Praetorian law was supplemented by criminal sanctions introduced by the lex Cornelia de iniuriis (81 bce) for beating, striking, or flogging a person or entering a dwelling by force. This statute reflected the new legal inclination to regulate iniuria through criminal law.