Ex delicto

Question 1

Penal v Compensatory - Radin

Answer 1

• Argues that the law of delict was predominantly penal.

Question 2

Penal v Compensatory - Kaser

Answer 2

• Distinguishes between actions where one claims id quod interesse (compensatory) and actions where one claims a poena (actiones poenales, penal).
• Actio mixta where both penal and reipersecutory

Question 3

Penal v Compensatory - Sirks

Answer 3

• lex Aquilia was penal in the sense that the claimant under chap. 1 could recover more than the value of his actual losses.
• But in view of texts suggesting recovery only for interests in Early Principate, it may have acquired a reipersecutory character.

Question 4

Penal v Compensatory - Gaius

Answer 4

• Non-penal actions (actio iudicati, actio depensi, actio ex testamento => consequent penalty through the added simplum.

Question 5

Penal v Compensatory - Theft and robbery

Answer 5

• Deal with property rights: the wilful invasion of the dominium of the owner.

Question 6

Penal v Compensatory - Iniuria

Answer 6

• Invasion of the personality of the victim: a diminution of the his standing in the community.

Question 7

Penal v Compensatory - lex Aquilia

Answer 7

• Destruction or lessening of the owner’s property without benefit to the tortfeasor. The damage is caused without justification.

Question 8

Penal v Compensatory - lex Aquilia chap. I

Answer 8

• Highest value in the previous year can be seen as strict compensation, but “in some cases, the effect was penal, and in all cases, the effect was meant to be” (Radin).

Question 9

Penal v Compensatory - Radin on praetorian delicts

Answer 9

• Dolus and metus are clear examples of arbitrary actions. - The defendant is condemned in the alternative: to restore or to pay quadruple damages. This has nothing but compensation in mind: the penalties are a means to secure compensation.