Obligations Arising from Delict

Question 1

Delict - definition as one of main sources of an obligation

Answer 1

> In broad terms, delict is a wrongful act which causes damage to someone’s personality, his family, or his property, and for which the victim or his heirs is entitled to compensation.

Question 2

Obligations Arising from Delict - introduction

Answer 2

> Strong penal element
Probably due to fact that in early Roman law, as in other legal systems, there was no clear distinction between crimes & civil wrongs (delicts).
Criminal law less developed than civil law.
So law of delict partly filled role of penal law until late Republic, when criminal jurisdiction was given a more specific content through the introduction of quaestiones perpetuae.
Liabilty in delict depended on fault (originally only dolus, later culpa too).
Liability was strictly personal so death of wrongdoer ended his liability but death of victim as a general rule (not always), allowed victim’s heir to continue the delictual action
Committed jointly, each wrongdoer = personally liable in full.

Question 3

Quastiones perpetuae

Answer 3

> Standing jury courts, each trying a particular crime or category of crimes.

Question 4

Obligations Arising from Delict - introduction - classification/list

Answer 4

>No principle of general application.
>Hence = 'a law of delicts rather than delict' - a number of discrete actions, each with its own specific rules.
>4 major delicts:
1. Wrongful damage to property
2. theft
3. robbery
4. insulting behavior.
>3 categories composing RL of delict:
1. 'Named' delicts.
2. 'Named' quasi-delicts
3. Further delictual relationships.

Question 5

Obligations Arising from Delict - introduction - categories

Answer 5

1. ‘Named’ delicts: wrongful damage to property, theft, robbery, insulting behaviour.
2. ‘Named’ quasi-delicts: things hung/suspended, things thrown/poured out, innkeepers/stablekeepers/shippers, erring judges.
3. Further delictual relationships: other ‘Praetorian’ delicts, noxal liability.

Question 6

Wrongful damage to property - evolution

Answer 6

> Damnum iniuria datum had fragmented beginnings, succeeded by legislative reform and eventually extended well beyond its original framework by praetorian intervention & juristic interpretation.
12Ts mentions: actio de pastu, actio de arboribus succisis.
Lex Aquilia enacted by concilium plebis in mid Republic = decisive development. 287BC?
Chapters 1 and 3 delath with wrongful damage to property.
Early remedies = fixed so didn’t take into currency fluctuations.
LA = reform of narrow scope, but important extensions made to it.
Ulpian, Edict, book 18: “The lex Aquilia took away the force of all earlier laws which dealt with unlawful damage, the 12Ts and others alike, and it is no longer necessary to refer to them.

Question 7

Lex Aquilia - first chapter - quote

Answer 7

> Gaius, Provincial Edict, book 7:
“If anyone kills unlawfully a slave or servant-girl belonging to someone else or a four-footed beast of the class of cattle, let him be condemned to pay the owner the highest value that the property had attained in the preceding year.”
D.9.2.2pr.

Question 8

Lex Aquilia - 1st chapter

Answer 8

> Rather narrow provision, dealing only with the killing through the direct application of bodily force, of slaves and beasts of pasture.
Res mancipi - high importance thus singled out.
Recover highest value from preceding year the ‘act’ if death not immediate.
This rule illustrates penal character of the delict.

Question 9

Lex Aquilia - 3rd chapter - Ulpian’s passage

Answer 9

> Ulpian, Edict, book 18:
“In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking, or spoiling his property, let him be condemned to pay to the owner whatever the damage shall prove to be worth in the the next 30 days.
D.9.2.27.5.

> 500yrs after lA so accuracy = unguaranteed, esp. as LA went under huge juristic interpretation.

Question 10

Lex Aquilia - 3rd chapter - scope

Answer 10

> All wrongful damage other than that covered by 1st chapter.
Done through urere, frangere, or rumpere = “burning, breaking, or tearing asunder”: suggests serious damage (likely if after civil unrest) as these acts in early Rome would likely have led to total destruction.
Aimed at serious but extended to lesser damage for example, rumpere (tearing apart) became quasi-rumpere which became corrumpere (Spoiling).
Juristic interpretation broadens scope.

Question 11

Lex Aquilia - 3rd chapter - measure of damages

Answer 11

> Recover loss sustained, i.e. difference in value of property from when damaged to its worth at end of following 30days.
Ambiguity - could it mean highest value in preceding 30 days? This would support penal character.
Or is it? 30-day period could be reference to 12Ts whereby that length of time had to pass before judge could assess damages.

Question 12

Liability under the lex Aquilia - key point

Answer 12

> Owner had to prove D wrongfully caused loss/

Question 13

Liability under the lex Aquilia - loss

Answer 13

> Prove suffered loss in sense of a depreciation in object’s value, and that the loss was ascertainable.
Sentimental damages couldn’t be recovered.
Nor could speculative damages e.g. fisherman’s nets damaged while he was fishing, he could only recover loss for damage to nets not loss of any fish which ‘may’ have been caught.
By classical, consequential damages could be recovered.
P could recover his interesse, i.e. what the thing was worth to him. So, loss of profit could be recovered if it was ascertainable.
Another type of consequential damage = damnum ermergens - recover indirect loss too e.g. medical expenses trying to save slave.
Or if slave’s death resulted in depreciation of your other slaves, that was also damnum emergens.

Question 14

Liability under the lex Aquilia - fault

Answer 14

> D caused loss wrongfully, i.e. through an iniuria.
By classical - requirement to prove fault, namely intentional or culpable conduct.
SoC = BPF:
-Ulpian , Sabinus, book 42: “Under the lA even the slightest degree of fault counts.”
Degree of care expected from D depended on skills & expertise he purported to have.
“Imperitia culpae adnumeratur” = “inexperience is counted as fault”.
Exclusion clause can lower liability and so can principle of consent in sporting cases.
Contributory negligence of P = complete defence, providing D had acted carelessly.
Jurists determined liability using a flexible, casuistic inquiry that considered the case as a whole.
Self-defence = complete defence.

Question 15

Liability under the lex Aquilia - loss caused by the defendant

Answer 15

> No clear test/general principles of causation emerged in RL.
Roman approach to causation = casuistic, case-by-case approach.
Problems arose concerning intervening acts.
D is still liable if his conduct caused damage that may not have occurred in other property of same type. ‘Thin skull’ rule.
Failure to act could also constitute wrongful conduct if there was a duty to act - negligent conduct.
Under lA, damage had to be caused directly by D’s conduct - inflicted corpore corpori. But this rule became unduly restrictive and by classical period, indirect forms of causing damage became actionable.

Question 16

Liability under the lex Aquilia - The Aquilian action

Answer 16

> Actio legis Aquiliae = recover financial value of loss caused with D paying double if denied liability and later held liable.
Penal but also encouraged settlements between parties.
Wrongdoer dies then cannot be brought against heirs unless they had been enriched by the wrongful act.
Action didn’t survive against wrongdoer against victim’s heirs.

Question 17

Extensions to the lex Aquilia - general

Answer 17

> Narrow scope greatly widened by combo of juristic interpretation and praetorian intervention.
Praetorian intervention consisted of supplementing the lA by granting actions additional to original actio legis Aquiliae.
Supplementary actions = actio utilis or actio in factum.
Difference between them is unclear, Digest suggests they are interchangeable.
Double damages rule of actio legis Aquiliae didn’t apply so advantageous for P to sue under lA if possible.

Question 18

Extensions to the lex Aquilia - miscellaneous extensions - through juristic interpretation

Answer 18

> ‘Highest value’ to inc. consequential damage.
4-footed beast to inc. camels & elephants.
Rumpere to include any form of spoiling.

Question 19

Extensions to the lex Aquilia - miscellaneous extensions - through Praetorian intervention - list

Answer 19

1. Non-owners
2. Foreigners
3. Persons in potestas
4. Personal injuries

Question 20

Extensions to the lex Aquilia - miscellaneous extensions - through Praetorian intervention - non-owners

Answer 20

> Initially only owners could sue but praetors eventually allowed non-owners to sue through the supplementary actions, e.g. usufructuaries & BF possessors.

Question 21

Extensions to the lex Aquilia - miscellaneous extensions - through Praetorian intervention - foreigners

Answer 21

> Later, foreigners were allowed to sue on the fiction that they were citizens.
Inst. Gai. 4. 37.

Question 22

Extensions to the lex Aquilia - miscellaneous extensions - through Praetorian intervention - persons in potestas

Answer 22

> LA Applied to property.
So PF couldn’t sue for injuries inflicted on his children & others in his potestas,
An action (utilis) eventually allowed for recovery of consequential damages e.g. medical expenses or loss of son’s earning capacity.
Not clear when extension occurred and whether its source was praetorian or juristic.

Question 23

Extensions to the lex Aquilia - miscellaneous extensions - through Praetorian intervention - personal injuries

Answer 23

> General rule = freeman couldn’t recover for personal injury unless injured whilst acting as slave (mistakenly thinking he was one).
Most of work in Rome done by slaves - personal injuries tended to occur in employment.
Later post-classical maybe even as late as J, an action was allowed for personal injuries. Major departure from lA’s original scope so rather dubious given it receives little mention in the Digest.

Question 24

Extensions to the lex Aquilia - damage caused indirectly

Answer 24

> ‘Harm-verbs’ of LA originally confined to direct physical acts.
Rule that damage must be corpore corpori was gradually eroded through granting of supplementary actions for various forms of indirect killing or damage.
For indirect killing, Roman jurists used the term mortis causam praebere (furnishing a cause of death). Most significant extension of all.
1st development = praetors allowed an action if damage was corpore but not corpori so by the body but not to the body.
Later, an action was allowed for damage which was corpore but not corpori. E.g. Ulpian mentions death of pregnant woman in labour.
Finally, action allowed when damage was neither corpore nor corpori as long as causal link.

Question 25

Theft - intro

Answer 25

> Concerned here with theft as a delict as opposed to a crime.
Most thieves not worth suing and instead dealt with through criminal sanctions, but some may have been.

Question 26

Theft - the essentials of theft (furtum) - definition

Answer 26

> Paul, Edict, book 39: “Theft is a fraudulent interference with a thing with a view to gain, whether by the thing itself or by the use or possession of it.”
This definition is post-classical so unclear if all elements necessary from the start.

Question 27

Theft - the essentials of theft (furtum) - ‘interference’

Answer 27

> At least in classical law, there had to be a contrectatio by the thief, i.e. some physical interference with (or handling of) the property.
Act of removal = necessary in early law, but proved to restrictive so concept of removal gave way to interference way before classical period.
No definition of contrectatio - could well mean handling, meddling, or interfering, but did it require actual physical contact?
Normally, yes but some exceptional circumstances e.g. Pomponius’ ‘chasing the tame peacock.’
Led to conflict because in early law, you stole only what you took, but expanding to interference there developed a conflict as to whether a man stole whatever he interfered with, even if he only removed part of it?
Likely, that there’s theft of the whole heap, but only liable for what he takes. But depended on circumstance & nature of thing, e.g. a thing couldn’t be stolen if it was too heavy to be moved.

Question 28

Theft - the essentials of theft (furtum) - ‘fraudulent’

Answer 28

> Must have been fraudulent, no liability unless D acted dishonestly.
Has to be capable of acting dishonestly, e.g. not children or insane.
Test of dishonesty = subjective.
Sabinus’ view that D’s belief must be founded on reasonable grounds wasn’t generally accepted.
Interference had to be without owner’s consent.
No theft if D genuinely thought owner consented when he didn’t nor if owner consented and D didn’t knw this (Pomponius thought differently, but his view didn’t prevail).
No difference if showed repetance after committing the theft, but unlikely to be sued as probably restored property unless owner had suffered some particular loss through being deprived of the property.

Question 29

Theft - the essentials of theft (furtum) - ‘a thing’

Answer 29

> Things couldn’t be stolen unless capable of being privately owned.
Criminal sanctions if ‘interfered’ with other things.
Stolen thing had to be owned or someone with rights in property sufficient to sustain an action for theft.
Abandoned = no theft nor if D genuinely believed it to be abandoned when it wasn’t.
Classical period - land couldn’t be stolen but things forming part of it could be.
Slaves could be stolen: helped = accomplice, escaped = stole himself = prevents usucapio.
Free persons, e.g. child in potestas or wife in manus marriage, could be stolen with action lying with PF or husband respectively.

Question 30

Theft - the essentials of theft (furtum) - with a view to gain

Answer 30

> Animus lucrandi.
Distinguished between theft & acts of wanton destruction which would result in liability under the LA - important as had different remedies.
‘Gain’ widely construed and not restricted to economic gain, but little text on it.
Spite & satisfaction doesn’t constitute gain.
Not stated as requirement in G and J’s Institutes.
Maybe added in J’s time to differentiate between theft and wrongful damage under LA?
Most plausible = that it was part of late classical - why omitted from J’s Inst. unclear?

Question 31

Theft - the essentials of theft (furtum) - theft of use (furtum usus)

Answer 31

> Theft could be committed through unauthorised use of a thing belonging to someone else.
Normally, acquired thing lawfully (through a contract) but then stole the use by misusing the property.
Still required dishonest intent.

Question 32

Theft - the essentials of theft (furtum) - theft of possession

Answer 32

> Furtum possessionis.
If an owner of property dishonestly interfered with someone else’s rights in that property, he committed theft - he had stolen ‘possession’ of the property.
Possible for someone to be both the owner and thief.

Question 33

Theft - remedies - general

Answer 33

> 2 types of civil remed:
1. Recovery of the stolen property
2. Obtaining of damages
Not mutually exclusive - thief would have to do both 1 and 2.

Question 34

Theft - remedies - recovery of the property

Answer 34

> Vindication, possessory interdicts, and in classical RL the actio ad exhibendum available to recover property.
If property couldn’t be traced, had lost its identity or had been destroyed a condictio furtiva was allowed to the owner instead for recovery of the equivalent value.
Condictio furtiva became most used as didn’t have to prove property’s whereabouts.

Question 35

Theft - remedies - damages - general

Answer 35

> Actio furti = action for damages.
Penal as P could recover double of fourfold damages (non-manifest and manifest respectively).
Thief was subject to infamia too.

Question 36

Theft - remedies - damages - manifest & non-manifest

Answer 36

> Furtum manifestum = 4-fold damages.
Under 12Ts, manifest theft punished harshly - slave = executed & freeman = enslaved.
Praetors replaced these sanctions with the action for 4-fold damages.
Early law, manifest if thief caught in act of stealing. Probably as greater outrage although Pugsley suggested controversially that originally furtum manifestum consisted on theft of res mancipi - of great importance in early Rome.
Classical period: wider test came to be applied:
-Ulpian, Sabinus, book 41: “he will still be a manifest thief if he be taken with the stolen thing, before he has taken it to its intended destination.”
Manifest if found in a man’s premises during a ritual search. Although this procedure, sanctioned by the 12Ts, became obsolete during Republic. G.3.193a - “lex tota ridicula est.”

Question 37

Theft - remedies - damages - measure of damages.

Answer 37

> Controversy.
Ulpian, Edict, book 37: “In the action for theft, it is not the plaintiff’s interest which is quadrupled or doubled but the true value of the thing.” D. 46.2.50pr.
Yet contradicted himself (along with other commentators):
-Ulpian, Edict, book 37: “If a slave be stolen who has been named as heir in a will, the plaintiff, in the action for theft, will recover also the value of the inheritance, if the slave be dead before he could accept the estate at his master’s direction…”
No conflict if ‘true value’ encompasses ‘the plaintiff’s interest’.
Formula used in the actio furti suggests P was seeking double/quadruple the amount the theft ‘cost’ him so probably recovering P’s ‘interest’ in the stolen property, not the property’s value.
P entitled to highest value his interest had been worth between the theft & trial.

Question 38

Theft - remedies - damages - the plaintiff - who could use under the actio furti?

Answer 38

> Ulpian, Sabinus, book 29: “A person who has an interest in the thing not being stolen will have the action for theft.”
Some, e.g. creditor, couldn’t sue under actio furtie unless pledged under contract of pignus.
Jurists’ approach was casuistic.
Positive interest = P was owner, or in position of owner, e.g. BF possessor, usufructuary.
Usufructuary alone had action if fruits but if actual property usufruct was held on then the action was divided between the fructuary & owner
Negative interest = holder able to bring actio furti if had contractual duty to compensate the owner for failure to return the property (e.g. borrow, conductor operis, mandatary).
Negative interest barred the positive interest so appears holder of negative interest has advantage as if manifest he could recover fourfold whereas owner recovered double whereas owner recovered double (thing & contractual compensation). But holder had to find thief and if holder was insolvent, the owner was unlikely to receive compensation from the holder so owner given actio furti.
However in commodatum, J altered position so that whether borrower was solvent or not, the lender was given choice of suing the borrow under the contract of loan, or thief under actio furti.
Exception to positive/negative interest would be buyer before delivery. If goods were stolen before delivery the right to sue remained with the seller but buyer could insist on right being given to him. If seller sued then buyer was entitled to fruits of the action.
Interest, negative or positive, had to be ‘honest’, i.e. acquired without fraud.

Question 39

Theft - remedies - damages - the defendant - who could be sued under the actio furti?

Answer 39

> Against thief but not heirs.
Accomplices fully liable, payment by one didn’t absolve the others.
It seems originally both elements - physical assistance (ops) and advice (consilium) - had to be proved against D accomplice, but in classical period he became liable on either ground.
Accomplice must have been shown to have acted dishonestly.
Can’t bring actio furti against family members however, praetors introduced the ‘actio rerum amotarum’ for recovery of compensation after divorse.
Can’t bring against members of household.
However, an accomplice who wasn’t part of household could be sued.

Question 40

Theft - remedies - other remedies

Answer 40

> Special actions, pre-classical in origin, in certain circumstances.
An act amounting to theft could constitute another delict, e.g. wrongful damage to property or insulting behaviour, where P would have to choose the most favourable action - he couldn’t recover twice (or more) in different actions.
Criminal prosecutions for theft became increasingly frequent under the cognitio extraordinaria procedure, but such proceedings barred actio furti and vice versa.

Question 41

Robbery - overview

Answer 41

> Praetorian edict in 77 BC introduced a special action for violent theft (rapina) - the ‘actio vi bonorum raptorum’.
Response to mob violence of disturbed conditions of the time and aimed particularly at armed gangs.
Eventually came to be treated as separate delict but in reality it was just an adjunct of theft.

Question 42

Robbery - essentials

Answer 42

> Ulpian, Edict, book 56: “And generally, it is to be said that wherever I could have the action for theft for something done by stealth, I will have the present action.”
Dishonest forcible taking of property.
Appears to have let those who violently enforced genuinely held claims off the hook so Marcus Aurelius decreed that BF claims should be forfeited if enforced in a violent manner.
Late Empire, an unfounded BF claim, if pursued violently, would necessitate not only return of the property but also its equivalent value.

Question 43

Robbery - remedies.

Answer 43

> Fourfold damages recoverable provided action (actio vi bonorum raptorum) was brought within a year.
Part compensatory (recovery of simple value) and part penal (threefold penalty).
If P obtained 4-fold damages he was barred from bringing a proprietary remedy for recovery of the property.
If preferred, could seek to recover property and sue for 3-fold damages.
Based on property’s value not P’s interest in it.
Ulpian, Edict, book 56: “Hence, whether it be lent, let, or pledged to me, or deposited with me, so that I have an interest in its not being removed, or if I possess it in good faith or have a usufruct or other right in it, such that I have an interest in its not being forcibly taken, it be said that I have the action under discussion.”
P had choice between action for robbery & actio for theft and so if the robbery amounted to manifest theft then the actio furti would be more attractive since it wasn’t limited to a year and gave fourfold damages plus recovery of the property or its value.
Only if violent theft not been manifest would actio vi bonorum raptorum be preferable.
Paul, Edict, book 22: “If the action for taking by force be brought first, the action for theft will be refused; but if the action for theft be brought first, the other will lie to recover the balance available.”

Question 44

Insulting behaviour - overview

Answer 44

> This delict consisted of an iniuria, which in this context meant any act that deliberately affronted the dignity of another person.
Of enormous scope was developed.
Essence was the hurting of another person by insulting behaviour (contumely), whether by acts or words:
-Ulpian, Edict, book 56: “Labeo says that contumely can be perpetrated by act or by words: by act, when an assault is made; by words, there is insult whenever there is no physical attack. Every contumely is inflicted on the person or relates to one’s dignity or involves disgrace: It is to the person when someone is struck; it pertains to dignity when a lady’s companion is led astray; and to disgrace when an attempt is made upon a person’s chastity.”

Question 45

Insulting behaviour - historical development

Answer 45

> Narrow initial.
12 Ts = primitive pens for various types of physical assault.
Penalty differed on status.
Monetary penalties remained unaltered & eventually became worthless due to falling value of money.
Reform became a necessity.
Lucius Veratius highlighted inadequacy through amusement (slapping faces & immediately giving them 25 asses).
Praetors superseded 12 Ts tariffs with series of edicts.
Allowed P an actio in facturm in which he specified the precise nature of D’s misconduct & claimed damages.
First of these edicts became known as the edictum generale (distinguishing it from later edicts applying to specific misconduct) because although intended to apply to the physical assaults in 12 Ts, its terms were sufficiently wide to be extended to a much greater range of misconduct.
Codified version of the edict produced during the reign of Emperor Hadrian lists 4 cases in which an actio iniuriarum would be available:
1. Assembling at another’s house & raising an insulting and abusive clamour;
2. Removing the companion or attendant from a married woman or youth and acosting such a person, thus making them vulnerable to attack;
3. Any kind of defamation;
4. Assaulting the salve of another without the owner’s permission.
Widening scope of iniuria & intro of new action = one of most significant preatorian contributions to Roman law.

Question 46

Insulting behaviour - the essentials of iniuria

Answer 46

>J. Plescia & D. Ibbetson: Iniuria occurred when a person intentionally upset the feelings of another by unjustifiable & insulting behaviour.
>Break into 4: 
1. insulting act
2. unjustifiable
3. intentionally
4. Hurt feelings

Question 47

Insulting behaviour - the essentials of iniuria - the insulting act

Answer 47

> There was a wide range of behaviour considered to affront another’s dignity.
As a general rule, anything that lowered a person’s reputation was iniuria.
The fact that a specific praetorian edict was available for defamation suggests it possibly became a problem in the late Republic.
Not essential to prove the defamatory words had been published to a 3rd party. The insult was enough: delict was primarily concerned with hurt feelings rather than damaged reputations.

Question 48

Insulting behaviour - the essentials of iniuria - insult must be unjustifiable

Answer 48

> So an assault in course of self-defence didn’t constitute an iniuria; nor did defamatory words if they were true; nor raising a tumult against a person in legal disgrace; nor indecent proposals to a prostitute or to a woman dressed as one.

Question 49

Insulting behaviour - the essentials of iniuria - intentionally

Answer 49

> Iniuria required an intentional act: couldn’t be committed negligently.
Sometimes, P could sue for insulting behaviour that hadn’t been aimed at him personally:
1. Children. PF could sue for ‘indirect’ insult to himself as well as to the child.
-Ulpian, Edictt, book 57: “But we believe that the action for insult should sometimes be granted to the son… if the father be vile and abject, while the son is a decent man; for a grossly debased father should not evaluate the insult to his son by the standards of his own turpitude.
2. Wives. Husband, PF, and she too could sue and one suing didn’t bar the others. Costly.
-Ulpian, Edict, book 56: “Sometimes the action for insult will lie to three people.”
-Paul, Edict, book 50: “But if a husband suffer affront, the wide does not have an action: for it is right that wives should be defended by their husbands but not husbands by their wives.”
3. Slaves.
-How could a thing be insulted? Exception made.
-Slave’s master could bring an action for iniuria.
-Ulpian, Edict, book 77: “If someone so inflict outrage upon a slave that it be done to his master, in my view the master can bring the action for insult in his own right; but if the beating was not directed to the master, the outrage perpetrated upon the slave as such should not be left unavenged by the praetor, especially if it occurred though a thrashing or through torture: for it is obvious that the slave himself feels such things.
4. Heirs.
-Improper behaviour at a funeral could amount to iniuria as could be showing disrespect or the dead.

Question 50

Insulting behaviour - the essentials of iniuria - hurt feelings

Answer 50

> P had to prove feelings had been hurt.
Even if D had intended to insult him, if his feelings hadn’t been hurt, he couldn’t sue.
If sued then you musn’t have stifled your emotions, or adopted a ‘stiff upper lip’ attitude, or tried to negotiate a settlement with the wrongdoer when the insult occurred.
Some exceptional cases where iniuria could occur in P’s absences so long as P could prove he was upset when he learned of the offending behaviour.

Question 51

Insulting behaviour - remedies

Answer 51

1. The action for iniuria

2. The lex Cornelia

Question 52

Insulting behaviour - remedies - the action for iniuria

Answer 52

> Actio iniuriarum had to be brought within 1 yr (no surprise as any longer and would suggest he wasn’t upset about offending behaviour).
If D liable then he was subject to infamia.
Gaius, Provincial Edict, book 13: “If several slaves together beat someone or shout abuse at them, each commits his own offence and, the more them there are, the greater is the affront. Indeed, there are as many insults as there are participants.”
Action had to be very specific due to claim’s subjective nature and gravity of the consequences for D.
P would state in formula amount he claimed and praetor would normally indicate the max damages which could be allowed by the judge, taking into account gravity of insult & standing of respective parties (G.3.224-5).
If appropriate, court would make an appropriate reduction of P’s claim if considered excessive.
For aggravated insult (atrox iniuria), praetor normally assessed damages himself

Question 53

Insulting behaviour - atrox iniuria

Answer 53

> Insult could be considered atrox if person insulted was of important status, it was of extreme nature, place where insult occurred was public or prestigious, time or concurrence of time & place.
Ulpian, Edict, book 57: “Labeo says that an affront may be aggravated by virtue of the person, the time, and its very nature. It is aggravated by virtue of the person, when inflicted on, say, a magistrate, one’s parent, or patron; by reason of time, if inflicted at the games or in full view; for Labeo says that it is of great importance whether the affront be perpetrated in the view of the people or in private, the former being aggravated. Labeo says that it is aggravated by its very nature if, say, a wound be inflicted or someone receive a blow in the face.”

Question 54

Insulting behaviour - remedies - the lex Cornelia

Answer 54

> Violence & unrest of the late Republic led to passing of lex Cornelia de iniuriis in 81 BC, which provided criminal process for certain types of insulting behaviour.
Ulpian, Edict, book 56: “The lex Cornelia on contumelies applies to one who wishes to bring the action for insult on the ground that he declares himself to have been beaten or thrashed or his house to have been entered by force.”
V had choice whether to pursue the civil actio iniuriarum or the criminal remedy.
J says ‘extraordinary penalty’ in Inst.4.4.10 under lex Cornelia so most plausible view is that it consisted of a penal pecuniary award, exceeding the damages that would be awarded under the action for insult, which may explain why seemed to be more popular action.
Moreover, the statute appears to have been extended in the classical period to include all insulting behaviour of a physical nature.

Question 55

Praetorian Delicts - overview

Answer 55

>A variety of remedies of a delictual nature, introduced by the praetor to supplement the ius civile.
>Most important examples:
1. corruption of slaves
2. duress
3. fraud

Question 56

Praetorian Delicts - corruption of slaves

Answer 56

> Servi corruptio.
Action for double damages against anyone who deliberately & fraudulently caused the deterioration of a slave, whether mental, physical, or moral.
Potential overlap with remedies under the lex Aquilia, but P would probably choose to sue under action for corrupting slaves since damages were always double, even if wrongdoer admitted liability, unlike the case with the lex Aquilia.
Any conduct which made the salve less valuable ‘corrupted’ a slave.
Ulpian, Edict, book 23: “So whether one makes a good slave bad or a bad slave more so, one is held have made him worse.”
D must have acted fraudulently (acting with malice in this delict), not just intentionally.
P could recover for actual depreciation in the slave & for consequential loss.
No time limit (survived death of slave, his sale or manumission.
Lay in favour of P’s heirs, but not against D’s heirs.

Question 57

Praetorian Delicts - Duress - action

Answer 57

> Metus.
Where someone incurred loss by being forced to enter a transaction or to commit some disadvantageous act, several remedies were available.
V could plead the duress as a defence (exceptio metus) against transaction’s enforcement, or if transaction had been completed he could seek restitutio to restore him to position before the duress.
Praetors allowed V a delictual action, the actio metus, for damages if D failed to make restitution for fourfold damages if action brought within a year; simple damages otherwise.
Couldn’t bring action after a year unless P could show he had no other remedy.
Damages assessed as a multiple of what should have been restored, inc. any consequential loss.
No loss, no action.

Question 58

Praetorian Delicts - Duress - what kind of threats amounted to duress?

Answer 58

> Ulpain, Edict, book 11: “Labeo says that duress is to be understood not as any alarm whatever but as fear of a serious evil.”
Gaius, Provincial Edict, book 2: “Moreover, we say that the duress relevant to this edict is not that experienced by a weak-minded man but that which reasonably has an effect upon a man of the most resolute character.”
Objective test - man of most resolute character = vir constantissimus.
Fear of serious evil.
Sufficient if threat directed at children & other close family members probably sufficed too.
Imminent threat.
Could be brought against person who didn’t commit offence if they gained from it. Liable to extent of their enrichment.
Joint wrongdoers = each liable in full = but unlike normal, if one satisfied P’.s claims, the others were released.

Question 59

Praetorian Delicts - Fraud

Answer 59

> Dolus.
Ulpian, Edict, book 11: “By this edict the praetor affords relief against shifty & deceitful persons who by a certain cunning have harmed others, so as to prevent either their wickedness benefitting the former or their simplicity harming the latter.”
V of fraud could plead an exceptio doli against a P seeking to enforce a fraudulent transaction.
As P, V could seek restitutio, failing which he could bring the actio doli (simple damages & within a year, D subject to infamia).
Although dolus potentially had a wide range, this was illusory as its use was restricted and could only be used when no other remedy and in case of serious & manifest deceit due to the gravity of the charge of fraud and its consequences.
Due to gravity of allegationis, certain individuals couldn’t be sued under the actio doli: children, freedmen against parents/patrons, man of low rank against someone of higher rank, or a man of licentious or spendthrift or other worthless habits against a man of more correct behaviour. (Ulpian).
The ‘worthy’ man is being protected: his ‘inferior’ cannot sue him for fraud.
P may be granted an actio in factum for damages by praetor instead.
Certain types of fraud were subject to special actions outside the scope of the actio doli.

Question 60

Noxal liability

Answer 60

> Liability attached to PF for delicts committed by sons-in-power.
Extended to delicts committed by slaves
PF or slave owner had to pay compensation or surrender the perpetrator into debt bondage.
This form of liability seemingly also extended to damage caused by animals.

Question 61

Liability for damage caused by animals - overview

Answer 61

> Liability for the acts of animals could arise in various ways.
D at fault then may incur liability under standard delicts, e.g. insulting behaviour or wrongful damage to property.
D could be anyone at fault, not necessarily the owner.
Liability for wrongful grazing on another’s land lay under the actio de pastu, a 12Ts remedy that appears to have survived the lA.
If no one at fault then choice of 2 actions:
1. actio de pauperie
2. edict of the aediles.

Question 62

Liability for damage caused by animals - actio de pauperie

Answer 62

> Pauperies = damage caused by an animal in circumstances where no one was at fault.
Action was based on noxal-liability & owner had to either surrender the animal or pay compensation for loss caused.
Animal must have acted contrary to its nature and wasn’t available for wild animals.
Ulpian, Edict, book 18: “But it does not lie in the case of beasts which are wild by nature: therefore, if a bear breaks loose and so causes harm, its former owner cannot be sued because he ceased to be owner as soon as the wild animal escaped.”
Phrase ‘because he ceased to be owner’ suggests that there could be circumstances where there is liability, e.g. damage caused by wild animals kept in captivity.
Such inconsistencies suggests that ‘contrary to nature’ requirement was a post-classical development, and that the action was previously available for by wild & tame animals.
Not available if animal was provoked or acted in self-defence.
Simple damages.

Question 63

Edict of the aediles

Answer 63

> Liability imposed where the animal was kept on or near a public highway.
Keeper of animal liable for damage caused irrespective of fault.

Question 64

Quasi-delict - overview

Answer 64

>Inst. 4. 5: group of actions of no obvious similarity yet classified by J as analogous to delictual obligations.
>4 cases:
1.Things hung or suspended
2.Things poured or thrown
3.Shippers, innkeepers, stablekeepers
4.Erring judges

Question 65

Quasi-delict - things hung or suspended

Answer 65

> Action brought by anyone against occupier of the building, even if totally blameless as the purpose was to prevent harm.
Damage didn’t need to occur.
Actio in factum for ten solidi.
‘Res suspensae’.
Liable under lex Aquilia if res suspensae actually fell & caused damage.

Question 66

Quasi-delict - things poured or thrown

Answer 66

> Strict liability on occupier of premises for twice the value of the loss caused, but occupier could seek to recover damages paid from actual wrongdoer.
If could prove who did it then guilty under LA.
If freeman killed, there could be numerous potential Ps however V’s relatives or those with special interest were given preference.

Question 67

Quasi-delict - shippers, innkeepers, stablekeepers

Answer 67

> Ulpian, Edict, book 14: “The praetor says: “I will give an action against seamen, innkeepers and stablekeepers in respect of what they have received and undertaken to keep safe, unless they restore it.’ This edict is of greatest benefit, because it is necessary generally to trust these persons and deliver property into their custody.”
Liability under this edict lay in respect of theft or damage committed by the employees of shippers, innkeepers (for permanent residents not casual ones as Ulpian says he chooses permanent residents), and stablekeepers.
Double loss caused.

Question 68

Quasi-delict - erring judges

Answer 68

> A judge could be sued si litem suam fecerit - ‘if he made the case his own’ (acted in a partial manner).
Developed in early law mainly due to absence of a general system of appeals.
Liable for loss caused by his perverse verdict.
Liability was based on his visible handling of the case not on supposed errors in his reasoning.
Judge may also be subject to criminal sanctions, e.g. taking bribes was a capital offence under the 12Ts.
Early law judge was liable only for giving a deliberately wrong judgment; but later, negligence sufficed. Possible that even strict liability was imposed in classical period: judge liable for any wrongdoing, but the texts are inconclusive. Gaius suggests that at least some degree of blame was required.