Week 7- damnum iniuria and iniuria Flashcards
How did the Praetorian remedies of dolus and metus work? eg when there is was fraud in the contract of sale?
-Dolus was only brought as the actio doli where no other action could be brought instead. For duress, an action for fourfold the loss was provided, whereas in dolus there was restitution or damages in default.
If there was fraud in the sale and the bona fide possessor who bought from the mala fide seller was evicted, the actio emptio would be used rather than the actio doli
Where did actions for damnum iniruia come from?
When was it passed?
The lex aquilia
3rd century BC
What did the 1st chapter of the lex aquilia dictate in terms of what was subject to damage and what the value of the penalties were?
Why was the chosen penalty used?
-The first chapter dealt with killing of slaves and cattle and imposed a penalty of the highest value that the slave or animal had been worth in the year before the killing. This was to protect the plaintiff from market fluctuations, but also meant that defendants were often liable for much more damage than they had actually caused ie they killed a slave who’s value had already deteriorated.
What did the 3rd chapter of the lex aquilia dictate in terms of what was subject to damage and what the value of the penalties were?
Why was the chosen penalty used?
-The third chapter was more general and covered areas not covered by the 1st chapter. It provided that if a man caused loss to another by ‘burning, breaking or destroying’ his property, (whether building, slave, animal) he should be liable for the loss he had caused, the assessment being in this instance made at the [highest] point in the next [past?] 30 days. The highest point for an inanimate object eg a painting would be the same at any point throughout the 30 days, but it may change for a slave who’s condition gets progressively worse, short of death, to the point where he may be worthless. This was read in by lawyers to give meaning but the highest point was either going to be at the start or end of the 30 days, or will be constant for inanimate objects eg buildings subject to fire.
What was the action for direct damage causing loss and the praetorian indirect action, before Justinian’s extension?
Under the original delict, there would only be a claim where the damage resulted from direct infliction by D towards Vs property (actio directa), but eventually the Praetor extended this to include loss caused indirectly under the actio utilis.
What were the requirements for an actio directa?
- Direct application of force
- the force results in some burning, breaking, tearing, crushing, smashing (wide range of damage understood under Gaius)
- The direct application in force doesn’t merely result in damage, but that the resultant damage results in economic loss
- The damaged property must be owned by the plaintiff.
What was the 3rd category of liability for iniuria created under Justinian?
What was the new action?
- However, Justinian does include this case of pure economic loss resulting from some indirect action, labelling it an actio in factum; any loss caused by the wilful or careless act of another is declared to be actionable, even where there was no damage to property by the claimant; ie an economic loss incurred.
- This sought to fix the loophole of the negligent running down of the man in the street who wasn’t said to own his own limbs and therefore had no claim on account of damage to himself.
- This could be committed by Culpa without any requirement of intention, as is the case where there is physical damage, either directly or indirectly.
- The classical lawyers had preferred the simplicity and provability of the physical damage rule, with some occasional pecuniary loss sufficing for an action, but the potential for breadth of the actio in factum was a source of discontent; every negligently caused economic loss could not have been actionable in practice.
What was the requirement for the actio utilis and what were some common examples and exclusions?
- The Praetor created an actio known as the actio utilis which was relevant where LOSS was caused indirectly; therefore, jurists had to distinguish whether there was loss by direct damage, or loss caused indirectly.
- If it was direct, it existed under the lex aquilia and was actio directa whereas an indirect cause of damage was actio utilis or actio in factum, and existed as Praetorian extended law.
- The difference between direct and indirect was very fine, and usually it was the case that loss was caused indirect unless plainly obvious to be a result of some direct physical force.
- Where the slave is locked up and dies, this was construed to be indirect, and this was determinant of the relevant action available.
- There was clearly an issue of causation, and it was possible that Ds action was so remote from Vs damage that he could find no liability at all.
What was the requisite intent for damnum iniuria?
How broad was the intent available for a claim of damnum iniuria?
-The act must be done with iniuria, which originally meant without justification eg self-defence or necessity, but it was sufficient to show the damage was unavoidable.
- Iniuria was treated to be equivalent to DOLUS OR CULPA IE (eventually) NEGLIGENCE OR WRONGFUL INTENT WILL SUFFICE) and it was for the plaintiff to show one or the other. More often culpa, where V shows some level of carelessness that would otherwise not be expected of the reasonable man.
- There is no liability where there is an accident and not culpa or intent- if a slave is killed by a javelin by wandering where javelin practice often takes place, that is his own fault, but where the slave is killed where javelin practice is not commonly held, there is culpa here.
- Want of skill also imposes liability where D claims to have a skill but fails to perform it sufficiently.
What role did self-defence play before the lex aquilia and during eg theft by stealth?
-Prior to the lex aquilia, killing a thief was somewhat justified where he came by night, but this eventually came to included under self-defence. and by the societal standards may have been justified.
What must the damnum be for damnum iniuria under the lex Aquilia?
Damnum:
- the plaintiff must have suffered a loss; as seen there was loss without damage in the later law but at no time did an action lie for physical damage without loss. To give a slave a black eye is to inflict damage but not necessarily loss to his owner.
- A very wide stance was taken with regard to the type of damage which might exist. “burned, broken, torn, crushed, spilled, vitiated in any way, destroyed or made worse.8” Birks.
What was important about the plaintiffs title and in the mid classical law, what was the position where a man was negligent run down in the street?
Why was this position the case and when did it change?
The plaintiff’s title:
- The thing damaged must be the property of the plaintiff. A usufructuary, therefore, or a pledgee had no action on the lex, although he had suffered a loss. But in these cases, the Praetor eventually allowed the actio utilis, eg for the bona fide possessor or for the usufructuary.
- There was no action for negligent injury to a free man not in potestate. ‘for no one can be said to be owner of their own limbs’. Because a free man was not said to own his own limbs, he therefore couldn’t claim for any loss as a result of their damage until the time of Justinian.
- It was not until the time of Justinian that actio utilis was extended so far as to include the negligent cause of injury eg the man ran down in the streets of Rome would have no claim until Justinian. (this was one of the examples of the slight extension of actio utilis to include negligence rather than simply dolus under the lex aquilia)
What was the position for accidents in damnum iniuria and what about want of skill?
• Commitment to culpa, rather than dolus alone, is acceptance of a narrow defence of accident as an event which happens without fault
• In judging fault, a high standard is taken - one talk talks of levissima culpa, the slightest fault, as being sufficient
• It counts as culpa to be reckless as to risk
• The standard behind “ought to have done” is that of a diligent man
• Mad men and young children are relieved of all responsibility
• Want of skill counts as culpa - if I engage in a special activity which requires a special skill I must answer for loss which happens because I lack that skill
o Room for argument in cases of urgency
• Culpa is not judged by the defendant’s own ability to appreciate the consequences of his conduct (ie no culpa levis in concreto)
What did iniuria loosely translate to?
What was the name of the action available?
- Translates loosely to insult or outrage, but these don’t represent the full width of the delict. It included not merely physical assaults and oral or written abuse, but also any deterioration of a person’s dignity or reputation and any disregard to another’s public or private right, provided it was done with the requisite intent.
- It was iniuria if you intended to prevent another, without lawful justification, from moving freely in a public place, or to degrade a woman’s modesty or to cause some anxiousness or mental impediment for another, again, subject to the requisite intent.
- the intent needs to be insulting or malicious.
- The action was known as Actio iniuriarum.
What did the XII tables originally provide for under iniuria?
What were the penalties at the time and why did the praetor have to intervene?
Earlier development:
- twelve tables provided for only physical assault, retaliation being the penalty for grave wounding, and monetary expenses for lesser assaults.
- In the later republic, fall in the value of money had made fixed monetary obsolete and vengeful violence was also obsolete. Inflation therefore led to the development of the delict by the Praetors, who bypassed the issue of inflation.
- The Praetors intervened with these redundant actions by changing the action to a penal action of damages. Any affront of the victim’s dignity was actionable.
- The action was also available where a woman suffered from insult, and her husband could also sue, because the insult was deemed to affect the whole family. Therefore, the woman, her husband, and even her father were in a position to bring an action separately. Each could bring the actio iniuriarum.
What was included as iniuria under the classical delict and what intent was required?
How was the intent different to damnum iniuria?
The classical delict of iniuria:
- The edict accommodated for a range of ways through which iniuira could be committed, with its scope being general in application and ranging from oral and physical assaults against persons, to any deterioration of dignity, mental impact (anxiety), damage to reputation, disregard of another’s public rights, but requiring that there is wilful and malicious intent to do so.
- You seemingly could not be guilty by mere negligence.
What was the position under Justinian regarding slaves and iniuria?
- Slaves- slaves themselves cannot sue against someone who has committed an outrage, for they are not free men and the insult is said to be against their owner rather than themselves. The outrage must be a grave outrage for the master to bring a claim, as the insult must be so great as to be an insult to the master through the slave.
- No outrage can be deemed to be committed on slaves themselves, as it is held to be done to the master through them, not however in the same ways as would be considered outrages in the case of our children and wives, but only when a gross outrage has been committed, and one which clearly amounts to an insult to the master, as, for example, if a person has scourged another’s slave, in which case an action lies; but a master cannot bring an action against a person who has caused a crowd to collect round his slave, or struck him with his fist.
What was the position and examples of grave iniuria?
How does this make a difference to the penalties required to be paid?
-Grave Iniuria results in a higher penalty which will be determined by the Praetor. “An outrage is deemed grave [atrox] either from the nature of the act, as, for example, if a person is wounded or beaten with rods by example, if the outrage has been committed in the theatre or in the forum, or in the presence of the praetor, or from the rank of the person, as, if it is a magistrate who has suffered the outrage, or an outrage has been done to a senator by a person of low repute, or to an ascendant or patron, by descendants or freed-men (for an outrage committed on a senator, an ascendant, or a patron, is estimated differently from that committed on a person of low repute, or a stranger); sometimes it is the part of the body injured that makes the outrage grave, as, if anyone has been struck in the eye”
How was grave outrage extended under Justinian ie what could constitute grave iniuria?
What somewhat rogue examples were there?
-The breadth of the action was so great under Justinian that it was not just confined to physical or verbal assault. “Now, an outrage is not only committed when a person is struck with the fist or with clubs, or even scourged; but, also, if a crowd has been caused to assemble round him, or if a person has or if his goods have been seized, as if he were the debtor of one who knows that nothing is due to him; or if a person has written, composed, and published a libel or verses defamatory of his character, or has with wrongful intent [dolus malus] brought it about that another person did any of these things; or if a person has persistently followed a respectable woman, or a boy or girl, or is alleged to have attempted the chastity of a person, and, in short, it is clear that an outrage may be committed in many other ways”
What examples of want of skill might there be?
- an archer claiming to be proficient at archery
- A doctor who claims to be highly regarded, can commit damnum iniuria through his negligence
What issues must be looked at when considering a case of damnum iniuria?
- Causation, can it be comfortably said that Ds act led to the damage and subsequent economic loss incurred by V, or in the case of Justinian, Ds action led to the economic loss without damage (protected by the actio in factum).
- Did Vs loss result from an omission of D? Omissions generally did not impose liability as it was hard to prove a negative as a causative factor.
What is the intention required for iniuria and what unclear exceptions may there be?
- Wrongful intent towards the person that the thing is aimed at.
- Wrongful intent Is a matter of comparing the intent to the societal standards accepted at the time; the ‘teaching a lesson’ to a slave or a child is sufficient, so long as it is not done grossly.
- For example slapping a slave for being cheeky was acceptable, as was It for a child, but beating with rods, or taking an eye, or causing GBH would not be covered by what is acceptable in society.
How did the penalty for actio directa (any damnum iniuria action) change from Gaius to Justinian?
- Under Gaius the penalty was often over-inclusive because it provided that D paid the highest value that the property was worth in the last 30 days, no matter what the value of the damage was
- By the time of Justinian, it was the value of the economic loss which V incurred, which included both the deterioration in value over the next 30 days, as well as any other economic loss that was incurred eg productivity. Anything which V is subsequently deprived of due to the damage to their property eg slave-work. It was unfair that D had to pay for the full value of property of which he may have only inflicted minor damage on, and therefore minor economic loss.
What is the difference between iniuria and damnum iniuria in terms of the type of crime they can be called?
Damnum iniuria= a resultant crime
Iniuria= a conduct crime, need not a prove a subsequent loss or value of damages, just simply penalising the criminal for his conduct, whether or not it had adverse effects on the people.
