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Summary Roman Law 271 Notes
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Extensive notes and summaries on the examinable material in Roman Law 271
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LECTURE NOTES: OBLIGATIONES EX DELICTO7 OBLIGATIONES EX DELICTO
71 Introduction
– Definition:
A delict is a wrongful act causing damage that gives rise to a remedy (today: an amount of
money as compensation).
The obligation arises automatically thus NOT based on consensus or quasi-consensus. E.g.
crashing into someone’s chariot or injuring someone.
72 Law of delicts, Law of contracts and Criminal law: The development of the
Roman law of delicts
REMEMBER: when we discussed the concept obligatio at the start of our discussion on the
Roman law of obligations. In the earliest times: if someone injured you or damaged your
property, you could take vengeance. There was no separate state machinery so you acted
as the police.
* The Romans did not have a developed criminal justice system. Only in exceptionally
serious instances of crimes against the State would the State intervene (crimen / delictum
publicum such as high treason).
* Later we at least find the principle of equal vengeance (the talio principle); an eye for an
eye; a tooth for a tooth.
* Even later the practice of buying of vengeance through the payment of a fine developed.
* The XII Tables contained a list of amounts for the buying-off of vengeance, sometimes
voluntarily, sometimes (in less serious cases) compulsory. We will return to this topic
when we look at the specific delict iniuria.
* At the end of the development we had the basis of a system of private compensation of
damages (rather than a penalty of buying off) due to harm caused in an unlawful manner,
thus a law of delict.
* Mostly private delicts or delicta privata enforced with penal actions or actiones poenales
[criminal law undeveloped, chaos in republic, rather private actions]
73 Characteristics of actiones poenales (penal actions)
Delicts where enforced through penal actions or actiones poenales. What were the
characteristics of these actiones poenales?
1
, Penal actions were initially used to enforce a penalty. However, overtime they increasingly
fulfilled a remunerative function but to some extent most kept a penal character. Penal
actions stand in contrast to actions aimed at obtaining a thing or an economic benefit such
as the rei vindicatio.
* Some of these actions had a mixed character – a penal and remunerative element such
as the actions in terms of the lex Aquilia called the actio legis Aquilae also referred to as
the actio damni iniuria.
* In modern delict damages are compensated merely though a monetary amount, in case
of a penalty an extra fine is added such as double (today we still find “punitive damages”
in the USA, thus perhaps it was not so cruel)
* Certain characteristics of the actiones poenales reflect the retention of the penal
character.
i. Firstly, cumulative liability for joint wrongdoers thus each fully liable for the whole of
the penalty (thus clearly a penal element: not merely compensation. [today
apportionment of damages]
ii. Secondly the cumulation of actions. This means that sometimes an actio poenales
could be instituted together with other actions [e.g. action in case of theft to reclaim
res (through rei vindicatio or condictio furtiva) plus further double or even fourfold
penalty (actio furti)] BUT remember the Aquilian action had both elements –
compensations and punishment – thus in case of the Aquilian action cumulation was
not possible.
The third characteristic of the actiones poenales was
iii. That these actions were passively intransmissible. Meaning that the actions did not
pass to the heirs of the wrongdoer (could not be instituted against the heirs).
However, any benefits flowing from the delict could be claimed from the heirs. [Can
only take vengeance against perpetrator; thus not sins of fathers to kids – however
today it is clear that a delictual claim is transmissible]. In Roman law penal actions
did transfer to the heirs of the claimant thus actively transmissible [active – claimant;
passive – defendant]
The fourth characteristic of the actiones poenales was
iv. Noxal liability. This meant that if a slave or son in power committed a delict the
paterfamilias (father/head of the family) had a choice between handing over the slave
2
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