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ROMAN LAW_ DELICT (I) (1).
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ROMAN LAW_ DELICT (I) (1).
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ROMAN LAW: DELICT (I)Delict is different to tort as it started as a substitute for personal vengence yer retained its penal
character.
The main difference between them is the act which endangers the order and security of the
state and one that infringes on individuals rights. Therefore, delict falls under private law where
crime falls under public law. - ANS-CRIME V DELICT
Criminal
Delictal Claim
Or a claim in rem/ personam - ANS-WHAT 3 PROCEEDINGS COULD THERE BE UNDER
JUSTINIAN?
In the Twelve Tables there were already sanctions such as the death penalty for serious
offences such as murder or treason.
However, there were a number of small offences.
It was not until the Late Republic that there was rapid expansion in criminal law. This allowed
two punitive sanctions for the same act. - ANS-HOW DID CRIMINAL LATER DEVELOP?
Twelve Tables featured stages of private penal action:
SELF HELP - you could kill a thief who came in the night as long as you called out to
neighbours - stand you ground; manifest thief would be scourged by a judge then assigned to
the victim for his own personal retribution; you could retaliate if someone caused you severe
bodily harm.
REIPERSECUTORY ACTIONS - Payment of compensation - ANS-PENAL CHARACTER OF
DELICTAL ACTIONS
- If the crime was committed by more than one person they were each liable for the full amount
- Revenge could only be enacted to the wrongdoers not their heirs
- If the victim died before action was taken, heir could inherit the action (except in iniuria)
- Penal recourse did not bar reipersecutory - ANS-WHAT ARE THE PRACTICAL
CONSEQUENCES OF REIPERSECUTORY ACTIONS?
Both Justinian and Gaius only list 4 types of delict: furtum (theft), rapina (robbery), damnum
iniuria datum (loss wrongfully caused), iniuria (insult). - ANS-CLASSIFICATION OF WRONGS
IN THE INSTITUTES
, Nicholas says the organisation is unsatisfactory. Rapina is just an extention of furtum.
Furthermore it leaves out dolus and metus.
Delict is Gaius' second class of obligations and Justinian's third. - ANS-HOW CAN THE
CLASSIFICATION OF THE INSTITUTES REGARDING DELICT BE EVALUATED?
Praetorian delicts gave actions for some courses of conduct the ius civile did not provide for.
These were actions in factum.
The two main ones are metus and dolus - ANS-CIVIL AND PRAETORIAN WRONGS
This encompassed any fraud or deceit practiced to the detriment of another
Dolus through its fluid character may have subverted the careful structure of the other delicts
and of the law of contract - it was presumed that this is why the action could be brought only if
no other of any kind was available - ANS-WHAT WAS DOLUS?
Restitutio in integrum - available to a party who had entered through duress into a legal
transaction.
Exceptio doli- if action brought to instigate that transaction
Also had actio doli which was available if there were no other options.
Each person was liable until someone made reparations and it only lay against the fraudulent
parties. It also led to an infamia reputation. - ANS-WHAT WAS THE ACTION FOR DOLUS?
This was duress
If a man was pressured to do something via threats in some way to his own detriment, an action
lay for fourfold his loss - ANS-WHAT WAS METUS
Restitutio in integrum - available to a party who had entered through duress into a legal
transaction
Exceptio metus - if action brought to instigate that transaction
Fourfold penalty based on the harm suffered but you did not have infamia as you would have
with dolus. - ANS-WHAT WAS THE ACTION FOR METUS?
Anyone who had put pressure on the claimant was liable.
It was also liable against any third party who benefitted.
It was available to heirs but not against them.
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