Obligations in Roman Law: Past, Present, and Future

Chapter 12. Roman Delicts and the Construction of Fault

296 Chapter 12 Roman Delicts and the Construction of Fault Maria Floriana Cursi Introduction: Fault and the Lex Aquilia How did the Romans come to construe the notion of “fault” in the field of delict? The regime surrounding the lex Aquilia provides an excellent case study for examining this question. This essay begins by considering the construction of the notion of culpa in the juristic treatment of damnum iniuria datum (loss wrongfully given) under the lex Aquilia. I next examine intentional fault as a subjective criterion of liability both in the original conception of Aquilian loss and in the other delicts. We can trace a historical development in juristic views on Aquilian loss in terms of the increasing emphasis on the compensatory interest, a phenomenon linked, in turn, to what can be described as the “reification ” of the slave as well as to the mixed nature of the Aquilian action itself. One can see a parallel in the emergence of rules for culpa in vigilando and culpa in eligendo in the field of quasi delict. Key elements here are the subdued role played by the notion of a penalty and the valuation of (meaning the assignment of a monetary value to) the body of a free man in the actio de effusis vel deiectis. I conclude that just as we can trace a development over time from intentional fault to presumed negligence, so we see a similar move away from an emphasis on penalty toward one placed on compensation for wrongful loss. I thank Francesca Rosati, of the University of Teramo Foundation, Mike Riddell, and Tom McGinn for help with the translation of this essay from Italian. Roman Delicts and the Construction of Fault 297 The Jurists and Culpa: Current Views According to the currently dominant view,1 the notion of culpa outside the terms of a contract emerged from the context of juristic treatment of the lex Aquilia, specifically in cases where the application of the statute initially may have seemed doubtful. Such well-­known cases include the resort to self-­defense in a manner deemed excessive,2 the abuse of an instructor’s disciplinary authority that results in permanent physical damage to a student,3 injury to passersby inflicted by careless tree trimmers,4 and the intentional infliction of harm on an animal grazing illegally on one’s property.5 In these cases, the legal authorities came to construe fault in a manner that transcended the strict illegality of the behavior and that gave a new meaning to iniuria in the context of this delict. It is generally accepted that iniuria, as an expression of the illegal nature6 of damage, was initially conceived in a way that was completely independent of the subjective element of conduct—­ culpa. Gradually, however, the original division was overcome, thanks to the interpretative work of the jurists, which, in the very case of uncertain application of the lex Aquilia, led to an emphasis on the reprehensibility of the conduct in question and allowed the emergence of the “modern” notion of culpa. Sandro Schipani, for example, observes that culpa is “linked to a subjective criticism, even if this does not only concern dispositions of an intentional nature, but likewise the lack of control—­ measured against a standard—­ over one’s own dispositions” (connessa a un rimprovero soggettivo, anche se questo non colpisce soltanto gli atteggiamenti intenzionali , ma altresì il mancato controllo—­ in rapporto ad un modello—­ dei propri atteggiamenti).7 On this view, it was the Severan jurists who, toward the end of the classical period, accomplished the definitive equivalence of the two notions, 1. See, for all of these, Schipani, Responsabilità ‘ex lege Aquilia’ (1969) 133–­ 34. 2. See Gaius (7 ad edictum provinciale) D. 9.2.4. 3. Ulp. (18 ad edictum) D. 9.2.5 pr. and 3, 7 pr. = Ulp. (32 ad edictum) D. 19.2.13.4. 4. Paul. (10 ad Sabinum) D. 9.2.31. 5. Pomponius (17 ad Q. Mucium) D. 9.2.39 pr. 6. I use the term here to indicate, in an extremely broad sense, the situation of nonconformity to the law, without going into the hoary problem of defining the object on which the value judgment of illegal nature falls. For a similar problem, though without definite result, see Dell’Andro, “Antigiuridicità” (1958) 542–­ 43. 7. Schipani, Responsabilità ‘ex lege Aquilia’ (1969) 131. 298 Obligations in Roman Law stating that iniuria...