Delicts Flashcards

Question

Justinian's definition of theft

Answer 1

Theft is a fraudulent interference with a thing, whether with the thing itself or the use or possession of it: which is forbidden by natural law.

Answer 2

1. Interference 2. Of a thing, its use, or possession 3. Intention and absence of consent

Answer 3

* The object of a theft had to be moveable (not land) and in commercio * Exceptionally, it was possible to steal free persons if they were under another’s power (G.3.199)

Answer 4

* Gaius: interference includes any kind of physical handling of a thing belonging to another against the the will of the owner (G.3.195) * Pomponius- chasing someone’s domesticated pet away until it disappears and someone else takes it, could create liability * Paul- gives the example of theft including summoning a muleteer to court (with wrongful intent), if mules were lost in this time, liability may arise

Answer 5

Furtum could be committed where a person owned the property, but was not entitled to possess it e.g. if I steal my own thing from its bona fide possessor (G.3.200)

Answer 6

* G.3.197= dolus malus (bad intentions) * Paul highlights the importance of the purpose of making a gain

Answer 7

Knowledge that the owner did not onsent to taking/ use

Answer 8

Gaius: a child below puberty is only liable for theft if he is aproaching puberty and understands that what he is doing is wrong

Answer 9

* In classical law the owner must not consent to the taking/ use- there was no theft if the owner secretly consented in order to trap the wrongdoer, because theft required taking against the owner’s will, and there was no corruption of the slave since he was not actually harmed * Justinian rejected this and allowed both the action for theft and for corruption of a slave, focusing on the wrongdoer’s intention rather than technical consent, to prevent people escaping liability through loopholes

Answer 10

1. Interference (contrectatio) 2. Fraudulence (dolus) 3. A thing capable of being stolen 4. With a view to gain (animus lucrandi) --> NB: this definition is post-classical so there is an argument that not all element were required from the start

Answer 11

Robbery- theft with violence, "wicked thief" (Gaius)

Answer 12

Nicholas: one of the least commendable parts of the mature Roman law. Theft was only useful in determining usucapio, should have been left to criminal law, since most thieves are not solvent and the penalties are meaningless in practice (could critique that it is symbolic) 1. Archaic features 2. Concepti not fair 3. What constitutes a furtum? * The act is not clear, its not just taking away but also using in a way * Intent: only seems to be wrongful state of mind one way or another – the slave dilemma and the different views shows this. Doesn’t need to be against owner’s wishes because can steal own property

Answer 13

Actio vi bonorum raptorum (praetorian) * 4x the value (including vindictio so actually only 3x value) if brought within a year * value alone if brought after a year

Answer 14

Robbery came with extra labelling and shame, Gaius says that those who take by force are 'disgraceful even among thieves'

Answer 15

Wrongful loss--> Lex Aquilia * Chapter one- killing slaves or grazing anials * Chapter three- damage to property

Answer 16

1. Occidere (kill) 2. A slave or pecus 3. Belonging to another 4. Iniuria (wrongfully) --> this is Gaius' definition: * If all elements are present--> direct Aquilian action * If something is slightly off--> praetorian action

Answer 17

* Killing * Has to be a positive action and with force e.g. strangling, hitting * Gaius: corpore corpori requirement= by a body to a body--> but any level of force will suffice according to the Digest * Ulpian: can be via an instrument because this is treated as an extension of the body e.g. javelin

Answer 18

Includes sheep, cattle, horses, mules, and later elephants by Gaius * If owner --> direct * If usufructuary --> decretal action

Answer 19

= wrongfulness * originally iniuria meant without a legal right/ justification * classical law: meaning shifts into dolus or culpa --> dolus= intentional wrongdoing e.g. fraud --> culpa= who was to blame for the harm, this can involve damage caused by negligence/ failure to meet the required standard of care

Answer 20

Justinian adds that unskillfulness can be included e.g. a surgeon, and carelessness e.g. pruning and not yelling if busy area. 1. Act 2. Location/situation 3. precautions

Answer 21

1. **thin skull rule**: Labeo gives example of giving a slight blow to a sickly slave who then dies= liability would arise 2. dispute about **supervening causes**: - Celsus: if one person hits a slave then another one finishes him off, only the one who killed him would be liable for the killing (the other, for damage) - Justinian confirms that both would be liable - Ulpian gives examples of javelins being thrown as part of sport- but not if a slave walks across field where it is already happening unless they aim

Answer 22

Action utilis/ action in factum * praetorian action * probably same remedy as for direct killing (e.g. highest value over previous year +any loss) Indirect killing could be poisoning or starving Could also be if you are the usufruct

Answer 23

Action legis aquiliae * aquilian action * remedy= highest value the slave/ animal had in the previous year + any loss e.g. inheritance, value as part of a team * if they deny it unsucessfully, double remedy

Answer 24

Damnum iniuria= damage to property

Answer 25

1. Damnum= damage 2. Property 3. Wrongfully

Answer 26

* Pay what it was worth in the nearest 30 days- damnum already covers damnum emergens and lucrum cessans--> difference between what should be in pocket and what is * Gaius states that although the statute does not mention ‘highest value’ this is how it should be considered G.3.218 * Daube says that this is absurd, but that what Gaius might mean is we should subtract current value from highest value and this is the damages

Answer 27

* The lex, described in the Digest, uses urere (burn), frangere (break), or rumpere (smash) – unclear whether this was a limitation, or more likely if it is symbolic of level of harm * By Gaius it had ballooned and covered all property: rumpere reinterpreted as corrumpere (spoil) and Gaius states clearly that it now includes cutting, bruising, spilling, spoiling wine, picking unripe crops, making something less useful

Answer 28

* mostly about financial loss * Daube argues that it is about loss since the damages are based on this, and damage without financial loss was not covered therefore it principally a financial protection rather than physical integrity

Answer 29

* Must be caused by a bodily action * Gaius: must be by corpore suo or else it falls under action utilis

Answer 30

Sabinus suggests there is wrongful loss as long as they don’t go to another person (rather than theft)

Answer 31

* Contempt, insult, outrage * Concerned with intentional wrongs to personality, not property

Answer 32

* Physical violence e.g. scourging * Public humiliation e.g. gathering a crowd round someone * False legal or economic attacks * Defamation e.g. defamatory verses * “many other ways”

Answer 33

1. **Intentional conduct**: deliberate insult was required (accidents and negligence insufficient), the act had to be directed towards the plaintiff (or their dependant) 2. **Unjustified conduct**: iniuria= without right, the insult must be unlawful or unjustified, justifications included self-defence, lawful exercise of authority 3. **Protection of ‘hurt feelings’**: by the classical period, the core interest was subjective affront- the plaintiff’s sense of their dignity being wounded, the action focussed on contumelia (outrageous, disrespectful treatment), reputation mattered but proof of measurable reputational damage was not essential, the emphasis was on the insult itself

Answer 34

* retaliation (talio) for destruction of a limb e.g. a limb for a limb * Fixed monetary penalties- 300 coins for breaking a free person’s bone, 150 coins for breaking a slave's bone, 25 coins for other outrages--> this became ineffective as the value of money decreased

Answer 35

* Actio iniuriarum * Victim may estimate the damages himself- the judge would then award that sum or less * In cases of grave outrage, the praetor may fix a sum, insert that sum into the formula as a measure of damages, and although the judge has discretion he was unlikely to reduce a sum endorsed by the praetor * This system is more flexible

Answer 36

Does the act have both... 1. impropriety: the act/ event is not allowable by social standards 2. Contumelia: it supports the inference that it wounded the plaintiff’s self-respect

Answer 37

Nicholas suggests that Roman law meaning was ‘any affront to another’s dignity or reputation and any disregard of another’s public or private rights wilfully and with contumelious intent

Answer 38

Dolus= intent - negligence was not enough, the insult must be intended - mistake could exclude liability

Answer 39

* The Twelve Tables provided only limited remedies: fixed penalties for grave physical injuries and lesser penalties for minor ones. * In the late Republic, retaliation and fixed tariffs proved inadequate. The rigidity of early law gave way to a more flexible praetorian development. * The praetor introduced a general action for iniuria, moving beyond the narrow statutory cases. This allowed protection against a wider range of affronts, not merely bodily harm. * The shift reflects a move from specific, enumerated wrongs to a broader principle: protection of personal honour and social standing

Answer 40

The seriousness of the wrong (atrocitas) affected the damages Aggravation could arise from: * The nature of the act * The place (e.g. public setting) * The status of the victim (e.g. magistrate) * The manner of the commission

Answer 41

* Introduced a criminal dimension for certain serious insults e,g, beating, house invasion * Probably provided an alternative or parallel route to the praetorian action * By the classical period, it seems to have allowed a choice between criminal and civil proceedings

Answer 42

Contumelia “is not quite able to stand on its own” because some malice is socially tolerated (e.g. refusing club membership)

Answer 43

1. corruption of slaves (servicorruptio) 2. duress (metus) 3. fraud (dolus)

Answer 44

* Anything which made the slave less valuable to his master * Ulpian gives the examples of persuading the slave to commit an injury, theft, run away, to incite another man’s slave, to falsify his master’s accounts etc * If the slave was already ‘bad’ to begin with, the action was still available, providing the slave could be said to have been made worse by D * D must have acted fraudulently (here this means with malice) not just intentionally

Answer 45

Praetor allowed an action for double damages against anyone who deliberately and fraudulently caused the deterioration of a slave * This overlapped with the remedies under the Lex Aquilia, but where the plaintiff had the choice, he would probably sue under the action for corrupting slaves (as it was always double damages, even if the defendant admitted liability)--> could not sue under both * The plaintiff could recover for actual depreciation and any consequential loss e.g. if the slave stole, the plaintiff could take into account the theft when suing the corrupter) * There was no time limit on the action- survived the death of the slave

Answer 46

A ‘fear of serious evil’ which would affect a man of ‘most resolute character’ - Fear of serious evil comprised threats of death or serious physical harm - The threat need not be directed at the complainant, could also be at his children

Answer 47

1. exceptio metus= defence of duress, could be used by the victi, if they had incurred a loss by being forced to do something disadvantageous 2. restitutio= if the damaging act had occurred, he could seek restitutio to restore him to his position before duress 3. actio metus (delictual action)= if D failed to make the restitution--> fourfold damages within one year, simple damages otherwise, plaintiff had to show there had been some loss

Answer 48

The praetor affords relief against shifty and deceitful persons who by certain cunning have harmed others, so as to prevent either their wickedness benefitting the former or their simplicity harming the latter

Answer 49

1. exceptio doli= defence against a plaintiff trying to enforce a fraudulent transaction 2. restitutio= if the damaging act had occurred, he could seek restitutio to restore him to his position before duress 3. actio doli= this was for simple damages and had to be brought about within a year --> brought as a last resort, e.g. it would not be available for fraud arising out of a contract if a contractual remedy was available

Answer 50

* Certain people were barred from this action * A man of inferior rank e.g. a plebian, could not bring this action against a ‘worthy man’ of higher rank * Could only be brought against the wrongdoer, not against his heirs * The heirs of the victim could sue * Joint wrongdoers were equally liable but restitution or payment by one released the others

Answer 51

Furtum--> dolus (not culpa) Rapina--> dolus (not culpa) Damnum iniuria--> dolus OR culpa Iniuria--> dolus

Answer 52

1. iniuria realis= physical acts 2. iniuria verbis= by words 3. iniuria atrox= aggrevated 4. iniuria per alium= through someone else e.g. slave, son, wife

Delicts Flashcards

(76 cards)