Lecture 16- Damnum Injuria Datum 29:10 PDF

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Foundations of Private Law (LS1022) Damnum iniuria datum Dr Euan West

Delict

Theft (furtum) Robbery (rapina)

Insult (iniuria)

Losswrongfully caused (damnum iniuria datum)

Damnum iniuria datum Damnum iniuria datum was a delict relating to loss caused wrongfully. There were three elements: (1) Loss/harm to patrimonial assets (damnum) (2) Wrongful conduct (iniuria) (3) A causal link between the wrongful conduct and the loss (datum). The lex Aquilia • Damnum iniuria datum originates from Roman legislation known as the lex Aquilia (dating from the early third century BC). • It was originally very strict but became more and more flexible over time because of: -The interpretation of the lex Aquilia by jurists and -actions granted on analogy with the lex Aquilia by the praetor (magistrate) Chapter one Roman law granted an action where D had wrongfully killed P’s slave or his four-footed beast of the class of cattle. In such cases, D was liable to pay P the highest value of the slave or animal in the year preceding the killing. Chapter two Irrelevant Chapter three For all other things besides slaves or cattle killed, Roman law granted an action to P against D where D had done any damage by wrongful burning, breaking or breaking off (urere, frangere, rumpere). In such cases, D would be liable for the highest value of the thing over

the last thirty days (or, according to some scholars, the value of the thing in the next thirty days). Key issues (1) What sort of conduct gave rise to liability? (2) What was meant by the need for wrongfulness (iniuria)? (3) What was meant by loss (damnum)? (4) What title did the pursuer require in order to sue in relation to the thing killed or damaged? (5) How were damages quantified? (1) What sort of conduct gave rise to liability? Initially only serious injuries were actionable under Chapter Three of the lex Aquilia but this requirement was relaxed. The word rumpere (to break off/smash) was later interpreted as corrumpere (to spoil). E.g. mixing sand with grain or spilling wine on a carpet could constitute damage under Chapter Three of the lex Aquilia. Direct damage and indirect damage • Chapter One of the lex Aquilia required the death of the slave or animal to be a direct result of the defender’s act. • But this requirement was relaxed over time: -corpori corpore (to the body by the body) E.g. D stabbed P’s slave with a sword or threw a javelin at P’s horse. -

-corpori nec corpore (to the body but not by the body) E.g. giving poison to a slave for the slave to drink himself/herself, overdriving a mule, starving a horse and pushing someone so that they damaged the property of another. • Nec corpori corpore (not to the body but by the body) E.g. knocking coins out of another’s hand so the coins fall into the sea. • Nec corpori nec corpore (neither to the body nor by the body) Generally not actionable but actionable in exceptional circumstances. Direct damage and indirect damage (cont.) ‘But if the injury is not caused by the body, nor to the body, but damage is caused in some other way, since it is not a case either for a direct action or for an action on the analogy of the statute, it has been decided that the wrongdoer may be sued by an actio in factum; for example, if a man from motives of compassion frees a slave from his fetters, thus enabling him to escape.’ (Justinian, Institutes, IV,III,16.) Causation • The question of direct damage/indirect damage just discussed can be thought of (somewhat anachronistically) as a problem relating to causation. • In modern law, we sometimes say that the chain of causation was broken by a new intervening act (novus actus interveniens).

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We might also talk of contributory negligence on P’s part.

Liability for omissions • Generally no liability for pure omissions. • But it is possible that there was liability for omissions where D had assumed responsibility to P. Liability for personal injury • In its original form, damnum iniuria datum related exclusively to damage to property. • But what was the law where someone injured me rather than destroyed/damaged my property? Could I claim for my personal injury? -Initially, only a claim for personal injuries deliberately inflicted was allowed (under the delict of iniuria). -However, a claim was later allowed for negligently inflicted personal injuries under the lex Aquilia. (2) What was meant by wrongdoing (iniuria)? • It meant culpa (negligence) or dolus (deliberate wrongdoing). • Generally, culpa refers to failure to foresee what a reasonable man could have foreseen. • Example: D digs a bear trap. P’s slave falls in, resulting in injury. D would have been regarded as negligent if he had dug the bear trap in a place where people were accustomed to go but not if he had dug it elsewhere. (3) What was meant by loss (damnum)? • Patrimonial (i.e. economic) loss. • Generally speaking there had to be loss arising from damage. E.g. a slave’s leg is broken (damage). Owner suffers patrimonial loss because he loses the benefit of the slave’s services. • Sometimes, a claim might be allowed for loss without damage (as in the case of the compassionately released slave). But this was highly exceptional. (3) What was meant by loss (damnum)? • But a claim would not be allowed if there was no loss even if there was damage (e.g. a slave is given a black eye). (4) What title did the pursuer require in order to sue in relation to the thing killed or damaged? • The lex Aquilia traditionally concerned damage to property. • Generally speaking, only an owner could claim under the lex Aquilia. • In time, other parties were able to claim, e.g. a pledgee or the holder of a usufruct. • Note also: the case of a buyer of goods destroyed by a third party after the risk had passed. Although the buyer bore this risk in that he/she still had to pay the purchase price, the seller had to assign his rights in delict to the buyer.

(5) How were damages quantified? • Under Chapter One of the lex Aquilia, D had to pay P the highest value of the thing within the preceding year. • Under chapter Three of the lex Aquilia, D could claim the highest value of the thing within the preceding 30 days. But this is controversial. Some scholars (e.g. Lawson) have interpreted Chapter Three in other ways, e.g. to mean that what mattered was the value of the thing thirty days following the injury. Detailed consideration of this controversy is beyond the scope of this course.

(5) How were damages quantified? • Damnum iniuria datum was initially penal in character. • As time went on, the function of damnum iniuria datum became increasingly compensatory. • Increasing emphasis on compensation of loss could sometimes work to the pursuer’s benefit: E.g. death of one of two horses that work as a team or the death of a slave who has been instituted heir before the slave’s master could authorise the slave to accept the inheritance. Summary • Damnum iniuria datum (loss wrongfully caused) was a delict in Roman law. • It comprised three elements: -loss (damnum) -wrongdoing (iniuria) -a causative link between the loss and the wrongdoing (datum). • Over time, this delict became increasingly flexible....