The Scope and Function of Civil Wrongs in Roman Society

The first evidence of Roman delicts is in the XII Tables that in the middle of the 5th century introduced the first types of delict and the first forms of obligation. From these provisions the Roman law givers did not develop a general law of delict governing the delictual liability. The Roman system of delicts was in fact typical: at first, the XII Tables introduced furtum and personal injuries — delicts that immediately after, in correspondence to the change of the Roman society, the praetor modified with the development of the notion of furtum and the change of the ancient poena for the furtum manifestum into a poenae obligatio and the introduction of the edictum de iniuriis aestimandis to determine the poena for injuries —, afterwards, the enactment of the most important law on damage, the lex Aquilia de damno, deriving from the iniuria – contumelia. Finally, in the 1st century BC, during the violent fall of the Republic, a praetorian provision introduced the actio vi bonorum raptorum, dealing with robbery. Simultaneously, during the last republican period, the increase of the international trade and reasons of public policy let emerge the need to ensure the reparation of damage in some cases in which damage originated in the lack of supervision by the person responsible for such. The praetor introduced the actio de effusis vel deiectis, the actio damni et furti adversus nautas, caupones, stabularios that Justinian will include in the quasi-delict category. In the following centuries, the Roman jurists developed the classic configuration of the Roman delicts: the most important changes were introduced in the notion of iniuria and damnum iniuria datum. A new subjective criterion of liability — culpa — emerged from the interpretation of the iniuria in the chapters of the lex Aquilia, linked to the subjective notion of iniuria in the actio iniuriarum; a new evaluation criterion of reparation of the damage was introduced to recover the actual damage suffered by the plaintiff; a new notion of damage extended the scope of the chapters of the lex Aquilia by considering every loss recoverable, even if without physical destruction. The Roman system of delicts, however, was too typical to ensure the total reparation of the private damages deriving from an unlawful conduct. To this end, a new type of action, actio de dolo, was introduced to repair the loss caused by dolus, in case of absence of any specific delictual action. This new type of action is a subsidiary remedy which fills the gaps left open by the typical system of actions.