The Hiroshima Law Journal Volume 46 Issue 1
2022-06-30 発行

Grounds of Delictual Liability in Classical Roman Juridical Literature

Modern law draws a distinction between delict (or tort) and crime. The former is a wrong against an individual, for which the wrongdoer must render compensation following a private action brought by the victim. On the other hand, crime is a wrong deemed to be so serious as to be directed against the state, for which the wrongdoer must be punished. Here the state institutes the action and imposes the penalty. In Roman law the corresponding distinction was between delictum and crimen. The term delictum denoted an unlawful act that caused loss or injury to the person, property, or reputation of another. The word crimen, on the other hand, signified a wrongful act that was directed against the state. However, Roman law did not clearly distinguish between the law of delicts and criminal law: the law of delicts, besides being concerned with compensation for the victim, sought also to inflict punishment on the wrongdoer. In Roman law the principal point of distinction between delict and crime was that in the former case the victim could recover compensation and inflict punishment on the wrongdoer by means of a private action in civil proceedings and not through prosecution by the state. The present paper outlines aspects of the development of the Roman law of delicts and discusses the principal grounds on which delictual liability was based. The analysis of substantive law includes consideration of the subjective and objective requirements for delictual liability as detailed in the works of the classical Roman jurists and other juridical sources. Particular attention is paid to the delict of wrongful damage to property and the lex Aquilia, the legislative enactment from which it was derived, as well as the legal remedies available to the person who suffered loss. It is hoped that the paper will be of value to scholars interested in the fields of Roman law, European legal history, tort law, and comparative private law.