Учебный год 22-23 / The Law of Obligations

4. Actio directa and actio in factum

It is obvious from our classical sources that the term "occidere" never came to be interpreted more liberally. It remained limited to cases of direct causation of death. Even Justinian continued this tradition by referring, in his Institutes, to the test devised by Gaius.191 What was it that prompted the Roman lawyers to retain such a conservative, or restrictive, attitude, even though, as they themselves acknowledged, the meaning of "occidere" in lay usage had become much wider? "Occidisse dicitur vulgo quidem, qui mortis causam quolibet modo praebuit", said Iulianus, but he proceeded to restate the narrow Aquilian usage.142 In fact, the beginnings of the broader meaning of the term "occidere" in common parlance can even be traced back to the beginning of the 2nd century B.C.193 For the lawyers, however, there was no necessity to follow suit and to change the by that time wellestablished, legal usage.194 At least in classical law, entirely satisfactory alternative remedies were available: decretal actiones in factum which appear to have provided adequate protection in cases of indirect causation. But the possibility of extending the lex Aquilia by means of granting, where appropriate, an actio in factum, can hardly have existed all along. The first decision of which we know is attributed to Ofilius. He gave an actio in factum in the case involving the slave who was killed because the horse on which he was riding had been scared.195 He does not give a reason for his ruling, but provides a precedent: the

situation is the same as when a slave is lured by one man into an ambush and then killed by another.19fl The implication of this kind of argument

is clear: the actio in factum in cases of indirect killing must already have existed before Ofilius' days. But it cannot go back further than (at the earliest) the latter part of the 2nd century B.C., for decretal actiones in factum (modelled on one of the actions proposed in

141 "Cctcrum placuit ita demum ex hac legc actionem essc, si quis praecipuc corpore suo damnum dederit": hist. IV, 3. 16. Only by adding the word "praecipue", did Justinian acknowledge a somewhat more liberal usage that may have gained ground in post-classical times; cf. e.g. von Liibtow, Lex Aquilia, p. 213.

142D. 9, 2, 51 pr.

143Cf. Norr, Causa mortis, pp. 7 sq., who draws attention to a passage in Plautus' play Psendolus where the author achieves a comical effect by opposing "occidere gladio" and "occidere fame".

194"Occidere" was also interpreted strictly in another statutory context: Lab./Ulp. D. 29,

5, 1, 17; cf. Peter Stein, "School Attitudes in the Law of Delicts", in: Studi in onore di Arnaldo Biscardi, vol. II (1982), pp. 287 sq.; Norr, Causa mortis, pp. 166 sq.

145 Ofilius/Ulp. IX 9. 2, 9, 3. For an analysis, see Schipani, Lex Aquilia, pp. 165 sqq.; MacCormack, (1975) 41 SDHI 17 sq.; Stein, Studi Biscardi, vol. II, pp. 289 sq. and, particularly, Norr, Causa mortis, pp. 139 sqq.

' ". . . qucmadmodum si scrvus metis ab alio in insidias deductus, ab alio esset occisus." On the use of the word "qucmadmodum" and arguments by analogy in the texts on the lex Aquilia, sec MacCormack, Studi Satijilippo, vol. I, pp. 255 sqq.

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the edict) are inextricably linked with the formulary procedure.197 From the date of the enactment of the lex Aquilia until the time when the praetorian edict allowed the formulation of actiones in factum, an unsatisfactory lack of legal protection appears therefore to have existed in all cases of mortis causam praebere, which did not fall under the narrow, Aquilian concept of "occidere". How could such a situation ever have been tolerated by the Roman lawyers?

In order to avoid this dilemma, it has occasionally been suggested that the interpretation of "occidere" was, in fact, much wider in the days of the Republic; either gradually198 or at some or other specific point,199 the meaning of the word was restricted. But neither is this kind of development from a more liberal to a narrower interpretation generally very plausible, nor, more importantly, can our sources be brought in line with it.200 In a legal context, the term "occidere" always appears to have had a very narrow core meaning, which, in all likelihood, even antedates the lex Aquilia.201 When the word appeared in this statute, the Roman lawyers remained faithful to the traditional interpretation. In actual practice, situations of an indirect killing of a slave or grazing animal were probably rare and did not usually come to the attention of the courts.202 The jurists in those early days may well have been content to provide a remedy for what was obviously and manifestly wrong and may not have felt the need for a specific action covering all cases of mortis causam praebere. Apart from that, we must remember that, when the lex Aquilia was enacted, the procedure per legis actiones still reigned supreme. Dieter Norr has recently advanced the attractive suggestion that, whatever need may still have existed to remedy at least certain instances of indirect killing, could possibly have been met by the use of fictions.203 Gaius, in a famous passage,204 states that an action for the cutting down of "vines" could succeed only if the plaintiff used the word "trees"; seeing that the XII Tables spoke of cutting down trees in general, vines had to be fictitiously represented as trees. It is not impossible that the same kind of fictitious reasoning was

197 Cf. generally Max Kaser, " ius honorarium' and 'ius civile' ", (1У84) 101 ZSS 48 sqq., 65 sqq.; also Norr, Causa mortis, pp. 146 sqq.; Wieacker, RR, pp. 470 sqq.

19 Watson, Obligations, pp. 241 sqq.; cf. also Stein, Stttdi Biscardi, vol. II, p. 288.

199Behrends, Fraus legis, pp. 33 sqq.

200The discussion turns mainly on Alf. D. 9, 2, 52, 2 (a case involving two heavily laden carts proceeding up the Capitoline hill. The first cart rolled back and crashed into the second one, which, in turn, knocked down a slave. The text does not make it clear whether the slave was killed or merely wounded; whether, in other words, the decision concerned a case of "occidere" or of "rumpere"). On ]~). 9, 2, 52, 2 cf. Watson, Obligations, p. 242; Schipani, Lex Aquilia, pp. 179 sqq.; MacCormack, (1975) 41 SDHI13 sqq.; idem, Studi Sanfilippo, vol. I, pp. 257 sq.; Norr, Causa mortis, pp. 142 sqq.; Andrews, (1987) 46 Cambridge Lj 323.

21Cf. Norr, Causa mortis, pp. 6 sq.; Andrews, (1987) 46 Cambridge LJ 322 sq.

2112 Norr, Causa mortis, pp. 126. 136 sq. He draws attention to the fact that many of the examples concerning the actio in factum have the air of the schoolroom.

203Causa mortis, pp. 126, 137 sq., 149; cf. also idem, (1987) 6 RJ 105 sqq.

204IV, 11.

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employed in cases of indirect killing. When, however, the legis actio system was replaced by the formulary procedure, jurists were no longer able, for the purposes of bringing a lawsuit, to use the word "occidere" when they actually merely meant "mortis causam praestare". The scope of a remedy was determined, from now on, by the process of interpretation, and that excluded all instances of indirect killing from the ambit of the lex Aquilia. It was in this situation that actiones in factum began to be used to fill the gap. As Geoffrey MacCormack has pointed out,205 these developments provide a fascinating illustration of Sir Henry Maine's famous remark2"6 on the secretion of the substantive law in the interstices of procedure.

5. Urere frangere rumpere—corrumpere

In view of Gaius' (and Justinian's) generalizing remark that an action under the lex Aquilia could only be granted "si quis corpore suo damnum dederit",207 we may expect that the words in the third chapter corresponding to "occidere" in the first (namely: urere frangere rumpere) were similarly restrictively interpreted. This was in fact the case. Singeing a slave by throwing a lighted torch into his face was, of course, unquestionably "urere",208 and so was setting fire to an orchard or a country house.209 In all these cases, the damage was the direct result of a physical action of the wrongdoer. Again, this concept of "corpore suo damnum dare" excluded liability for omissions. If a stoker-slave charged with watching the fire fell asleep and thus did not prevent the house from burning down, the actio legis Aquiliae did not apply— "nam qui custodit, nihil fecit."210-211 The term "frangere" covered cases where a craftsman broke a chalice meant for diatretion212 that had

205 (1988) 56 TR21Q.

2Ofl Early Law and Custom (1861), p. 389.

207 Gai. Ш, 219; Insc. IV, 3, 16. 2(<H Ulp. D. 9, 2, 27, 6.

209

Ulp. D. 9, 2, 27, 7. A person who sets fire to a house is also liable to the neighbour to whose house the fire spreads: Ulp. D. 9, 2, 27, 8 ("Si quis insulam voluerit meam exurere et ignis etiam ad vicini insulam pervenerit, Aquilia tenebitur etiam vicino"). But this was a borderline case; cf. the dispute concerning a rather similar case (fire on a stubble-field spreads to the neighbour's praedium) in Coll. XII, VII, 4-7; for a discussion, see MacCormack, Studi Sanfilippo, vol. I, pp. 275 sq. Further on "urere" (with a discussion of the interesting case of Ulp. D. 9, 2, 27, 10—oven against party wall), cf. Peter Birks, "Cooking the Meat: Aqutlian Liability for Hearths and Ovens", (1985) 20 The Irish Jurist 352 sqq., 365 sqq.

~'° Nerat./Ulp. D. 9, 2, 27, 9; for a discussion, see Ben Beinart, "Culpa in omittendo", (1949) 12 THRHR 145 sqq.; von Lubtow, Lex Aquilia, pp. 159 sqq; Kemp J. Kemp, Detictual Liability for Omissions (unpublished LLD thesis, Port Elizabeth, 1978), pp. 91 sqq.

211Further on urere, cf. Schipani, Lex Aquilia, pp. 334 sqq.

212"Within the category of cut glass the diatreta or the so-called 'cage-cups' (Netzgia'ser) are the ultimate marvel in the sphere of artistic glass. . . . These marvels of craftsmanship were probably cut from a thick walled vessel. But to the present day it remains a mystery how this work could be carried out, for the infinite patience, fanatical concentration and calm deliberation required to produce such a work of art seem to go beyond the realm of possibility. There was such a danger of seeing the whole work ruined by a break in an

unguarded moment . . . A possible explanation of the mystery might be that the

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been handed over to him213 or where somebody staved in the doors of a house or smashed the house itself.214 "Rumpere", in turn, appears originally to have meant something like "to break", "to smash" or "to rend asunder", and it was primarily used, from the days of the XII Tables, to describe situations where a severe bodily injury was directly inflicted on a slave or animal.215 This traditional core meaning is still reflected in the definition provided by Ulpianus:

"Rupisse etim utiquc accipiemus, qui vulneravit, vel virgis vel loris vel pugnis cccidit, vcl telo vel quo alio, ut scinderet alicui corpus, vel tumorem feccrit."216

Problems could arise in cases where a direct injury was inflicted and damage caused, but where the object of the injury itself nevertheless remained whole. Prototype was the situation where someone caused a miscarriage by striking a pregnant mare or woman. Iunius Brutus was prepared cautiously to extend the scope of "rumpere" (and thus: of the third chapter of the lex Aquilia): "Si mulier pugno vel equa ictu a te percussa ciecerit, Brutus ait Aquilia teneri quasi rupto."217 In a way, of course, the body of the mare (or woman) had indeed been "broken" when the foal (or child) was ejected prematurely. Celsus, however, took matters much beyond the concept of a "quasi rumpere". He boldly equated rumpere with corrumpere ("ruptum enim intellegitur, quod quoquo modo corruptum cst"),218 which meant as much as to "spoil", "to make something worse", "to deteriorate". As a result, every form of physical deterioration was now covered by the lex

undercutting was performed entirely under water. For if glass is fully immersed in water, the even distribution of pressure on all sides prevents chipping and cracking": F. Neuberg, Ancient Glass, as translated by M. Bullock and A. Jaffa, and quoted by Peter Birks, "Other Men's Meat: Aquilian Liability for Proper User", (1981) 16 The Irish Jurist 168. The process of diatretion is thus the drilling and piercing which makes the net of glass and separates it from the inner cup and which turns the pre-diatreton (a beaker clad in an outer layer of differently coloured glass) into a calix diatretra (cf. Birks, loc. cit.); cf. further Okko Bchrends, "Die Rechtsformen des rdmischen Handwerks", in: (1981) 22 Abhandlungen der

Akademie der Wissenschaften in Gottinyen 146.

213 Ulp. D. 9. 2, 27,29; cf Birks. (1981) 16 The Irish Juris! 163 sqq. (suggesting a fairly farreaching reconstruction of the text).

;H Ulp. D. 9, 2, 27, 31.

2b For details, see Wittmann, Korperverlftzung, pp. 3 sqq.; Volkl, op. cit., note 41, pp. 40 sqq.

ш D. 9, 2, 27, 17.

217 Ulp. D. 9, 2, 27. 22. Cf. also Pomp. D. 9. 2. 39 pr.: "Quintus Mucius scribit: equa cum in alieno pasceretur, in cogendo quod praegnas erat eiecit: quaerebatur, dominus eius possetne cum eo qui coegisset lege Aquilia agere, quia equam in iciendo rupcrat. si percussissct aut consulto vehementius egisset, visum est agere posse." On these texts, see Schipani, Lex Aquilia, pp. 133 sqq.; von Lubtow, Lex AquiUa, pp. 112 sq., 167 sq.; MacCormack, (1975) 41 SDHI 3 sq.; Herbert Hausmaninger. "Zur Gesetzesinterpretation des Celsus", in: Studi in onore di Giuseppe Grossa, vol. V, pp. 265 sq.; Behrends. 1985 Juristische Schulung 878 sqq.; Norr, Causa mortis, pp. 130 sqq. For an interesting alternative explanation of the phrase "quasi occidcre", sec Norr, (1987) 6 RJ 106 sq.

-1* This is how Gaius (III, 217) describes the new approach.

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Aquilia,219 and thus an action could be brought, for instance, if wine was adulterated or poured away,22" if clothes were torn or stained,221 if millet or grain was thrown into a river,222 if a document was rendered illegible,223 if a ship was scuttled224 or damaged in a collision,225 if a mule broke down because it had been overloaded226 or if unripe grapes were cut down from their vine.227

Celsus' view appears to have been readily received by the majority of Roman jurists. Of course, it was bound to render the other two verbs contained in chapter three, "urere" and "frangere", somewhat redundant. Celsus himself did not deny that,228 but, as he himself explained: ". . . non esse novum, ut lex specialiter quibusdam enumerates generate subiciat verbum, quo specialia complcctatur."229 Furthermore, the surprisingly liberal approach with regard to the word "rumpere" in chapter three may be said to correspond rather badly with the strict interpretation of "occidere" in chapter one. But the significance of reading "corrumpere" into chapter three was to make irrelevant any enquiry into the type of physical result that had occurred.230 This was a problem that could not arise in chapter one, where the physical result was always death. Only as far as the question of indirect causation was concerned were thejurists faced with a similar problem under both chapters, and in this regard the same narrow approach was as consistently maintained under chapter three as under chapter one. Again, however, actiones in factum were available where the defendant had not injured the object corpore suo. This was the case, for instance, where a cooper who had been hired to mend a vat, punctured it so that the wine contained in it ran out.231 The wine had been "corrupted", but the link between the cooper's physical action and the damage was not direct enough.

2V> Gai. Ill, 217; cf. also lnst. IV, 3, 13. Ulpian (D. 9, 2, 27, 13) attributed this extension to "fere omncs veteres"; but cf. Hausmaningcr, Studi Grosso, vol. V, p. 265; MacCormack, (1975) 41 SDHI 4 sq.

Ulp. D. 9, 2, 27, 15.

Ulp. D. 9, 2, 27, 18 ("quasi rupent").

222Ulp. D. 9, 2, 27, 19.

223Ulp. D. 47, 2, 27, 3; Iul. D. 9, 2, 42.

224Ulp. D. 9, 2, 27, 24.

Proc./Ulp. D. 9, 2, 29, 2 (". . . parvi refert navem immittendo aut serraculum ad

navem ducendo an tua manu damnum dedens"); Schipani, Lex Aquilia, pp. 341 sqq. 226 Ulp. D. 9, 2. 27, 23.

- Ulp. Y). 9, 2, 27, 25, It ripe grapes were cut down and then taken away this was not damnum iniuria datum but could be furtum or contempt iniuria (in the sense of the actio iniuriarum). For a discussion of Ulp. D. 9, 2, 27, 25, see Birks, (1981) 16 The Irish Jurist 153 sqq.

22K ". . . non negat fractum et ustum contineri corrupt! appellatione": Ulp. D. 9, 2, 27, 16. 224 Ulp. D. 9, 2, 27, 16.

230Andrews, (1987) 46 Cambridge LJ 325 sq.

231Ulp. D. 9, 2, 27, 35.

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6. The limits of the notion of "corrumpere"

Even within the wide notion of "corrumpere", however, certain additional limitations were inherent. First, it required that the object involved had to have deteriorated. The actio legis Aquiliae could therefore not be brought against a person who castrated somebody else's slave and thereby rendered him more valuable.232 Secondly, there was no corrumpere unless the object in question was changed in some way.233 Thus, the sowing of tares or wild oats into somebody else's crops gave rise only to an actio in factum:

". . . nam alia quaedam species damni est ipsum quid corrumpere et mutare, ut lex Aquilia locum habcat, alia nulla ipsius mutationc applicare aliud, cuius molesta separatio sit."234

But this seems to have been a borderline case, for Ulpian came down (though somewhat haltingly)235 in favour of the actio legis Aquiliae in the rather similar situation that grain had been mixed up with sand.236 Closely related was (thirdly) a whole group of situations where the owner was deprived of a specific item of his property but where this piece of property was neither destroyed nor damaged (nor, incidentally, appropriated by the offender to his own use).237 Two friends take a stroll along the banks of the Tiber; one of them, while admiring the other's ring, inadvertently drops it into the river.238 A person knocks some coins out of somebody else's hand, so that they roll into the sea

232Viv./Ulp. D. 9, 2, 27, 28 ("Et si puerum quis castraverit et pretiosiorem fecerit, Vivianus scribit cessarc Aquiliam, sed iniuriarum ent agendum . . ."); cf. also Ulp. D. 9, 2, 27, 17. The fact that no Aquilian action could be brought in these cases may, alternatively, have been due to the absence of damnum. The third chapter started off with the words "si quis alteri damnum faxit", before it proceeded to specify "quod usserit fregcrit ruperit". It is, however, not clear how damnum must be understood. Does it refer to the actual damage done to the object concerned (cf. e.g. Liebs, (1968) 85 ZSS 197; MacCormack, (1970) 5 The Irishjurist 172)? Then it would scarcely have any independent significance, but would merely be a summarizing reference to whatever has happened to the object by means of urere frangcre rumpere (or rather: corrumpere). Or docs it refer to the loss caused to the owner of the object (cf. e.g. Daube, Studi Solazzi, pp. 98 sqq.; von Liibtow, Lex Aquilia, pp. 132 sqq.; Hausmaninger, Lex Aquilia, p. 31), so that urere trangere rumpere was relevant in terms of chapter three only if it resulted in such loss? Only in the latter case could one say that, even though an object had been subjected to a rumpere iniuria, liability could still be negatived by a further factor, namely the absence of damnum. Cf, on D. 9, 2, 27, 28 in this context, von Liibtow, Lex Aquilia, pp. 132 sqq.; Birks, (1981) 16 The Irishjurist 160 sqq. As far as the term "damnum" is concerned, cf, above all, Daube, Studi Solazzi, pp. 93 sqq.; Liebs, (1968) 85 ZSS 173 sqq.

233MacCormack, (1975) 41 SDMI 6.

234Cels./Ulp. D. 9, 2, 27, 14; Geoffrey MacCormack, "Celsus quaerit: D. 9, 2, 27, 14", (1973) 20 RIDA 341 sqq.

235He advocated an action on the rather contorted basis of quasi corrumperc.

236Ulp. D. 9, 2, 27, 20 ("Item si quis frumento harenam vel aliud quid immiscuit, ut difficilis separatio sit, . . ."), On the divergence between D. 9, 2, 27, 14 and D. 9, 2, 27, 20 cf. Hausmaninger, Studi Grosso, vol. V, p. 268.

"7 On these cases, cf. von Liibtow, Lex Aquilia, pp. 180 sqq.; J.L. Barton, "The Lex

Aquilia and Decretal Actions", in: Daube Noster (1974), pp, 15 sqq.; MacCormack, (1975) 41 SDHI 30 sqq. 238 Alf. D. 19, 5, 23.

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or down a drain.239 A boar that has been trapped in A's boar trap is released by В and thus regains its natural liberty.240 Or take another variation of the pannum rubrum case: somebody waves a red flag, but this time the startled cattle do not fall over a precipice but merely

stampede, and are not seen again.241 In all these cases, an actio furti does not lie.242 Nor can the ring, the coins, the boar or the cattle be said to

be "corrupted". Yet, the owner has undoubtedly incurred a loss, but it is damnum sine laesione corporis. It is for this reason that the plaintiff can resort only to an actio in factum, not to the actio legis Aquiliae. Only Sabinus appears to have been prepared to extend the scope of chapter three by equating irretrievable loss with physical destruction243—a view, however, that did not find much support.244

Finally there was the issue of "other men's meat":245 cases where one person inflicted loss upon another by putting some item of his wealth precisely to its proper use: eating other people's food, drinking their wine, using their incense, or trampling their grapes to make wine. "Si quis alienum vinum vel frumentum consumpserit, non videtur damnum iniuria dare ideoque utilis danda est actio", says Paul,246 and in these instances it can scarcely have been the lack of laesio corporis that made him reject the possibility of Aquilian liability: the food is chewed up and swallowed, the grapes burst under the offender's feet, etc. It is not clear, however, whether destruction in the course of proper user was nevertheless taken not to constitute "corruption" in terms of chapter three,247 or whether, as Birks has suggested,248 the issue turned around the "iniuria" requirement: (cor-)ruptiones, which are in harmony with the natural order of things do not amount to (cor-)rumpere iniuria.

239 Sab./Ulp. D. 9, 2, 27, 21

240Proc. D. 41, 1, 55.

241

Cf. Ulp. D. 47, 2, 50, 4.

242In D. 47, 2, 50, 4, the flag-waver is held liable under the actio furti if he acted "furti faciendi causa". But where the waving of the flag is merely a silly practical joke ("lusus perniciosus") there is no theft. In some instances, the actio de dolo was available. On the relationship between actio de dolo and actiones in factum, see Alan Watson, "Actio de dolo and actiones in factum", (1961) 78 ZSS 392 sqq.

243Cf. Ulp. D. 9, 2, 27, 21 (often regarded as interpolated; cf. e.g. von Lubtow, Lex Aquilia, p. 181; but cf. MacCormack, (1975) 41 SDHI 31 sq.). To make things even more puzzling, Ulpian attributes to Sabinus also the opinion that an actio in factum was applicable (D. 9, 2, 27, 21 in fine). Did Sabinus possibly express different opinions on the question in different works (Barton, Daube Noster, p. 19)?

244"-phe suggestion chat a direct Aquilian action may lie in the circumstances can only be described as pretty startling": Barton, Daube Noster, p. 19.

245Birks, (1981) 16 The Irish Jurist 141.

246D. 9, 2, 30, 2.

247Cf. e.g. von Lubtow, Lex Aquilia, pp. 185 sq.

248(1981) 16 The Irish Juris! 141 sqq.; d. also the sequel in (1985) 20 The Irish Jurist 352 sqq. (under the title "Cooking the meat: Aquilian Liability for Hearths and Ovens" and concerning Ulp. D. 9, 2, 27, 10 and Coll. XII, VII, 8 (oven against party wall)—a case "of particular obscurity" (MacCormack, (1975) 41 SDHI 30); for further discussion of these texts, cf. von Lubtow, Lex Aquilia, pp. 162 sqq.; MacCormack, (1975) 41 SDHI 36 sqq.; Norr, Causa mortis, pp. 171 sq.).

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V.SOME ADDITIONAL REFLECTIONS

1.Causation in the Roman law of delict

Before proceeding to the other requirements of delictual liability under the lex Aquilia, two issues arising from the foregoing discussion still have to be considered. Delict has to do with human behaviour and with a harmful result. Both must be connected in a specific manner: the harmful result must have been caused by the defendant's conduct. The question thus arises whether the Roman lawyers developed or applied a specific doctrine of causation. And secondly: the range of application of the actio legis Aquiliae was, as we have seen, (surprisingly) limited. In particular, it did not cover cases where death or injury had only been brought about indirectly. However, even in these situations the plaintiff did not remain without protection: actiones in factum were available so as to extend the range of liability for civil wrongs in a suitable manner. What were the distinctive features of these remedies "on the case" and, in particular, what was their relationship to the actio legis Aquiliae?

(a)"Factual" and "legal" causation

The first of these two questions can be answered with a straightforward "no". The analysis of delict in terms of objective and subjective requirements, of factual and normative elements and, more generally, of abstract conceptual thinking, is thoroughly un-Roman. The issue of causation provides a good example. That a defendant cannot be held liable unless his conduct has in fact "caused" the injury is one of the few more or less universally accepted propositions of the modern law of delict. But what does that imply? When can the relevant causal connection between conduct and injury be said to be established? Hosts of theories have been developed to address the "never ending and insoluble problems" arising from these questions; theories which have, in view of their "ugly and barely intelligible jargon",249 not seldom even contributed to the "uncertainties and confusions which continue to surround the legal use of causal language".250 Thus, one often encounters a very basic distinction between factual causation and legal causation.251 Factual causation is usually defined in terms of the sine qua

249Overseas Tankships (U.K.) Ltd. v. Marts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] AC 388 (HL) at 423, 419.

250H.L.A. Hart, A.M. Honore, Causation in the Law (2nd ed., 1985), p. 1 (the standard work in the field).

251Cf. e.g. Boberg, Delict, pp. 380 sqq. (an exceptionally lucid account of Aquilian

liability in the South African usus hodiernus); cf. also Hart and Honore, op. cit., note 250, p. 110 ("bifurcation of causal questions"); Dieter Giesen, Internationa! Medical Malpractice Law (1988), pp. 163 sqq.

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non ("but for") test.252 To apply it, one has to ask whether, but for the defendant's (wrongful) conduct, the harmful result would have occurred. If it would, that conduct has not caused the harmful result; it cannot be counted among its necessary conditions.253 Whether or not the sine qua non test (which, after all, involves a process of elimination in thought)254 can really be said to reduce causation to a pure question of fact and merely to reflect scientific notions of physical sequence, the main problem is that it casts the net of liability far too widely. It has been pointed out above that the phrase "to injure somebody else's life", as used in § 823 I BGB, is taken to mean "to cause (that person's) death";255 and "causing death", in turn, is usually interpreted in terms of the sine qua non test: "to furnish a condition without which the death would not have occurred." Hence the daunting prospect that a motorcar manufacturer might be liable for any accident in which his cars are subsequently involved (had he not produced the car, nobody could have been killed by it) or that a parent may be held responsible for the crimes committed by his children (if one eliminates in thought the acts of conception, the specific crimes in question would not have been perpetrated).

This is where a second unquestioned premise of the modern law of delict comes in: the defendant cannot be liable merely because his conduct has "in fact" caused the harmful result. Some means must be found of limiting his liability.256 Fault is not sufficient for this purpose, for it would hardly be acceptable either, from the point of view of social policy, to establish liability wherever harm has been culpably caused. Such a regime would stifle, for instance, all forms of lawful competition. What is required, is "a policy-based mechanism for eliminating from the causal net these factual consequences for which it would be unreasonable or undesirable to impose liability".257 Should one258 therefore limit the actor's liability to those consequences that were

2=2 Cf. e.g. Hart and Honorc, op. cit., note 250, pp. 108 sqq.; A.M. Honore, "Causation and Remoteness of Damage", in: Internationa! Encyclopedia of Comparative Law, vol. XI, 7, nn. 106 sqq.; Fleming, Torts, pp. 173 sqq.; for South Africa cf. e.g. Minister of Police v. Skosana 1977 (1) SA 31 (A) at 33 sqq.

253On the use of the term "condition" and on the (German) " Aquivalenztheorie", cf. Hart and Honore, op. cit., note 250, pp. 431 sqq.

254And therefore, in a way, presupposes what it sets out to prove, on the basis of a priori conclusions derived from experience. For criticism of the sine qua non test, cf., for example, the discussions by Honore, op. cit., note 252. nn. 108 sqq and Boberg, Delict, pp. 383 sqq.; cf. also e. g. Jurgen Rodig, Die Denkform der Alternative in derJurisprudenz (1969), pp. 115 sqq.

255Supra, p. 977.

256Boberg, Delict, p. 380.

257Boberg, Delict, p. 387; cf. also Fleming, Torts, pp. 173, 181 sqq.; Hart and Honore, op.

cit., note 250, passim, e.g. pp. 88 sqq.

25H For an overview of the different theories that have been developed, cf. Bobcrg, Delict, pp.

439 sqq.; Honore, op. cit., note 252, nn. 67 sqq.; Fleming, Torts, pp. 181 sqq.; Lange,

Schadensersatz, pp. 51 sqq.

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reasonably foreseeable at the time of acting?259 Or perhaps rather to those that flowed directly from his conduct, without the operation of a novus actus interveniens (irrespective of whether the specific result in question was reasonably foreseeable)?260 Or should one require the causal bond between conduct and harmful result to be "adequate" in the sense that, according to common experience, the result can be regarded as a normal or natural consequence of the conduct?261 Does one have to focus on the purpose of the rule violated and eliminate all those consequences that are not covered by its protective scope?262 Or would it be more appropriate in this context to activate the requirements of wrongfulness and fault and to ask not (as has traditionally been done) whether the defendant's conduct was wrongful and culpable in abstracto, but whether it was wrongful and culpable in relation to the harm complained of?263 Does one have to establish (and limit) two causal connections: namely that between the defendant's conduct and the harmful result (existence of liability) as opposed to that between the harmful result (for instance: the injury to bodily integrity or life) and the resulting damages (extent of liability)?264 These are a few of the criteria suggested and some of the issues canvassed in modern legal literature. Two things are obvious: since we are dealing with questions of legal policy265 rather than with logic or scientific notions, the idea of a specific province of legal causation (as opposed to factual causation) seems to be unsound and misleading. And secondly: causal questions cannot sensibly be discussed in isolation. They frequently interrelate with wrongfulness and fault as well as with broader policy considerations.266 To try to isolate an explicit doctrine of causation

259The leading case embracing the foreseeability test is The Wagon Mound (supra, note

249). For a detailed analysis (and a proposed restatement) of the foreseeability test, seeJ.C. Smith, Liability in Negligence (1984), pp. 91 sqq., 131 sqq.

260Leading case (dethroned by The Wagon Mound) In re Polemis (In re an arbitration between Polemis and Furness, Withy & Co. Ltd.), [1921] 3 KB 560 (CA), but cf. Bacon's maxim "in jure non remota causa sed proxima spectatur" which is analysed byjoscph H. Beale, "The Proximate Consequences of an Act", (1919-20) 33 Harvard LR 633 sqq.

261On the so-called adequate cause theory cf, for example, Lange, Schadensersatz, pp. 57 sqq.; Hart and Honore, op. cit., note 250, pp. 465 sqq.

Prevailing view in modern German law; cf, in particular, Ernst von Caemmerer, "Das Problem des Kausalzusammcnhangs im Privatrecht", in: Gesammelte Schriften, vol. 1 (1968), pp. 395 sqq.; Lange, Schadensersatz, pp. 76 sqq.

263This approach is strongly urged by Boberg, Delict, pp. 274 sqq., 380 sqq. On the

difference between the abstract and the relative concept of negligence, cf. the clear analysis by W.H.B. Dean, "Culpability or Remoteness", (1974) 91 SALJ 47 sqq.

264 "Haftungsbegrundende Kausalitat" as opposed to "haftungsausfiillende Kausalitat"; cf. e.g. H;.rt and Honore, op. cit., note 250, p. 85; Lange, Schadensersatz, pp. 54 sq.;

Zimmermann, 1980 Juristenzeiturtq 16.

2fi5 Cf. eg. Andrews J in Pahgraf v. Long Island Railroad Co. (1928) 248 NY 339 at 352, 162 NE 99 at 103: ". , . because of convenience, of public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics."

26 This point is made particularly clearly with regard to Roman law by MacCormack,

Studi Sanfilippo, vol. I, p. 283.

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