Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

346 DELICT AND TORT

Roman law was no better, for unless, as often occurred, the facts arose in connexion with a contractual or quasicontractual relation, the action ex delicto was the only remedy, and it died in principle with the wrongdoer.1 The rule that any enrichment to the heres resulting from the delict could be recovered from him is only a small corrective.2 On the other hand an action ex delicto was not in general affected in classical or later law by the death of the aggrieved party: the only important exception is the actio iniuriarum for personal outrage,^ and this exceptional treatment is presumably due to the fact that it is essentially, more than others, vindictam spiransA But it is also to be noted that the rule applied only to actions not yet begun: if the action had reached the stage ofjoinder of issue (litis contestatio) it was not affected by the death of a party, except that certain procedural modifications were necessary: it did not abate.5 It is indeed possible that in very early law all delictal actions died with the plaintiff, as they did in our law; with us, though very wide exceptions had been made by statute and in very early times, the rule still existed until 1934, when, subject to certain conditions and exceptions, it was abolished.6

This fundamental difference, i.e. that the action on delict is penal, not compensatory, had important practical results. Thus, subject to some limitations which we shall not consider, if several were engaged in a delict, each was liable for the full penalty, as indeed he is with us. But, as it is for a penalty and not for damages, even where, as in some cases, it really includes a compensatory element, the fact that one of them has paid, either under suit or otherwise, in no way releases the others: they are still liable to the penalty, a rule which may be referable to the difficulty

5See Pollock, he. cit. as to modern English law, and Buckland, he. cit.

6Law Reform (Miscellaneous Provisions) Act, 1934, sect. 1.

of subdividing vengeance.1 As to damage to property, we are told2 that what one has paid does not release the others, precisely for this reason, cum sitpoena. This is a very strong case, since here the compensatory element was very prominent: as we saw, unless there was a contract or the like, there was no means of recovery but this action, which, in favourable conditions, where there were several wrong-doers, might be extremely profitable. With us, on the contrary, judgement against one wrongdoer, even if unsatisfied, released the others,3 and (it is believed) satisfaction by one of a judgement against several wrongdoers barred any execution against the others. These were the common law rules; now, under the Law Reform (Married Women and Tortfeasors) Act, 1935, if the judgement against the joint tortfeasor is wholly or partially unsatisfied, the plaintiff can sue any other joint tortfeasor, but only for the residue.4 Moreover, at common law, anyone who fully satisfies judgement in an action for conversion acquires title to the goods converted. Another consequence of the penal aspect of delict is that liability was not destroyed by capitis deminutio of the wrongdoer, since although his legal personality was changed he remained the same man. It will be remembered that in our law there are certain morally reprehensible wrongs, liability for which survives even bankruptcy.

Penalty and compensation being distinct things, there was no question of action on contract or on delict as being, on given facts, alternative ways of recovering the same thing, and thus no question, in principle, of * waiving a tort*. But while this is reasonable in furtum where the penalty and the compensation are distinct things and recoverable by different actions, it might lead to injustice

tort-feasors.

where, as in actions under the lex Aquilia for damage to property, the penalty included the compensation. If there was also a contract, in careless performance of which the damage was done, there would be both actions and one would not formally bar the other. But to allow both actions was to allow double recovery in effect, and accordingly there was machinery, which we need not discuss, by which this was in fact prevented.1

3. PERSONAL CAPACITY

Another practical consequence of the fact that in Roman law an action on delict was one for a penalty for wrongdoing, was the rule that there was no liability in delict if the person who did the act was, as we say, ' not responsible' for his acts. Thus a person of unsound mind or an infans was not liable to an action ex delicto for, e.g., damage to property, because his acts were not properly imputable to him: 'quae enim in eo culpa sit cum suae mentis non sit V?

The fact that an action lay for damage which had been done by an animal and that there was an alternative of surrender

(noxae deditio) in this action {actio de pauperie)! just as where a delict was committed by a slave, so that it is apparently contemplated as a delict, may seem to throw doubt on this conception. But the actio de pauperie is extremely ancient* and existed no doubt in a time when, as in the Middle Ages, no one saw any difficulty in imputing guilt to an animal, or perhaps it would be better to say, when the notion of guilt as an element in imputability was not clearly grasped—who breaks, pays. The contrast with our law is at first sight sharp. The common law principle seems to be that a person of unsound mind is liable for his tort,5 which does not look very logical, since tort seems to imply wrongful conduct and it is difficult to attribute that to such a person. It is, no doubt, in conformity with our rules of

trespass to property, also ancient, under which a man is liable for trespass even though he does not know and has no means of knowing that he is trespassing. The test question would be: Is a person of unsound mind liable for infringement of an absolute right ? But in fact there is little authority on the subject of liability of such persons for tort, and it is said1 that nowadays he would probably not be held liable if the evidence showed that, from disease of mind, he did not know what he was doing. In any case the old rule is more intelligible in a system in which the action is for compensation than in one in which it is for a penalty. It is, however, worthy of notice that in France, where there is strict liability for damage done by things which one has under one's care, the Courts have recently held that a person of unsound mind is not responsible for killing a man with a revolver, his irresponsibility bringing his case within the exceptions of casfortuit and force majeure? As to infants there is plenty of authority, ancient and modern, for the rule that in our law infants are liable for tort. All the cases, however, seem to deal with infants of a larger growth, persons who are infants in our technical sense, i.e. are under twenty-one, persons who are old enough to know what they are about, not with infants in the Roman sense, that is, children too young to have intellectuS) to understand the nature of the act done, let alone to appreciate its wrongfulness or its consequences. From the language of the older books^ and modern textbooks* it seems that it is generally held that on this matter

1Halsbury, vol. 29, sect. 801.

2In many of the continental codes the solution is on the following lines:

(1)the person of unsound mind is not liable for tort; (2) if someone responsible for his care could have prevented the wrongful act, that person is liable; (3) otherwise the judge takes into account all the circumstances, including the relative economic positions of the person of unsound mind and his victim, and orders payment of such sum as he considers equitable out of the former's estate. See Winfield, Tort, 7th ed. pp. 83-85 and notes.

3E.g. Bacon's Abridgement) s.v. Infancy.

4E.g. Winfield, cit. pp. 72, 73; Salmond, Torts, 13th ed. pp. 77, 78.

Roman law shows a similar concurrence of remedies in contract and in delict. Thus, in addition to an action on the contract, an Aquilian action lay for the delict of damage to property where a workman, hired to do a piece of work, damaged the property entrusted to him.1 If we do not find the same in the actto doli^ this is because that action was subsidiary, subordinate, and was in general not allowed if there was any other remedy.2

One of the most difficult questions in Roman law arises where an act is such as would normally give rise to an action under the lex Aquilia on the ground that the doer has been guilty of culpa, but has actually been done in connexion with the performance of a contract, e.g., deposit, when the doer is liable contractually only for dolus. On the whole it seems that if the act is actually done as part of the performance of the contract, the Aquilian action does not lie, but only that on the contract; but that if the act is really independent of the contract, though it might not have occurred had the contract not been made, the Aquilian action will lie. However, good authorities have differed on the point, which must be considered unsettled. In English law, a similar question might arise where a person lends gratuitously or makes a gift of a chattel which he did not know but ought to have known was dangerous, and the chattel does damage to the recipient. However, in English law the tendency has been hitherto not to differentiate contract and tort, but to say that the liability in tort is mitigated to the extent that liability in contract was mitigated in such cases in Roman law.3

1D. 9. 2. 27. 29: 19. 2. 13. pr.: 19. 2. 25. 7, etc.

2D. 4. 3. 1. 1. A similar notion seems to have existed with regard

to the action of Ca^se. Thus in Slade's Case (1604), 4 Co. Rep. 92 b one of the defendant's arguments, though unsuccessful, was that Case was an 'extraordinary action* and would not lie because Debt lay, and he added nullus debet actionem agere de do/o, ubi alia actio subest.

3 For an attack on what is here described as the English rule, see N. S. Marsh, (1950) 66 L.Q.R. p. 39.

CHAPTER XL PARTICULAR DELICTS

AND TORTS

1. THEFT

It is odd to our eyes to see Theft constantly treated in the Roman texts as a delktum^ i.e. a tort, though it would not seem so odd to an English lawyer of some centuries ago who was familiar with the Appeal of Larceny and the restitution of property which could be obtained upon a conviction.1 But furtum was also a crime and even the texts tell us that it was usually so handled,2 and theft in our law is also a trespass, though we hear much more of it as a crime. But as theft has requirements which trespass has not, closely resembling the requirements of furtum^ it seems more convenient and useful to compare/#r/#/# with larceny than with trespass to property. The law offurtum underwent great historical changes tending to greater definiteness and fixity of rule. The Digest contains texts representing the different stages in this development; this is convenient for the historical study of the subject, but, it must be supposed, it was rather inconvenient to those who had to use the book as a code of law and therefore is not very convenient when we desire to see just what the law was in the time of Justinian. The first point to note is that the Roman law, so far as we know it, never had our highly technical rule of asportation :3 the thing need not have been moved. But it had an almost equally technical requirement, that of contrectatio: the thing must actually have been handled, furandi animot As the penalty was based on the value of what was stolen, it is easy to see that

1Holdsworth, ii. p. 361.

2D. 47. 2. 93. Cf. P. W. Duff, [1954] C.L.J. 86.

3Kenny, Outlines of Criminal Law, 18th ed. p. 257.

4Inst. 4. 1. 1.

difficult questions would arise as to what has been actually handled. If I drew wine from a cask, had I 'contrected' all the wine in it ?l If I handled a box, had I handled its contents ?2 If I took one thing from a heap, had I handled the whole heap ?3 Further, at least for Justinian there must have been intent to gain dishonestly some economic advantage out of the thing—animus lucrandiA This animus lucrandi is not at all an easy conception to handle, but it has one important effect: wanton making away with a thing was notfurtum. If I threw your money into the sea, the remedy at least under Justinian was an action (utilis) under the lex Aquilia for damnumJ> In English law there may for a period have been a requirement of animus lucrandi but it seems to have disappeared in the nineteenth century.6

More striking is the fact that there was no need of intent to deprive the owner of his whole interest in the thing. Indeed here the rule was extraordinarily severe, in view of the fact that condemnation in an actiofurti involved infamia, with great resulting disabilities. If a depositee used the thing, or a borrower used it in unauthorised ways, without any bona fide belief that the owner would have consented if he had been asked, this wzsfurtumJ This is what Justinian callsfurtum usus. It is true that most of the specific applications of the principle are to cases in which the wrongdoer had already the lawful physical possession (not necessarily the legal possessio) of the thing; thus they do not actually decide the point which gave difficulty, and led to our legislation, in the so-called 'joy-riding* cases, of

1 D. 47. 2. 21. 5.

2D. 47. 2. 21. 8.

3Ibid,

4D.47. 2. I.3.

5D. 9. 2. 27. 21.

6R. v. Cabbage (1815), R. and R. 292; R. v. Jones (1846), 1 Den. 188; Kenny, cit. p. 297.

7G. 3. 196, 197; Inst. 4. 1. 6. 7.

354 PARTICULAR DELICTS AND TORTS

persons who took and later abandoned motor-cars in such a way that the owner would probably recover them, so that there was no proof of intent to deprive him of his whole interest. But there are texts which go beyond this, and others say in general terms that it w&sfurtum to make a profit out of the illicit use of another's goods.1 In D. 47. 2. 40 the words show that the borrower using in an unauthorised way is given only as an illustration of the wider rule that any unauthorised use may bzfurtum.

In principle, as with us, a theft must be of the property of some other person, but also, as with us, it was possible in various ways for the owner to be a thief. The results in the two systems are much the same, but they are reached by different roads. In Roman law, where the owner took the thing from one who had a right to possession of it as against him, he was said, under Justinian, to have stolen, not the thing, but the possession of it, e.g. where he took the thing from a pledgee.2 But though this conception fits the case of a pledge it does not fit others. A borrower had not in Roman law, as in ours, the possession of the thing, i.e. he had no possessory remedies, but only detention or what is sometimes called custody, such as that of a servant. But if he had a right of retention against the owner, e.g. for unusual expenses, and the owner took the thing, he had an actio furti? And where a thing belongs to A but B has a life interest (ususfructus), A is dominus and has technical possessio. As we have seen,* the life interest, limited in time, was not thought of as ownership, but as an * incorporeal hereditament* not susceptible therefore of possession.5 But if A takes the thing from B he commitsfurtumf* This is notfurtum possessionis, for the owner A already had possession but B had a right to hold the thing, as against A,

as in the case of a borrower with a ius retinendi. It is in fact a stronger case, for though 5, as the result of a highly technical conception of possession was not thought of as possessing, he had similar protection against third parties and was said to have quasi-possessio or possessio iuris.1 The

Roman law is therefore more correctly stated by saying that the owner could steal from one who had the right to retain the thing, as against him, leaving the technical question of possessio out of account. In our law we say, rather oddly, that the owner can steal from one who has a 'special property* in the thing, and though there are some cases in which this 'special property' has been created by statute, there does not appear to be any authoritative definition of it. The rule of our law seems however to be that any one with a right to hold the thing against the actual proprietor, whether he is technically a bailee or not, has the special property which makes wilful wrongful taking by the owner a theft. So far, with different terminology, the law is as in Rome. But there are old cases which make it larceny for the master to take a thing from his servant in such circumstances as will amount to a fraud against someone else, e.g.. he disguises himself and robs his servant of the goods, intending under the (then) existing law to claim the value from the hundred. Mr Justice R.S. Wright2 doubts whether this doctrine is still law, probably with reason. He seems inclined indeed, though without discussion, to reject nearly all cases of theft by the owner, apart from statutory rules, e.g. giving the Postmaster-General a special property in postal packets ;3 in any case, apart from this last type, the substantive law of the two systems seems to be much the same.

1 As to this see Buckland, Text-book, p. 197 and references, and Frag. Vat. 90, 91.

2 Pollock and Wright, Possession in the Common Law, pp. 139, 229.

3 See now Larceny Act, 1916, sects. 1(1 ) and also 1 (2) (iii), whereby 'owner' includes 'any part owner, or person having possession or control of, or a special property in, anything capable of being stolen'.