Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

PARTICULAR DELICTS AND TORTS

what they say in the other case, i.e. the damage was not so connected with the defendant's act as to be imputable to him. Was it 'too remote' ? The answer is most difficult. It has been put in many ways. Was the act the proximate cause ? Was the damage a' direct' consequence ? Was it reasonably foreseeable P1 Was there a nova causa interveniens ? As has been said above, this is the way in which the Romans seem

to have looked at the matter. But difficult as the question is with us, difficult as it is to reconcile the various decisions and dicta on the matter, it must be admitted that the Roman authorities are still more unsatisfactory. It seems quite impossible to gather a conclusion of principle from the scanty texts. It seems true to say that apart from simple cases, such as those above mentioned where a man is mortally wounded but is actually killed by a second wound from another, or vis maiory or negligence of a surgeon, they never really faced the question of remoteness. It is a fair excuse to say that the difficult problems caused by modern industrial developments never arose, and were probably inconceivable to them.

3. INIURIJ

The delict of iniuria, which primarily means outrage or insult, has the special interest that, like our trespass,2 it was originally a remedy of a rather narrow scope which ultimately became the remedy for a large number of wrongs of very varied character. It is less comprehensive than trespass and its derivatives, because, as we have seen, Roman law had more independent roots for the law of delict than our law had, but it still covered a very wide area. Originally limited to provisions in the XII Tables for fixed penalties for assaults, called iniuriae? these being no doubt the only kind of insult to which a primitive people is

1This was the test adopted by the Privy Council in The Wagon Mound, [1961] A.C. 388; but cf. Smith v. LeechBraine E* Co. Ltd., [1962] 2 Q.B. 405.

2But see p. 341, note 1, ante.

3XII Tables, S. 4.

sensible, it was first modified, though not extended, by the Praetor, who substituted penalties assessed by the court for the ancient fixed penalties which had become derisory with the change in value of money.1 This was followed by other edicts which were real extensions, i.e. they dealt with many other forms of contumelious conduct with which a less civilised age had not concerned itself.2 By the beginning of the Empire, however, the Praetor's first general edict had come to be understood as covering also these other cases.3 Thus the later edicts became unimportant, except that they tell us what was an iniuria^ so that the term still covered only a limited group of cases. Then in the hands of the earlier classical lawyers the term iniuria was held to cover any contumelious conduct whether included in these edicts or not. Finally, and still in the classical age, the view was reached that any wanton infringement of anyone's rights was to be treated as contumelious and thus an iniuria^ giving the actio iniuriarumA The extension gave no help in negligence, since there must be intent to insult, but it gave a remedy in many cases for which our law has provided in other ways. The difficulty felt and surmounted in Ashby v. White',5 where a man was prevented from voting, would have been no difficulty for Ulpian: it was a clear case of iniuria. There was no action for simple trespass, per se, but trespass to land after prohibition, or even without prohibition on land which one knew to be barred, such as a private house or a preserve, was an iniuria.6 Seduction of a daughter, or even an attempt to seduce, was an iniuria with no need to appeal to the notion of loss of service by which our law has provided

a remedy.? Indeed iniuriae are innumerable.

1Lenel, Ed. Perp. 3rd ed. pp. 399 sqq,

2Lenel, he. cit. 3 See, e.g., D. 47. 10. 1. 1, 15. 3.

4See, on this evolution, Jhering, Aet[o iniuriarum; French translation, de Meulenaere.

5(1703), 2 Ld. Raym. 938.

6D. 47. 10. 15. 31, 23; p. 102, ante.

7D. 47. 10. 1. 2, 10, 15. 15; C. 9. 35. 2.

38O PARTICULAR DELICTS AND TORTS

As the action was based on insult it had special rules, notably that intent to insult must appear and that anger must have been shown so soon as the facts were known.1 It is clear, however, that so far as the final extension is concerned intent to insult was presumed: 'res ipsa loquitur*.

We have seen2 that the Romans had no general conception of abuse of rights, and that the texts indicate no general rule that the exercise of a right without any economic purpose but solely with the view of insulting or annoying another person was an iniuria?

One important case of iniuria is defamation. The question whether it was in writing or not appears to be indifferent in Roman law, so far as liability is concerned, though no doubt it might make a difference in the assessment of damages. But the basis of the liability is different. It rests not on loss of reputation but on outrage to the feelings, so that it was not necessary to liability that it should have been published to a third party. This at least seems to be the trend of the texts, though it does not seem to be explicitly laid down. An insulting letter to me would seem to be an iniuria even though no one else saw it.4 There was a special Edict about convicium> or public insult.* A number oftexts deal with iniuriae done infamandi causa. Famosi libelli are differentiated from other iniuriae in the rubric of D. 47. 10 and have a special title in the Code,6 no doubt because there were special enactments about them. But here too publication does not seem to be necessary: to have anything to do with any such thing at any stage was an iniuria^ Indeed to see such a thing and not at once destroy it was a criminal offence in later law.8 And no doubt the penalty in the actio iniuriarum would be

more severe where the matter was actually published. As with us, in civil actions, truth of the allegations made was a complete defence,1 and there does not seem to have been any protection against raking up old stories. The need for intent to insult the person who was insulted prevented the questions which have arisen in our law, where a writing does in fact hold up a man to ridicule, but clearly was not so intended,2 though if the intent was to insult me it was no defence in Roman law to show that there was a misunderstanding as to my identity.3 So too there could be no liability on a publisher or the like in respect of the content of a book, unless he actually knew of it.

There were cases which correspond to our absolute privilege. Thus no action could be brought against one's patron for an iniuria^ though there is a text which says it could be brought against a magistrate5 even for what was said in his official capacity. But though this appears as a general proposition in the Digest, it is probable that it was of much more limited scope in earlier law. Oil the other hand there was nothing like qualified privilege and no need for it, since the 'malice' which would exclude our qualified privilege had to be shown in all cases; nor is there any trace of a defence on the lines of our 'fair comment'.

Some forms of iniuria were also criminal from early times, and it seems that in later law all forms of it were.6 It does not appear that the principles were in any way different from those of the civil forms: in particular there is no sign, in the criminal treatment of the matter, of the

1 D. 47. 10. 18. pr.\ McPherson v. Daniels (1829), 10 B. and C. 263. 'For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to, possess',

382 PARTICULAR DELICTS AND TORTS

rule that it was necessary to prove in defence that the public interest was served by the publication or of the doctrine that 'the greater the truth the greater the liber.

It is perhaps worth while to add that in some cases iniuria to be actionable had to be gross (atrox\ for instance, where it was done to a slave, since only in that case did it reflect on the master,1 and that naturally enough where it was atrox the damages were on a higher scale. This rule also brings out another point. Though the insult might on the face of it apply only to the person to whom it was addressed, it might, and in some cases necessarily would, have a reflex action on others. Thus an insult to &jiliusfamilias was also one to his paterfamilias; an insult to a woman was also one to her husband, but not vice versa? In Roman law it was no iniuria to defame the character of a deceased person, but insult to his body or to his funeral was iniuria for which the heres could sue.3 Similarly with us, defamation of the deceased is not actionable in damages at the suit of his family, but criminal proceedings will lie if the libel amounts to a 'vilifying of the deceased with a view to injure his posterity'. That is our nearest approach to a remedy available to one person for an insult to another, except that a 'husband may sue for any special damage which has accrued to him through the defamation of his wifeM

It should be noted in conclusion that though our law knows no such tort as outrage or iniuria^ this does not mean so much as it seems at first sight to mean. There are a number of cases in our law in which 'exemplary* or 'vindictive' damages may be given, either because the actual money damage cannot be measured or because, though it can be measured, it would in no way correspond to the

heinousness of the wrong. If the cases are looked at it will be seen, as Sir Frederick Pollock notes,1 that they are all cases which would come within the Roman notion of iniuria. But there is an important difference: in all these cases some other substantive tort must have been committed before this principle comes into play, so that the fact that the act was outrageous does not of itself make it a wrong. Wanton and wilful trespass on a man's property is a case in point. The practical outcome may not be greatly different, as our law of tort is more comprehensive than the Roman law of delict, but it is not quite the same. To call a man an offensive name when no one else hears it is not in our law a tort, though in Roman law it would be an iniuria^ if it could be proved. But, even here, the artificial principles of our law have provided a remedy, though not a civil remedy. To call a man by an opprobrious name is not per se a tort, but, on the one hand, if it can be construed as a threat it may lead to proceedings to obtain recognisances to keep the peace or for good behaviour,2 and, on the other, it might be construed as an act directly provoking a breach of the peace and so constitute a punishable offence.3

4. DOLUS

Though an action of deceit has existed in our law from very early times,4 it was at first confined to * trickery in legal proceedings', and, till relatively modern times, to what we now call contract, falsity of warranties and the like. It was not, it seems, till 1789, that in Pasley v. Freeman^ the Court recognised a definite tort called deceit, having no necessary relation to contract. The wrong was equally unknown to the early Roman law, but it appeared

1 Pollock, cit. 15th ed. p. 141.

2 Stone's Justice's Manual, 95 th ed. pp. 343-347.

3Stone, cit. p. 717.

4Jenks, Short History of English Law, 5th ed. p. 139.

53 Term Rep. 51.

384 PARTICULAR DELICTS AND TORTS

at a relatively much earlier date than with us when Aquilius Gallus introduced it in the time of Cicero, in what may fairly be called the infancy of scientific law. The general field of the action of deceit and the actio doli are, at any rate for the earlier classical period, much the same; the actio doli lies for deceitful and fraudulent manoeuvres by which a person, contemplated specifically or generically, is damaged. But there are serious differences. One is perhaps only apparent. In our law the fraud must actually have induced the act causing the damage, while this is not laid down in the Roman law; but as it is laid down that it must have deceived and must have been serious it may perhaps be said that res ipsa loquitur.1

Another difference is more important. The actio doli had a much narrower field than the action of deceit. It was essentially a subsidiary action, aimed at restoration of the status quo ante^ and, in principle, was not allowed where there was or ever had been any other way of recovering what was due.2 Thus, while it is clear from our reports that the action of deceit is very commonly brought where the facts arise under a contract and between the parties to it, this could not happen in Rome, since the contractual action would always be available and would exclude the actio doliJ> It seems also to have been narrower in another sense. As with us, the false representation need not have been made actually to the person who suffered if it was intended that he should act on it, but this seems to be applied in the texts only to cases where the representation was made to my procurator or agent and I suffered.4 The facts in

1 D. 4. 3. i.pr.y 7. 10, 9. 5. See also pp. 198, 284.

2D. 4. 3. 1. 4 sqq.; there were exceptions, which we need not consider.

3In D. 4. 3. 37 there is an apparent exception; words of commendation by a vendor not such as could be imported into the contract might give an actio doli if they were intended to and did deceive the buyer. Presumably they would have given a good defence in the action on sale. But the relevant passage is almost certainly either corrupt or interpolated.

4E.g., D. 4. 3. 7. 9.

Langridge v. Levy1 would probably have given an actio utilis under the lex Aquilia^ which would exclude the actio doliy but, even apart from this, it does not seem that an actio dolt would have been available. There is no trace in the texts of liability for statements addressed to a wide class, like those in a prospectus of a company or a railway time-table, giving an action to anyone misled and damaged thereby, who can show that he is a member of the class to whom the fraudulent statement was addressed ;a but this may mean no more than that such things did not occur in Roman life. The actio doli is also narrower in another important way. It seems clear that in the original conception of the action (and apparently it remained necessary throughout its history) there must have been a definitely dishonest intent, not necessarily an aim at personal profit, but intent to cause harm to the other party. Thus it does not seem that an actio doli would have lain on such facts as those in Polhill v. Walter^ where the assumption of authority though not made from a corrupt motive was certainly false to the knowledge of the maker, who, however, believed that it would be ratified and no harm would come to the person to whom the representation was made.

But dolus seems to have been wider in another sense. Its primary meaning is planned deception to the damage of another.4 So far it is clear and its operation creates no difficulty. But it has wider senses. Thus it is commonly used to mean simply dishonesty, with no element of planned deceit, as indeed it was in our earlier law where attempts were made to treat wilful non-performance of a contract as a form of deceit and so found a remedy for non-feasance by way of assumpsit^ The innumerable texts

1(1837), 2 M. and W. 516; (1838), 4 M. and W. 337.

2Peek v. Gumey (1873), L.R. 6 H.L. 377.

3(1832), 3 B. and Ad. 114.

4See the definitions in D. 4. 3. 1. 2.

5Fifoot, History and Sources of the Common Law: Tort and Contract,

PP- 332-334.