!!Экзамен зачет 2023 год / The Law of Obligations

from the Roman sources would therefore be a doubly inappropriate endeavour.

(b) The Roman approach

Of course, the Roman lawyers did not grant an action, if there was no "causal" connection between harmful result and the defendant's conduct. But this was more a matter of common sense than of conceptualizing and applying logical or philosophic notions.2(S7 There is no evidence for the use by the jurists of a specific theory of causation. Even the phrase "causam mortis praestare" was used as a term of common parlance rather than as a vehicle for the reception of Greek philosophical discussions on causation;268 and the idea of a conditio sine qua non, though known and used as an argument to establish or to reject liability in other contexts,26y hardly ever surfaces in our texts dealing with the lex Aquilia. These texts always take for granted that the defendant's conduct did cause the injury. What remained to be discussed was merely whether the specific manner in which the injury had been brought about justified the application of the lex Aquilia or merely of an actio in factum.270 The answer to this enquiry, in turn, did not depend on considerations of causation either. The narrow scope of chapters one and three was not attributable to the fact that the Romans of the 3rd century в.с. should have been unable to conceive of the idea of indirect causality;271 it was merely determined by the (linguistic) meaning of the operative verbs.272 "Occidere, urere, frangere, rumpere" all implied, as a matter of course, that death or injury had to have been "caused" by the defendant, but so did "causam mortis praestare". Yet the specific terms had once been chosen in order to describe as clearly and forcibly as possible an action that was manifestly and palpably wrong; and it was this traditional core meaning which was perpetuated by way of a restrictive interpretation. The decision whether a particular act was a direct or indirect cause of damage therefore did not depend "on an abstract exercise in causation. It (was)

267 Karoly Visky, "Die Frage der Kausalitat aufgrund des D. 9, 2 (ad legem Aquiliam)", (1979) 26 RID A 475 sqq., 501; MacCormack, Studi Sanfilippo, vol. I, pp. 263 sqq.; c(. also e.g. Lord Dunedin in Leylattd Shipping Co. Ltd. v. Norwich Union Fire Insurance Society [1918] AC 350 (HL) at 362 (". . . question . . . to be determined by common-sense principles").

26H Cfthe comprehensive analysis of this phrase in philosophical, rhetorical and legal literature by Norr, Causa mortis, passim.

269 For a detailed analysis, see Reinhard Willvonscder, Die Verwendung der Denkfigur der "conditio sine qua non" bei den romischen Juristen (1984), pp. 32 sqq.

27" Willvonseder, op. cit., note 269, pp. 12 sqq., 194.

271Dieter Norr, Essays Honore, p. 205 writes: "If that were right we would have to conclude that the Romans, a warlike people, did not properly understand what they were doing when they killed enemies or criminals by starvation." The argument is developed in greater detail in Causa mortis, pp. 2, 122 sq.

272Particularly clear on this point is Andrews, (1987) Cambridge LJ 315 sqq., 328.

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firmly anchored in the interpretation of . . . one of the . . . operative words of the lex Aquilia."273

(c) Concurrent causation

What did this approach imply with regard to notorious problem areas such as concurrent causation?274 Take the case of a slave who is mortally wounded by A. Before he dies, however, he receives another wound from В which immediately kills him. Application of the conditio sine qua non test poses a problem. If we put the test question: "Would the slave have died but for A's conduct?", the answer is clearly "Yes". The same applies if we ask: "Would the death have occurred if В had not intervened?" Neither A nor B, therefore, seems to have caused the death: hardly an acceptable result. It could be avoided by accepting a sine qua non relation, if the harmful result would not have occurred in this specific manner and at this specific moment without the interference of A (or B). But would one then not have to hold a surgeon liable who has "caused" his patient's death in the course of an unskilful operation, even though the patient would not have survived a skilful operation either?275

The Roman lawyers were not hemmed in by this or any other dogma and decided the case according to their understanding of the word "occidere". "Celsus scribit", reports Ulpian,276

"si alius mortifero vulncrc percusserit, alius postea exanimavcrit, priorem quidcm non teneri quasi occiderit, sed quasi vuineravcrit, quia ex alio vulnere periit, posteriorem teneri, quia occidit. quod et M arcello videtur et cst probabilis."

Undoubtedly, according to Celsus, Marcellus and Ulpian, В has committed "occidere". A, on the other hand, has not directly brought about the slave's death. B's action intervened and (as a modern lawyer might say)277 "broke" "the chain of causation". A's conduct can therefore not be labelled "occidere"; liability can arise only under chapter three of the lex Aquilia. But this solution was not undisputed. Julian took the view that both В and A were liable under chapter one:

273MacCormack, Studi Sanjitippo, vol. I, p. 282.

274Sec, generally, Honore, op. cit., note 252, nn. 130 sqq.; Hart and Honore, op. cit., note 250, pp. 205 sqq.; Ernst von Caemmerer, "Das Problem der iiberholcnden Kausalitat im Schadcnsersatzrecht", in: Gesammette Schriften, vol. 1 (1968), pp. 411 sqq.; Lange,

Schadensersatz, pp. 110 sqq.

7э Honore, op. cit., note 252, n. 111. This is only one of the conundra raised by the sine

qua non test. For exceptions and alleged exceptions to the conditio sine qua non rule, sec Honore, op. cit., note 252, nn. 119 sqq.

276D . 9, 2, 11, 3.

277Cf. e.g. Honore, op. cit., note 252, n. 130 read in conjunction with nn. 77 sqq. Cf.,

in this context, Weld-BlundeU v. Stephens [1920] AC 956 (HL) at 986: "Perhaps one may be forgiven for saying that В snaps the chain of causation; that he is no mere conduit pipe through which consequences flow from A to C, no mere moving pan in a transmission gear set in motion by A; that, in a word, he insulates A from C"; on which, see A.L. Goodhart, "The Third Man or Novus Actor Intcrveniens" (1951) 4 Current Legal Problems 190: "My only comment is that four metaphors do not constitute one argument."

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"rursus Aquilia lcge tcncri cxistimati sunt non solum qui ita vulnerasscnt, ut confcstim vita privarcnt, scd ctiam hi, quorum ex vulnere certum esset aliqucm vita excessurum."27H

It is the action of inflicting a fatal wound as such that must be termed "occidere"; as long as death is certain to result from it, it does not matter whether it occurs immediately or only after a while.279 This conception of occidere, incidentally, was also the reason why Julian calculated the period determined in the "quanti id in eo anno plurimi merit" clause from the moment the slave received the mortal injury.280 At this stage he had already committed occidere. Celsus, in line with

the argument advanced in D. 9, 2, 11, 3, regarded the moment of death as crucial.281

2.The actio legis Aquiliae and analogous remedies

(a)Actio directa and actiones in factum

We may now turn to our second question. The actio legis Aquiliae was proposed in the edict, the actiones in factum were not. It was therefore not on account of a specific promise, contained in his "annual statute",282 that the praetor was prepared to grant an action, but he decided on the allegations in each particular case and on the basis of his general imperium whether that would be the equitable and appropriate thing for him to do. How exactly the formulae of these actiones in factum were drafted, we do not know; but we can safely assume that they were very closely modelled on the ones applicable to the actio legis Aquiliae (directa). If we take the second of the cases mentioned by Ofilius as an example,283 the intentio may have read "Si paret Nm Nm servum A1 A' in insidias deduxisse causamve mortis praebuisse . . ,".284 The essential facts of the case, as alleged by the plaintiff, had to be specifically stated; of course, they could not be summed up by the term "occidere", for the whole point of applying for an actio in factum was to escape the narrow interpretive confines of this term. The actiones in

2™ lul. D. 9. 2, 51 pr.

274 But see also Ulp. D. 9, 2, 15. 1, where Iulianus is purported to have adopted the same view as Celsus. This contradiction has given rise to a host of speculations. The three texts D. 9, 2. 11, 3, D. 9, 2, 15, 1 and D. 9, 2, 51 and the problem of the "overtaking cause" have frequently been discussed; cf., in particular, Karl-Heinz Schindler, "Ein Streit zwischen Julian und Celsus", (1957) 74 ZSS 201 sqq.; David Pugsley, "Causation and Confessions in the lex Aquilia", (1970) 38 TR 163 sqq.; von Liibtow, Lex Aquilia, pp. 59 sqq.; MacCormack, (1975) 41 SDHI 26 sqq.; Visky, (1979) 26 R1DA 486 sqq.; Hans Ankum, "Das Problem der 'iiberholenden Kausalitat' bei der Anwcndung dcr lex Aquilia im klassischen romischen Recht", in: De iustitia et iure, Festgabe fur Ulrich von Liibtow (1980), pp. 325 sqq.; Lawson/Markesinis, pp. 30 sqq.; Willvonseder, op. cit., note 269, pp. 144 sqq.; Norr, Causa mortis, pp. 181 sqq,; Hausmaninger, Lex Aquilia, pp. 17 sq.

2m Cf. Ulp. D. 9, 2, 21, 1; supra, p. 961, note 69. 2MI Cf. Ulp. D. 9, 2, 21, 1; supra, p. 961, note 69.

282 Frier, Roman Jurists, p. 44,

2ЯЗ Supra, p. 981, note 196.

284 Norr, Causa mortis, p. 158.

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factum were possibly slightly more streamlined than the actio directa in that certain features of the latter, which had come to be regarded as rather odd or as outdated, were not grafted onto the former. Thus, the praetorian actions for indirect damage may not have entailed litiscrescence (they could, in other words, be granted only as an actio in simplum),285 they may have simply been for "quanti ea res erit" (rather than requiring calculations running forwards or backwards) and they may have lost certain of the penal attributes of the actio legis Aquiliae.285 Generally speaking, however, the plaintiff was no worse off if he could proceed "only" under an actio in factum rather than under the actio directa; more particularly, at least in classical law, he was not exposed to the vagaries of an entirely discretionary decision on the part of the praetor, for actiones in factum appear to have been

granted as a matter of course. They served to extend the protective ambit of the lex Aquilia by way of analogy:287 the only difference to the

modern argumentum per analogiam being that we would approach the issue from the point of view of substantive law whereas Roman law was actional law: it was, first and foremost, not the analogous rule as such that had to be carved out, but the analogous remedy that had to be provided (ubi remedium ibi ius).

(b) Actiones utiles

Furthermore, there were a variety of situations where neither the actio directa nor an actio in factum but an actio utilis was granted. Some of the cases of indirect causation fall into this category,288 and so do certain instances where Aquilian-type protection was accorded to nonowners.289 Under the lex Aquilia, it was only the dominus (erus) who could sue,290 but, at least by the time of classical law,

Barton, Dattbe Nosier, pp. 21 sqq. (who argues that this explains the "hostility" and "viciously restrictive [attitude]" of the classical lawyers towards the actio directa; they wished to force plaintiffs to use praetorian actions in the greatest possible number of cases, because they could thus avoid the inequitable doubling of damages); Norr, Causa mortis, pp. 149 sqq.; idem, (1987) 6 Д/ 111 sqq. (on the basis of a most ingenious reconstruction of the "drama" in front of the praetor, when the correct type of action had to be chosen).

286 Thielmann, Studi Biscardi, vol. II, pp. 314 sqq.

Cf. e.g. Walter Selb, "Formulare Analogien in 'actiones utiles' und 'actiones in factum' am Beispiel Julians", in: Studi in onore di Arnaldo Biscardi, vol. Ill (1982), pp. 315 sqq.

288Cf. e.g. UIp. D. 47, 8, 2, 20; Gai. D. 47, 2, 51; UIp. D. 9, 2, 27, 9; Paul. D. 9, 2, 30. 2.

289For an overview cf. von Lubtow, Lex Aquilia, pp. 169 sqq.; Kaser, RPr I, p. 622;

Hausmaningcr, Lex Aquilia, pp. 33 sq. Cf. also J.M. Thomson, Who Could Sue on the lex Aquilia? (1975) 91 LQR 207 sqq. He argues that the actio directa was granted to persons who were not strictly dominus. Only towards the end of the Republic and in the course of a general move towards an interpretative restriction of the lex Aquilia (cf, in another context, supra, p. 982, notes 198, 199) was the actio directa confined to owners and did the praetor

therefore have to devise analogous claims for non-owners. 290 Cf. supra, note 48.

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usufructuaries291 and pledgees292 were counted among those who could bring an actio utilis. Even the commodatary may, according to the opinion of Marcellus, have been able to avail himself of this remedy: for Marcellus that must have followed from his contention that the commodatary's custodia liability covered instances of damnum iniuria datum.293 Yet there are also cases where a non-owner was granted, rather oddly, an actio in factum: a tenant (provided he gave an undertaking that the lessor/owner would not himself institute an action),294 a bonae fidei possessor (when the object in question had been destroyed by the owner)295 and occasionally even the pledgee296 (who could resort, in other cases, to the actio utilis).297 What was the difference between these two types of actions, and why did one sometimes turn to the one and sometimes to the other? Originally, actiones in factum and actiones utiles appear to have been two separate

techniques by means of which the praetors were able to supplement, to correct and to adapt the ius civile.298 As far as the lex Aquilia is

concerned, the actio in factum was competent where the factual circumstances of a specific case did not fit in with the statutory verbs (occidere, urere frangere rumpere); an actio utilis, on the other hand, was the apposite remedy to extend the right to sue to persons other than the owner.299 With the final codification of the praetorian edict by Iulianus sometime around A.D. 130, the creative and innovatory activity of the praetors was practically stopped and the ius honorarium lost its flexibility. At the same time, the responsibility for the administration of justice shifted to the imperial courts and chancellery; closely connected

291Ulp. D. 7, 1, 17, 3; ("Si quis scrvum occiderit, utilem actionem exemplo Aquiliae fructuario dandam numquam dubitavi"); Ulp. D. 9, 2, 11, 10; but see the discussion by John Iliffe, "The Usufructuary as Plaintiff under the lex Aquilia according to the Classical Jurists", (1965) 12 RIDA325 sqq.

292But only "propter inopiam debitoris vel quod litem amisit" and limited "ad modum debiti": Paul. D. 9, 2, 30, 1. Normally, the actio legis Aquiliae was available to the pledgor/debtor, and it would have been inequitable to give an action against the wrongdoer both to the pledgor and to the pledgee. For details cf. Joseph Georg Wolf, "D. 20, 1, 27 Marc. 5 dig. Zur Aktivlcgitimation des Pfandglaubigcrs fur die actio legis Aquiliae", (1959)

76 ZSS 520 sqq.

293Cf. Ulp. D. 19, 2,41; contra: Iul./Ulp. D. 9, 2, 11, 9 (based on Iul. D. 13, 6, 19: "Ad eos, qui . . . utendum [aliquid] accipiunt, damnum iniuria ab alio datum non pertinere procul dubio est").

294Cels./Uip. D. 9, 2, 27, 14; for details: MacCormack, (1973) 20 RIDA 341 sqq.

295Ulp. D. 9, 2, 17; for details: Pernice, Sachbeschddigungen, pp. 190 sqq.; Felix Wubbe,

"Der gutglaubigc Besitzer, Mensch oder Bcgriff?", (1963) 80 ZSS 193 sqq.

296Ulp. D. 9, 2, 17.

297Supra n. 292.

29R Cf. Pap. D. 1, 1, 7, 1 ("Ius praetorium est, quod praetorcs introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatcm publicam"); Marci. D. 1, 1, 8 ("Nam et ipsum ius honorarium viva vox est iuris civilis").

299 Cf, in particular, Walter Selb, "Actiones in factum und Formeltechnik", in: Festschrift fiir Heinrich Demelius (1973), pp. 230 sqq.; idem, Studi Biscardi, vol. Ill, pp. 312 sqq.; idem, "Formulare Analogien in actiones utiles und actiones in factum vor Julian", in: Studi in onore di Cesare Sanfilippo, vol. V (1984), pp. 729 sqq.; Max Kaser, " 'Ius honorarium' und 'ius civile' ", (1984) 101 ZSS 95 sqq.

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with those developments was the rise of the new cognitio procedure ("extra ordinem"). As a result, the intricacies of the conceptiones formularum were of less and less practical relevance and no longer interested the jurists very much.

"Nee rcfert directa quis an utili actione agar. vel conveniatur, quia in extraordinariis iudidis, ubi conccptio formularum non observatur, hacc suptilitas supervacua est, maximc cum utraque actio eiusdem potestatis est eundemque habct effectum",

says Paul;300 and if even the distinction between "actio directa" and "analogous claim" was regarded as a cumbersome and rather unnecessary subtlety, how much less appreciation can one expect for the outmoded difference between different types of analogous claims! Gaius, in fact, already made the first attempt to simplify matters: he used the term "actio utilis" whenever a claim was granted on the model of the actio legis Aquiliae directa.301 Most of the other lawyers, however, continued to use the traditional terms. But since all that mattered to them was that both the actiones utiles and actiones in factum had the effect of extending the range of application of the lex Aquilia, they employed both phrases, entirely promiscuously, whenever they referred to an action other than the actio directa302—hence the enormous terminological confusion in our sources.

(c) Justinian's rationalization

Justinian, in turn, even added to this confusion. In his Digest he perpetuated the terminology as employed by the classical jurists. Obviously it was not inappropriate, under those circumstances, to attempt to provide some kind of rational explanation in his statutory textbook. He probably adopted the one currently in use at the EastRoman faculties of law303 and thus arrived at the famous threemembered classification in Inst. IV, 3, 16:304 actio legis Aquiliae directa in cases of damnum corpore corpori datum, actio utilis where the damage corpori had not been brought about corpore,3115 actio in factum "si non corpore damnum fuerit datum neque corpus laesum

3(M1D. 3, 5, 46, 1. 301 III, 219.

302

Selb, Festschrift Demelius, pp. 223 sqq.; idem, Studi Biscardi, vol. Ill, pp. 328.; but cf. also Hasse, Culpo, pp. 36 sq.; Pernice, Sachbeschadigungen, pp. 145, 157 sqq.; Schulz, CRL, p. 591; Kaser, RPrl, p. 621; idem, (1984)101 ZSS 101; Thielmann, Studi Biscardi, vol. II, pp. 303 sqq.; Paul van Warmclo, "Les actions autour de la loi Aquilic", in: Studi in onore di Amaldo Biscardi, vol. Ill (1982), pp. 351 sqq.; Honsell/Mayer-Maly/Selb, p. 367; Gunter Wescner, "Utiles actiones in factum", in: Studi in onore di Emilio Betti, vol. IV (1962), pp. 503 sqq.

303Van Warmclo, Studi Biscardi, vol. Ill, p. 360.

304On which see, for example, von Lubtow, Lex Aquilia, pp. 209 sqq.; Paul van Warmelo, "The Institutes ofjustinian as Students' Manual", in: Studies in Justinian's Institutes in memory o/J.A.C. Thomas (1983), pp. 175 sqq.

305That [St tne caSes where an object was damaged, but not as a direct consequence of a physical action of the wrongdoer.

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fuerit, sed alio modo damnum alicui contigit."306 This scheme, of course, had little to do with the historical truth;307 nor did it really correspond with the sources contained in the Digest.im Still, it was not without elegance; and since, in any event, the whole question was devoid of any practical relevance, it survived the centuries essentially unchallenged. Down to the days of the pandectists, Justinian's threefold classification was faithfully preserved,309 but it was noted that for all practical purposes there was no difference between the various types of actions.310

That is, cases where the owner was deprived of the use of his object which, in turn, was, however, neither damaged nor stolen; cf. the examples supra, pp. 986 sq.

307 Thomas, Institutes, pp. 274 sq. writes with mild irony: ". . . the imperial assertion in respect of the niceties of a system of procedure several centuries out of use may be received with scepticism."

ЗП8 ?f already Pernice, Sachbesdicidigungen, pp. 144 sqq. Von Liibtow, Lex Aquilia, pp. 135 sqq., 180 sqq., 202 sqq., cf. also idem, (1984) 30 Labeo 317 sqq. has, however, argued chat lint. IV, 3, 16 reflects the position in classical law. Cf, for example, Gliick,

vol. 10, pp. 334 sq.

31(1 Windscheid/Kipp, § 455, n. 3.

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CHAPTER 30

Lex Aquilia II

I. THE STATUTORY DEFINITION OF THE DELICT: INIURIA

1. Damnum iniuria datum

(a)The notion of "поп iure facere"

"Occidere" and "urere frangere rumpere" were relatively straightforward, predominantly factual and descriptive requirements of the Aquilian delict. Matters were more intricate when it came to the notion of iniuria,1 as contained in chapters one and three. Only "damnum facere" of a specific kind could be labelled as a private wrong and it was the complex concept of "iniuria" that gave the action of the defendant its distinctly delictual flavour. A stabs to death B's slave who is lying in ambush to rob him.2 С pulls down his neighbour's house to keep a fire off his own.3 The aedil D smashes some beds that have been left lying around in via publica so as to endanger the traffic.4 E enters a slave of his for a public boxing and wrestling contest (pancratium) in the course of which the latter is killed by his opponent F.5 There can be no doubt that in all of these cases we are dealing with damage that has been directly inflicted: with "occidere" (A and F) or "corrumpere" (C and D) in the most literal and manifest sense of the words. And yet, it would scarcely be appropriate to award damages to B, to the neighbour, to the owner of the beds or to E. Why not? Because, as we would put it, in none of these instances had the damage been wrongfully inflicted.6 For the Romans, this was the first, and possibly the most obvious, implication of "iniuria": "Iniuria ex eo dicta est, quod non iure fiat: omne enim, quod non iure fit, iniuria fieri dicitur."7

"[O]ne of the most impressive achievements of the Roman legal mind": Lawson/ Markesinis, p. 19,

2Cf. Gai. D. 9, 2, 4 pr.

3Cf. Cels./Ulp. D. 9, 2, 49, 1.

4Cf. Ulp. D. 18, 6, 13.

5Cf. Ulp. D. 9, 2, 7, 4.

6For the modern concept of wrongfulness, cf. e.g. Jean Limpens/Robert M. Kruithof/ Anne Meinertzhagen-Limpens, "Liability for One's Own Act", in: International Encyclopedia of Comparative Law, vol. XI, 2 (1983), nn. 28 sqq.; Erwin Deutsch, Haftungsrecht, vol. I (1976), pp. 190 sqq.; Boberg, Delict, pp. 30 sqq. In French legal science, no clear distinction is drawn between unlawfulness and fault; both are taken to be implicit in the concept of faute, as contained in art. 1382 code civil; cf. e.g. Zweigert/Kotz, pp. 356 sqq.

7Ulp. D. 47, 10, 1 pr.; cf. also Ulp. D. 9, 2, 5, 1 ("Iniuriam autem hie accipere nos

oportet . . . quocl non iure factum est, hoc est contra ius . . ."); Paul. Coll. II, V, 1 ("Generaliter dicitur iniuria omne, quod non iure fit"); Inst. IV, 4 pr.; for a discussion cf.

998

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Normally, one did not have to worry very much about this element of wrongfulness, for, as a rule, it was inherent in the very acts of killing and of injuring. Anybody who committed "occidere" or "urere frangere rumpere" could prima facie be said to have acted wrongfully.8 But there were certain exceptional situations, where the equation occidere/urere frangere rumpere = occidere/urere frangere rumpere iniuria did not work out; situations where, as the modern lawyer would say, the injury, although it had been inflicted both directly and intentionally, was justified.9

(b) Self-defence

Self-defence was the first of these grounds of justification. "Vim vi repellere licere Cassius scribit idque ius natura comparatur":10 natural reason permits a person to defend himself, even if he has to resort to violence. Of course, there were certain limits to the right of selfdefence. It was admissible only against an unlawful attack. Thus, if A was assaulted by В and threw a stone to defend himself, he was still liable if the stone did not hit B, but the innocent passer-by С;11 С had not launched the attack against A, and any infringement of his bodily integrity was therefore unlawful. Furthermore, the attack had to be

Pernicc, Sachbeschiidigungen, pp. 26 sqq., 34 sqq.; Schipani, Lex Aquilia, pp. 51 sqq., 296 sqq.; Peter Birks, "The Early History of iniuria", (1969) 37 TR 163 sqq.; von Lubtow, Lex Aquilia, pp. S3 sqq., 94 sqq.

H A similar argument is usually adopted as far as the interpretation of § 823 I BGB is concerned and hence the distinction, even in the interpretatio moderna of the German statutory version of Aquilian liability, between direct injuries on the one hand, and those brought about indirectly and liability for omissions on the other. Here the wrongfulness of the defendant's behaviour has to be positively established (did he owe a duty of care to the plaintiff and did he act in breach of this duty? The enquiry is thus very similar to the one conducted in English law in order to establish "negligence" (cf., for example, infra, p. 1039, note 264); it involves the balancing of conflicting interests and is thus ultimately a matter o( public policy; cf. e.g. Fleming, Torts, pp. 125 sqq.; Boberg, Delia, pp. 33 sqq.); there the element of wrongfulness is taken to be automatically satisfied and is removed only if a specific legally recognized defence can be invoked. Cf. Ernst von Caemmerer, " Wandlungen des Deliktrechts", in: Gesammehe Schnften, vol. 1 (1968), pp. 478 sqq.; Hans Stoll, "Unrechtstypen bei Vcrletzung absoluter Rechte", (1963) 162 Archiv fur die civilistische Praxis 205 sqq. For a similar distinction in South African law, cf. Boberg, Delict, pp. 32 sq.; cf. also J.C. Smith, Liability in Negligence (1984), pp. 26, 29 sqq. and passim.

4 Cf., in particular, Peruke, Sachbesdia'digungeti, pp. 34 sqq.; Ben Beinart, "The relationship of iniuria and culpa in the lex Aquilia", in: Stitdi in onore di Vincenzo Arangio-Ruiz, vol. I (1953), pp. 282 sqq.; Lawson/Markesinis, pp. 19 sqq.; Hausmaninger,

Lex Aquilia, pp. 20 sqq.

10 Ulp. D. 43, 16, 1, 27; cf. also Gai. D. 9, 2, 4 pr. (". . . nam adversus pericuh m naturalis ratio permittit se defendere"); Paul. D. 9, 2, 45, 4 ("vim enim vi defendere omnes leges omniaque iura pcrmittunt"); Alfred Pernice, Labeo, vol. II, 1 (2nd ed., 1895), pp. 73 sqq.; Paul van Warmelo. "Noodweer", 1967 Acta Juridica 10 sqq; Giannctto Longo, "Sulla legittima difesa e sullo stato di neccssita in diritto romano", in: Sein und Werden im Recht, Festgabe fur Ulrich von Lubtow (1970), pp. 321 sqq.; Hausmaninger, Lex Aquilia, pp. 20 sq.; Andreas Wackc, "Defence and necessity in Aquilian liability", (1987) 20 Dejure 83 sqq. On the philosophical justification of defence in terms of the ius naturale and the ius gentium, cf.

Stephan Kuttner, Kanonistische Sclmldtehre von Gratian bis aufdie Dekretalen Gregors IX (1935), pp. 334 sqq.

1 Paul. D. 9, 2, 45, 4.

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imminent. Use of force against a person who has already completed his attack cannot be justified, since it constitutes an act of revenge, rather than self-defence: "ilium . . . solum qui vim infert ferire conceditur, et hoc, si tuendi dumtaxat, non etiam ulciscendi causa factum sit."12 And finally, even if the attack was both unlawful and imminent, the prospective victim was not allowed to resort to unreasonable and excessive means in order to try to ward it off.13 Of course, if one's life was threatened, one was allowed to kill the attacker.14 But if an imminent theft could have been prevented by arresting the thief, it was not permissible quite simply to stab him to death.15 If somebody was hit with a whip and, in the resulting brawl, poked out one of the attacker's eyes, he had not acted iniuria;1Л but if a shopkeeper, whose lantern was taken away, pursued the thief, got hold of him, tried to snatch back his lantern and, in the course of doing so, put out the thief's eye with a spiked whip17 which he was carrying, he was accountable for the injury inflicted.18-19

(c) Necessity

If we turn our attention to the second of the above-mentioned

12Paul. D. 9, 2, 45, 4; cf. also Cockrofl v. Smith (1705) 11 Mod Rep 43.

13Cf. also Limpens/Kruithof/Meinertzhagen-Limpens, op. cit., note 6, n. 168 ("'The force used in defence must be proportionate to the attack"); Fleming, Torts, p. 77 ("The force used must not exceed what reasonably appears to be necessary to beat off the attack"),

§227 II BGB.

14U!p. I). 9, 2, 5 pr. ("Sed et si qucmcumque alium ferro se petentern quis Occident, non videbitur iniuria occidisse").

13LJlp. D. 9, 2, 5 pr. (". . . sin autem cum posset adprehendere, maluit occidere, magis

est ut iniuria fecisse videatur"); cf. also Cook v. Beal 1 Ld Raym 176 at 177.

16Alf. D. 9, 2, 52, 1.

17Or sword-cane: flagellum, in quo dolor inerat.

IM Alf. D. 9. 2, 52, 1. The taker of the lantern was, incidentally, not treated as a thief in this text; the incident, from which the scuffle developed, was probably nothing but a "drunken prank": ct~. Geoffrey MacCormack, "Aquilian Studies". (1975) 41 SDHI 46 sq. For a full interpretation of Aif. Г). 9. 2, 52, 1 from the point of view of defence, see Wacke, (1987) 20Dc_/im?88sqq.

The Roman sources thus contained all the essential elements stilt constituting the justification of self-defence in modern law; cf. Limpens/Kruitbof/Meinertzhagen-Limpens, op. cit., note 6, nn. 167 sqq.; Fleming, Torts, pp. 76 sq.; § 227 BGB. For details of the historical development cf. Hans Schmitt-Lcrmann, Die Lehre von der Notwehr in der Wissenschaft des getneineti Strafrechts (1930), pp. 12 sqq.; Kuttner, op. cit., note 10. pp. 334 sqq.; cf. also Van Warmelo, 1967 Acta Juridka 10 sqq., 15 sqq. (Roman-Dutch law); Wacke, (1987) 20 De Jure 86 sq. Bartoius and Baldus labelled the three requirements restricting the right of defence "circa causam" (the causa of the act must be defence not revenge), "circa tempus" (attack must be imminent) and "circa modum" (the requirement of paritas armorum). Christian doctrine had some difficulty in reconciling the right of self-defence with Christ's admonition in his Sermon on the Mount: "But I say unto you that ye resist not evil: but whosoever shall smite thee on thy right cheek turn to him the other also" (St. Matthew 5, 39). A whole variety of arguments were advanced in the course of time: Christ did not intend to abrogate the ius naturalc (implication: natural law and the teachings of the Bible have equal ranking!); a person who allowed himself to be killed without offering resistance was like a person who committed suicide, and suicide is a tresspass against God (cf. Andreas Wacke, "Der Selbstmord im romischen Recht und in der Rechtsentwicklung", (1980) 97 Z.SS32 sqq.).

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