!!Экзамен зачет 2023 год / The Law of Obligations

Proof that he lacked the intention to insult did not (in any event not necessarily) exclude the wrongdoer's liability. Objective and subjective ingredients were inextricably interwoven within the concept of iniuria, and the relative weight attached to each depended, furthermore, on the type of injury in question. This makes it impossible to generalize. The most one can probably say90 is that here, as in many other instances, the Roman lawyers did not think in terms of specific, isolated requirements for liability that had to be satisfied, but tended to look at the typicality of a situation. Thus it is obvious from the examples contained in the Digest that the delict of iniuria only covered situations where dolus on the part of the offender could typically be presumed to have been present. "Conduct", in the words of Ranchod,91 "which was classified as iniuria usually did not occur without some form of dolus"; and while it would therefore be quite in order to refer to dolus as a characteristic ingredient of the different forms of contumelia iniuria, it would at the same time be wrong to assert that liability under the actio iniuriarum was strictly and necessarily confined to persons who could be shown to have acted with the intention to insult.

(c) Characteristics of the actio iniuriarum

Fourthly, the actio iniuriarum, on whatever basis it was granted, was of a purely penal nature.92 Like all other actiones poenales, it was therefore passively intransmissible.93 Unlike the others, however, it was also actively intransmissible,94 that is, it could not be brought by the heirs of the deceased victim of the insult. The actio iniuriarum was thus a strictly personal remedy; it was only the injured party himself who deserved to receive compensation for the disregarding of his personality.95 Although this compensation was of a financial nature, the claim was not held to be part of the injured party's property: "Iniuriarum actio in bonis nostris non computatur, antequam litem contestemur."96 Modern legal systems still retain this principle; thus, according to § 847 I 2 BGB, the claim for compensation in money for

90Cf., in particular, the detailed analysis by Raber, Injurienanspriiche, pp. 107 sqq.; further Bhadra Ranchod, Foundations of the South African Law of Defamation (unpublished Dr. iur. thesis, Leiden, 1972), pp. 12 sqq.; Pauw, Persoontikheidskrenking, pp. 17 sqq.; N.j.J. Olivier, Die aksie weens die nalatiqe veroorsaking van pyn en lyding (unpublished Dr. iur. thesis, Leiden, 1978), pp. 12 sqq.

91Op. cit., note 90, p. 15.

92Gai. IV, 112.

93Gai. IV, 112.

94Gai. IV, 112. For details, seeVTobias Johannes Scott, Die Geskiedenis van die Oorerfiikheid van Aksies op grand van Onregmatige Daad in die Suid-Afrikaanse Reg (unpublished Dr. iur. thesis, Leiden, 1976), pp. 13 sqq.; 31 sqq.

95Furthermore, the actio iniuriarum had to be brought within a year (while the resentment was still (reasonably) fresh): cf. C. 9, 35, 5; Kaser, RPr\, p. 625; but cf. Pugliese, op. cit., note 7, pp. 109 sqq.

96Ulp. D. 47, 10, 28.

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immaterial damages97 does not pass to the heirs, unless it has been acknowledged by way of contract or an action has been instituted.98 Finally, condemnation under the actio iniuriarum was for "quantam

pecuniam . . . bonum aequum videbitur"99 and involved infamia.100

III. THE USUS MODERNUS OF THE ACTIO INIURIARUM

1. "Mine honour is my life . . .'*

All in all, I think one can agree with Fritz Schulz:101 the actio iniuriarum afforded a strong and efficient protection against injuries to immaterial interests, and in particular against insulting behaviour of any kind. Reflecting, as it did, the high value attributed to the respect or esteem which a person enjoys within society,l02 it was bound to appeal to medieval lawyers: glossators, ultramontani and commentators alike.103 They lived within a society that prized good name, dignity and honour even more highly and imbued it with the spirit of the feudal codes of chivalry. For the source of the chivalrous idea "is pride aspiring to beauty, and formalized pride

Which is, however, unlike in Roman law, confined to two specific cases: injury to the body or health and deprivation of liberty. In particular, it docs not apply to situations where honour or reputation are impaired: cf. infra, p. 1092.

98This provision is widely criticized, however, and its abolition has been recommended de lege ferenda: cf. Hans-Joachim Mertens, in: Mutichener Kommentar, vol. Ill, 2 (2nd ed., 1986), §§ 52 sqq.; Gerhard Hohloch, in: Gutackten und Vorscklage гиг Uberarbeitung des Schuldrechts, vol. I (1981), pp. 442 sq. For South African law, see Scott, op. cit., note 94, pp. 190 sq. Here the old English adage of "actio personalis moritur cum persona" has occasionally been referred to, quite wrongly, as Scott, (1976) 39 THRHR 288 sqq. shows.

99Cf. Lend, EP, pp. 397 sqq.; Selb, 1978 Acta Juridica 29 sqq. As to the criteria applied, cf. Inst. IV, 4, 7. Details of the procedure are described by Gaius III, 224: "[P]ermittitur enim nobis a praetore ipsis iniuriam aestimarc, et iudex vel tanti condemnat quanti nos aestimaverimus, vel minoris, prout illi visum fuerit"; cf. also Paul. Coll. II, VI, 1. The matter was different, though, in cases which were referred to as iniuria atrox. Here it was not the plaintiff who made his own assessment of the injury (which the iudex could then reduce, at his discretion); it was the praetor who determined the appropriate amount (which the iudex in turn did not venture to reduce (cf. Gai. Ill, 224, second half))- The category of iniuria atrox was also used to determine when a libertus could sue his patronus (to whom he owed reverentia, pietas and obsequium; cf., for example, Ulp. D. 37, 15, 9) for contumelia: cf. Ulp. D. 2, 4, 10, 12; Ulp. D. 47, 10, 7, 2 and 3. For a classification of iniuriae atroces (ex facto, ex persona, ex loco), see Gai. III. 225; Ulp. D. 47, 10, 7, 8. For a general discussion, see Raber, Injurienanspruche, pp. 91 sqq. Occasionally it has been maintained (wrongly) that all injuries below the level of atrox were eliminated from the scope of the actio iniuriarum: cf. Manfred Herrmann, Der Schutz der Personlichkeit in der Rechtslehre des 16.-18. Jahrhunderts

(1968), pp. 12 sq. 1(10 Gai. IV, 182.

101CRL, p. 599.

102The technical term was "exisrimatio": cf. Call. D. 50, 13, 5, 1: "Existimatio est dignitatis inlaesae status, legisbus ac moribus comprobatus, qui ex delicto nostra auctoritate legum aut minuitur aut consumitur."

03 For an analysis cf. Robert Mainzer, Die astimatorische Injurienklage in dergeschichtlichen Entwicklung (1908), pp. 61 sqq.; Ranchod, pp. cit., note 90, pp. 32 sqq.; cf. also Herrmann, op. cit., note 99, pp. 17 sqq.

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gives rise to a conception of honour, which is the pole of noble life".104 "The purest treasure mortal times afford/", says Shakespeare,105 "is spotless reputation; that away/Men are but gilded loam or painted clay./A jewel in a ten-times-barr'd-up chest/Is a bold spirit in a loyal breast./Mine honour is my life; both grown in one;/Take honour from me, and my life is done."

Given the violent tenor of life in the Middle Ages, and the extreme excitability of medieval man,106 it is not surprising that honour and revenge were closely tied up with each other; in fact, the duel as a ritualized form of obtaining satisfaction for outraged honour survived, within certain segments of society, until well into our century.107 But revenge is a crude form of private self-help that can hardly be tolerated within any developed community. It is one of the principal functions of public authorities to see to it that disputes are settled in a peaceable manner.108 This can occur only if a satisfactory set of legal remedies is available; and just as, therefore, the actio legis Aquiliae came to be received for the recovery of damnum iniuria datum, so the actio iniuriarum (aestimatoria, as it was usually called) was adopted from the Romans in order to provide protection against interference with man's

104 Johan Huizinga, The Waning of the Middle Ages (trans. F. Hopman, Penguin reprint, 1982), p. 67; cf. also p. 68, where he points out that "[t]he thirst for honour and glory proper to the men of the Renaissance is essentially the same as the chivalrous ambition of earlier

times".

105 Richard II, Act I, sc. i, 1. 177 sqq. (also quoted by Jonathan Burchell, The Law of

Defamation in South Africa (1985), p. 18 and Leon J, in Payne v. Republican Press (Pty.) Ltd.

1980(2) PHJ44(D) at 111).

106 Cf. the magnificent first chapter of Huizinga's famous book (op. cit., note 104, pp. 9

Cf. generally K. Demeter, Duell, in: HRG, vol. I, col. 789 sq. More specifically on the medieval trial by combat, on the chivalrous tradition of jousting and on the "duel of honour" of the late Middle Ages, see V.G. Kiernan, The Duel in European History (1988), pp. 31 sqq. They were the direct ancestors of the modem duel which emerged in Italy amidst the chronic warfare of the 16th century. From there it spread to France and all other parts of Europe (including England which, in turn, exported it to her colonies); for details, see Kieman, pp. 46 sqq., 68 sqq. In the late 19th and early 20th centuries the historical origin of duelling became the subject of lively controversies among supporters and opponents of this social institution; the one side argued that it was historically and psychologically intimately linked to a specifically Germanic concept of honour, the other claimed that it was entirely alien to the German character and constituted a fateful and objectionable import from the frivolous Mediterranean countries (cf., in particular, the spirited comments by the historian

Georg von Below, Das Duell und der gertnanische Ehrbegriff (1896); for a balanced evaluation of these disputes, see Johannes Slawig, Der Kampf gegen das Duellwesen im 19. und 20. fahrhundert in Deutschland unter besonderer Berucksichtigung Preussens (unpublished Dr. phil. thesis, Minister, 1986), pp. 7 sqq.). For a discussion of the complex and ambivalent relationship between the social institution of duelling and the formal legal system, c(. Slawig, pp. 49 sqq. and, in particular, Warren F. Schwartz, Keith Baxter, David Ryan, "The Duel: Can These Gentlemen Be Acting Efficiently?", (1984) 13 Journal of Legal Studies 320 sqq. Schwartz, Baxter and Ryan base their observations on 19th-century American duelling conventions.

108 Hence the anti-duelling laws, the first of which were already enacted in the latter part of the 16th century. Among the German principalities, Saxony appears to have led the way. For details, see Slawig, op. cit., note 107, pp. 49 sqq.; Kiernan, op. cit., note 107, pp. 185 sqq., 191 sqq.

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(non-material) interest in his dignity and honour.109 The penal nature of the actio iniuriarum tied in well with the traditions of Germanic customary law,110 but its inherent flexibility rendered it superior to the system of fixed penalties prevailing in the latter. Thus, it was the more convenient aestimatio of the penalty that was taken over from the Roman sources, but, in its wake, the substantive concept of iniuria followed suit.111

2. The definition of iniuria

Down to the days of the Dutch and German usus modernus we therefore find iniuria, in terms of the actio iniuriarum, defined in the special sense of contumelia: "Hoc loco et in specie denotat [sc: iniuria] contumeliam a contemnendo", wrote Lauterbach112 and he added the following German equivalents: liEine Schmach, Verleumdung, Ehrenruhrige, verkleinertiche Wort und Werck." Some authors tried to be more specific; thus, for instance, Voet described iniuria as a wrongful act committed in contempt of a free man by another who thereby with evil intention impairs either his person, his dignity or his reputation (". . . delictum in contemptum hominis liberi admissum, quo ejus corpus, vel dignitas, vel fama laeditur dolo malo").113 Availing themselves of a distinction dating back to Labeo,114 most writers stated that iniuria may be committed by acts or words ("aut re aut verbis"). Iniuria litteris ("quae fit verbis contumeliosis in scripturam redactis")115 was either added as a third category116 or subsumed under either iniuria

109If one and the same act constituted contumely iniuria and satisfied the requirements of the lex Aquilia, and if therefore both immaterial and patrimonial loss was caused, the actio iniuriarum and the actio legis Aquiliae could be cumulated: cf. Voet, Conttnentarius ad Pandectas, Lib. XLVII, Tit. X, XVIII.

110Ekkehard Kaufmann, "Das spatmittelalterliche deutsche Schadensersatzrecht und die Rezeption der 'actio iniuriarum aestimatoria' ", (1961) 78 ZSS (GA) 93 sqq.

111Kaufmann, (1961) 78 ZSS (GA) 97 sqq.; cf. also Mainzer, op. cit., note 103, pp. 47 sqq.

113Collegium theoretico-practicum. Lib. XLVII, Tit. X, I. For further definitions of the

concept of iniuria, see Karlheinz Bartels, Die Dogmatik der Ehrverletzung in der Wissenschaft des gemeinen Reckts bis гит Ausgang des W.Jahrhunderts (unpublished Dr. iur. thesis, Gottingen, 1959), pp. 72 sqq.; Herrmann, op. cit., note 99, p. 51.

xxi Commentarius ad Pandectas, Lib. XLVII, Tit. X, I (trans by Melius de Villiers, The Roman and Roman-Dutch Law of Injuries (1899), p. 17). The triad of corpus, dignitas and fama is taken from Ulp. D. 47, 10, 1, 2. As in Roman law, the iniuria could be either "vel immediate per semetipsum, nulla alia persona interveniente" or "vel mediate per consequentiam" (Lauterbach, Collegium theoretico-practicum, Lib. XLVII, Tit. X, X; for details cf. Bartels, op. cit., note 112, pp. 150 sqq.). According to Stryk, Usus modernus pandectarum, Lib. XLVII, Tit. X, § 9, a man could be (indirectly) insulted by an insult inflicted upon his wife, but not vice versa ("Ita quoque uxori injuria illata marito illata esse censetur, . . . sed non vice versa"). Reason: "defendi uxores a vires, non viros ab uxoribus aequum est." On iniuria per consequentias in modern South African law, see J. Neethling,

Persoonlikheidsreg (2nd ed., 1985), pp. 70 sqq. ll4Lab./Ulp. D. 47, 10, 1, 1.

115Lauterbach, Collegium theoretico-practicum, Lib. XLVII, Tit. X, II.

116Cf., for example, Azo, Summa Codicis, Lib. IX, De iniuriis (p. 338, right column).

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realis or (more often) iniuria verbalis.117 A specific form of iniuria litteris, the libellus famosus, was often118 treated as a separate kind of delict.119 Voet, suggesting a somewhat fanciful12" analogy between obligations arising from iniuria and those arising from contract, added a fourth class of iniuriae quae consensu inferuntur.121 Others simply appended a general, salvatory clause (iniuria committitur facto, vel verbo, vel scriptura, "vel aliis multis modis").122 Many of the examples provided in 13thto 17th-century literature for each of these two, or three, or four modes of committing iniuria were still the ones123 discussed in title 10 of Digest 47: convicium facere and barbam dimittere as much as, for instance, comitem abducere or matronam honestam adsectari.124

3. Of hunchbacks, cuckolds, clergymen and flouncy skirts

More interesting, however, are the instances of injurious behaviour taken from contemporary practice rather than from Roman law. They are a valuable source of information about the mores of the time. Thus, it could be injurious to taunt a person with his natural impediment by calling him a cripple, or a hunchback, to refer to someone, ironically, as a "bonus patiens vir" (and thus suggesting that he was a cuckold), to state emphatically "ego saltern scortator non sum" (and thus insinuate that a particular other person is a fornicator), to use obscene language, particularly in the presence of a virgo, to address a clergyman "du Pfaff', or to use the familiar "du" when talking German to persona honorabilis.125 These are all cases of verbal injuries. Pulling faces, putting out one's tongue at another or kissing a woman against her will are examples of iniuriae reales.126 Iniuria litteris (in the form of the

117 Cf. Vinnius, lnstitutiones, Lib. IV, Tit. IV, 1.

"s But see, for instance, Voet. Commentarius ad Pattdectas, Lib. XLVII, Tit. X, X.

114 Cf. Lauterbach, Collegium theoretko-practkum, Lib. XLVII, Tit. X, LXVI sqq. (emphasizing, however, that famosus libellus "ab aliis injuriis nee Causa Efficicnte, nee Subjecto differt"). Perezius, Praelectiones, Lib. IX, Tit. XXXVI, appears to regard famosus

libellus and iniuria literis as synonymous ("Gravioris injuriae species cst, quae scripto ht"). 1211 De Villicrs, op. cit., note 113, p. 77.

121 Commentarius ad Pandectas, Lib. XLVII. Tit. X, XI ("Consulto demque injunam quis facit, si alteri injuriam fieri mandet, am generaliter procuret, ut alteri contumelia inferatur"), Joost van Damhouder, Praxis return criminal him, Cap. CXXXV also had four classes, but they were verbis, facto, scriptis and gestibus.

1 Angelus Arctinus, as quoted by Ranchod, op. cit., note 90, p. 32. On injuriae, quae in non faciendo consistunt (for instance: debitos alicui honoris titulos non tribuere, dominum aliquem non nominarc), see Leyser, Meditationes ad Pandectas, Spec. DXLIX.

'"* Cf., in particular, Leyser, Meditationes ad Pandectas, Spec. DXLVIII.

124 For a detailed exposition cf., for instance, Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, VII sqq. and De Villiers, op. cit., note 113, pp. 73 sqq.; Landsbcrg, op. cit., note 78, pp. 69 sqq.; cf. also Bartels. op. cit., note 112. pp. 128 sqq.

12:1 All these examples from Lauterbach, Collegium theoretico-practicum. Lib. XLVII, Tit. X, XVI, and Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, VIII. Cf. further the casuistry compiled by Bartels. op. cit., note 112, pp. 93 sqq.

l21' Lauterbach, Collegium theoretico-practicum, Lib. XLVII, Tit. X, XVII; Stryk, Usus modermts pandeciarmn, Lib. XLVII, Tic. X, § 7; cf. also the examples provided by Bartels, op.

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delict famosus libellus) covered "quamlibet scripturam infamantem, epigramma, carmen malum, satyram, picturam, historiam, comoediam".127 Eagerly discussed were questions of pre-eminence and precedence;128 for to refuse someone his rightful place at table, in a procession or at any other ceremonious occasion could constitute a grave insult within a hierarchically structured society, intensely concerned with rank, form and ritual.12'' A particularly interesting debate raged around the problem of insults inflicted by the clergy in the pursuit of their duties. Many a drastic invective seems to have emanated, in true Lutheran fashion, from protestant pulpits—and provides us with some inkling of the tight moral control exercised by the Church in those days. Thus, for instance, we hear of a superintendent in Saxony who was engaged in a strenuous fight against the fashion of wearing flouncy skirts.13" Having referred in one of his Sunday sermons to women wearing such "vainglorious" garments as brutes and whores, he did not hesitate on subsequent occasions to identify individual ladies sitting in his congregation. Pointing his finger at them, he exclaimed that they were conceited women with the head of a devil, doomed to suffer the fires of hell, and he refused to administer the Holy Communion to them. The women concerned and their husbands thereupon sued the superintendent, and the law faculty of the University of Halle, to which the matter was referred, opined in their favour. While it was acknowledged that the clergy had a duty to admonish and impel their congregations to adopt a virtuous course of life, there were still certain limits to how far they could go in publicly upbraiding individual members. Thus they were, in a way, privileged, but not exempt from being sued for contumely iniuria.131 This reflects the prevailing trend in the contemporary literature:

"[N]ec excipiuntur Clerici ct Ecclcsiae Ministri, si scil. non ex pictatis zelo, nee observatis gradibus admonitionis; scd privato affectu pro condone, vel alibi in certain personam injuriose invehunt, vcl eandem depingant, ut omnes intclligant, quis notetur."132

cit., note 112, pp. 108 sqq. Generally on iniuriae reales, see A. Ranjit B. Amerasinghe, "The law relating to Iniuriae reales", 1967 Actajuridica 159 sqq.; more specifically on ignominious gestures ("sannae"): Leyser, Meditationes ad Pandectas, Spec. DXLV.

127 Lauterbach, Collegium theoretico-practkum, Lib. XLVII, Tit. X, LXV1.

12A Cf. Going, pp. 513 sq.; Leyser, Meditationes ad Pandectus, Spec. DXLVI, XII (dealing with "alterum, cui dignior locus debetur, antegredi").

124 Cf., for the Middle Ages, Joachim Bumke, Hofische Kultur (1986), for example pp. 248 sqq. (seating order), 276 sqq. (court ceremonies); on the hierarchical conception of society, see Huizinga, op. cit., note 104, pp. 54 sqq.; Bumke, pp. 43 sqq.

13(1 Stryk, Usus modernus pandectantm. Lib. XLVII, Tit. X, § 3. 131 Cf. also De Villicrs, op. cit., note 113. pp. 98, 201.

n~ Lauterbach, Collegium theoretico-practicutn. Lib. XLVII, Tit. X, VI. Cf. also, for instance, Leyser, Meditationes ad Pandectas, Spec. DXLVIII, VIII.

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4.Animus iniuriandi

(a)Presumption of animus iniuriandi

"Zelus pietatis", "privatus affectus": these are subjective criteria, taking us into the field of what was usually referred to as animus iniuriandi. "Injuriae fundamentum est animus injuriandi":133 the intention to inflict contumely iniuria (that is: to impair the person, dignity or reputation of another) was the gist and hallmark of the actio iniuriarum.134 This pronounced emphasis on a purely mental element had been introduced into the sources—here as elsewhere—by Justinian's compilers ("nam maleficia voluntas et propositum delinquentis distinguit")135 and was therefore bound to become part of the heritage of the ius commune. Highly commendable under ethical auspices, animus iniuriandi as the decisive criterion for establishing iniuria is, however, unwieldy in practice: for it is often difficult, if not impossible, for the injured plaintiff to prove the specific intention behind the alleged wrongdoer's behaviour. From the time of the gloss, lawyers were therefore intent on alleviating the plaintiff's predicament and established a presumption that prima facie defamatory acts were committed with an intention to defame.l36 Thus it was incumbent upon the defendant to show that animus iniuriandi had been absent from his mind:

"Sin tales fuerint prolati sermones qui per sc ct propria significations contumeliam inferunt, injuriandi animus adfuissc creditur, eiquc, qui ilia protulit, probatio incumbit, injuriae faciandae consilium defuisse."137

Certain situations were, however, always recognized where such a presumption did not operate. Persons in a position of authority ("magistratus"), for instance, were not presumed to have acted animo

133Lauterbach, Collegium theoretico-practicum. Lib. XLV1I, Tit. X, XIX.

134"Quicquid enim fit animo ct intcntione iniuriandi aliumquc aut commovendi, aut laedendi" (Van Damhoudcr, Praxis Remm Criminatium, Cap. CXXXV); ". . . met ecn oogmerk om te beledigen, tot schending van icmands ecr" (Joannes van der Linden,

Regtsgeleerd, practicaal en Koopman's handboek (Amsteldam, 18(16), I. Bock, XVI Afd., § IV). For detailed analyses, see Ranchod, op. cit., note 90, pp. 34 sqq., 75 sqq.; Pauw,

Persooniikheidskrenking, pp. 37 sqq., 77 sqq.; cf. also Bartcls, op. cit., note 112, pp. 75 sqq.

135Paul. D. 47, 2, 54 pr.; Ranchod, op. cit., note 90, pp. 21 sqq. For a good summary cf. Jolowicz, as quoted by Ranchod, p. 21; "The compilers had no doubt a predilection for animus, particularly in the sense that when there was doubt as to the existence of a legal relationship they tended to seek the criterion in the intention of the party or parties concerned to bring about the particular relationship as it was known to the law, whereas the classical jurists had been content to decide the matter by applying objective legal rules to the facts, including of course the intention of the parties."

136Barrels, op. cit., note 112, pp. 81 sqq., 84 sqq.; Ranchod, op. cit., note 90, pp. 36 sqq.; Pauw, Persoonlikheidskrenking, pp. 48 sqq.

137Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, XX; cf. also Lauterbach. Collegium theoretico-practicum, Lib. XLVII, Tit. X, XIX: "Quod cum directe per testes aut instrumenta fieri nequeat, proin conjecturae et praesumptioncs quoque admittuntur; puta ex verbis et factis sua natura vel loci consuetudine injuriosis."

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iniuriandi.'38 This was usually justified with reference to D. 47, 10, 13, 1: "Is, qui iure publico utitur, non videtur iniuriae faciendae causa hoc facere: iuris enim cxecutio non habet iniuriam." Thus it was up to the plaintiff to establish abuse of authority on the part of the public official. Similar considerations prevailed in the case of teachers and other persons standing in loco parentis, who administered a (reasonable) chastisement to their charges. Nor could a person who had been consulted in his professional capacity be presumed to have acted with the intention to insult: a doctor (mistakenly) advising his patient that he suffered from leprosy139 or an astrologer calling his client a thief.140'141 Again, the behaviour of clergymen posed a problem: what, for instance, if they embraced a woman and gave her a kiss? Not everybody, after all, is fond of such intimate contact with his pastor.142 Yet, according to many, the clergyman was presumed to have acted benedicendi causa; others credited him with a (perhaps somewhat exaggerated) charitable zeal (". . . quod clericus, si deoscultetur mulierem, facere id praesumatur zelo charitatis").143 Some authors, however, were opposed to any kind of preferential treatment accorded to the clergy; "a tali charitate libera nos Domine", they exclaimed and proceeded to grant the actio iniuriarum.144

(b) Rebuttal of the presumption

If, then, apart from such exceptional cases, a presumption operated in favour of the plaintiff "puta ex verbis et factis sua natura vel loci consuetudine injuriosis",145 what could the defendant do in order to rebut it? He could show, for instance, that he had acted merely in jest.146 Mistake, too, could be a valid defence, though not, apparently, error in persona.147 Violent anger was sometimes taken to negative the defendant's animus iniuriandi, and thus he was not liable under the

138C(. Raiichod, op. cit., note 90, pp. 39 sq.; De Villicrs, op. cit., note 113, pp. 199 sqq.

139Voet, Commetttarius ad Pandectas, Lib. XLVII, Tit. X, XX.

1411 This case was the prototype: Ulp. D. 47, 10. 15. 13.

On the position of advocates using injurious language in their professional capacity, see the detailed analysis by Leyser, Meditationes ad Pandectas, Spec. DXLVII. Advocates do not appear to have enjoyed the best of reputations ("Vulgata est et quotidiana querela de improbitate et impcritia advocatorum"); cf. also Stryk (infra, note 289), § 5 (most advocates earn their money through squalid trials — particularly those involving the actio iniuriarum). 4" Cf. the case discussed by Stryk, Vsus madermis pandectarum. Lib XLVII, Tit. X, § 7 (". .

. si |clericus] foeminae invitae obtrudat osculum").

143Cf. the authorities referred to by Stryk, loc. cit.

144Stryk, ioc. cit.

145Lauterbach, Collegium theoretico-practicum. Lib. XLVII, Tit. X, XIX.

Bartels, op. cit., note 112, pp. 163 sq.; Ranchod, op. cit.. note 90, pp. 41 sq.; Pauw, Persoonlikheidskrenking, p. 57; De Villiers, op. cit., note 113, p. 195.

4 Pauw, Persoonlikheidskretikint;, pp. 52 sqq.; for a very detailed discussion, see Leyser,

Meditationes ad Pandectas, Spec. DL.

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actio iniuriarum for "quod calore iracundiae vel fit vel dicitur"148 unless he had persisted in these acts or statements after having had time to cool down. A blow inflicted in a sportive combat was not regarded as iniuria nor (interestingly) a swearword uttered by a chess-player against his opponent.144 Furthermore, a person could escape liability for an insult inflicted on another if he could show that he had merely retaliated (retorsio).150 While it was argued by some that, given the nature of human beings, one could hardly expect them to control themselves when provoked by the other person's defamatory statement,151 others maintained that the retorsion had not so much been made animo iniuriandi as rather honoris tuendi gratia.152 Truth could also constitute a valid defence against an actio iniuriarum, but the exact scope of the defence was much disputed.153 The prevailing view seems to have been that defamatory statements entailed liability, even if they were true. Only if exposure of the matter concerned was in the public interest, was the actio iniuriarum excluded154—for here it could be presumed that amor iustitiae,155 and not the desire to insult the other, had induced the defendant to make his allegation. Thus, for instance, the statement that someone is a leper constituted iniuria if that other person had already been identified as such by the authorities in charge of public health. If, on the other hand, his exposure led to his identification and subsequent removal from the community, the same statement did not give rise to an actio iniuriarum.156

Not infrequently, insulting remarks appear to have been accompanied by a protestation to the effect that no offence was intended:

148 Voet, Commentarius ad Pandectas, Lib. XLV1I, Tit. X, I in fine; cf. also Ranchod, op. cit., note 90, pp. 44 sqq.. 81 sq.; De VilHers, op. tit., note 113, pp. 33 sq.

14'' Reason: ". . . sicut fieri consucvit in ludis talibus": Azo, Commentarius ad sinyulas leyes Codicis (Parisiis, 1577), Lib IX, Tit. XXXV, L. 5.

b" Ranchod, op. at., note 90. pp. 48 sq., 82 sq.; De Villiers, op. cit., note 113, pp. 215 sqq. Cf. also the comprehensive analysis by Ernst Beling, Diegeschichtliche Entwickelung der

Retorsion und [Compensation von Beleidigungen und Korperverletzungcn (1894), pp. 1 sqq., 24 sqq., 67 sqq., 120 scjq., 153 sqq.

15IUlnch Huber, Heedendae&e Rechtsgeleertheyt, II Dec], III Boek. VIII Кар., 10.

152 Lauterbach, Collegium theoretico-practicum, Lib. XLVII, Tit. X, LVII. He maintains that retorsio is illicit in foro conscientiae (reason: "revera nihil alind est qnam privata vindicta") as well as in foro externo de Jure Civili: "Quamvis autem haec ita sese habeant, Moribus tamen nostris hoc remedium in toto tere Imperio est permissum, ita, ut retorsio in foro soli non sit punibilis" (LX). For a defence of retorsio ("Retorsione injuriarum meliores sunt et utiliores actionibus injuriarum"), see Leyser, Meditathvies ad Pandectas, Spec. DXLII, IX.

153 For a discussion, see Leyser, Meditationcs ad Pandectas, Spec. DLI. introducing his discussion with the words: "Urraque regula: Veritas convitii excusat; et veritas convitn non excusat; veraest"; Barrels, op. cit.. note 112, pp. 171 sqq., 181 sqq.; Ranchod, op. cit., note 90, pp. 49 sqq., 84 sqq.; cf. also Pauw, Persoonlikheidskrenking, pp. 54 sqq.; De Villiers, op. cit., note 113, pp. 103 sqq. The main authority on the matter was Paul. D. 47, U), 18 pr.: "Eum, qui nocentem infamavit non esse bonum acquum ob earn rem condemnari: peccata enim nocentium nota esse et oportere et expedire."

154Cf., for example, Voet, Commentarius ad Pandectas, Lib. XLVII. Tit. X, IX.

155Lauterbach, Collegium theoretico-practicum. Lib. XLVII, Tit. X, XXI.

lr>e Cf. the example discussed already by Pierre de Belleperche and Fabcr (Ranchod. op. cit., note 90, p. 51).

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someone called another a thief, a robber or a forger "salvo honore" (without prejudice to his character); or he added the clause "absit dicto contumelia".157 Such a protestation did not rebut the presumption that the speaker had acted animo iniuriandi: "[n)am si actus sit potentior protestatione, haec nihil operatur."158 Nor, incidentally, could a person who merely repeated a slanderous comment escape liability under the actio iniuriarum by giving the name of the person from whom he had heard it; "nam injurias ab alio auditas proferens famam non minus laedit".159 Many writers referred in this context to the old German maxim "Wehrmann haben hilft nicht" (it is of no use to have a warrantor).ш>

5.Remedies

(a)Actio iniuriarum aestimatoria

If we turn our attention to the remedies available to the victim of the insult, we find in the first place the so-called actio iniuriarum aestimatoria. Though it may ultimately have originated in Germanic customary law,161 the essential attributes of the Roman actio iniuriarum had been grafted onto it; it was, as Lauterbach put it, "nihil aliud . . . quam actio praetoria, personalis, poenalis, civilis, famosa, annalis".1f'2 Most importantly, therefore, it could not be brought by the heir of the victim""13 (nor, of course, against the heir of the wrongdoer); condemnation still involved infamia"'4 (though not if the insult had been only slight or moderate"15); and it prescribed within a

b7 Cf. Lauterbach, Collegium theoretico-ptmtimm. Lib XLVII, Tit. X, XX.

b8 Lautcrbach, loc. cit. Cf. also Stryk, Usiis modemus pandectarum, Lib. XLVII. Tit. X, § 6: "[p]rotestatio facto contraria cst." On this legal proverb in general, see Arndt Teichmann, "Die protcstatio facto contraria", in: Festschrift fur Karl Michaelis (1972), pp. 294 sqq.; Helmut Kohler, "Kritik der Regel 'protestatio facto contraria non vaiet'", 1981 Juristcnzcitttng

464 sqq.

1э" Lauterbach, Collegium thcorctico-practicitm. Lib. XLVII, Tit. X, XXII.

lf'° Cf.. for example, Stryk, Usus tnodermtspandectamm. Lib. XLVII, Tit. X, § 14; cf. also the discussion by De Villiers, op. cit., note 113, pp. I l l sqq.; Bartcls, op. cit., note 112, pp. 188 sqq.

1(il As Robert Feenstra (quoted by Ranchod, op. cit., note 90, pp. 66 sq.) believes.

1(12 Collegium theoreiico-practiann, Lib. XLVII, Tit. X, XXVI.

163 For details., see Scott, op. cit., note 94, pp. 125 sq., 161 sqq.

lfi4 "Infamia cnirn vitae amissioni aequalis est, ct oculorum privatione major habetur"(!): Lauterbach, Collegium theoretico-practicum, Lib. XLVII, Tit. X, XXXII.

165 ". . . si modica vcl levis injuria illata sit." Reason: "Praetor minima non curat, ct propter rem minimam поп detur actio famosa": Lauterbach, loc. cit. Generally on the distinction Lcween iniuria atrox on the one hand and iniuria modica and levis on the other during the time of the usus modcrnus, see Herrmann, op. cit., note 99, pp. 59 sqq.; De Villiers, op. cit., note 113, pp. 153 sqq.; c(. also the case discussed by L. Roeleveld, 1981 Ada Juridica 157 sqq. South African criminal law still requires "seriousness" of the offence with regard to both the crimen iniuriae and the crime of defamation: J.R.L. Milton, South African Criminal Law and Procedure, vol. II (2nd cd., 1982), pp. 528 sqq., 561 sqq.; Burchell, op. cit., note 105, pp. 325 sqq., but see, most recently, John van den Berg, "Is gravity really an element of crimen iniuria and criminal defamation in our law?", (1988) 51 THRHR 54 sqq.

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