!!Экзамен зачет 2023 год / The Law of Obligations

railway. Untold new sources of risk and losses made their appearance and confronted the law with problems it was unable to solve by recourse to its inherited, archaic tort remedies. At this crucial stage of social and economic reorientation, the courts responded to the call for a new pattern of loss adjustment by fastening on the concept of negligence". ™

It was the famous case of Donoghue v. Stevenson59 in which the new tort of negligence came to be recognized unequivocally by the House of Lords: "The law", as Lord Atkin put it in his speech/1"

". . . appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury."

Negligence—with duty, breach and damage as its three essential requirements — is the closest the English common law has come to a generalized form of tortious liability. Today it "overwhelmingly" occupies the attention both of courts and academic writers and has become "a unifying force of vast potential".61

(d)The ghosts of the past

It has even been able to transform the basis of the liability for trespass. Trespass, it has been emphasized, was the remedy for forcible and direct injuries —for situations, that is, in which the defendant could typically be taken to have acted with unlawful intent: if one person rams a knife into another, he will not normally be able to claim that he did not intend to inflict an injury. Yet, proof of such intention (or, for that matter: of negligence) was not required. Liability for trespass was thus traditionally strict.62 As such, it was bound to be regarded as an intolerable atavism by 19th-century legal science. The principle of "no liability without fault", reflecting the needs and aspirations of contemporary individualism, was quickly raised to the status of an axiomatic truth.63 Fault therefore became an essential ingredient of trespass; but since this happened at the very time when negligence emerged as a separate basis of tort liability, the range of trespass came to be limited, largely, to cases of intentional harm. For a long time it has been maintained, however, that if the plaintiff could show a direct

5K Fleming, Torts, pp. УЗ; cf. also Tune, op. ci t. , note 2, nn. 71 sqq.

59 [1932] AC 562 (HL); on which see R.F.V. Houston, "Donoghue v. Stevenson in Retrospect", (1957) 12 Modern LR 1 sqq.; idem. "Dotioghne к. Stevenson: A Fresh Appraisal", (1971) 24 Current Legal Problems 37 sqq.\).С Smith. Liability in Negligence (1984), pp. 15 sqq.

m [1932] AC 562 (HL) at 579.

61 Fleming, Torts, p. 94. But cf. also Smith, op. cit., note 59, pp. 15 sqq. and passim, who argues that the law of negligence cannot be reduced to a single principle of liability.

Vl2 Cf., for example. Leatne v. Bray (1803) 3 East 593 at 600; but see also Percy H. Winfield, "The Myth of Absolute Liability", (1926) 42 LQR 37 sqq.; S.F.C. Milsom, "Trespass from Henry III to Edward III, Part III: More Special Writs and Conclusions", (1958) 74 LQR 578

sqq,

'~ Cf. Fleming, 'lorts, pp. 18, 93 sqq.; Tune, op. cit., note 2, nn. 71 sqq.; cf. also infra, pp. 1034 sq., 1129 sq.

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injury caused by the act of the defendant, he was able to proceed in trespass rather than negligence—the advantage for him of this cause of action being that the defendant could escape liability only by proving inevitable accident.64 This was established in Stanley v. Powell'1'5 and meant, in effect, that while liability for trespass to the person had ceased to be strict, there was still a decisive difference in the onus of proof between the two torts of trespass and negligence. Only in 1959 was it held that the burden of proving negligence in actions for unintentional trespass to the person rests upon the plaintiff, just as it docs in actions for negligence/'6 Yet, one further distinction appeared at first to persist, and it was brought up in the 1965 case of Lctang v. Cooper.67 Here the injured plaintiff68 had waited for more than three years before finally deciding to sue, and it was obvious that by that time her claim in negligence was statute barred. Could she, under these circumstances, still fall back on an alternative claim in trespass? This depended on the interpretation given to the phrase, "actions for damages for negligence", as used in the Limitation (of Actions) Act. According to Diplock LJ, a cause of action today means no more than a factual situation which entitles one person to obtain a remedy from another in the courts, and an action founded upon a failure to exercise reasonable care must therefore be regarded as an action for negligence, notwithstanding the fact that it can also be called an action for trespass to the person.6y Lord Denning MR took matters to their logical conclusion when he indicated that he

"would go this one step further: when the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass".7"

This episode is characteristic of the gradual process of adjustment following the abolition of the forms of action by the Judicature Act in 1873. It took a long time to discard most of the doctrinal vestiges of the now obsolete procedural heritage,71 but, as Lord Atkin gallantly

44 For what follows, see Winfield and Jolowicz, pp. 116 sqq. 65 [Ш91] 1 QB 86 (cf. infra, p. 1006, note 50).

<ih Fowler v. Lannitig [1959] 1 QB 426. The same view had already been adopted earlier in the so-called highway cases (plaintiff injured by accident on highway): Holmes v. Mather (1875) LR 10 Exch261.

1)7 [1965| 1 QB 232.

f'8 She had been sunbathing on a lawn outside a hotel when defendant had driven his car over her legs.

69 [1965J 1 Qb 232 at 242 sqq. But see still Elwes J. in Letanz v. Cooper [1964] 2 QB 53. 711 [1965] 1 QB 232 at 240.

1 Fleming, Torts, p. 17. Cf. also John W. Salmond, "Observations on Trover and Conversion". (1905) 21 LQR 43: "Forms of action arc dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling"; Winfield and Jolowicz, p. 43: "Maitland's famous phrase, 'The forms of action we have buried, but they still rule us from their graves', has been

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pronounced, "[w]hen [the] ghosts of the past stand in the path ofjustice clanking their medieval chains the proper course for thejudge is to pass through them undeterred".72 Thus, it is no longer necessary today to canvass the procedural niceties of trespass and case. "Remedies", in the words of Denning J,73 "now depend upon the substance of the right, not on whether they can be fitted into a particular framework". But how a common lawyer thinks about the "substance of a right" is still determined, as far as redress for the wrongful inflictional harm is concerned, by the traditional types of tortious liability that once developed in the procedural cast-iron moulds.74

5. Roman law and English law

If we now turn our attention to Roman law, we shall see that in certain significant respects it bore a greater resemblance to the English law of torts than to its modern civilian descendant. Delict is one of those areas which Pringsheim could have referred to when he analysed the "inner relationship" between English and Roman law,75 and it substantiates the claim that there is

"more affinity between the Romanjurist and the common lawyer than . . , between the Romanjurist and his modern civilian successor".7''

Like trespass, the Roman notion of delict had a strongly criminal flavour; and even though the compensatory function came mcreasingly to the fore, in the course of Roman legal history the penal element was never entirely abandoned. As a result, the distinction between crime and delict was much less clear-cut than it is today. More importantly, however, the Roman law of delicts, like the English law of torts, displayed a wholly casuistic character. It was based on a variety of nominate delicts but could, ad hoc, conveniently be expanded by praetorian intervention. This intervention took the form of new formulae, sometimes issued in close analogy to the established ones, in other cases drafted independently. Designed to accommodate, and thus to turn upon, a specific combination of facts, the new remedies may be regarded as the Roman equivalent of the English writs "upon the case".77 Unlike the modern civilians, but very similar to the English common lawyers, the Roman jurists avoided generalizations and abstract definitions. Proceeding from case to case, they were "more

repeated often enough to become a cliche. One does not venture to polish any aphorism of Maitland's, but we shall see that in some respects it may be questioned whether the forms of action have not been buried alive."

Cambridge LJ 347 sqq.

7(1 Buckland/MacNair, p. XIV.

Cf., in particular, the actiones in factum by means of which the lex Aquilia was extended: infra, pp. 977 sqq., 986 sq., 993 sqq.

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anxious to establish a good working set of rules . . . than to set up anything like a logical system".78 Their efforts did not culminate in a streamlined law of delict but remained a somewhat haphazard assemblage of individual delicts. Yet, the ingenuity with which they penetrated the problems of a vast mass of casuistry and with which they devised suitable rules and criteria paved the way for the modern endeavours to conceptualize, generalize and systematize the law of delictual liability.

6. The origins of delict in Roman law

The law of delict originated in private vengeance.79 A person who was wronged by another acquired a pledge-like power of seizure over the wrongdoer's body. It gave him the right, at first, to kill the wrongdoer; later, to inflict no more than the same form of harm that he had suffered (lex talionis). In addition, the victim's power of seizure came to be tied to formal, State-controlled legal proceedings {manus iniectio). Then the right of vengeance was made redeemable: the victim of the wrong was encouraged, and later required, to abstain from avenging himself by accepting a composition paid either by the wrongdoer himself or by his relatives. This composition consisted first in cattle (pecus), later in a sum of money (pecunia); in the beginning freely negotiable, the amount to be paid was ultimately fixed by the State. Thus, for each specific wrong "atonement tariffs" came to be established and they were known as "poenae". Early, and prominent, examples are contained in the XII Tables ("Manu fustive si os fregit libero CCC, si servo CL poenam subito" (8, 3); "Si iniuria alteri faxsit, XXV poenae sunto" (8, 4)), but this enactment also still contains rules representing earlier stages in the development of delictual liability ("Si membrum rupsit, ni cum eo pacit, talio esto" (8, 2)).m In tab. 8, 3 and 4 the poena consisted in an arbitrary amount that was fixed across the board. Usually, though, and particularly with regard to property-related offences, the estimated value of the particular piece of property concerned was taken as a point of reference, the amount of the poena thus being either the estimated value itself^1 or a multiple thereof:82 the double, treble, or even quadruple value. Occasionally, the determination of the sum into which the defendant was to be condemned was left to the discretion of the judge; thus, the formula of the actio iniuriarum merely referred to "quantam pecuniam recuperatoribus bonum aequum videbitur".83 By the time of classical Roman law this system of (private) poenae had become firmly established and they were no longer regarded as a means

7H Buckland/McNair, p. XIV; cf. also Markcsinis, (1977) 93 LQR S3 sqq. 9 For what follows see supra, pp. 1 sqq. 8(1 On tab. VIII, 2-4, see infra, pp.

1050 sq. K1 Cf., for example, infra, pp. 961 sq. H2 Cf., for example, infra, pp. 932 sqq. 83 Cf. infra, p. 1062.

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to avert the victim's revenge, but as a form of penalty that was enforced by way of civil proceedings. The actions available for this purpose were known as actiones poenales. Some were based on the ius civile— among them, most notably, the actio furti in case of theft and the actio legis Aquiliae for damnum iniuria datum. The actio iniuriarum, covering the somewhat enigmatic delict of "iniuria",84 had a civilian origin too. Other remedies85 owed their existence to the activities of the praetors and were thus rooted in the ius honorarium. Their formulae were in factum conceptae, which means that the judge was empowered to condemn or absolve on the basis merely of an initial statement of what had in fact happened ("nominato eo quod factum est").8fl These praetorian actions reflected the far-reaching changes on a social, political and economic level that occurred in the course of the later Republic, and they were introduced, as usual, "adiuvandi vel supplendi vel corhgendi iuris civilis gratia":87 in order to adjust the law to new societal demands and challenges. The actiones quod metus causa and the actio de dolo are usually mentioned in this context; introduced in the first half of the 1st century B.C., they were designed to cope with the increasing violence and lawlessness that foreshadowed the fall of the Republic. Yet they do not appear to have had a penal function but were merely designed to serve the ends of restoration.88 But the actio vi bonorum raptorum, dealing, essentially, with robbery (rapina)89 was an example of a praetorian actio poenalis and so were the actio de deiectis vel effusis, the actio dc posito vel suspenso,90 the actio de sepulchro violato and many others.yl

7.Characteristics of the Roman actiones poenales

(a)Passive intransmissibility

All penal remedies, whether in ius or in factum concepta, were subject to three characteristic rules, which still reflected their origin in private vengeance and atonement. First of all, no actio poenalis survived the wrongdoer's death:42 against his heirs, after all, there had been no right of vengeance, for the victim's erstwhile power of seizure had extended

44 Infra, pp. 1050 sqq.

KS Not all of them actiones poenales.

' Gai. IV, 46. H7Pap. D. 1, 1, 7, t.

m See supra, pp. 654 sqq., 664.

8<l Gai. Ill, 209 and see the discussion in D. 47, 8; further: Udo Ebert, Die Geschichie des Edikls de hominibus armatis coactisve (1968); Marco Balzarini, Ricenhe in tema di danno violento e rapina net diritto romano (1969); Letizia Vacca, Ricerche in tema di 'actio vi bonorum raptorum' (1972); Kaser, RPr 1, pp. 626 sqq. The actio vi bonorum raptorum had (at least also) a penal character (cf. infra, p. 920).

w Cf. supra, pp. 16 sqq.

'" For an overview, see Kaser, RPr I, pp. 62b sqq.

42 Cf, for example, Gai. IV, 112 ("certissima inns regula"); Inst. IV, 12, 1; Pasqualc Voci DER, vol. I, pp. 51 sqq., 302 sqq.

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only to the body of the wrongdoer himself. Actiones poenales were thus, to use the technical term, "passively intransmissible" on death. They were, however, as a rule,93 not also actively intransmissible. Whilst, therefore, they could still be brought by the victim's (i.e. the creditor's) heir, they never lay against the heir of the wrongdoer (i.e. the debtor). Once, of course, litis contestatio had taken place, the wrongdoer's death was no longer of any consequence ("Sciendum est ex omnibus causis lites contestatas et in heredem . . . transire"),94 for under the rules of Roman civil procedure a plaintiff was entitled to receive what was due to him tempore litis contestatae.

In the second place, joint perpetrators of the wrong were, in principle, liable cumulatively and the injured party could thus receive the full composition several times over.95 This sounds odd to us, for it means that the victim turned out, in the end, to be the better off, the more persons had participated in the infliction of the injury. But the explanation is simply that each individual person's act resulted in an obligation to expiate the wrong; and no such expiation could be taken to have occurred in relation to someone who had not paid the full statutory sum in question. No distinction was drawn between mere aiding and abetting on the one hand and joint perpetration of the wrong on the other: any form of participation entitled the victim to sue for the whole amount.

(b) Noxai liability

And thirdly: where the wrongful act had been committed by a person in power (filmsor filiafamilias and slave),96 the actio poenalis lay as a noxal action against his or her paterfamilias. Liability was thus in the alternative: the paterfamilias could either defend the action and, ultimately, render payment as if he had himself committed the offence, or he could simply surrender the actual offender to the injured person.97 Surrender tended to be regarded in classical law as a means of avoiding the (primary) obligation to pay the composition;98 but this was an inversion of the original principle.99 When, in the olden days, the victim wanted to wreak his vengeance upon a person in power, the paterfamilias' potestas posed a serious obstacle: any attempt to avenge the wrong would normally have interfered with it. Hence the request to surrender the wrongdoer. Later on, the State favoured abstention

93But sec infra, p. 1061.

94Call. D. 44, 7, 59.

95For details, see Levy, Konkurrenz, vol. I, pp. 476 sqq.; Liebs, Kta%enkonkurrettz, pp. 125 sqcy, 181 sqq., 265 sq.; Kaser, RPr II, p. 429.

In post-classical times only slaves; see fast. IV, 8.

97Gai. IV, 75; lust. IV, 8 pr. The surrender took the form of mancipatio in the case ot

slaves, alternatively, of in iure cessio. For further details as to the basis and origin of noxat liability, and to the details of its application, see the literature referred to infra, p. 1118, note

177.

9MGai. D. 9, 4, 1.

99 Thomas, Institutes, p. 305.

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from vengeance and fixed specific penalties. But, of course, an obligation to pay such penalties could be imposed neither on slaves nor on sons or daughters in power. It was their paterfamilias to whom all property belonged and who was thus the only possible addressee for a claim to pay the fine. Yet, since he himself had not committed the wrong, it was regarded as inappropriate to expose him to liability without, at least, retaining for him the option of surrender. "Summa autem ratione permissum est noxae deditione defungi: namque erat iniquum, nequitiam eorum ultra ipsorum corpora dominis damnosam esse":100 this is how Justinian rationalized the legal position. If the poena was particularly high, the paterfamilias could escape liability by giving up the wrongdoer; if, on the other hand, he had an overriding interest in keeping the latter, he could justly be taken to have attracted the liability to pay the penalty upon himself. Although, therefore, the defendant in a noxal action was always the paterfamilias, it was still the slave who was regarded as the wrongdoer. Liability was thus seen, as the Romans put it, to "follow his (i.e. the slave's) head": noxa caput sequitur.101 If the slave or child in power was transferred into somebody else's patria potestas, the noxal action followed suit. The person to be proceeded against was thus (oddly, perhaps, in our view) whoever just happened to have the wrongdoer in his power at that particular moment, not his master at the time when the wrong had been committed; hence, for instance, the concern of Roman purchasers, reflected in the provisions of the aedilitian edict, that slaves be free from noxal liability.102 If the person in power attained his freedom before action was taken, he became liable himself and the (former) master's noxal liability fell away.

8. Private criminal law and public criminal law

A delict was a private wrong and yet the actio poenalis served to penalize the wrongdoer. It is obvious, therefore, that the private actio poenalis discharged what we would consider to be the proper function of a criminal prosecution. On the other hand, however, Roman lawyers also recognized a number of crimes; in fact, the modern distinction between crime and delict goes back to the Roman notions of crimen and delictum. But the boundary between the two was not drawn along the same lines as it is today.103

The term "crimen" was used to designate offences prosecuted in the public interest and punishable by a public penalty upon accusation and

1(1(1 Inst. IV, 8. 2; cf. also already Gai. IV, 75.

101 Gai. IV, 77; Ulp. D. 47, 2, 41, 2; Inst. IV, 8. 5. 1(12 Cf. supra, pp. 314 sq.

1(13 Cf., for example, Buckland/McNair, p. 344: "[T]he law of delict [is allied] with that of crime rather than with that of other civil obligations, so much so that Mommsen in his Strafrecht, somewhat to the confusion of his readers, hardly distinguishes between delict and crime except in matters of procedure."

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subsequent condemnation in a special court and according to a strict

and largely State-controlled procedure, differing considerably from the one that governed civil trials.ll)4 The list of such offences was very small

at first; it comprised only a number of acts that were regarded as affecting the community at large particularly severely: treason (perduellio) and certain sacral wrongs, later also murder and crimes involving violence. The lesser forms of criminality were covered by what Kunkel/Kelly refer to as "private criminal law":105 punishment was to be inflicted in the course of civil actions. Just as in the early English common law,106 the State thus relied on the initiative of the aggrieved party to get the wheels ofjustice rolling. In Rome this policy was maintained even when, in the course of the later Republic, and under the early Principate, the number of crimes was increased drastically, the system of criminal tribunals rigorously reformed, and the efficiency of the administration of criminal justice generally improved; for, by that time, the private penal actions were already firmly entrenched and remained in force throughout the entire classical period. Even in the genuinely criminal proceedings, however, the system of privately instituted prosecution was the rule: apart from the aggrieved party,107 even the quivis ex populo could initiate the trial and thus assume the role of (private) prosecutor. Of course, the average Roman citizen did not usually do so out of a genuine desire to promote the public interest—the criminal statutes tended to promise considerable rewards for victorious prosecutors.

9.The nature of the remedies available

(a)Actiones poenales and reipersecutoriae

The availability of actiones poenales was an important and characteristic feature of the Roman law of delict. But the desire of the injured party to obtain redress for the loss that he had suffered was also catered for. "Agimus autem interdum ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam", as we are informed by Gaius,'08 and Justinian amplifies:

104 For all details, see Theodor Mommsen, Romisches Strafrecht (1899); Wolfgang Kunkel,

Untersuchungen гиг Entwicklung des romischen Kriminalverfahrens in vorsullanischer Zeit (1962); A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate (1972); cf. also

Jolowicz/Nicholas, pp. 305 sqq., 401 sqq.; Liebs, Klagetikonkurrenz, pp. 266 sqq.; Artur

Volkl, Die Verfolgung der Kd'rperverletzung iin friihen Romischen Recht (1984), pp. 217 sqq.

105An Introduction to Roman Legal and Constitutional History (2nd cd., 1973), pp. 29, 64.

106Cf. the quotation by Pollock and Maitland, supra, note 54, which is also referred to by Fritz Schulz, CRL, p. 573, in this context. Generally on delict and crime in ancient law, see Maine, Ancient Law, pp. 216 sqq.

107Who could, in certain instances, be compensated for his loss from the (public) penalty.

108Gai. IV, 6.

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"Sequcns ilia divisio cst, quod quaedam actiones rei perscquendac gratia comparatae sunt, quaedam poenac persequcndac, quaedam mixtae sunt."lliy

There was thus a threefold subdivision: actions were either purely penal in nature, or purely "reipersecutory", or both penal and reipersecutory at one and the same time. An actio ad poenam tantum persequendam (or simply: an actio poenalis) served merely to penalize the wrongdoer. Actiones ad rem persequendam (literally: actions to recover a (or the) thing) had a completely different function: they aimed exclusively at compensation. "[I]llae autem rei persecutionem continent", as Paulus put it,110 "quibus persequimur quod ex patrimonio nobis abest." Since, as we know,111 restitution in kind could never be sued for in classical Roman law, condemnation always led to the award of a specific sum of money. Determination of the sum depended, of course, on the formula of each particular action, but by and large it was designed to cover the plaintiff's (typical) loss. In any event, there was no penal element involved in the assessment. A typical reipersecutory action was, for instance, the rei vindicatio. It could be brought against a thief (as against any other non-owner) who was still in possession of the stolen object and it lay for "quanti ea res erit, tantam pecuniam . . .".

Contractual actions were of a purely reipersecutory nature too.112 If someone damaged a sedan chair that he had hired, he was liable under the actio locati, and here the iudex was invested with a very wide discretion to assess the lessor's actual damages. ". . . quidquid ob earn rem . . . dare facere oportet et bona fide, eius . . . " read the crucial passage of the formula: it focused exclusively on the injury to the plaintiff, without including—as the English lawyer would put it—a punitive award. Apart from such more general remedies, which could be used in a delictual context, the Roman lawyers sometimes also made purely reipersecutory actions available to deal with a specific wrong: the condictio ex causa furtiva in the case of theft was one of the most prominent examples.113

(b) Actiones mixtae

Thirdly, then, there was a group of actions which was taken to serve both a penal and a reipersecutory function at one and the same time: actiones quibus rem et poenam persequimur or, in Justinian's terminology,114 actiones mixtae. The sum to be awarded was a penalty,

109Inst. IV, 6, 16.

110D. 44, 7, 35 Pr.

111Cf. supra, pp. 770 sqq.

112Emphasized by Gaius IV, 7; Inst. IV, 6, 17.

113Infra, pp. 941 sqq.

114Did the classical lawyers use the term "actio mixta"? Cf. Dctlcf Liebs, "Gemischte BegrifTe im romischen Recht", (1970) 1 Index 143 sqq.; but see also Kaser, RPrll, p. 343 and

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but it was understood also to compensate the plaintiff for his harm. If that sum happened to be a multiple of the value of the object in question, it normally far exceeded the plaintiff's actual loss; and to this excess a compensatory function could, of course, hardly be attributed. Not unnaturally, therefore, the opinion came to prevail115 that the whole award had to be split into a reipersecutory simplum and the (purely penal) amount by which the award exceeded the simple value. Justinian's exposition of the action for robbery provides a good example: "Vi autem bonorum raptorum actio mixta est, quia in quadruplo rei persecutio continetur, poena autem tripli est."116 According to the original praetorian provision, the defendant was liable to pay quadruplum,1'7 and in classical law there had never been any doubt that one was dealing with poena quadrupli (although there had been some doubt as to whether the action was purely penal or also reipersecutory in character).118 Justinian came down in favour of an actio mixta, but for him this entailed that only the triplum exceeding the simple value could be regarded as a penalty. The action was thus partly (purely) penal and partly (purely) reipersecutory, with the result that only in the penal part (i.e., as far as triplum was concerned) did the remedy retain the typical characteristics of a penal action.119

(c)Concurrence of actions

The classification of the remedies according to the aim pursued by them was of particular importance when several actions were available on account of one specific delict. "Bis de cadem re agere non licet" was the general procedural rule determining all questions of concurrence:120 litis contestatio prevented the plaintiff from bringing any other action in the same matter. This meant, in the present context, that the wrongdoer could not be punished twice; likewise, of course, the victim of the wrong was not to receive his compensation more than once. No plaintiff could thus avail himself of two (private) penal actions121 with regard to one and the same delict; nor could he use two reipersecutory

Hans Ankum, "Gaius, Thcophilus and Tribonian and the Actioncs Mixtae". in: Studies in Justinian's Institutes in memory ofJ.A.C Thomas (1983), pp. 4 sqq.

According to Hans Ankum, "Actions by which we claim a thing (res) and a penalty (poena) in classical Roman law", (1982) 24 BIDR 28 sqq., already in classical law. Traditionally it is held that the splitting up of the award is of post-classical origin; cf., for example, Kascr, RPr II, p. 429.

116hist. IV, 6, 19.

117Cf. Paul. D. 47, 8, 1.

mGai. IV, 8 ("sccundum quorundam opinionc"); Gai. IV, 112; Ulp. D. 47, 8, 2, 27; Ankum, (1982) 24 BIDR 18 sq., 30 sq.

m Generally on actioncs mixtae, see Liebs, Klagenkonkurrenz, pp. 53 sqq. and the two

articles by Ankum, Studies Thomas, pp. 4 sqq. and (1982) 24 BIDR 15 sqq. 12(1 Levy, Konkurrenz, vol. I, pp. 76 sqq.; Kaser, RZ, pp. 229 sqq.

121 On the concurrence of private penal actions and criminal proceedings cf. Liebs,

Klagenkotikurrenz, pp. 266 sqq.

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