Chapter 10 Revision sheet

Obligations arising from delict

Instructions:

This chapter should be revised in conjunction with chapters 3 and 9. An account of Roman civil procedure (in chapter 3) is important as it reinforces the point that Roman law was a law of actions. When revising this chapter, always keep in mind that for every action there had to be an appropriate formula. Reflect on the formula and its contents in each case. It may also be useful to use diagrams to explain certain rules of law. Furthermore, this chapter should be revised in conjunction with chapter 9 (the Roman law of contracts), since one event could give rise both to contractual and delictual remedies.

Aims:

The aim of this chapter is to provide an overview of the main parts of the Roman law of delict. Like the chapter on contract, the law of delict forms an important part of any standard course on Roman law. When revising this chapter, keep in mind that the law of delict did not operate in a vacuum. It is closely linked to other areas of Roman private law and should be studied as such.

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC
The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC

Overview:

  • What is the relationship between delict and obligation?
  • What is the relationship between delict and action? Delictual actions are penal actions. What does this mean?

Named delicts

  • Wrongful damage to property
    • Which remedies preceded this one in Roman law?
    • How close can we come to the actual wording of the statute?
    • What did chapter 1 state? Why the specific focus on slaves and beasts of burden known as cattle. [Reflect on the operative phrase ‘to kill’]
    • What did chapter 3 state? Why the broad focus? [There is greater uncertainty about the wording of chapter 3. Why so?]
    • When revising this part of the course, reflect on the formula of the actions [especially in light of the five requirements set out in the book for delictual liability to vest.] [Focus on fault and causation.]
    • When revising the extensions to the concept of wrongful damage to property, reflect on the use of the actio utilis and in factum. How did these operate? Which of these extensions were introduced by praetorian intervention and which came about through juristic interpretation?
  • Theft and robbery
    • Revise this component together with the formulae of the actions.
    • Look at the essentials of theft in light of the formula. Here, the requirements of interference and of gain are very important.
    • Look at the requirements for theft of use and of possession and relate these back to the relevant contractual scenarios in which they may be relevant.
    • Why the proliferation of remedies in the case of theft? Does this reveal something to us about the purpose of theft in Roman law?
    • Explain the relationship between theft and robbery.
  • Insulting behaviour
    • Reflect on this history of this delict and its replacement by the general edict on iniuria.
    • Revise the elements of iniuria with reference to the formula of the action. Focus specifically on intention and dissimulation.
  • Praetorian delicts
    • Why were these required?
    • Reflect in detail on the use of fraud and duress [reflect back on these elements in our discussion of contract law].
  • Damage caused by animals
    • Why is this a delictual problem?
    • Does it matter whether the animals are wild or domesticated? Why?
  • Quasi-delicts
    • Can you formulate an internal rule regarding these examples? What hold this category together?
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