The Roman Law of Delicts

Home , Delict, Furtum, Gaius (jurist), Law of obligations

Chapter 3 The Roman Law of Delicts

Delict and Crime

Obligation, the concept that binds together a sizable portion of Roman law, is not easy to define. Gaius defined obligations using their origins in contract and delict.1 More promising, though not without controversy, is the definition provided by the Digest: ‘obligationum substantia non in eo consistit ut aliquod corpus nostrum aut servitutem nostrum faciet sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum.’2 A person bound by an obligation can be compelled ‘to give’, ‘to do’ or ‘to perform’. All three verbs connote action; there is no way in which an obligation can be used to force a person to suffer something being done to them. Thus for as long as Roman society viewed matters such as homicide to be punishable rather than compensable, they were barred from the realms of delict. Forms of wrongdoing that were redressed other than through doing, per- forming or giving fell under the criminal law of Rome. This operated principally through isolated jurisdictions and a dedicated system of courts (quaestiones perpetuae) and so became isolated from the mainstream of the civil law.3 This would not have affected their importance within the Roman legal system, but it did serve to greatly obscure the significance of non-delictual wrongdoing to later generations, whose knowledge of Roman law comes principally from the Corpus Iuris Civilis.4 Given the inevitable focus of the later civil law tradition, this section’s content is skewed towards delictual wrongdoing. Nevertheless, it must be remem- bered that delict represents only one slice of the total Roman law on wrongdoing. There were four main delicts: liability under the lex Aquilia for wrongful- ly caused loss (also known as damnum iniuria), iniuria, furtum and rapina.5

1 G.3.88–89. 2 D.44.7.3.pr: ‘The essence of obligations does not consist in that it makes some property or a servitude ours, but that it binds another person to give, do, or perform something for us’. 3 Olivia F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 2–6. 4 One book of the Digest is given over to criminal law: book 48. It is comprised of texts taken from commentaries on particular leges, and insights into criminal law snatched from other contexts. It thus provides an incomplete and warped view of Roman criminal law. 5 See generally William W. Buckland, A Text-book of Roman Law: From Augustus to Justinian, 3rd ed. Peter Stein (Cambridge: Cambridge University Press, 1963) 576–608 and Zimmermann, The Law of Obligations, 902–1206.

These four delicts were singled out for special consideration by Gaius in his student textbook, and were again presented as the ‘main’ delicts by Justinian.6 The centrality of these four wrongs to the law of delict is not borne out by the Digest, which treats all but the lex Aquilia as individual members of a list of over a dozen delicts.7 Nevertheless, given the importance of the institutional framework to the later history of delict, the taxonomy adopted by Gaius and cemented by Justinian represents a sensible starting point for our exploration of the classical law of delict.

The Delicts as Conduct-Centric Wrongs

Each of the four institutional delicts was built around prohibited conduct. This can be seen most clearly in furtum, which responded to contrectatio. This is a term that defies translation.8 There is a strong sense of tangibility to the word, and it is generally assumed that furtum originally required physical interference with another’s property.9 By classical law this requirement had slackened, though the degree to which contrectatio could exist without phys- icality is disputed.10 A particular problem arose in the context of living property, which could be compelled from the possession of its owner without any direct physical contact, such as where a person drives away donkeys or chases

6 G.3.182–225; J.4.1–4. 7 The precise number of delicts depends on whether one treats the various specific in- stances of theft as one delict or many. Regardless, there are many that simply do not ac- cord with the institutional delicts: harbouring criminals (D.47.16), breaking out of prison (D.47.18), extortion (D.47.13) and altering boundaries (D.47.21). 8 E.g. David J. Ibbetson, ‘The danger of definition: contrectatio and appropriation’ in The Ro- man Law Tradition, eds David J. Ibbetson and Andrew D.E. Lewis (Cambridge: Cambridge University Press, 1994). 9 The modern form of this position is traceable to Daube, ‘Furtum probium and furtum im- probium’ (1936–1938) 6 Cambridge Law Journal 217, in which he refutes the suggestion that the res furtiva of the Twelve Tables could be distinguished from the res subrepta of the lex Atinia on the grounds that the XII Tables brand of furtum was about fraudulence, not theft. This long-neglected stance stems from Paul Huvelin, Etudes sur le furtum dans le très ancien droit romain (Lyon: A. Rey, 1915). 10 E.g. William W. Buckland, ‘Contrectatio’ (1941) 57 Law Quarterly Review 467; Alan Wat- son, ‘Contrectatio as an essential of furtum’ (1961) 77 Law Quarterly Review 526; Joseph A. C. Thomas, ‘Contrectatio, complicity and furtum’ (1962) 13 IURA 70; Alan Watson, ‘Contrectatio again’ in Studies in Roman Private Law, ed. Alan Watson (London: Hamble- don Press, 1991).