Study Unit 2.

4: History of the development of the Law of Damages

Study the following summary of the Law of Delict in general and then specifically with regard
to the development of the Law of Damages.1

1. Roman Private Law

You know by now that Private Law regulates the relationships between persons. Private law
can be divided into the Law of Marriage, Law of Persons (both which you are studying in your
first year), the Law of Property, the Law of Delict (2nd year modules) and the Law of Contract.
The Romans refer to the Law of Property, the Law of Delict and the Law of Contract as the
Law of Obligations.
The Romans refers to the Law of Obligations, referring to all those laws where one person’s
action cause an obligation on another to act. As we have seen when we discussed the
praetorian law, you can only approach a court if there was an action available. If there was no
action, you had no case. However, when we study ancient laws today we tend to use the
framework we know to explain what happened in the past.
If we study Roman law we see that they have recognised unlawful actions and lawful actions.

1.1 Unlawful actions

In early Roman law a person was held personally liable. A distinction was made between
serious offences against the state or community, for example, high treason (crimina publica)
and unlawful damages or prejudice to the individual, family or community (delicta privata).
There was, however, no strict distinction between crimes/offences and delicts (unlawful
actions, e.g. damages, defamation etc.).

Talio applied. Talio means an eye for an eye and a tooth for a tooth / in short revenge and
the revenge was meted out in the same measure. But as it is in life, it did not remain so, and
people began to take more drastic measures than was necessary. The custom then
developed that the family could buy off the revenge of the injured - an amount of money or
something else could be offered to avoid talio. The offer did not have to be accepted.
Was there something similar in African customary law and Germanic law?
However, the law developed and then talio could only be applied if permanent harm or
damages had been brought about. When a peace offering was offered, the injured person’s
family had to accept it.

1.2 Lawful actions

A distinction can be made between lawful transactions such as promises, lending of money,
legacies (direct bequests of specific things), contracts, etc. If a person did not fulfil a promise,
then he or she could be
 Delictually liable (for the damages caused).

1
This discussion was formerly included in the Study Guides for IURI172 a module that is no longer
provided. The development of the actio legis Aquiliae is based on the work of W du Plessis’ assignment
she wrote when she was a LLB student at the then PU for CHE. Her permission for the reproduction is
obtained. The development of actions is partially based on her assignments in the module Advanced
Roman Law as well as the work of Van Zyl Van Zyl History and Principles of Roman Law (Lexis Nexis
– no longer in print) as well as many other sources on Roman Law.
 In the case of the Twelve Tables a person could be seized and brought before the court.
It was not always necessary to bring a person before the court - a thief who was caught
red-handed could, for example, be killed immediately.
 There was no specific legal duty on a person to pay his or her debts - but it was a way to
escape personal liability. Since pre-classical times there had been a legal duty on the
debtor or culprit to pay the debt in the case of both lawful and unlawful transactions.
Various actions developed to force a person to pay his/her debts. It led to the term
obligation (obligatio), where the creditor had a personal right to claim his/her object/thing
or amount from the debtor and the debtor was obliged to pay the debt or make a
performance.
For example:

A sold his horse to B for 300 sestertii (Roman money)

300 sestertii

A B


A has a personal right to claim the purchase price and B has a personal
right to claim the horse. B has an obligation to deliver the 300 sestertii and
A has the obligation to deliver the horse - in this manner an obligation/
/obligatio is established.

Obligatio (obligation) = singular

Obligationes = plural

This is where the word obligation(s) is derived from.

If you harm someone or cause damage, there may be an obligation on you to pay for the
damage or the harm that you have caused. That gave rise to the idea of the Law of Delict.
2. General Introduction to the Law of Delict

2.1 Background

Initially no distinction was made with regard to unlawful actions that were punished by the
state (Criminal Law) and unlawful actions that could be instituted by private persons against
each other (Law of Delict). 2 As stated above, in time a distinction was made between
 crimina publica / public crimes or crimes against the state and
 delicta private / private delicts.

The Romans did not ask did you commit a delict or a crime but rather do you have an action.
As set out above, however, we are going to refer to the delicts from today’s perspectives.
Various delicts developed through the Roman times of which four can be regarded as the most
important. They are:
 Theft / Furtum – broadly defined – taking of another’s property with the aim to become
owner of it/take control it and without the owner’s permission. In Roman law it will also
include the use of someone else’s property without his/her permission.
 Robbery / Rapina – broadly defined – taking of another’s property using some force
with the same aim as theft
 Iniuria / defamation – in Roman times it could include light physical violence but also
defamation – or injure his or her good name / hurt his or her dignity – you must have
had the intention to do so.
 Damages / Damnum iniuria datum / (literally damage unlawfully brought about)

2.2 Delictual actions

Three main forms of delictual actions are distinguished - this distinction is still to be found in
South African law. These actions are distinguished according to what can be claimed with the
relevant action:
 Actiones reipersecutoriae - the thing or only the value of the thing can be claimed -.

persecutoria = follow;
rei – of a thing

 Actiones poenalis - a penalty or satisfaction is claimed - there is no physical damage - it is

a penalty action.

poena = Punishment/fine

 Actiones mixtae – it is a mixed action that contains elements of both above-mentioned

actions – in other words with one action a person is punished and the damage or the thing
is also claimed back.

2 The following notes are based Van Zyl History and principles 330-333 as well as other Roman law sources.
 mixta = mixed

A further distinction that is made in this regard is whether the action is actively or passively
transmissible. With active transmissibility the question is whether the dependants or estate of
the claimant (the wronged person) could institute the action after his or her death - in other
words could they step into his or her place? With passive transmissibility the question must
be answered whether an action can be instituted against the defendant's
(perpetrator/wrongdoer) estate or his or her family after his or her death. It can be illustrated
as follows:

CLAIMANT V DEFENDANT

 (wronged/injured person)  (wrongdoer/perpetrator)

Active transmissibility Passive transmissibility

Claimant's estate/ Claim is instituted against the defendant's

family institute the claim estate or his or her family

Another way to remember, is to think that a (active) and c (claimant) come in the front of
the alphabet while d (defendant) and p (passive) are further down the alphabet. This way
on one remembers which groups should be together.

An actio poenalis and an actio mixta are:

actively transmissible Action for iniuria or
passively instransmissible libel

EXCEPT the actio iniuriarium, which is actively and passively intransmissible

The reason for this exemption is that the actio iniuriarum is not only an actio poenalis but also
an actio vindictam spirans or vengeance action - it is a highly personal action between two
individuals and has nothing to do with their families. This is still the position today.
The actions are all passively intransmissible as the actio mixta and actio poenalis both contain
an element of punishment and it is felt that the family cannot be punished for the deeds of the
doer/perpetrator.
An actio reipersecutoriae is:
 actively transmissible; and
 passively transmissible
because only the thing or the value of the thing is claimed - in other words the estate of the
doer/defendant is enlarged while the estate of the claimant/injured is diminished.

Exercise
Complete the following table by indicating the nature of the actions and their active/passive
transmissibility.
 Delict Action What can be Nature of the Active Passive
claimed? action transmissible? transmissible
?
Furtum/Theft 1. Actio furti 1. 2x value of the
thing
2. condictio furtiva 2. Only thing/
value of thing
Rapina/ Actio vi bonorum 4x value of thing or
Robbery raptorum 3x value plus 1x thing

Iniuria/ Actio iniuriarum penalty/

Libel satisfaction
Damnum Iniuria Actio legis Highest value of thing
Datum/ Aquiliae the previous year or
Damages thirty days

2.3 Delictual liability

The Romans did not lay down requirements for delicts. Remember that the first question that
Romans asked was whether a person had an action that he or she could institute. From the
various actions, and especially from the development of the actio legis Aquiliae, requirements
were derived for delicts. You have learnt about the action legis Aquiliae when you studied the
work of the praetor.
The various requirements that crystallised are briefly explained - it is not a complete or in-
depth discussion. It is mentioned in order to help you understand the terminology when it is
referred to in the discussion of the specific delicts.
Five requirements/elements can be distinguished in the Roman texts:3
 Action
 Causality
 Damages/infringement
 Wrongfulness
 Fault
The action is the act that cause the damage or the harm. Initially had to be a direct positive
action - in other words B should have taken a stone and broken the window. At a later stage
people could be held liable for an omissio/neglect. One of the texts in the Corpus Iuris Civilis
refers to a doctor who neglected to close his patient's wounds after an operation and says that
he should be held liable for his omission.
In the case of causality, the action and the consequence should be connected. The best
illustration is the case where A stabbed B with a dagger. B was not severely injured but
needed hospital treatment. He was taken by ambulance to the hospital - on the way the
ambulance hit a lorry and B died as a result of the wounds he received in the accident. A
cannot be held liable for B's death but only for the stabbing. The law is not prepared to hold
A directly responsible for B's death - in this instance the driver of the ambulance will be liable.

3 The following summary is based on Van Zyl History and principles 331-332, as well as other Roman law
sources.
There must be damages or some sort of prejudice. It can be direct damages or infringement
of personality (e.g. A calls B a deceitful snake). In the case of patrimonial loss, damages are
claimed, and in the case of infringement of the personality, satisfaction.
Initially the Romans did not make a distinction between wrongfulness (iniuria - in this case not
the delict) and fault. Any action that was an infringement of the law was regarded as wrongful
or unlawful.
Due to the influence of the Greeks, fault was gradually distinguished. Fault refers to the
intention of the doer/perpetrator. It has to do with his subjective inclination - if he acted with
intent it is known as dolus. If it has to be determined objectively what a person's intent should
have been (later it was referred to that he should have acted like a reasonable person),
reference is made to culpa or negligence.

3. Damnum Iniuria Datum/ Lex Aquliae

3.1 Earliest / Ancient Time4

In the Ancient time talio applied.

What is talio again and when was the Ancient Roman

period?_______

3.2 Twelve Tables

In which period did you find the Twelve Tables? _______

In the Twelve Tables fixed penalties were laid down:

 Tabula 8.2: If someone's limb was broken and permanent damage was caused, then talio
applied if the parties could not agree on an amount.
 Tabula 8.3: If someone's limb was broken but could be healed, then 300 asses could be
claimed for a free person and 150 asses for a slave. [“Asses” refer to Roman money]
 Tabula 8.4: If minor injury was caused, 25 asses could be claimed.

3.3 Praetorian reforms

In which period was the praetor working?

The praetor abolished the payment of fixed penalties. It was a result of the devaluation of
money and the changing public opinion that talio was barbaric and no longer of any use. The
Twelve Tables was still applicable - the only change was that the amounts were determined
by the praetor.

3.4 Lex Aquiliae 286/287 BCE

The Lex Aquiliae had three different chapters:

4 The following is based on Van Zyl History and principles 338-342 and other Roman law sources. Remember
that if nothing was said with regard to a certain requirement/element in a certain period, you can accept that
the position will still be the same as in the previous periods.
Chapter 1 stated that where a quadruped or a slave was wrongfully killed, a person could be
condemned to pay the highest value of the slave or quadruped the previous year.
 Chapter 2 dealt with bail and is not applicable.
 Chapter 3 stated that a person was liable for all other damage not referred to in chapter 1
and that was caused by
a. urere (burning);
b. frangere (breaking); and
c. rumpere (damaging).
Such a person could be condemned to pay the highest value of the thing the previous 30
days.
The action was regarded as an actio mixta (mixed action) is based in the fact that the owner
not only claimed the value of the thing as it was on the date of the damage, but he claims the
highest value of the thing the previous year or 30 days/year.
It could be illustrated as follows:

The real value value

of the thing as
on the date of
damage was
not paid but
the highest previous year/30 days Date of damage
value that it
had the previous 30 days or year. Suppose the value of the thing was 30 sestertii on the date
it was damaged. Somewhere the previous 30 days its value was 90 sestertii. The
doer/perpetrator will have to pay 90 sestertii - the value of the thing, namely 30 sestertii, plus
a further 60 sestertii - the penalty element was based on the fact that he had to pay the extra
60 sestertii.
The requirements as were identified by later jurists are as follows:

 Wrongfulness/unlawfulness (iniuria). damnum – damages

 Direct positive action (damnum corpore datum). corpori – to a thing
 The damage should be brought about to the thing itself corpore – by a thing
(damnum corpori datum). datum – brought about
dolus –intent
culpa - negligence

 Fault (was not distinguished but was still part of wrongfulness - dolus and culpa are not
distinguished).
 No liability on the basis of an omission/ omissio.
 The action could only be instituted by the owner.
Claims for the wounding of free persons could be claimed in terms of the Twelve Tables - such
a claim was not available in terms of the actio legis Aquiliae because the Romans said that
value cannot be added to the body of a free person. Slaves had economical value - if one
should say that the body of a free person had value you relegate him/her to the status of a
slave - therefore the saying developed and was applied for many centuries.
3.5 Development of the Lex Aquiliae in the Classical Period

When was the classical period?

In the classical period the actio legis Aquiliae experienced a number of changes. The actions
were extended or more broadly interpreted. The meaning of urere and frangere was extended.
Rumpere was, for example, interpreted to include corrumpere (that is, all sorts of damage).
So initially you could only claim if you break, burn or cause damage to an object as set out in
the text. In the Classical law virtually all sorts of damage were included. See also the example
in your Law and Legal Skills textbook where the work of the praetor was explained.
Initially only the owner could institute the action. The action was extended to include the
usufructuary, pledgee, etc. They received an actio legis Aquiliae utilis or an actio legis Aquiliae
in factum.
Use the internet / dictionary / law dictionary and determine what usufructuary / pledgee means.
During classical times the question was raised whether a free man could institute the actio
legis Aquiliae for his own wounds. Roman law rule that no value could be attached to the body
of a free person was still applicable.
An exemption was made in the case of the son of the family (filiusfamilias). One of the texts
stated that a father (paterfamilias) could claim for medical expenses and loss of income if his
son (filiusfamilias) was hurt. The reason is that the son's income was regarded to be that of
the father - if the son was not able to work the father would experience loss of income.
According to a Roman law text a filiusfamilias worked at a shoemaker as an apprentice. He
did not concentrate very well and the shoemaker hit him with a shoe instrument against his
head in such a manner that his eye "flew out". The paterfamilias could not institute an actio
iniuriarum as the son was disciplined. He could institute an action for the son's medical
expenses and loss of income. The same applied to slaves. A free person himself (the son
himself) had no claim on the principle that no value could be attached to a body of a free
person.
In classical times the actio legis Aquiliae was extended to include liability based on an omissio
- in this case reference is made to a Roman law text where the doctor neglected the aftercare
of his patient. Another example is where someone locked up a slave or quadruped without
giving them food and they died.
A direct positive action was no longer needed. Indirect actions could also be punished. This
is illustrated by the following texts:
A knocked against B, B against C, a slave, who fell into the river and drowned. A was liable
for the damages to C's master although he hadn’t touched C himself.
Another text is the one where a barber was shaving a slave on the market square. A number
of people were playing ball on the market square. The ball hit the barber's hand, which slipped,
causing him to slit the slave's throat. One group of jurists was of the opinion that the ball
players were liable, while other jurists were of the opinion that the barber was responsible as
he should not have been shaving someone at such a dangerous location.
Another text referred to is the case where A gave B, a slave, poison to drink. The slave drank
the poison himself - there was no direct damage caused to B but A would be liable even though
a direct positive action was absent.
A midwife gave medicine to her patient - the patient drank the medicine himself and became
ill. The midwife would still be held liable although she didn't give the medicine to him directly.
B persuaded A's slave C to climb down a pit - C climbed down, but fell and was hurt. B was
still liable although there was no direct positive action.
By giving a sword to an insane person who afterwards injures animals and slaves, a person
will still be liable in terms of the actio legis Aquiliae.
The damage must still be added to the thing itself (damnum corpori datum). One text makes
reference to a person who cut the cable of a ship - the ship then drifted onto the rocks and
sank. If the requirement is that the damage should be caused to the thing itself, the doer can
only be held liable for the damage to the cable and not the damage to the ship.
The highest amount was no longer claimed in classical law, as the value/interest that the thing
had to the person was taken into account. Suppose a slave could sing beautifully and by his
appearances at concerts or people’s houses his master made a lot of money. After the barber
cut his throat he could no longer sing. The master would then not only claim the highest value
of the slave but also his interest/ /interesse in the slave - in other words the money he would
have made if the slave were still able to sing.
Another text that is referred to by the jurists includes the case where a person had a number
of slaves who raced in the Colosseum (Roman amphitheatre) and who had an interest that
the team be kept as one - they were used to race together. If one of the horses was killed, it
meant that the owner's interest in the team as whole was harmed and that interest should also
have been taken into account.
You have already seen that no distinction was made between culpa/dolus and iniuria (in the
sense of wrongfulness/unlawfulness). In classical law a distinction was gradually made
between the terms, especially between iniuria and dolus (intent) but a mere form of negligence
(culpa) was also referred to.
In the case of iniuria, grounds for justification were developed to exclude a person's liability.
It was for example said that persons who partook in public games and who were wounded
had no claim as they fought for a gloria causa (for greater honour, fame and courage) - if A
and B fought in the Colosseum and A wounded B and B instituted the actio legis Aquiliae
against A, then B would have no action as he had fought for glory and fame. (This text was
later used in the Middle Ages to give a free person an action - see the discussion of the Middle
Ages below.)
An example of culpa is the case of the pruner of trees. A person sat on a branch of a tree in
order to prune it. Underneath the tree was a public footpath. It was said that he had to call out
before a branch fell to the earth. If he didn't and someone walking past was hurt, he would be
liable, as it could be expected of him to call out a warning. Therefore, if the branch fell on
someone and that person was hurt, the pruner would be liable. Should the tree be in the veld
where one would not expect people to be walking, he need not call out.
Another example is the one already referred to namely the case of the barber - above it was
stated that the barber should not shave people in an unsafe location. It can be expected of a
person having some form of expertise to act accordingly. Therefore, the driver of mules should
keep his mules under control - if he drives too fast or does not control the mules, he could be
held liable. Expertise is also expected of a doctor or nurse.

The law in relation to damages more or less remained the same in the Post-classical period.
3.6 Development of the Lex Aquiliae in the Justinian period

When was the Justinian period? _______

In the Justinian period certain changes were brought about. [If something is not mentioned
you can regard it remained the same as in the classical period.]
With regard to the wounding of a free person it was stated in Justinian times that a freeman
could now institute an action for his own medical expenses and loss of income. There was,
however, no claim in the case where someone (other than a slave) was killed (such a claim
developed in the Middle Ages). With regard to damages the interest that a person had in the
object was still taken into account - in other words the action was still an actio mixta.
With regard to the requirement that a thing itself should be damaged, an amendment was
brought about. Since classical times, damage no longer had to be brought about by a direct
positive action, but the damage had to be caused to the thing itself.
One of the Justinian texts refers to the case where someone set a slave free out of compassion
- for example he leaves the door open and the slave flees. The slave himself is not damaged
- the damage lies in the fact that the master no longer has possession of the slave. Reference
is now made to damnum nec corpore nec corpori datum - the damage is not caused by an
object to an object. Remember that Romans regarded slaves as objects as they attached a
value to them.
In the case of the ship's cable that was cut through, one should on the basis of analogy be
able to argue that the person who cut the cable would also be liable for the ship's damage.

3.7 Germanic law

When was the Frankish period? _______

In the Frankish period the so-called composition systems developed - these systems were
described in the codifications of Germanic law.
Initially a person could offer "weergeld" or "soengeld" (reconciliation money) in order to buy
off the vengeance of the family of the injured. Gradually the amounts paid for reconciliation
were recorded.
The Longobarda referred to fixed amounts, for example, where a person's lip was hooked
through that the teeth were seen he was ordered to pay 20 solidii (way of payment), or if a
person hit out the tooth of a slave he had to pay 16 solidii. If a person was wounded, he had
to make use of the Germanic composition systems.

3.8 Middle Ages

Name the legal schools of the Middle Ages:_______

In the Middle Ages we see the following requirements for damnum iniuria datum:
 Fault (intent/negligence)
 Patrimonial loss (damage/harm)
 Causal connection (in other words the action should be connected to the consequence).
With regard to the claim of a free person for his or her own wounds, the Glossators stated that
a person definitely had an action. They used a contrario approach (they contrasted two
statements). They used the example of the public games that was referred to in the discussion
of the classical law. They argued as follows: If a person had no claim when he fought for
glory and honour, then it had to mean that he did have a claim if he was wounded when he
did not fight for glory and honour. The Glossators therefore granted a free person an action
to claim for his own medical expenses and loss of income.
As a result of the influence of canon law, a requirement was imposed that a person should
only pay the amount for which he was liable. He did not need to pay more. This resulted in
the actio legis Aquiliae losing its punitive nature (that it is no longer an actio mixta) and starting
to move into the direction of an actio reipersecutoriae.

3.9 Roman Dutch Law

Roman Dutch law is mainly based on Roman law. De Groot provided for general delictual
liability and stated that each act, whether an act or omission, through which damage was
caused in a culpable manner gave rise to an obligation to compensate.
De Groot was not followed in South African law, but the Roman law rules of the actio legis
Aquiliae as applied and changed through the ages are applied.
In Roman Dutch law the actio legis Aquiliae was a pure actio reipersecutoriae - that means
that it was both actively and passively transmissible.
[Link] South African law

In South African law the following are requirements for damnum iniuria datum:
 Action
 Wrongfulness
 Fault
 Damage
 Patrimonial loss
 Causal connection
Also note that due to the Law of Procedure that is derived from English law, the Law of
Damages was also influenced.
The question is sometimes asked in South African law whether the actio legis Aquiliae reached
its logical development. According to some writers, the fact that pure economical loss is now
also claimed by the actio, it means that all patrimonial loss is included and that the action
needs no further development.
The question should rather be whether the actio legis Aquiliae is not still in the process of
development. Damages caused through computer viruses have not been before the courts.
The possibility is that with all new technological developments forms of damages may be
developed that have not been foreseen. Nobody for example foresaw the damage that the
Covid-19 epidemic has caused.
Can you think of other examples?
The truth is rather that the South African law of delict is a developing system of law and cannot
be regarded as a static system. In your second year you will learn of all the new developments
in South African law in relation to this action.
 Self-evaluation questions
1. Use the information in the text above and complete the following table – it will assist
you to see how the action developed over the ages:

Earliest Twelve Praetor Pre- Classic- Justin- Ger- Middle Roman

times Tables classi al ian manic Ages Dutch
cal law

Action - i.e. for

example
breaking

Omissio

Iniuria

Culpa

Who institutes
the action

Free Roman -
claim for
wounds

Free Roman
claim for death

Action - i.e.
name of the
action

What can you

claim with the
action?

Nature of action

Active
transmissible?

Passive
transmissible?

2. What did the three chapters of the original Lex Aquilae state?
3. Could a free person claim for his own medical expenses and loss of income? Describe
through the ages when it would have been possible for him to do so?
4. Was fault in the sense of intent and negligence always been distinguished? If not how
and when did this distinction developed?
5. See if you can find a court case where the Lex Aquiliae was discussed. Did the courts
refer to old sources? List them as well as the schools/periods they derived from.
6. Should the court still develop the actio legis Aquiliae? Why of why not?
7. See if you can identify the different delicts in the following set of facts:
Patetius, a well-known Roman merchant, had a stall on the market square where he
sold valuable Greek vases. Longius passed the stall and knocked against the table –
four vases broke. Short after, Jakkalius and Gomezius walked by. They hit Patetius
over the head, grabbed two vases and run away. Patetius was just recovering from the
wound and was staggering around when he was seen by Claudius. Claudius thought
Patetius was his opponent, Belius. Claudius told Patetius that he is a drunken thief and
did he not have better things to do than to stagger around on the market square. This
was all done in front of a group of people. Patetius just sat down to drink a cup of tea
when he saw a hand rising from under the table closing around the neck of a vase. He
grabbed the hand and pull Skelmpus out from under the table.