INTRODUCTION

In the last chapter we looked at the first part of the law of obligations, the law of contracts. In this chapter we move on to the next type of obligation, delicts. A delict is a civil wrong (the word has the same root as “delinquent”).

We saw in Chapter 7 that the Romans did not have a single law of contract, instead having a number of recognised contracts. Unless the praetor or the emperor could be persuaded to recognise liability in a new situation, it would be necessary to show that your agreement fitted into one of the established contracts. There was no general principle, as there is in modern law, that seriously intended agreements were enforceable. This is why we speak of Roman law as having a “law of contracts” rather than a “law of contract”.

The same is true in the case of delictual liability. Justinian tells us that delictual liability arises “from wrongdoing” (J.4.1pr). But he then tells us that liability arises under one of four heads: “theft, robbery, loss wrong­fully caused, or contempt”. In addition to these, a number of other types of wrong, known as “praetorian delicts”, were also recognised.

One other point that is noteworthy about Roman delicts is that often penal damages were payable. This contrasts with the modern law of delict, where damages are strictly compensatory. The aim in the modern law is, so far as possible, to put the pursuer back in the position he would have been in but for the defender’s actions. Any punishment for the defender’s actions is a matter for the public authorities. In early legal systems, however, without developed criminal prosecution authorities, the law of delicts takes on this function of punishment and deterrence. Roman law is typical of this.