Nature and Scope of the Law of Delicts
The law of delicts is concerned with liability for wrongdoing.[2365] The same term, ‘delict’, is used for this area in modern Scots law. In modern law, though, the word is usually used in the singular — ‘the law of delict’ — whereas in Roman law we tend to talk in the plural — ‘the law of delicts’.
The reason for this is that the Roman law was not based yet on a general principle of liability for wrongful acts, but rather on specific delicts or wrongs. We have seen the same point in the law of contracts.[2366] One consequence of this is that there will often be gaps in the law, where justice demands that a person be held liable but there is no legal basis for this. We shall see in this chapter some of the ways in which the problem of these gaps was addressed.Another consequence of a law of specific delicts is that there will sometimes be overlap between two different delicts. For example, suppose I were to damage your property out of spite. We shall see in this chapter that you could sue me for the value of the damage to the property. We shall see in the next chapter that you might also be able to sue me for the insult to you that this conduct entails. Thus, the same conduct could have quite different legal consequences depending on the choice of legal basis on which the wrongdoer was sued. No doubt there was often anxious consideration of the tactical implications of the choice. That the choice could exist is certain.[2367] However, instead of making the choice, could the victim sue on both grounds? The position seemed to be that this was possible, but that the victim could bring a second action to recover only the excess due under the other delict, rather than the full amount due under both.[2368]
In addition to being a law of individual delicts rather than a general law of delict,[2369] the Roman law had certain further characteristics that distinguish it from the modern law.
In modern law, generally speaking delictual liability is strictly compensatory. In other words, the purpose of delict is to compensate the victim for losses suffered, rather than to punish the wrongdoer. Punishment is the role of the criminal law. In Roman law, however, the criminal jurisdiction was less well developed,[2370] and instead delicts often had a penal element. Because of this, delicÂtual liability was strictly personal. The heir of the wrongdoer could not be bound to pay a penalty arising from a delict.[2371] This is quite different from modern law, where a delictual liability is essentially an ordinary debt, to which the deceased’s estate is subject just like any other. Again, where there were multiple wrongdoers, each was liable in full. Because liability was penal, payment by one did not free others who participated in the wrong.[2372] This is also different from modern law, where the victim is not normally entitled to recover more than has been lost.InJustinian’s account of the law of delicts, four specific delicts are identiÂfied.[2373] These are: theft; robbery; liability under the lex Aquilia for ‘loss wrongÂfully caused’; and liability for insult under the actio iniuriarum. This is misleading, however; there were, in fact, several other recognised delicts. There was also a category known as quasi-delicts, which had features in common with delicts but which were thought not to fit into the law of delicts for one reason or another.
In this chapter, we consider one of the two most important delicts, liability under the lex Aquilia for loss wrongfully caused. In the next chapter, we conÂsider the other main delict, liability for insult. The other delicts are considered in Chapter 24, and the quasi-delicts in Chapter 26. To keep things as simple as they may be, we will be assuming throughout this chapter and Chapters 23 and 24 that the defender personally is the one alleged to be responsible for the wrongÂdoing. There are situations in which a person might be held liable for another’s wrongdoing, but these have been considered separately.[2374]
B.