OBLIGATIONS ARISING AS THOUGH FROM A DELICT (QUASI EX DELICTO)
The cases of obligations arising as though from a delict comprise a distinct group in the Institutional Scheme, set apart from other obligations. What is the basis for this classification? Various unifying factors have been suggested, such as strict or vicarious liability, or liability arising from holding some special status, but none is given by Gaius or Justinian beyond stating that these do not fit into delict, but are closer to delict than to contract.
The judge who makes the case his own
In the formulary system of procedure, there was no system of appeals against the decision of a judge. Such a judge was more in the manner of a private arbiter than a judge in the modern sense. This of course gave rise to risks concerning the quality ofjudgements, for, although the non-legally qualified judge would typically take advice on legal points, there was no requirement for him to do so. On top of this, there was the risk of corruption. For this reason, the law made the “judge who makes the case his own” liable to the offended party. The party who lost out because of the judge’s shortcomÂings could raise a new action against the judge, with the possibility of penal damages.
It is not clear what types of fault would give rise to liability on this ground. Justinian suggests that the judge was liable for any errors “even if only from ignorance” (J.4.5pr), which would suggest that the judge was liable for any error at all, which would make this a delict of strict liability (i.e. one imposing liability without fault needing to be shown). However, it would appear that liability here was based on lack of skill or judgement, which, as we saw in Chapter 8, was held to constitute fault. This was not, therefore, an example of strict liability.
Things thrown, poured, placed or hanging
Any person was liable for any loss caused if someone threw or poured something from his premises, whether he was the owner or some other class of occupier.
There was no need to show fault on the part of the occupier. It was enough that it was from his premises that the thing was thrown or poured. Where someone other than the occupier did the throwing or pouring, the thrower or pourer would be delictually liable under the lex Aquilia (to the occupier, if he had had to pay damages under the quasi-delict).There was also a penalty for things placed or hanging “where people come and go, which might do harm if they fell” (J.4.5.1). This was an actio popularis, that is to say, it could be brought by any person, even if they had not suffered injury. Indeed, it need not be the case that anyone had been injured. Damages were payable for injuries caused by the thing falling, these being a fixed sum for the death of a free man. The person liable was anyone who was responsible for placing the thing.
Shipowners, innkeepers and stablekeepers
Anyone in charge of a ship, inn or stable was liable for any theft committed there by someone in his service. There was no need to show personal fault. Innkeepers were also liable for theft or damage by permanent guests. Finally, those in charge of ships, inns or stables were strictly liable for theft or damage to property that they had undertaken to keep safe.
Essential Facts
• In addition to contracts and delicts, Justinian distinguished two further categories of obligation, obligations arising as though from contract and those arising as though from delict. These are obligaÂtions thought not to be either contractual or delictual, but they were classified accordingly as they were thought to be closer to contracts or delicts.
• Negotiorum gestio imposed a quasi-contractual obligation when one person acted beneficially on another’s behalf, but without consent. The obligation arose only when it was reasonable to carry out the act in question.
• Unjustified enrichment is the modern term for a number of quasi- contractual situations. Unjustified enrichment is based on the idea that, where a person has received a benefit without a proper legal basis, he should be obliged to return it.
Thus, the condictio indebiti was a claim for the return of money or property transferred in the mistaken belief that it was due.• Quasi-delict covers several different types of obligation arising in cases of wrongful conduct thought not to fall within the law of delicts. The basis of the classification is not clear, however. Other than the imposition of liability on “the judge who makes the case his own”, the other quasi-delicts are concerned with occupiers of property. They impose strict liability for damage caused by things thrown, poured or left hanging in a public place, and on shipowners, innkeepers and stablekeepers for theft from their premises.
Essential Cases
Kolbin & Sons v Kinnear & Co 1930 SC 724: during the Russian Revolution, the defenders had goods warehoused in Archangel which belonged to the pursuers. To prevent the goods falling into Bolshevist hands, the defenders shipped the goods out of the country. They then delivered the goods to a third party with no entitlement to them, without making adequate provision to protect the pursuers’ interests. The third party then sold the goods, and became bankrupt
while the proceeds of the sale were in his hands. The court held that the defenders were liable as negotiorum gestores for failure to take sufÂficient care of the goods.
Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151: this case concerned the condictio indebiti. The court held that one who had made payments under an error of law was entitled to their return.
Shilliday v Smith 1998 SC 725: this case concerned the condictio causa data causa non secuta. The parties, who were engaged, cohabited in a house owned by the defender in anticipation of their marriage. When the relationship broke down, the pursuer sought recompense for expense she had incurred in repairs to the house. The court held that she was entitled to recompense.
McDyer v Celtic Football and Athletic Co Ltd 2000 SC 379: the pursuer was injured by an item falling from the roof while attending an event at the defenders’ stadium. After discussion of the sources, his argument that the quasi-delictual actions on things thrown or hanging applied was rejected, on the basis that those actions applied only to those injured while outside the building.
Drake v Dow 2006 SCLR 456: while staying in the defender’s bed & breakfast establishment, the pursuer’s computer was stolen from his room. It was not disputed that the Roman quasi-delict on innÂkeepers’ liability had been received into Scots law. However, it was held that B&Bs were not “inns” for these purposes.
10