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C H A P T E R X . D E L I C T A N D T O RT

1. G E N E R A LAs a first step in the comparison of the English tort and

the Roman delict it is reasonable to describe the two institut ions, i .e . to provide answers to the qu estions: W hat is ator t? W ha t is a delict? But this is a difficult busines s.Common lawyers are not yet clear on the question whetherthere is a general conception of tort and still endeavour toframe their definition after examining all the phenomenaknown to be torts and searching for a quality common tothese and not found elsewhere. Th e result is not as yet verysatisfying. That it is a breach of a duty primarily fixed bylaw, that it is a breach of a ius in rem, that i t is a wrongwhich can be brou ght w ithin the purview of certainancientwrits , all these have been maintained and rejected.

The procedural difficulty in defining tort, namely, thefact that there are certain wrongs remediable elsewherethan in common law jurisdictions and otherwise than "byan action in tort, need not detain us, for it did not arise inRom an law. But ther e is a difficulty or appa rent difficultyof substance which requires a few words. Sir Percy Wi n-field tells u s1 that he has reluctantly abandoned the definition of a tort as 'a civil wrong which infringes a rightinrem and is remediable by an action for dama ges ' , and thathis substantial reasons for doing so are that there are sometorts which are not breaches ofiura in rem, and that thedefinition 'will not include some wrongs which are, orought to be, reckoned as torts , but which are breaches ofrights in personam'' . H e then instances the refusal of aninnkeeper to receive a guest or of a common carrier toaccept goods for carriage, and describes the rights againstthese person s as rightsin personam. But is this view correct?

1 Province of Tort, pp . 237 , 238 .

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Surely a right which exists only against all persons whoplace themselves in a certain category such as commoninnkeepers, common carriers, users of the highway, prosecutors, occupants of premises, writers and printers, etc. ,does not on that account cease to be a rightin rem.1 T h epoint is that the innocuous traveller has a right of receptionagainst any person who sets up as a common innkeepe r inEngland and has room in his inn, just as I have a r ightagainst any person who institutes a prosecution againstme that he shall do so without malice and with reasonableand probable cause. Conversely, the common innkeepe r 'sduty of reception is nonethe less in rem because it is onlyowed to those who are travellers, nor the prosecutor 's dutybecause it is only owed to his victim s. It is of course true;that the breach of a duty in rem gives rise to a secondary,/sanctioning right in personam. It is also true th at in the{case of the common innkeeper or the common carrier the

reception of the guest or the acceptance of the goods forcarriage creates rights in personam between the part ies.Those rights are enforced sometimes by an action in contract, sometimes by an action in tort, like the passenger'saction against a negligent rai lway company. But theoriginal r ight of the traveller against the common innkeeper to be received as a guest and the latter'soriginal .duty to the traveller to receivehimand it is these whichtrouble Winfieldare in rem.

In Roman law the special liabilities which rested oncarriers and innkeepers all seem to be based on a previousundertaking: there was no 'common call ing' . They wereessentially penal liabilities reinforcing the law of contract.Wanton refusal of an innkeeper to accept a guest or hisgoods might have been aniniuria, but this outrage on personality is a breach of an ordina ryius in rem: the relation ofthe parties merely gave the occasion for it.

It may , however, be possible to define delict, as Winfield1 For a discussion of rightsin rem see p. 89, ante.


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does tortious liability,,1 as 'breach of a duty. primarilyfixed by the law. . . towards persons generallyand. . . r e -dressible by an action for unliquidated damages ' .3 Evenif this description be correct, it is necessary to point outthat there are great differences between the conceptions oftort and delict. Ou r law of tor t is essentially common law ,

what is called the general custom of the realm,thoughit has been considerably modified by statute and perhap sowes much of its flexibility to the enabling provisions ofthe Statute of Westminster II , 1285.3 The Roman lawof delict is essentially statutory; all the_cjvilj3yZZ^cBr'the only wrongs expressly called delicts,..are.based, onstatute, and even the numerous^aetorian wrongs are_allcreated by_ expr ess.e n a ^ H e a J J n j S k j E d ^ t . Conversely,as was bou nd to hap pen, the lawyers created most of thelaw of the matte r. T he statutes were very brief proposit ionswhich needed' and received a vast amount of amplification

by jurist ic interpretat ion. This origin is the mo re remarkable as, on the whole, statute played a less impo rtantpart in the private law of Rome than with us. Moreover,in Roman law, each of the delicts has adistinct origin,separate provisions in6Te All Tables , "the lex Jquilia, ancithe Edict , while with us the major part of thelaw of tortrests on the gradual exte^T6n'and'"expansi6n dFbhe~origi-

m l writ^' the'wri t of ^ tte^p^s^l^itiand's'!' fertile.^motherof actions7.

I f we exclude the action of detinue, much older thantrespass and recuperatory in origin, which remedied certain wrong s to-day usually regarded as torts , there are very

1 Op. cit. p. 32. '1 See also Holdsworth,Jour. Soc. Public Teachers of Law, 1932, 41 ,

who regards it as the breach of a duty arising from 'neither consent norrelationship'. Relationship is indeed a vague term, but what is meantseems to be what the Romans callednegotiant, as in D . 12 . 6. 33 .

3 For the most recent views on this very controversial topic see Fifoot,History and Sources of the Common Law: Tort and Contract, pp . 66 sqj. and,for the literature, p.66 , note 4.

G E N E R A L 3 4 1

few torts which cannot be traced back to the writ oftrespass or to the development of that writ and one or twoothers, with the help, say some authors, of the powersgiven by the Statute of Westm inster I I . Defamation ha dan independent o rigin, but , once adopted by the commonlaw Courts, it found a seat, eventually two, in the Case

omnibus ;1

similarly, the old writ of deceit, which lay fortrickery in connexion with legal proceedings, gave rise todeceit on the case and the modern tort ofdeceit, 3 and theold writ of conspiracy produced an action on the case inthe nature of conspiracy.3

Since i t is to the Statute of Westminster II that somestill attribute a.large share of this activity, it is per hapspossible to say that nearly all these writs and the tortswhich they created had in a sense a statutory origin,though not in any reasonable sense created by the statute.4

Th e history of these writs is perhaps not well known, butas the statute provided for consultation of Parliamentwhere the clerks were uncertain, some of them had, if nota statutory, at least a parliam entarybasis . But it seems clearthat they were only extensions of common law notion s: thelegislature did not create them: at most i t made thempossible. H er e a certain perhaps remote parallel ism maybe found in Roman law. The field of the action foriniuriaunderwent an extension very like that of the action fortrespass . W e shall deal with it later;5 here it is enough to saythat, beginning as a remedy for minor unjustified assaults,it ultim ately becam e the remedy for a grea t' variety ofwr ong s. Th e extension of Aquilian liability to new formsof damage followed only a slightly different technique.

Delictum strictly is a conception of civil, as opposed topraetorian law, and, apart from certain ancient actionswhich were almost completely absorbed into the wider

1 Holdsworth, v. p. 205.3 Holdsworth, i i i . p. 40 5.1 See Fifoot, cit. on this controversy.

s Holdsworth, i i i . p. 408.

5 P p . 378 sqq.,pst.


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delicts of classical law,1 there were but three: theft , including robbery, damage to property, andiniuria, outrageon personality. But it is custom ary to treat unde r the sam ehead a number of praetorian wrongs, and i t is almostinevitable to think of these as in some way analogoustoequitable wrongs. But the resemblance or analogy is very

superficial. They were not created by the action of a court,but by express legislat ion in the Praetor 's Edict . Theywere not adjudicated on by a separate tr ibunal, but by theordinary court , in the ordinary way, giving rise to a jud geme nt for a penalty, like a tru e delict. Some of them havespecial rules, not those of ordinary delict, especially whereseveral persons are involved, but essentially they are thesame thing, differing onlyin that they were created by adifferent mod e of legislat ion. An d the most important ofthem, that giving the actio doli, is closely similar to thecase of the action for deceit: we shall therefore take theminto account.

An interest ing difference between Roman and Englishlaw is broug ht out by Professor R. W . Lee, in the followingpassage:

A man must see that he doesnot -wilfully invade another's right, or, inbreach of a duty, wilfully or carelessly cause him pecuniary loss,3

and again:In th e modern law t he Roman terminology serves as a general touchstone

of liability. Th e underlying principles of injuria and damnu m injuriadatum are applicable to all kinds of delict. To-day all delictual liabilities(with few exceptions) are referable to one or other of these two head s. I amanswerable for wilful aggression on another's right(injuria), though itmay not cause him pec uniary loss. I am answerable for wilful or careless

aggression on anoth er's right w hich causes pecuniary loss{damnum injuriadatum)?

The liability for negligently causing damage is therefore roughly the same in the two systems, but the place of

1 Not altogether: some still existed in later times, e.g. theactio aquaepluviae arcendae.

s An Introduction toRoman-Dutch Law, 4t h ed. p. 320.3 Ibid. p . 323 .

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iniuria, in which liability exists only fordolus, is in Eng lishlaw taken, not only by certain torts in which malice is anecessary ingredient, but also byvarious torts which areactionable on a basis of strict liability, that is t o say,where the defendant is liable not merely if he acts withoutwrongful intent, but also if he acts without negligence.

Such torts are trespass and defamation.How ever, the matte r is not so simple as that . Th e trea tment of defamation is certainly strikingly different in thetwo systems, for in English law the plaintiff may recoversubstantial and even vindictive damages for a publication

which was quite innocent on the part of the defendant.On the other hand, the more recent developments of trespass make that action normally available for the assertionof a right, and substantial damages are hardly ever givenunless the trespass was wilful. Inde ed, accordin g to thebetter view, the actions for trespass to the person andtrespass to goods1 will not lie at all unless the defendanthas been guilty of either wrongful intent or negligence.Trespass to land is still in form a tort of strict liability;however, the Limitat ion Act al lows the defendant to tenderamends and to disclaim any exercise of a right, and in such"cases the plaintiff will not even win his action. Mo reov er,the action of trover, which still enforces strict liability,really puts in issue the righ t to possess the goods . It isobvious that the true Roman analogues of trespass andtrover are to be found in the various real actions, there ivindication th e actio confessoria and the actio negatoria.

Thus the comparison between delict andtortif w e

leave out of consideration negligencetakes on a newform. Iniuria is seen to correspond not to all other torts,but to the malicious tortsand to trespass when accompaniedby wilful intent or aggravating circumstances, the place ofsimple trespass and conve rsion being taken , for all practicalpurposes, not by anything in the Roman law of delict, bu t

1 National Coal Board v. Evans, [1951] 2 All E.R. 310.


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by real actions of one kind or another. Viewed in this lightthe differences are not very great except in the one casealready men tioned of defamation . It is perhap s significantthat defamation is one of the few torts where the need forreform is usually considered urgent.

2. COMPENSATION OR PENALTYThere is a further difference. Various as are the manysuggested definitions of tort,1 a frequently recurri ngelement is the statementthat the rerne.dY^fgx.iUfaartis.a.n,.action for unliquidated damages. Here the importantword'fof us is 'dam age s ' . In the law of tort i t is theprimary aim of the action to give the aggrieved party compensation for dam age wrongfully inflicted on him . It istrue that in some cases there may be vindictive or exemplary damages, i.e. that in some cases the action has a.definitely penal aspect,e.g. in cases of aggravated.trespass

to property,3

and in defamation, where the damagesaward ed by the jury are. often o bviouslypenal,-but inprinciple an action in tort isan action for compensation,an action, to use Roman language,ad rem persequendam.For the Roman actions on delict we must reverse theseproposit ions. I)elict is imbued wjth.the.idea of vengeance,?and the action is primarily not for damages but for apenalty, though this is usuallyunliquidated; the pr imaryaim is not compensation. I t is true that insome cases,indeed in many cases, there is a compensatoryelement,e.g. in the actio e lege Aquilia^for damage to property, but ,in principle, even here the action is notad rem persequendam, but adpoenam persequendam. The distinction is fundamental. It allies thelaw of delictwith.that of. crime_raherthan with that of pther_civil obligation, so much so thatMdmmsenih his CStrajrecht, somewhat to the confusion of

1 The most important can he seen inWinfield's Province of Tort, chs. iiiand xii. - Emblen v. Myers ( i860) , 6 H. and N. 54 .

, C O M P E N S AT I O N OH P E N A LT Y 3 4 5

his readers, hardly dist inguishes between delict and crimeexcept in matters of procedure. An d whiledelictum andmaleficium are the appropriate names for a delict andcrimen is used mainly in connexion with crime, the distinction is not maintained at all clearly in Justinian's booksand not entirely in the surviving classical texts.1 A similar

blurring of the l ine between tort and crime, a l ine whichcan easily enough be drawn for practical purposes, but isvery hard to fix scientifically,3 is found in our law. Th e oldappeals of felony straddled across the line, and the writ oftrespass, which arose out of them about the middle of thethirteenth century, bore for many centuries more the m arkof i ts criminal ancestry in the words 'vi et armis. ..e tcontra pacem nostram'. . In deed, unti l 1694 , the unsuccessful defendant in trespass paid his fine to the Crown forhis offence in addition to the damages recovered by theplaintiff.3 But al though the criminal origin of our conception of tort or torts has left its mark, we seem to havehad less difficulty than the Romans in differentiating between the two conceptions. The Roman law of delict hasfar more affinity to the criminal law than to the law of tort;the penalty is indeed paid to the injured party, not to theState, but still it is a penalty and not damages.

Since the action ex delicto is penal it dies in, principlewith the wrongdoer, without necessari ly doing any injustic e, since this does not affect theactio ad rem persequenda m which frequently coexists with it. The same rule inour law may have had a Roman origin,^ but with us i tworked more unfairly since the action in tort was normallythe only remedy. I t must however be admitted that inrelation to damage to property, negligent or wilful, the

1 Albertario, Maleficium, Studi Perozzi, pp. 221 sqq.\ Delictum eCrimen, 1924.

s Kenny, Outlines of Criminal Law (1933), ch. i ; Winfield, Provinceof Tort, ch.. viii.

3 Maitland, Forms of Action, p . 3 6 1 .* Pollock, Law of Torts, 13th ed . pp . 62-66 .
http://wjth.the.idea/http://wjth.the.idea/


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Roman law was no better, for unless, as often occurred,the facts arose in connexion with a contractual or quasi-contractual relation, the action ex delicto was the onlyremedy, and i t died in principle with the wrongd oer.1 T h erule that any enrichment to theheres result ing from thedelict could be recovered from him is only a small correc

t ive.2

On the other hand an action ex delicto was not ingenera l affected in classical or later law by the death of theaggrieved par ty : the only important exception is theactioiniuriarum for personal outrage,3 and this exceptionartreat me nt is presumab ly due to the fact that it is essentially,more than others, wndhtam spiransA But it is also to benoted that the rule applied only to actions not yet begun:if the action had reach ed the stag e of join der of issue(litiscontestatio) it was not affected by the death of a party, ex ceptthat certain procedural modifications were necessary: itdid not abate.5 It is indeed possible that in very early lawall delictal actions died with t heplaintiff, as they did in ourlaw, with us, though very wide* exceptions had been madeby statute and in very early times, the rule still existedunti l 1934 , when, subject to certain conditions and except ions, it was abolished.

This fundamental difference, i.e. that the action ondelict is penal, not compensatory, had important practicalresults . Thus, subject to some l imitat ions which we shallnot consider, if several were engaged in a delict, each wasliable for the full penalty , as indeed h eis with us. But , as it isfor a penalt y and not for dam ages, even where, as in somecases, it really includes a compensatory element, the factthat one of them has paid, either under suit or otherwise,in no way releases the o the rs: they ar e still liable tothe penalty , a rule which m ay be referable to the difficulty

1 last. 4 . 12 . 1.2 As to this, see Buckland,Text-book, p. 692, note 1.3 D . 4 7 . 10 . 13./>r. + Buckland, Text-book, p . 591.5 See Pollock, loc. tit. as to modern English. law, and B uckland,toe. cit.

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of subdividing vengeance.1 As to damage to property,we are told2 that what one has paid does not release theothers, precisely for this reason,cum sit-poena. This is a verystrong case, since here the compensatory element was veryprominent: as we saw, unless there was a contract orthe like, there was no means of recovery but thi s actio n,

which, in favourable conditions, where there were severalwrong-doers, might be extremely profi table. With us, onthe contrary, judg em ent against one wrongdoer, even ifunsatisfied, released the others,3 and (it is believed) satisfaction by one of a judge men t against several wrongd oersbarred any execution against the others. These were thecommon law ru les ; now, under the Law Reform (MarriedWo me n and Tort-feasors) Act, 1935 , i f the judgementagainst the joint tort-feasor is wholly or partially unsatisfied, the plaintiff can sue any other joint tort-feasor,but only for the residue.4 Moreover, at common law,anyone who fully satisfies jud gem ent in an action forconversion acquires t i t le to the goods converted. Ano therconsequence of the penal aspect of delict is that liabilitywas not destroyed by capitis deminutio of the wrongdoer,since although his legal personality was changed heremained the same man. I t will be remem bered that in ourlaw there are certain morally reprehensible wrongs liabilityfor which survives even bankruptcy.

Penalty and compensation being dist inct things, therewas no question of action on contract or on delict as being,on given "facts, alternative ways of recovering the samething, and thus no question, in principle, of 'waiving ator t ' . But while this is reasonable infur turn where thepenalty and the compensation are dist inct things and recoverable by different actions, it might lead to injustice

1 D. 47. 4. 1. 19 ; C. 4. 8. 1. 3 D, 9- 2. n . 2.3 Brmsmeadv. Barrison (1872) , L.R. 7 C.P. 547:* The Act also introduces theprinciple of contribution between joint

tort-feasors.


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where, as in actions under thelex Aquilia for damage toproperty, the penalty included the compensation. If therewas also a contract, in careless performance of which thedamage was done, there would be both actions and onewould not formally bar the other . But to allow both ac tionswas to allow double recovery in effect, and accordingly

there was machinery, which we need not discuss, bywhich this was in fact prevented.1

3. PERSONAL CAPACITYAnother practical consequence of the fact that in Romanlaw an action on delict was one for a penalty for wrongdoing, was the rule that there was no liability in delict ifthe person who did the act was, as we say, ' not respo nsible 'for his acts. Thus a lunatic or aninfans was not liable to anaction ex delicto for, e.g., damage to property, because hisacts were not properly imputable to him :' quae enim in eoculpa sit cum suae mentis non s i t ? ' .1 The fact that an.action lay for damage which had been done by an animaland that there was an alternative of surrender(noxae deditio)in this action {actio de pauperiey> just as where a delict wascomm itted by a slave, so that i t is apparently contemplatedas a delict , may seem to throw doubt on this conception.But the actio de pauperie is extremely ancient4 and existedno doubt in a t ime when,as .in the Midd le Ages, no one sawany difficulty in imputing guilt to an animal, or perhapsit would be better to say, when the notion of guilt asan element in imputability was not clearlygraspedwhobreaks, pays. The contrast with our law is at first sightsharp . Th e com mon law principle seems to be that a lunaticis liable for his tort, wh ich does no t look very logical, sincetort seems to imply wrongful conduct and it Is difficult toattr ibute that to a lunatic. I t is , no doubt, in conformity

1 See, e.g., D. 19 . 3. 25 . 5 : h.t. 4 3 .* D. 9. 2. 5. 2. The same is trueFoifurtum or any other delict , D. 47 .

2. 23 - 3 D. 9. 1. 4 D. 9. i.pr.

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with our rules of trespass to property, also ancient, underwhich a man is liable for trespass even though he does notknow and has no means of knowing that he is trespassing.The test question would be: Is a lunatic liable for infringement of an absolute right? But in fact there is littleauthority on the subject of liability of lunatics for tort, and._

it is said1

that nowadays a lunatic would probably not beheld liable if the evidence showed that, from disease ofmind , he did not know what he was doing . In any case theold rule is more intelligible in a system in which the actionis for compensation.than in one in which it is for a penalty.I t is , however, worthy of notice that in France, wherethere is strict liability for damage done by things whichone has under one's care, the Courts have recently heldthat a lunatic is not responsible for killing a man with arevolver, the irresponsibility of the lunatic bringing thecase within the exceptions ofcasfortuit and force majeure.2

As to infants there is plenty of authority, ancient andmodern, for the rule that in our law infants are liable fortort . All the cases, howev er, seem to deal with infants of alarger growth, persons who are infants in our technicalsense, i.e. are under twenty-one, persons who are oldenough to know what they are about, not with infants inthe Roman sense, that is,,children too young to haveintellects, to ^understand the nature of the act done, letalone to apprec iate its wrongfu lness or its conseq uences.From the language of the olderbooks^ and modern text-books4 i t seems that i t is generally held that on this matt er

1 Hailsham, xxi. p. 288.3 In m any of the continental codes the solution is on the following lines:

(1) the lunatic is not liable for tort; (2) if someone responsible for his carecould have prevented the wrongful act, that person is liable; (3) otherwisethe judge takes into account all the circumstances, including the relativeeconomic positions of the lunatic and his victim, and orders payment of suchsum as he considers equitable out of the lun atic's estate. SeeWinfield,Teat-book of the Law of Tort, s. 27, and notes.

3 E.g. Bacon's Abridgement, s.v. Infancy.4 E.g. Pollock, Law of Torts, 14th ed. p. 48.


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our law is in practice muc h the same as the Rom an. W henthere is no mental element in the tort, such as malice orwant of care, an infant, however young, is probably liable,provided he is old enough to 'act', that is, is capable ofvoli t ion; when there is a mental element he is probablyliable only if he is 'old enough to know better ' .1 If we

applied the analogy of crime and said that a child underseven would be held not liable in tort, and that above thatage it would be matter of evidence, that would be in factthe*rule under Justinian, but we cannot be so precise.

4 . B O R D E R - L IN E B E T W E E N C O N T R A C T A N DT O R T

In Roman law, as in ours to-day, there was.a difficultpiece of country on the boundary between contract anddelict, and many relationships existed which gave rise toan action on delict or in contrac t or to both. In additi on,in both systems, cases arise in which there is a delictualremedy for the wrong, though, but for a contract , thedefendant would not have had the opportunity of committ ing' the wrong . If I employ a piano-tuner to tune mypiano and he does it badly, in fact does not really tune it,I have a 'claim for recovery of what I m ay have paid, a ndfor damages for breach of contract, and I can resist actionon the contract if I have not paid . Bu t there is no que stionof tort: the duty broken was created by the contract. If,however, he not only fails to tune the piano, but in thecourse of his operations breaks some of the hamme rs, thecase is altered . If he break s the hamm ers negligen tly, I

can sue him for the damage either in contract or intort;if intentionally, then I can sue him in tort or (probably)in contract . A glance at our books will show that m anyactions of negligence, and most actions of deceit, are basedon acts connected with a contract between the part ies.

1 Hcdsmawv. Grm

buckland and mcnair 338-350

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