Key Similarities and Differences Between Roman Delict and Common Law Tort

Q3. There is an obvious parallel between the Roman delict and the common law tort; but the analogy should not be pursued too far’. What are the key similarities and differences between roman delict and common law tort?

Introduction

A tort can be defined as a wrong that interferes with a person’s legally protected interests , whereas, a delict can be defined as a wrongful act causing damage to someone’s personality, family or property. There are many similarities between the Roman law of Delicts and the common law of Torts, including the similarity between the tort of liability for animals and the Actio de Pauperie and the Edict of the Aediles, the tort of trespass to land and the tort of wrongful death which is similar to the delict of wrongful damage to property or the Lex Aquila. The similarity between the tort of trespass to chattels and the delict of theft and robbery, and the similarity between the tort of trespass to the person, in the form of assault and the delict of insult or injuria. However there is only one major difference between the roman law of delicts and the common law of torts, the roman law of delicts has a penal element to its punishment , whereas the common law of torts is strictly a civil and compensatory damages punishment.

Similarities

The Roman delict can be defined as a wrongful act which causes damage to someone’s personality, their family or property and for which the victim or his heirs are entitled to compensation , similar to the definition of the common law of tort, which suggests that a tort is a wrong that interferes with a person’s legally protected interests . The Roman law of Delict was divided into four main delicts, the wrongful damage to property (damnum injuria datum) or the Lex Aquil...

... middle of paper ...

...an Law (4th ed , Oxford University Press 2010) pp 317-52.

Trischa Mann (ed), Oxford Australian Law Dictionary (Oxford University Press Australia and New Zealand, 2011).

Cases

Behrens v Bertram Mills Circus Ltd [1957] 2 QB, [1957] 1 All ER583.

Entick v Carrington (1765) 2 Wils KB 275.

Hall v Fonecca [1983] WAR 309.

Penfolds wines v Elliot [1946] 74 CLR 204.

Scott v Davis (2000) 204 CLR 333 [160].

Legislation

Law Reform (Miscellaneous Provisions) Act 1984.

Other

Gaius, Provincial Edict Book 7 (D.9.2.2pr).

Paul, Sabinus Book 10 (D.9.2.31).

Ulpian, Edict Book 18 (D.9.2.27.5).

Paul, Edict Book 39 (D.47.2.1.3).

Paul, Sabinus Book 40 (D.47.2.21.8).

Ulpian, Curule Aediles Edict Book 2 (D.21.1.40-2).

Ulpian, Edict Book 18.

Ulpian, Edict Book 56 (D.47.10.1.1-2).

Ulpian, Edict Book 56 (D.47.8.2.23).

Ulpian, Edict Book 57 (D.47.10.11.1).

Ulpian, Sabinus Book 41 (D.47.2.43.5).