Browsing online, I found this very short reading that has useful information for your assignment, which you should be working on already!! it can be found in
http://www.roman-empire.net/articles/article-021.html
I am copying the first part of the text to get you started. Check it out, comment, ask, take a look at the cited bibliography and start writing, it is easier to write short pieces steadily than the whole piece on one attempt. Last, but not least, enjoy!
Underlying yet Unwritten
The Standards of Care and the Lex Aquilia
by Andrew Mason
originally prepared for Professor Weinrib, University of Toronto
In Ancient Rome the only acts recognised as criminal were "exceptional
invasions of public security or of the general order of society." As
such, Roman ‘criminal law’ would have failed to meet the needs of any
highly organised society. The Romans decided upon a "practical remedy,"
the laws of Delict, by which they "extended the doctrine of civil
obligations," to cover the realm of personal property. Violations of
these standards of care carried with them "penal consequences." Private
law was originally dominated by the Twelve Tables, which soon became
"harsh and inflexible antique rules" in cosmopolitan Rome. The "punitive
vengeance" of the Twelve Tables evolved into legal sanctions to compel
compensation when damage was done to private property. However, these
sanctions retained a distinct "punitive character."
Sanctions were thus developed to protect three principal rights of
the Roman citizen not originally protected by criminal law:
the security
of his property, his security from theft and his right to be "protected
from deliberate anti-social attacks" on his dignity. The Lex Aquilia governed loss wrongfully inflicted to property (damnum iniuria datum), whereas the Delicts of Furtum, Rapina and Iniuria were designed to deal with theft, robbery and attacks on personal dignity respectively. In order to be liable under the Lex Aquilia the defendant had to be found guilty of intent and culpable conduct (iniuria datum), and thus to have "wrongfully inflicted" loss (datum) on the plaintiff.
The early Romans maintained strict standards that governed personal
behaviour and this is reflected in the legal reasoning implicit in the
lex.
Frier argued that while the ancient Romans "were under no general
obligation" to ensure that others did not experience material loss, they
were required "to act with care" in circumstances where their actions
risked causing such loss to another. An examination of the twin pillars
of the
lex, the Praetor’s Edict and the juristical interpretations of the
Lex Aquilia (illustrated by the actions
ad factum and
actio utiles) and selected cases from Frier’s
Casebook on the Roman Law of Delict
will demonstrate that unwritten ‘standards of care’ clearly existed in
Roman law though they are never mentioned explicitly. The foremost legal
reasoning behind the
lex was the understanding that one had a civic responsibility as a Roman to not wrongfully cause another loss.
Standards of care as expressed by Culpa and Dolus
"Loss wrongfully inflicted" (damnum iniuria datum) forms the basis of Aquilian liability. Definitions of the term "iniuria"
changed during the evolution of Roman law. The term was originally held
to mean "without legal right." Juristical interpretation lent iniuria
an additional meaning, that of "wrongfulness." Defendants were
considered only guilty of inflicting loss without legal right if they
had "acted in a way positively improper and worthy of legal reproach."
The concept of "wrongfulness" strongly suggests that "legal rules"
governing what conduct was expected from citizens "in various
situations." Frier points out that the
Lex Aquilia "only
sketchily described the content of such rules" and that those which do
exist are the creation of the jurists. This is not unsurprising however.
The early ancient Romans, a people with both a traditional loathing for
autocracy and a deep respect for the rights of the citizen would have
resisted codifying laws explicitly stating what conduct was expected of
them. Nicholas argues that the Romans would have interpreted such an
attempt to impose defined duties as "an unwarranted restriction on
personal freedom." Thus ‘standards of care’ as expressed in the
Lex Aquilia were not codified, but can be defined as such: citizens were expected to act in the manner befitting a Roman.
As citizens, Romans were obliged to understand the "prerequisites of
social life" and were expected to tailor their actions so as to avoid
causing loss to others. In Case 19 Paul maintains that a tree-trimmer on
private land is liable for killing a passing slave by "throwing down a
branch" because in failing to call out or "foresee what a careful person
should have foreseen" he had violated these social prerequisites.
Culpa
(fault), as Paul stipulated, arises when a defendant ignores the
mutually understood, but unwritten, obligations of the Roman and
wrongfully causes loss to another.
It is for this reason that Ulpianus "construes
iniuria as loss inflicted by culpa" even when "the wish to harm" was absent, for one has a duty to be careful and aware.
Dolus,
(intentional fault) arises when one ignores these obligations "with a
deliberate intent" to cause loss. The civic obligations implicit in the
notions of
culpa and
dolus imply the existence of an
unwritten standard of care, and Frier even describes the adherence to
the aforementioned obligations as a "duty of care". Daube points out
that the existence of a third standard of Aquilian liability, that of
casus (accident) can only be seen as concerned with compensation, because unlike
culpa (characterised by negligence) or
dolus
(characterised by evil intent) sheer accident does not involve a breach
of any standard of care. It is important to note that the juristical
interpretation of the
lex there was no liability for
casus....
(For
the whole paper visit the link above, it is interesting and will help
you understand the topic so you can write a good essay. Post any
questions about the terms or concepts, we can work them out together. I am copying the bibliography as well, go to the library and take a look at the available books)
Bibliography
Amos, Sheldon.
The History and Principles of the Civil Law of Rome. London, Kegan Paul, Trench and Co., 1883.
Daube, David.
Roman Law. Edinburg University Press, 1969.
Frier, Bruce W.
A Casebook on the Roman Law of Delict. Scholars Press, Atlanta, 1989.
Frier, Bruce W.
The Rise of the Roman Jurists. Princeton University Press, 1985.
Jolowicz, H.F. "The Original Scope of the Lex Aquilia and the Question of Damages"
Law Quarterly Review 38 (1922)
Kelly, J.M. "The Meaning of the
Lex Aquilia",
Law Quarterly Review 80 (1964)
Leage, R.W.
Roman Private Law. London, Macmillan and Co., 1961.
Nicholas, Barry.
An Introduction to Roman Law. Oxford, Clarendon Press, 1972.
