Useful reading for your assignment

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....

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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.