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There are, in my view, four main issues concerning Aquilian damnum that are of interest to those studying Roman law, namely: the meaning of iniuria; the meaning of plurimi, which suggests a relationship – more and more relevant nowadays – between restitution and private punishment; the extension of the scope of the actio legis Aquiliae to include damage to a free person and to the creditor by a third party; and, finally, the clausula condemnatoria and the content of the condemnatio. In this chapter I will examine only the original meaning of iniuria in the phrase damnum iniuria datum and the extent to which such original meaning was confirmed in Continental law, starting from the rise of natural-law thinking in European legal thought.
Let us first consider the meaning of iniuria in the phrase damnum iniuria datum. The majority of modern Roman law scholars understand iniuria as ‘unjustified behaviour’. This view has its origins with von Jhering, who examined iniuria in its historical context and who maintained that such a concept was born at a very early point in the history of Roman law when guilty and innocent wrongs were not distinguished. According to this interpretation, liability was objective and unlawfulness existed regardless of the presence of culpa. Following von Jhering, Pernice set a definite distinction between iniuria and culpa, highlighting the objectiveness of iniuria as a type of unlawful behaviour. Ferrini highlighted the etymological meaning of the word and translated iniuria as ‘mancanza di diritto dell’agente’ and ‘obiettività del torto’. Rotondi reckoned that iniuria was originally disconnected from culpa, and saw it as an unlawful action. For Beinart, Aquilian liability was at its origin objective, while culpa emerged because of ‘gradual and cautious modifications of existing principles’. Daube went as far as to suppose that the passage from the objective standard of iniuria to the subjective standard of culpa has to be dated to the beginning of the first century BCE with Aquilius Gallus. More recently, Cannata and Schipani considered the phrase damnum iniuria datum as damage caused without justification, that is, as unlawful detrimental behaviour. From this perspective, the intention of the person who, physically and directly, made contact with the property of others was not relevant. In a similar way, MacCormack11 described iniuria as behaviour damaging others and done by someone with no right to do it.
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