![handle is hein.journals/rltrad5 and id is 1 raw text is: The Roman Division of Wrongs: A New
Hypothesis
Eric Descheemaeker*
Abstract - This article examines the rationale of the Justinianic
division of wrongs into delicts and quasi-delicts. Taking as its
starting point the assumption that the distinction corresponded to
that between fault- (culpa-) based and situational liability, it hy-
pothesizes that the quasi-delictal appendix arose after the time of
Gaius' Institutes from a contraction of the Roman concept of a civil
wrong (delictum): its scope would have narrowed from an unlaw-
ful liability-creating act to a blameworthy such act, thereby re-
jecting, outside of the delictal class proper, instances of liability
regardless of fault.
Introduction
One important feature of post-classical Roman law, as reflected in
Justinian's Institutes, is that it divided what we would call today
its law of civil wrongs into two groups: some obligations from
unlawful, non-criminal events were said to arise ex delicto (from
a delict), while others were deemed to arise quasi ex delicto (as if
from a delict). The dividing line between delicts and quasi-
. Fellow and Tutor in Law, St. Catherine's College, University of
Oxford; and Lecturer in Law, University of Bristol. This article is a re-
vised version of parts of two chapters from my doctoral thesis (E. Deschee-
maeker, The Division of Wrongs: A Historical Comparative Study (Oxford
2009)). I owe particular debts of gratitude to the late Peter Birks and
Professor David Ibbetson, who supervised the work, and to Professors
Simon Whittaker and Reinhard Zimmermann, who examined it. I am also
grateful to Professor Ernest Metzger for helpful comments on this piece.
Any remaining mistakes are naturally mine alone.
Throughout this article, references to Birks and McLeod are to P.
Birks and G. McLeod, eds., Justinian's Institutes (London and Ithaca, NY
1987); references to Gordon and Robinson are to W. M. Gordon and 0. F.
Robinson, eds., The Institutes of Gaius (London 1988); and references to
the Watson Digest are to A. Watson, ed., The Digest of Justinian [revised
English-language edition] (Philadelphia 1998).
Roman Legal Tradition, 5 (2009), 1-23. ISSN 1943-6483. Published by the Ames Foundation
and the University of Glasgow School of Law. This work may be reproduced and distributed for
all non-commercial purposes. Copyright © 2009 by Eric Descheemaeker. All rights reserved
apart from those granted above. ROMANLEGALTRADITION.ORG](ViewImageLocal?handle=hein.journals/rltrad5&div=1&collection=&method=preview&ext=.png&size=3)
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