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Fundamina

On-line version ISSN 2411-7870

Abstract

KLINGENBERG, Georg. Fundamina (Pretoria) [online]. 2014, vol.20, n.1, pp. 456-466. ISSN 2411-7870.

When a relative is injured or offended by a wrongdoer, Roman law distinguishes between two types of iniuria: the harm done to the concerned person herself ("direct iniuria") and the injury caused indirectly to other persons by the same incident ("indirect iniuria"). An example is given in Gai 3.221 and I. 4.4.2: If a married filia familias is injured, the actio iniuriarum against the wrongdoer can be brought not only filiae nomine, but also patris and mariti nomine. As Ulpian (D. 47.10.1.3) points out, the relevant criteria in respect of indirect iniuria are potestas and affectus. The actions based on indirect iniuria can be instituted together with the action based on direct iniuria (Neraz cited by Ulpian in D. 47.10.1.9); the aestimatio in every action is independent of the aestimatio in the other actions (Paul citing Pomponius in D. 47.10.18.2; Ulpian D. 47.10.30.1). According to Neraz (cited by Ulpian D. 47.10.1.8) it does not matter whether or not the wrongdoer knows the potestas or affectus of another person. Paul, on the other hand, insists that knowledge of these is necessary, regardless of the person involved in the case: the wrongdoer is liable if he knows the legal status (as filius familias or as uxor) of the person who is directly concerned (D. 47.10.18.4-5). Finally - as explained by Paul (D. 47.10.26) and Ulpian (D. 47.10.1.5) - the persons who are indirectly concerned can sue for their own iniuria even when there is no action in favour of the person who is directly concerned (e.g. a son or a slave who consents to an abusive treatment: volenti non fit iniuria).

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