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Updated: June 7, 2025
The image of a vinculum juris colours and pervades every part of the Roman law of Contract and Delict. The law bound the parties together, and the chain could only be undone by the process called solutio, an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent.
He was a stout, dark, convivial-looking soul, with a merry eye, not altogether convinced of the enormity of his delict, and inclined at first to deprecate these proceedings. But the dialectical skill of the magistrate soon tied him into knots, and reduced him to a state of extreme penitence.
3 If a master is sued by a noxal action on the ground of his slave's delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of ownership is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master.
The case is the same with hire and the other contracts which are formed by consent alone. The former, as we remarked in the proper place, are divided into four kinds; but of these latter there is but one kind, for, like obligations arising from real contracts, they all originate in some act, that is to say, in the delict itself, such as a theft, a robbery, wrongful damage, or an injury.
"Heaven forfend, madam," said the Lady, "that I should account that a crime which saved the house of Douglas from a foul breach of honour and hospitality! We have written to our son touching our vassal's delict, and he must abide his doom, which will most likely be death.
3 Again, where persons own property jointly without being partners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses: here the defendant cannot properly be said to be bound by contract, for there has been no contract made between the parties; but as his obligation is not based on delict, it may be said to be quasicontractual.
He fixed, from the very outset of his career, on the responsibility of the royal ministers to Parliament as the one critical point for English liberty. It was to enforce the demand of this that he availed himself of Buckingham's sacrifice of the Treasurer, Cranfield, to the resentment of the Commons. "The greater the delinquent," he urged, "the greater the delict.
Where a delict, such as theft, robbery, unlawful damages, or outrage, is committed by a slave, a noxal action lies against the master, who on being condemned has the option of paying the damages awarded, or surrendering the slave in satisfaction of the injury.
The penalty is totally disproportioned to the delict, and the consequence is, that means are found out of evasion by legal fictions and the like. The judges listen to these; they become frequent, and the rule of Court ends by being a scarecrow merely. Formerly, delays of this kind were checked by corresponding amendes. But the Court relaxed this petty fine too often.
If therefore the criterion of a delict, wrong, or tort be that the person who suffers it, and not the State, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of Tort. Torts then are copiously enlarged upon in primitive jurisprudence.
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