Justinian's Institutional Classification and the Class of Quasi-Delict

Abstract

The annual blister approaches; the time is at hand for the lecture on obligations arising as though from delict. But how to make sense of what we are told in Justinian's Institutes? The first, the most obvious, problem is the classification itself: what holds together the four forms of behaviour described in Institutes 4.5 as arising quasi ex delicto? It is my contention in this paper that we do not need to take this aspect of the problem too seriously, because much of the classification in the Institutes is bogus. For ease of teaching, a symmetrical view of the law was put forward which did not correspond to reality. After having – I hope – proved this point, I shall then look briefly at the quasi-delicts, including the most awkward case, the iudex qui litem suam fecerit.1

Notes

1. In what has come to us through Justinian we find this form of the verb; G 4.52 uses ‘facit’; there does not seem any significance in the variation.