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Aqulian Action in Roman Dutch Law of Delict: A General Discussion
Mangala Wijesinghe, Senior Lecturer
Faculty of Law
Gen Sir John Kotelawala Defence University
Abstract
A delict may be defined as the breach of a duty imposed by law independent of the will of
the party bound which will ground an action for damages by any person to whom the duty was
owed and who had suffered harm in consequence of the breach. The Aquilian Action (actio aquiliae
or lex aquilia) of Roman Dutch Law of Delict gives a general remedy for wrongs caused to interests
of subjects to claim compensation for the patrimonial loss sustained.
The three essential elements of liability in the Aquilian Action are wrongful act by the
defendant, pecuniary loss resulting to the plaintiff and fault on the part of the defendant. A wrongful
act means the invasion of a right or the violation of a legally protected interest of the plaintiff.
Patrimonial loss (dumnum) implies a loss capable of monetary or pecuniary assessment. Fault
means willful injury (dolus) or wrongful default (culpa).
Culpa or negligence, defined as conduct which involves an unreasonable risk of harm to
others, forms the basis of liability in delictual actions. In determining whether the defendant’s
conduct was negligent the test of the reasonable man is employed: If the defendant had failed to
observe the same degree of care that a reasonable man would have observed under the same
circumstances, he would be found guilty of negligence. However, negligence would not give rise to
delictual liability unless there was a duty to exercise care in the particular circumstances.
The duty to take care is the duty to avoid doing some act, the doing of which may have as its
reasonable and probable consequence injury to others. The criterion usually adopted in determining
the circumstances in which a duty of care arises is the foresight of a reasonable man. Failure to
employ the degree of care that a reasonably prudent person would exercise in the same
circumstances is a breach of the duty of care owed. The test is objective and not subjective.
Nevertheless, the quantum of care required to comply with the standard varies with the
particular circumstances. To determine the amount of care a reasonable person would employ in a
given case so as to absolve himself from liability for negligence two main aspects shall be
considered: The degree of risk run i.e. the likelihood of the injury being caused and the seriousness
of the injury risked i.e. the gravity of the consequence in the event of the occurrence of an accident.
To succeed in a delictual action the plaintiff shall prove on a balance of probability that the
defendant owed him a duty of care, that he was negligent and that his conduct caused the harm
suffered. If the defendant is able to rebut one of such elements of negligence it would exonerate him
from liability.
Key Words: aquilian action, delict, duty of care, negligence, Roman Dutch Law, standard of care