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Actio Injuriarum in Roman Dutch Law of Delict: Elements of Liability
Mangala Wijesinghe, Senior Lecturer
Faculty of Law
Gen Sir John Kotelawala Defence University
Abstract
A delict is the breach of a duty imposed by law on a person independent of his will. Such a
breach will provide the basis for an action for damages by a person to whom the duty was owed and
who had suffered harm in consequence of the breach. The actio injuriarum of Roman Dutch Law of
Delict gives a general remedy for wrongful invasion of personal rights with regard to dignity and
reputation made intentionally.
The two essential elements of liability in the actio injuriarum are an act by the defendant
constituting an impairment of the plaintiff’s personality and wrongful intent or animus injuriandi on
the part of the defendant.
The interests of personality protected by actio injuriarum are the interests related to person,
dignity and reputation. Thus, to establish a prima facie cause of action the plaintiff must prove that
the act by the defendant constituted an impairment of his person, dignity and reputation. Assault on
a person, unjustifiable restraint of liberty of a person, using defamatory language on another and
malicious institution of criminal proceedings against a person are the commonest examples of such
kind of acts.
The element animus injuriandi though subjective, simply means the intention to commit an
injury or the intention of subjecting another person to an injury. Since a person’s intentions are
judged by law through his conduct, to establish animus injuriandi the plaintiff needs to prove that
the act complained of constituted an aggression upon his person, dignity or reputation and it was
intentional by the defendant. It is not necessary to prove any ill-will by the defendant towards the
plaintiff and it is sufficient if the injury suffered by the plaintiff was inflicted by the defendant not
accidentally or negligently but with deliberate intention. Once unlawful aggression is proved, the
law presumes that the aggressor had in view the necessary consequences of his conduct i.e. that he
had the intention to injure.
The defendant may rebut the presumption by proving that he did not know that his act would
involve an impairment of the plaintiff’s personality. He may also rebut the presumption by proving
that he bona fide believed that he was entitled to commit the act in issue. Nevertheless, the current
trend is to assume that a person who knowingly and intentionally violates another’s rights of
personality does so at his peril and it is no defence for him to plead that he bona fide believed that
such violation was justified however reasonable such belief may have been if in fact no justification
existed.
Key Words: actio injuriarum, delict, animus injuriandi, Roman Dutch Law, elements of liability