Istanbul Law Review
The Process of Transforming Strict Liability into Liability for Fault in Roman Law, and the Effect This Transformation Has Had on Modern LawAbdurrahman Savaş
Roman Law had two basic principles of liability: the principles of objective and subjective liability. In the field of tort law, the principle of objective liability had started turning into subjective liability. The Lex Aquilia was a landmark in this regard. During the classical law period, the main principle of liability in the field of contract law was objective liability, and custodia liability was the most common form of strict liability. According to this understanding, the person who gave rise to the situation that caused the responsibility bears the consequences regardless of the reason. On the other hand, liability based on intent (dolus) began being accepted in the bonae fidei contracts in this period. In the post-classical period, fault liability was adopted, with negligence being taken into account when determining liability. The transition from objective liability to subjective liability necessitated the situation that had caused the liability to be investigated and to seek the fault of the debtor in the occurrence of an unlawful outcome. The basis of holding the debtor responsible according to his fault has brought with it the problem of how to determine fault (culpa). Culpa is divided into intent (dolus) and negligence (also culpa), and negligence is scaled to slight negligence (culpa levis) and gross negligence (culpa lata). Although the trend was found from strict liability to fault liability in the historical course of Roman law, these days the fault of the related person is rated and taken into account when determining responsibility to be able to maintain the equity (aequitas), and the areas where strict liability is accepted are also increasing.
Roma Hukukunda Kusursuz Sorumluluğun Kusur Sorumluluğuna Dönüşüm Süreci ve Bu Dönüşümün Modern Hukuka EtkisiAbdurrahman Savaş
Roma Hukukunda esas olarak iki sorumluluk prensibi mevcuttur. Bunlar objektif ve sübjektif sorumluluk prensipleridir. Haksız fiiller alanında çok eski dönemlerden itibaren sübjektif sorumluluğa geçiş başlamıştır. Lex Aquilia kanunu bu konuda bir dönüm noktasıdır. Klasik hukuk döneminde, sözleşmeler alanında asıl olan objektif sorumluluk olup en yaygın görünüş biçimi olarak custodia sorumluluğu cari olmuştur. Bu anlayışta sorumluluğa neden olan duruma sebebiyet veren kişi bunun nedenine bakılmaksızın sonuçlarına katlanır. Öte yandan iyiniyet sözleşmelerinde ise kasttan sorumluluk bu dönemde kabul edilmeye başlanmıştı. Klasik sonrası dönemde ise kusur sorumluluğu benimsenmiş ve ihmal de sorumluluğun belirlenmesinde hesaba katılır olmuştur. Objektif sorumluluktan sübjektif sorumluluğa geçiş, sorumluluğa neden olan durumun araştırılmasını ve hukuka aykırı sonucun meydana gelmesinde borçlunun kusurunun aranmasını gerektirmiştir. Kusuruna göre borçlunun sorumlu tutulması esası ise beraberinde kusurun nasıl belirleneceği sorunsalını da getirmiştir. Kusur (culpa), kast (dolus) ve ihmal (culpa) olarak ayrılmış ve ihmal de kendi içerisinde hafif ihmal (culpa levis) ve ağır ihmal (culpa lata) olarak ölçeklendirilmiştir. Her ne kadar Roma hukukunun tarihsel süreci içerisinde kusursuz sorumluluktan kusur sorumluluğuna doğru bir gidişat yaşanmış ve sorumluluğun hesabında ilgilinin kusuru derecelendirilip hesaba katılmaya çalışılmış olsa da günümüzde hakkaniyetin sağlanabilmesi için kusursuz sorumluluğun kabul edilip yaygınlaştırıldığı alanlar da artmaktadır.
Liability expresses the responsibility individuals have to fix the damage they have caused to others. This responsibility may arise from a contract or tort, as well as from the law. One of the crucial problems of determining a debtor’s liability is whether it should be assessed by evaluating only external factors or by also evaluating internal factors. When taking objective factors into account, the liability of the debtor is a strict liability. However, to consider subjective factors means that liability is based on fault.
Different types of liability were practiced in Roman law, which lasted almost 1,300 years. Initially, the rule generally was strict liability. Afterwards, first in tort law and then in contractual law, fault liability occurred. In the period of Justinian I, however, fault liability became the rule.
Beginning in the middle of the Regnum period, the evolution toward fault liability commenced by means of intent, as sought for in tort law. In the Laws of the Twelve Tables, only intent was sought for liability in murder. With the Lex Aquilia adopted toward the end of the 3rd century BC, negligence was also considered sufficient for the existence of liability in the field of wrongful acts resulting in damage to property.
The idea of being careful and not harming others originated in Greek philosophy and was seen to be effective in the transition from strict liability to fault liability, which developed as a measure of responsibility. The owner and father of the family (pater familias) was considered responsible for the wrongful acts and damages caused by the slaves and members of the family (filius familia) as well as the pets owned.
With Lex Aquilia, negligence being accepted as adequate for the existence of liability resulting in damage to property also affected liability as understood in contract law, and the transition to fault liability began.
The rule of “Uti lingua nuncupassit ita ius esto (as he declares orally, be that law)” which emerged in the old legal period regarding giving loans and was present in the Laws of the Twelve Tables, states that strict liability also applies to contracts. With the pre-classical legal period, the concepts of dolus and culpa began to find places for themselves. However, the concept of strict liability did not come to an end and continued to be in practice. With regards to debts imposed upon parties, the differences contracts had in their structure prevented the application of a single liability criterion for all contract types. For this reason, different liability criteria were in put into practice together, as had been the case in the pre-classical legal period when the transition first commenced. One criterion of liability current in that period was custodia (supervisory) liability. After this, diligentia can be mentioned as the first milestone of fault liability and utilitas as a special application of diligentia. In the era of Justinian I, the prevailing principle was omnis culpa liability, which expresses responsibility for all faults.
Custodia liability was usually practiced in contracts when the debtor held property belonging to the creditor for his own benefit. As the prevailing principle throughout the classical period, custodia liability included unexpected situations (casus fortuitus), and thus also calls to mind guarantee liability. As a rule, a debtor was not liable for force majeure (vis maior) except in cases of default where the debtor’s liability expanded to include vis maior.
Starting in the post-classical period and based on slight negligence, diligentia liability was accepted by taking into consideration the care that a good head of household (pater familias) should show. Diligentia liability is the subjectivation of custodia, which expresses objective liability. Later in the post-classical period, the importance Christianity attached to will greatly impacted the acceptance of fault lability. Being based on culpa (negligence), diligentia liability was objectified by seeking out the attention and care (culpa in abstracto) that a good pater familias should show. This objective liability, in terms of some obligatio, could also be combined with subjective elements by seeking the attention and care that the debtor should show in his own affairs. This criterion was expressed as culpa in concreto and constituted the lightened version of diligentia. During the reign of Justinian I, culpa liability became properly clear. Failing to show the attention and care that anyone is able to show was expressed as culpa lata (gross negligence) and considered equal to intent. In this period, the benefit obtained from the contract was taken into account in order to determine the degree of liability of the debtor, and the attention and care a debtor should show increased if the debtor had more benefits. However, some relationships such as mandatum (mandate) and negotiorum gestio (acting without authority) placed the care and attention required by the debtor who had no interest at the highest level.
Due to the changes that took place in technology and social life with the Industrial Revolution, fault liability has become insufficient for eliminating the damages individuals suffered. Increased employment rates and expansion of activities and businesses that pose grave dangers to the people and environment have led to a return to strict liability. In this context, certain persons such as those who employ others, who have animals and are the heads of households, or who are owners of building facilities are held responsible for the damages suffered by others under certain conditions, even if they are not at fault. To accept all these responsibilities, rules similar to those in Roman law have been accepted, and the principle of strict liability was put into practice once again as it had in the past.
Some of these liabilities appear to be based on aggravated versions of diligentia liability, while others are based on hazard, and others still are just simply based on the causation principle.
Fault liability also means responsibility arising from all kinds of fault, especially intent, just as it had been in late Roman law. Utilitas is also a principle of Roman law that is currently used to determine liability in today’s modern law. Modern law has deemed vis maior to be a reason that interrupts the causal link and accepts it as a case that prevents the emergence of liability. Concordantly, the debtor who is under the fault liability will also be accepted as liable for unexpected situations in case of default.