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 p373  Culpa

Article by George Long, M.A., Fellow of Trinity College
on p373 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CULPA. The general notion of dolus malus may be conveniently explained under this head.

Culpa in its most general juristical sense of any illegal act of commission or omission comprehends dolus malus. But the special meaning of culpa is distinct from that of dolus malus. Dolus malus is thus defined by Labeo (Dig. 4 tit. 3 s1):— "Dolus malus est omnis calliditas, fallacia, machinatio ad circumveniendum, fallendum, decipiendum alterum adhibita." Dolus malus, therefore, has reference to the evil design with which an act is accomplished to the injury of another; or it may be the evil design with which an act is omitted that ought to be done. The definition of Aquilius, a learned jurist, the friend of Cicero and his colleague in the praetor­ship (de Off. III.14), labours under the defect of the definition of Servius, which is criticised by Labeo (Dig. 4 tit. 8 s1). This seems to be the Aquilius who, by the edict, gave the action of dolus malus in all cases of dolus malus where there was no legislative provision, and there was a justa causa (Cic. de Nat. Deor. III.30).

It is sometimes considered that culpa in the special sense may be either an act of commission or omission; and that an act may fall short of dolus, as not coming within the above definition, but it may approach very near to dolus, and so become culpa dolo proxima. But the characteristic of culpa appears to be omission. It is true that the damnum which is necessary to constitute culpa is often the consequence of some act; but the act derives its culpose character rather from something that is omitted than from what is done.

Culpa then being characterised by an act of omission (negligentia), or omissio diligentiae, the question always is, how far is the person charged with culpa bound to look after the interest of another, or to use diligentia. There is no such general obligation, but there is such obligation in particular cases. Culpa is sometimes divided into lata, levis, and levissima. Lata culpa "est nimia negligentia, id est, non intelligere quod omnes intelligunt." Dig. 50 tit. 16 s213) If then one man injured the property of another by gross carelessness, he was always bound to make good the damage (damnum praestare). Such culpa was not dolus, because there was not intention or design, but it was as bad in its consequences to the person charged with it.

Levis culpa is negligence of a smaller degree. He who is answerable for levis culpa, is answerable for injury caused to the property of another by some omission, which a careful person could have prevented. For instance, in the case of a thing lent [Commodatum], a man must take at least as much care of it as a careful man does of his own property. There is never any culpa, if the person charged with it has done all that the most careful person could do to prevent loss or damage. Levissima culpa came within the meaning of the term culpa in the lex Aquilia; that is, any injury that happened to one man's property through the conduct of another, for want of such care as the most careful person would take, was a culpa, and therefore punishable. But the expression levissima culpa is said to occur only once in the Digest (Dig. 9 tit. 2 s44).

In the passage of Horace (Sat. II.2.123)

"Post hoc ludus erat culpa potare magistra,"

Bentley has the absurd emendation of "cuppa." The general meaning of culpa in the Roman writers is well explained by Hasse (p8). There is great difficulty in stating the Roman doctrine of dolus and culpa, and modern jurists are by no means agreed on this matter. The chief essay on this subject is the classical work of Hasse "Die Culpa des Römischen Rechts", second edition by Bethmann-Hollweg, 1838. Hasse's view is briefly explained in a note by Rosshirt, to his edition of Mackeldey's Lehrbuch, § 342 (12th ed.); but it requires a careful study of his work to comprehend Hasse's doctrine fully, and to appreciate the great merits of this excellent essay. What is stated in this short article is necessarily incomplete, and may be in some respects incorrect.

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Page updated: 9 Jun 10