Quasi-delicts, French Civil Code and Reinterpretation of Roman Law

Abstract

The dichotomy within the Roman law of civil wrongs started with Justininian’s Institutes of 533AD. Civil wrongs were split into two different classes: delicts and quasi-delicts. The French Civil Code of 1804. took over the Roman model and the division on delicts and quasi-delicts (which applied until the legislative reform of 2016). The discussion in France that formed the basis of the articles under the heading “Delicts and Quasi Delicts” proceeded on the basis of Roman law. However, French division was based on the reinterpreted Roman rules by the seventeenth and eighteenth-century French scholarship, particularly by Domat and Pothier. Understanding what delict is and what is quasi-delict differ in the definitions of these distinguished French legal writers resulting in the apparent confusion of the code’s drafters. Although some Roman rules, after the discussion, were rejected as inappropriate, such as noxal surrender of dependent persons and animals or the concept of threatened damage, the impact of Roman law was still dominant. To understand French rules as they are till present, is not possible without an appreciation of the Roman rules. In the words of Alan Wotson “One can say that Roman law was not received, but it nonetheless was the initial factor-the dominant factor-in determining the shape of the French rules in the Code Civil.”