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CULPA

CULPA in the most general sense denotes any wrongful act or omission (e. g. Col. 9, 4. 2; Dig. 49, 16, 14, 1) which is imputable ( “quae enim in eo culpa sit, quum suae mentis non sit?” Dig. 9, 2, 30, 3; “si omnia quae oportuit observavit, caret culpa,” Dig. 1b. 31). Taken thus generally, it includes what the Romans term dolus malus, but properly the latter is distinguished from culpa when this term is used accurately; dolus malus being an intentional and deliberate violation, whether by act or omission, of another's rights (Dig. 4, 3, 1, 2), and culpa an unintentional violation, consisting apparently always in the omission or neglect of some legal duty. It is true that damnum under the Lex Aquilia (of which below) is often the consequence of some act (e. g. Inst. 4.3, 4-8); but the act usually derives its culpose character rather from the omission of some duty than from the positive act which is done: the latter, in itself, does not entail legal liability, but because it is done wilfully, heedlessly, or rashly.

Deliberate breach of legal duty always entailed legal liability, whether the right infringed was a right of property, of contract, or one of the so-called “primordial” rights: “illud nulla pactione effici potest, ne dolus praestetur” (Dig. 2, 14, 27, 3); and no act would amount in law to a delict [CRIMEN] unless dolus were present, except in the single case of damnum or damage to property. Here, if culpa or negligence were once established, the amount of the defendant's liability did not depend on its degree: “in lege Aquilia etiam levissima culpa venit” (Dig. 9, 2, 44, pr.): hence the expression of the civilians, culpa Aquiliana.

It is, however, in the legal relations arising from contract and quasi-contract that the doctrines of culpa and diligentia are of greatest prominence. If a breach of his duty by a party to such a relation arose from a carelessness so excessive that no ordinary man would have been guilty of it, he was said to have shown lata culpa, and for this he was legally held as answerable as if the breach had been deliberate: “lata culpa est nimia negligentia, id est, non intelligere quod omnes intelligunt” (Dig. 50, 16, 213, 2). For passages assimilating and even identifying its legal treatment with that of dolus, see Dig. 11, 6, 1, 1; 17, 1, 29, pr.; 47, 4, 1, 2; 50, 16, 223, pr.; ib. 226.

Where, however, a man's carelessness was not of this extreme degree, the question whether he could be made to pay for it was determined by reference to two distinct criteria of diligence.

As a general rule he was required to show what the Roman terms exacta diligentia--that of a careful, accurate, sound paterfamilias or man of business; and where this was so he was answerable for all culpa, provided it would have been avoided by one who showed that degree of care and prudence. Modern writers call this culpa levis in abstracto; and this higher degree of diligence was required to be shown by vendors and purchasers (Dig. 18, 6, 3), hirers and letters (Dig. 19, 2, 57; Cod. 4, 6, 28), borrowers (commodatarii, Inst. 3.14, 2), depositors, pledgees (Inst. 3.14, 4), and agents (Cod. 4.35, 13; Inst. 3.27, 1).

In other relations the law was satisfied if a man was as careful as he was habitually in affairs in which he himself would be the person primarily injured by carelessness--“talis diligentia qualem in suis rebus adhibere solet;” here modern writers say he is answerable only for culpa levis in concreto. This standard of diligentia only was required from guardians and curators; socii (partners) inter se; co-heirs and co-legatees; lenders (commodatores), and husbands in their administration of the dos brought them by their wives (Dig. 23, 3, 17). Perhaps the safest general rule as to the degree of diligentia required in contractual and quasi-contractual relations is to say that the defendant is usually required to show exacta diligentia, but the burden of proving his culpa is on the plaintiff: in some cases, however, the defendant is excused if he can prove that he was shown such as he usually displays in the conduct of his own affairs. The broad principle seems to be that when a contract is for the interest of both parties, although their interests are adverse rather than identical, each is responsible for the least negligence (Dig. 30, 108, 12), though perplexing exceptions (such as agency and partnership) make this a difficult rule to practically rely upon. (The best treatises on this subject are the following:--Von Löhr, Theorie der Culpa, Giessen, 1805, and Beiträge zu der Theorie der Culpa, Giessen and Darmstadt, 1808; Hasse, Die Culpa des römischen Rechts, 2nd edition by Bethmann-Hollweg, 1838; and in particular Mommsen, Beiträge zur Lehre von der Culpa, in his Obligationenrecht, vol. iii. pp. 345 ff.)

[J.B.M]

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