(negligence):
Dig. 9.2.5.1
(p. 72) and
Gaius Institutes,
Book 3.211. Gaius interprets
dolus (fault)
as being intentional and with malice (Mens
rea); Paul adopts Gaius' terminology in his commentary (intentional
and with malice); culpa is negligence. In contrast to the
other delicts where only dolus is actionable, the Lex Aquilia recognizes
culpa levissima
Dig. 9.2.44
(p. 96). Negligence is first developed in
the Lex Aquilia and only later extended to other
areas of law.
Modern civil law recognizes negligence when a person is able to recognize the unlawfulness of his behavior and could have had the opportunity to act otherwise.
The Roman
jurists leaned towards a universal measure later called the
Homo constans,
e.g. Dig.
9.2.31.
Homo
diligens; paterfamilias diligens.
Page numbers refer
to Justinian, The Digest of Roman Law: Theft, Rapine, Damage and Insult
(Penguin Books).
"Magna negligentia culpa est, magna culpa dolus est," Paul, Dig. 50.16.226 "A gross negligence is culpa, and a gross culpa is criminal malice."
Comparative responsibility (fault[Culpa]): Compares fault of Actor and Reus
Strict liability: Reus has no fault (Culpa) but is liable
Contributory Negligence: Actor has a degree of fault [Culpa]