The element of fault in Roman private law

Abstract

R. von Jhering’s 1867 work Das Schuldmoment im römischen Privatrecht, translated hereby into Russian, is still recommended in basic textbooks on German civil law marked “grundlegend”, which means “fundamental”. And indeed, despite the significant complication of the legal material on this issue since its publication, the work contains fundamental ideas from which one can depart in various directions, but which it is absolutely impossible and unacceptable for an educated lawyer to pass by. From a didactic point of view, the work is remarkable in terms of the accessibility of the language, the clarity of ideas and the illustrative nature of the material supporting them. The work of R. von Jhering, despite its relative brevity, is a full-fledged study and, undoubtedly, is one of the outstanding monuments of legal scholarship not only of the 19th century and Germany alone, but of all time for the whole world. It shows the path that the legal system must overcome from the unsophisticated ancient legal forms to an impartial assessment of what causes the greatest irritation in any person — the wrong committed against him. What is fundamentally important in the work is not that R. von Jhering explained what was already known, but how this work can help not to lose such important ethical values as the principle of guilt, proportionality of punishment, individual assessment of behavior on the further path of development. And much more. It seems that many readers, after reading the work, realize that their ideas about civil liability are much closer to Ihering’s description of ancient law, since the guilt component often goes far into the background compared to the idea that the injured person should be restored in property terms.

Keywords:

fault, private liability, damages, tort, punishment