THE LEGAL BACKGROUND

The cases dealt with concern occidere: the Roman jurists here discussed the statutory actio directa under Chapter I of the lex Aquilia. For them, it made a world of difference whether liability could be asserted by the statutory actio directa, based on occidere, or the in factum variant for mortis causam praestare. The former is an application of ius civile, while the latter plays out on the basis of ius honorarium. Coming from a modern law perspective, it is easy to overlook the fundamental difference the Romans must have seen, under the rules of procedure alone, between mortis causam praestare and occidere. The jurists here at work did not fail to point out when a liability needed to be realised by an in factum proceeding. For them, occidere and mortis causam praestare were two different and differently structured delicts, the latter supplementing the former. Not even the post-classical transition to the per cognitionem procedure did away with this distinction, which - albeit in a somewhat distorted manner - made it prominently into Justinian's codification (I.4.3.16). Dieter Norr's attempt to show this distinction as in flux, subject to evolutionary re-arrangements, seems untenable, even if such an alleged change would have been just the minority concern of a leading lawyer of the time. It would have been a doctrinal earthquake if notable support had been given to a blurring of the difference between the actio directa and the corresponding in factum variant of the same action, which then might even have become superfluous. Repercussions should be traceable in many of our relevant texts, which would inform us about or turn around this procedurally imminently important distinction. Ulpian's statement nihil interest, occidat quis an causam mortis praebeat (Ulp 8 ad Leg Iul et Pap D.48.8.15) shows that a merger of both concepts, wherever it occurred, was noteworthy, but could also be expressed in no uncertain terms. Whatever the palingenetical context of this statement may have been, it makes for a stark contrast with Ulpian's and his contemporaries’ discussions of Chapter I cases.

Liability under Chapter I was triggered by the completed performance of an intentional act, occidere.