Умысел (dolus) и «природа человека» в системе критериев договорной ответственности

Fraudulent Intent (Dolus) and “Human Nature” in the System of Contractual Liability

 https://doi.org/10.24031/1992-2043-2023-23-5-9-54   Despite the unification of the criteria of contractual liability in the teachings of pandectists, in the great European codifications there remained an account of the individual specifics of the debtor in certain types of obligations. That approach goes back to the classical category of diligentia quam suis – diligence as to one’s own things. The category was born in the course of controversy about the possibility of a broad interpretation of dolus (intention) as a criterion for the imputation under a depositum contract in the Proculian school (lex ‘quod Nerva’ – D. 16, 3, 32). Analysis of approaches on contractual liability for intent (Proc. D. 18, 1, 68, 1–2; Nerat. In D. 19, 1, 13, 14) reveals the range of interpretation of dolus in the Proculian school, which included conscious failure to fulfill warranty as well as deception regarding the scope of execution. The exegesis of D. 16, 3, 32 does not support the understanding of “culpa latior” as a relative dolus, proposed by Austrian scolars in the 1970s–1980s. Celsus does not relativize dolus, but builds an abstract and general criterion for violation of fides (“fraude non caret”) as a level of responsibility in civil turnover oriented towards a normal (natural) person. At the same time, justification is allowed, if based on the debtor’s individual mode of action (suus modus), which anticipates modern approaches.   Keywords: contractual liability; fraudulent intent; willful misconduct; dolus; fault; culpa; negligence; standard of care; level of care like in one’s own affairs; diligence of a prudent housekeeper; Pandect law; usus modernus pandectarum; Roman law; Roman jurisprudence; comparative law. Information about the author

D.V. Dozhdev