(negligence):
Dig. 9.2.5.1
(p. 72) and
Gaius Institutes,
Book 3.211. Gaius interprets
dolus (fault)
as being intentional and with malice; 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."