This thesis deals with the punitive and compensatory functions of Aquilian tort liability throughout the history of civil law in continental Europe from a cultural standpoint. Legal systems provide for tort liability rules in order to prevent people from taking revenge one against the other whenever a damage is produced. If such a crucial purpose is at play, tort liability is one of the most distinctive instruments of any legal system. Therefore, it has to reflect the culture it stems out of. This is essential to address the issue of the function of tort liability: the articulation between punishment and compensation is linked to the cultural evolution of a given community.
The first function Roman jurists gave to Aquilian tort liability was to punish the wrongdoer. However, as time went by, the need for a compensatory instrument was more and more strongly felt, as shown by the Aristotelian, Stoic and Christian thoughts of the necessity that every unjust damage be compensated. Therefore, Justinian’s Institutes describe Aquilian liability as being mostly compensatory, with certain exceptions. This primacy was further enhanced during the era of ius commune, a time when the moral and religious value of compensation was highlighted especially by the works of Thomas Aquinas.
The entry into force of modern Civil codes starting from the late eighteenth century led to a revolution in law sources. Although these codes were influenced by late Scholastics and natural law theory, both of which left little to no room for punishment in Aquilian liability, more than one of them contain provisions which aim at sanctioning the perpetrator. This leads to think that every legal regime of Aquilian tort liability needs to pursue both the punishment and the compensation of the damage, in order for this crucial legal instrument to be fair and effective.