The distinction between the actio directa and actio utilis seems quite complicated, however as far as non-doctoral studies are concerned, actio in factum was referred to by the jurists as actio utilis and vis-à-vis.
In regards to actio factum and actio utilis, I am quoting Zimmermann for the answer, “What was the difference between these two types of actions, and why did one sometimes turn to the one and sometimes to the other? Originally, actions in factum and actions utilis appear to have been two separate techniques by means of which the praetors were able to supplement, to correct and to adapt the ius civile. As far as the lex Aquilia is concerned, the actio in factum was competent where the factual circumstances of a specific case did not fit in with the statutory verbs (occidere, urere frangere rumpere); an actio utilis, on the other hand, was the opposite remedy to extend the right to sue to persons other than the owner” (emphasis added). – Law of Obligations, pp 995
The final codification of the praetorian edict was by Iulianus, circa A.D. 130, which resulted in praetorian activity and innovation coming to an end and the ius honorarium losing its flexibility, along with the administration for justice shifted to the imperial courts and chancellery and the rise of the new cognitio procedure. These changes resulted in the differences being less and less practical relevance and thus no longer interested the jurists. -- Borkowski & du Plessis 2005.
Don’t forget, the act (as prescribed under the ex delictu of damnum iniuria datum and regulated by Chapt. 3 of the lex Aquilia), meaning the wrongful damage, could be direct (actio directa) or indirect (actio utilis, as noted earlier, this action was also referred to as an actio in factum), could be either a ‘positive undertaking’ or an ‘omission’ (to penalize omissions is to impose a duty to act – a positive duty – and it is arguable, in absence of a contract, the policy of the law should be to impose only negative duties), and must have been caused by the defender (defendant). Causation is a problematic area of law, in even the most sophisticated and developed legal systems. The question which must be answered, was the defender’s act the substantive and operative cause of the damage?
The Romans attempted to provide solutions to each individual problem without sustained resort to overriding principle. Example – If a midwife gave a slave-woman a drug from which she died, this was admitted (by interpretatio) to be ‘killing’ (via actio directa), however, if the midwife did not administer the drug with her own hands, but instead gave it to the slave-woman to take for herself, then this was ‘providing of a cause of death’, and therefore actionable by actio utilis. -- Nicholas, Into to Roman Law 2008.
If the defendant’s conduct caused damage that may not have occurred in other property of the same type, the defendant was never-the-less liable. He (the defender) had to take his victim as he found him – a principle known as the ‘Thin Skull’ Rule in Common law systems. Meaning, “if someone gives a light blow to a sickly slave and the slave dies from it, Labeo rightly says that the person who gave the ‘light blow’ is liable under the lex Acuilia” D.9.2.7.5.
In regards to actio factum and actio utilis, I am quoting Zimmermann for the answer, “What was the difference between these two types of actions, and why did one sometimes turn to the one and sometimes to the other? Originally, actions in factum and actions utilis appear to have been two separate techniques by means of which the praetors were able to supplement, to correct and to adapt the ius civile. As far as the lex Aquilia is concerned, the actio in factum was competent where the factual circumstances of a specific case did not fit in with the statutory verbs (occidere, urere frangere rumpere); an actio utilis, on the other hand, was the opposite remedy to extend the right to sue to persons other than the owner” (emphasis added). – Law of Obligations, pp 995
The final codification of the praetorian edict was by Iulianus, circa A.D. 130, which resulted in praetorian activity and innovation coming to an end and the ius honorarium losing its flexibility, along with the administration for justice shifted to the imperial courts and chancellery and the rise of the new cognitio procedure. These changes resulted in the differences being less and less practical relevance and thus no longer interested the jurists. -- Borkowski & du Plessis 2005.
Don’t forget, the act (as prescribed under the ex delictu of damnum iniuria datum and regulated by Chapt. 3 of the lex Aquilia), meaning the wrongful damage, could be direct (actio directa) or indirect (actio utilis, as noted earlier, this action was also referred to as an actio in factum), could be either a ‘positive undertaking’ or an ‘omission’ (to penalize omissions is to impose a duty to act – a positive duty – and it is arguable, in absence of a contract, the policy of the law should be to impose only negative duties), and must have been caused by the defender (defendant). Causation is a problematic area of law, in even the most sophisticated and developed legal systems. The question which must be answered, was the defender’s act the substantive and operative cause of the damage?
The Romans attempted to provide solutions to each individual problem without sustained resort to overriding principle. Example – If a midwife gave a slave-woman a drug from which she died, this was admitted (by interpretatio) to be ‘killing’ (via actio directa), however, if the midwife did not administer the drug with her own hands, but instead gave it to the slave-woman to take for herself, then this was ‘providing of a cause of death’, and therefore actionable by actio utilis. -- Nicholas, Into to Roman Law 2008.
If the defendant’s conduct caused damage that may not have occurred in other property of the same type, the defendant was never-the-less liable. He (the defender) had to take his victim as he found him – a principle known as the ‘Thin Skull’ Rule in Common law systems. Meaning, “if someone gives a light blow to a sickly slave and the slave dies from it, Labeo rightly says that the person who gave the ‘light blow’ is liable under the lex Acuilia” D.9.2.7.5.
