Definition
Damnum infectum (Latin: "damage not yet done") is a concept from Roman civil law referring to harm that has not yet occurred but is threatened or impending — apprehended damage that a party fears will materialize from a source within another's control. The term describes the legal situation before injury strikes, as opposed to damnum factum (damage already done). Because the harm was imminent rather than realized, Roman law provided a specific preventive remedy: a cautio damni infecti, a form of security or stipulation by which the owner of a dangerous property or structure could be required to give a bond against anticipated damage to a neighbor. Where the bond was refused or unavailable, a praetorian interdict might issue to compel action or prevent the threatening condition from continuing.
Roman jurists treated the situation as a quasi-delict, recognizing that the imminence of foreseeable injury created an obligation even in the absence of actual harm — an early legal acknowledgment that liability-adjacent relationships can arise from threatened as well as completed wrongs.
Common Confusion
Damnum infectum is occasionally confused with damnum absque injuria (damage without legal injury) because both involve harm that does not generate a standard delictual remedy. The distinction is fundamental: damnum absque injuria describes harm that has already occurred but gives rise to no actionable claim because no legal right was violated. Damnum infectum describes harm that has not yet occurred and triggers a preventive remedy precisely because the law anticipates the violation before it happens. The two concepts operate on opposite sides of the injury timeline and serve entirely different functions.
Why It Matters in Research
Researchers working in Roman law, civil law history, or comparative law sources will encounter this term in discussions of the praetorian interdicts and quasi-delict doctrine. It is a useful index term for tracing early precursors to modern preventive injunctive relief and nuisance law — the cautio damni infecti is a recognizable ancestor of the quia timet injunction in equity and anticipatory nuisance doctrine in common law systems.
In Law Mind corpus research, be alert to several traps. First, Latin terms beginning with "damnum" cluster tightly in historical sources: damnum infectum, damnum rei amissae, damnum absque injuria, and damnum fatale often appear in adjacent entries or within the same passage. Cross-referencing is essential. Second, historical dictionaries do not always fully explain the procedural mechanics — the cautio (security bond) is the practical heart of the doctrine, but some entries omit it or treat it as self-evident. Third, the term appears almost exclusively in civil law and Roman law contexts; common law sources rarely use it, so its absence from common law treatises is not an error but a jurisdictional boundary. Finally, the phrase "quasi-delict" as used here carries its Roman law meaning (an obligation arising from circumstances analogous to delict), not the narrower modern civilian meaning found in some French-influenced codes.
Historical Dictionary Support
The three shelf sources agree closely on the core definition. All three identify damnum infectum as Roman law damage that is threatened but not yet inflicted, and all three note the availability of a preventive interdict as the remedy. Rapalje & Lawrence and Black's follow essentially the same formulation, likely drawing from a common tradition.
Burrill's is the most precise of the three. He supplies the Digest reference (Dig. 39.2.2) and offers the fuller Latin gloss — "damnum nondum factum, quod futurum veremur" (damage not yet done, which we fear will come to pass) — that gives researchers a direct path into the primary Roman source material. This is Burrill's characteristic strength: he tends to anchor definitions in primary civil law sources where Black's and Rapalje offer synthesis.
What the historical dictionaries collectively underexplain is the procedural structure of the cautio damni infecti itself — the stipulation, its enforcement mechanism, and the consequences of refusal. Researchers needing the full procedural picture should consult Mackeldey's Roman Law (cited by both Burrill and Black's) or the relevant title of the Digest (39.2) directly.
Jurisdictional Note
Damnum infectum is a Roman and civil law concept with no direct counterpart as a named doctrine in common law jurisdictions. Its functional equivalent in equity is the quia timet injunction. Civilian jurisdictions influenced by Roman law (Louisiana, Quebec, Scotland, South Africa, and the mixed civil-law systems of Latin America) may retain the concept in substance if not always by name.