Liability for damage caused by animals

We are concerned here with damage caused by animals, rather than to animals. And it is not just domestic animals and cattle that are in issue: from the late Republic large numbers of exotic animals were imported to Rome, partly to satisfy the Roman passion for spectacle and games.

Liability for the acts of animals could arise in various ways. If the defendant was at fault, he might incur liability under the standard delicts, e.g. insulting behaviour or wrongful damage to property. Encouraging a dog to perform its natural functions on another's property could well amount to insulting behaviour if the required intention was present. And if, for example, a mule driver failed to control his mules, with the result that they trampled over someone, the driver would be liable under the lex Aquilia (see 10,2.4.2). The defendant could be anyone who was at fault, not necessarily the owner. Moreover, liability for wrongful grazing on another’s land lay under the actio de pastu, a Twelve Tables remedy that appears to have survived the lex Aquilia.

What if no one was at fault? Depending on the circumstances, a choice of two actions might be available to the victim. Though liability was strict in both these actions, they were largely delictual in character and in consequences, and can be conveniently dealt with here (cf. Buckland, Textbook, 599-603).

w.6.1 Actio de pauperie

(Inst.4.9, D.9.1.)

Ulpian, Edict, book 18: In cases where a four-footed animal is alleged to have commit­ted pauperies, a right of action is derived from the Twelve Tables, which statute provides that that which has caused the offense (that is, the animal which caused harm) should be handed over or that pecuniary damages should be offered for the amount of the harm done.

Pauperies meant damage that was caused by an animal in circumstances where no one was at fault (cf. Frier, Casebook on Delict, 138-45). The action was based on the notion of noxal liability. The owner had to compensate for the loss caused or had to surrender the animal. It seems that surrender could be demanded in early law, but later damages came to be regarded as the more appropriate remedy (as in the case of noxal liability in the law of persons). There appears to have been a requirement that the animal must have acted contrary to its nature:

Ulpian, Edict, book 18:... if a horse kicks out because it is upset by pain, this action will not Be.... But if the horse kicked someone who was stroking it or someone who was patting it, this action will be available. (D.9.1.1.7.)

From this it appears that the action was not available in respect of animals wild by nature—unpredictable behaviour by them could hardly be classed as contrary to nature. But consider the following passage (also by Ulpian) concerning the action: Ulpian, Edict, book 18: But it does not lie in the case of beasts which are wild by nature: there­fore, if a bear breaks loose and so causes harm, its former owner cannot be sued because he ceased to be owner as soon as the wild animal escaped.... (D.9.1.1.10.)

The implication of the phrase 'because he ceased to be the owner' is that there could be liability, in some circumstances, if the animal did not escape, i.e. that there was_: liability for damage caused by wild animals during their captivity. Such apparent inconsistencies raise a suspicion of interpolation. The most plausible view is that the 'contrary to nature' requirement was a post-classical development, and that the action was previously available in respect of animals both tame and wild by nature.

The action was not available where animals had been provoked or had acted out of self-defence.

The action lay for simple damages only, yet it was considered to be penal.

For an in-depth analysis of this action and its place in Roman law, see the excel­lent recent work by Polojac, M., Actio de Pauperie and Liability for Damage Caused by Animals in Roman Law (2003).

10.6.2 Edict of the aediles

(D.21.1.)

Ulpian, Curule Aedile.·,' Edict, book 2:... 'No one is to have a dog, any wild boar, wolf, bear, panther, lion, [Paul, Curule Aediles' Edict, book 2] [41]: and generally any dangerous animal, whether at large or so bound or chained that it did not inflict harm [Ulpian, Curule Aediles' Edict, book 2] [42], where there is frequent traffic and it might injure someone or cause dam­age. The penalty for any contravention of this provision is, if a freeman's death result from it, two hundred solidi; if a freeman be said to have been injured, what a judge regards as right and proper; in ail other cases, double the value of the damage done.' (D.21.1.40-2.)

This provision is mentioned in the Digest as a brief aside from the detailed consid­eration of the aediles' edict on the sale of animals, liability was imposed where the animal was kept on or near a public highway (cf. Frier, Casebook on Delict, 146-8). The keeper of the animal that caused the damage was liable, irrespective of fault. Public policy lay behind this provision: if you chose to keep a dangerous animal near a highway, you did so at your peril.

The Roman rules, especially those on pauperies, have influenced modern law in various degrees (although noxality has been largely abandoned). For example, s. 833 BGB imposes strict liability (with some exceptions) on the keeper of an animal that kills or injures a person or damages property. In South Africa, the aedi- litian edict has been applied in the case of an ostrich bitten to death by a dog, and the actio de pastu and actio depauperie are still applied in their uncodified form. The 'contrary to nature' principle has provoked much controversy as to whether a sub­jective or an objective test is appropriate. Some cases have held that for liability to be incurred the animal must have acted differently from what was expected of a well-behaved animal of the same kind: 'What this boils down to, effectively, is the judicial creation of the "reasonable cow" or the “reasonable duck” as a criterion to determine the owner's liability' (Zimmermann, Obligations, 1116 and generally 1108 ff.).

10.7