2. Liability for damage done by animals
Then there was the problem of liability for damage done by animals. As in early Roman law, it was originally the animal that was regarded as the culprit; the victim of the injury could therefore not proceed against its keeper, but had to take out his revenge on the animal itself.[5981] [5982] Later, however, the idea gained ground that the keeper could be held responsible if he could in any way be blamed for what had happened. This was the origin of the "scienter"[5983] doctrine: the plaintiff had to charge the defendant with knowingly keeping an animal of vicious propensities.304 If the animal was ferae naturae, such knowledge came to be irrebuttably presumed,[5984] and thus the keepers of bears, zebras, elephants, chimpanzees and dingoes (but not of camels)[5985] were held liable, irrespective of whether or not they had been negligent; there is nothing unlawful in keeping a pet chimpanzee, but if one does so, one bears the risk of any damage it may do. When the animal was of a harmless species, however,[5986] the plaintiff had to show that on at least one previous occasion it had, to the defendant's knowledge, displayed an inclination to do the specific kind of harm complained about.[5987] In a way, therefore, even the keeper of an animal mansuetae naturae was thus subjected to strict liability, for, provided scienter could be proved, it did not matter whether or not he had in fact been able to prevent the damage.[5988] Apart from that the English common law also recognized an equivalent to the Roman actio de pastu: if animals falling within the class of "cattle" (including oxen, donkeys, pigs, fowls, ducks and geese, but excluding cats and dogs)[5989] escaped and trespassed on another's land, their owner was held strictly liable (cattle trespass).[5990] This rule was based on the principle of "sic utere tuo ut neminem laedas": "[E]very one", as Lord Holt put it,[5991] "must so use his own, as not to do damage to another [a]nd... every man is (therefore] bound so to look to his cattle, as to keep them out of his neighbour's ground, that so he may receive no damage." Finally, there were certain scattered miscellaneous instances of no- fault-liability, as particularly in cases of escaping fires;[5992] there was also the dictum of Lord Holt (that was to play a role in Ryiands u. Fletcher} concerning the flow of filth from a house or office so as to damnify another.[5993]
More on the topic 2. Liability for damage done by animals:
- Liability for damage caused by animals
- I. LIABILITY FOR DAMAGE DONE BY ANIMALS
- Liability for damage done by animals in modern German law
- Wrongful damage to property
- Loss caused by animals
- 1. Damage to property
- 2. Liability for others in Roman law (apart from noxal liability)
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