Liability for damage done by animals in modern German law

The European legislators of the late 18th and of the 19th centuries must have realized that the "contra naturam sui generis" test was not a particularly happy conceptual concoction,^[5841] for they all abandoned it.

In addition, they also tended to jettison both the option of noxal surrender and the principle of noxa caput sequitur.'^[5842]" As a result of these changes, the owner's liability was considerably extended and the question was therefore bound to arise whether it was still justifiable to dispense with what was otherwise a regular prerequisite for any claim for damages: the element of fault.

Some codes persisted in holding the owner strictly liable,^[5843] others introduced the fault requirement.^[5844] The fathers of the BGB vacillated for a long time.^[5845] Eventually, the dice fell in favour of a comprehensively formulated § 833, that was based on the notion of strict liability: "If a person is killed, or the body or health of a person is injured, or a thing is damaged, by an animal, the person who keeps the animal is bound to compensate the injured party."

Nevertheless, the agricultural lobby in the German Reichstag was to have the last word. In 1908 an amendment was accepted, according to which the duty to make compensation does not arise if the damage was caused by a domestic animal, which is kept for professional purposes (as opposed to merely constituting a luxury), provided its keeper either exercised the necessary care in supervising that animal or the damage would have occurred notwithstanding the exercise of such care. Foresters, officers, the police, the owners of horse-cabs and, in particular, farmers^[5846] ^{^[5847] ^[5848] are thus allowed to exculpate themselves.}

But even the liability of people who keep "luxury animals" has come to be restricted.

In this case it was tradition, not partisan interest that prevailed, and it did not require legislative intervention, but worked through judicial interpretation. For a long time the courts have held that, in order to make its keeper liable, the animal must have acted in a spontaneous, arbitrary or capricious manner, unguided by any reasonable purpose or intention.^[5849] More recently, the Federal Supreme Court has slightly changed the relevant criterion.^[5850] Animals, it is now argued, can never be credited with acts of free volition: they do not, in this sense, act "arbitrarily", but their whole behaviour is guided rather by their instincts, whether inborn or acquired. The specific risk associated with the keeping of animals lies in the utter unpredictability of their conduct. Only if the damage is a realization of this risk may its keeper be held liable. Excluded, in particular, are the cases where the animal merely makes a reflex movement (a dog that has been narcotized, bites the doctor on the operating table)^[5851] or where its actions are entirely determined by a human being (a horse, led by the bridle, treads on a person's heels).^[5852] ^{^[5853] ^[5854] Whether the natural unpredictability of an animal is a particularly appropriate criterion by which to determine the respective risk spheres of the keeper and its victim, remains disputed.^{1 2} Apart from that, the courts are often called upon to decide whether the keeper's liability may be reduced, or even excluded, because of contributory negligence or voluntary assumption of risk on the part of the injured person (A is injured by B's horse which he has hired for a ride;¹⁷³ C, in spite ot several warning signs, parks his car on D's private property and is bitten by D's dogs^[5855]).^[5856] Among contemporary legal writers it is, furthermore, disputed whether the principles laid down in § 833 BGB may be extended to microorganisms that have been cultivated or preserved in a laboratory.^[5857]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Liability for damage done by animals in modern German law

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