Loss caused by animals

A delict on loss caused by animals was already included in the Twelve Tables (VIII.6): “si quadrupes pauperiem fecisse dicetur.J’ (If a four-footed animal is said to have caused damages...).

The victim of the damages could bring an actio de pauperie against the owner of the animal at the time of the joinder of the issue (not at the time when the damage had been done). The noxal character of the action allowed the owner of the animal to surrender it instead of paying the compensation. The actio de pauperie was applied only to domestic four-footed animals, but it was later extended to other domestic animals (chicken, ducks, and geese) through praetorian actions (Paul, D. 9.1.4). If the animal was under control of the owner, the Aquilian action was applied but not the actio de pauperie. For example, if the owner had a dog on a leash and caused it to bite someone, chapter three of Aquilian action was applied; if the owner was not holding the dog’s leash when it caused the damage, the action in factum extending the Aquilian law was applied (Julian-Ulpian, D. 9.2.11.5). If the dog was not under the control of the owner when it caused the damage, then the actio de pauperie was applied. The determination of the regulation applying specifically to dogs presented some difficulties because there existed an early lex Pesolania of which little is known (P.S. 1.15.1). Where wild animals escaped from captivity and caused damages, the victim had no action (Ulpian, D. 9.1.1.10) because

the wild animal became a res nullius when it escaped, and thus there was no owner to sue.

According to Ulpian, the general rule was that the actio de pauperie applied when an animal caused damages “moved by some wildness contrary to nature” (Ulpian, D.

The magistrate responsible for the safety of the public roads (aedilis curulis) issued an edict on wild animals (edictum de feris). In this edict of unknown date, he granted an action against those who had brought wild beasts (dogs, boars, wolves, bears, panthers, and lions, among others) near a public road where there was frequent traffic, or who kept them there at the risk of injuring someone (Ulpian, D. 21.1.40-42). The person in charge of the beasts, not necessarily the owner, was liable for creating a risk to others without taking into consideration whether or not he could prevent an injury. If a freeman attacked by such an animal was dead, the edict imposed a penalty of two hundred solidi; if he was injured, the judge had discretion to apply some other penalty. In case of damages to property, the person in charge of the animals would be liable for twice the value of the damage done. Noxal surrender was not applicable. It is possible that provocation of the beast by the injured victim excluded liability (Ulpian, D. 21.1.42).