Noxal Liability

The Roman law of delicts proceeded from the principle that the wrongdoer was personally liable and, accordingly, it was against him that the injured person was entitled to take revenge.

The personal nature of delictual liability is reflected in the way Roman law dealt with cases involving wrongful acts committed by persons in potestate or slaves. Since no claim in law could be laid against such persons, the claim was laid against the paterfamilias or master of the slave (dominus) in the form of an actio noxalis. If, for example, a slave committed theft, the actio furti could be instituted as an actio noxalis against the slave's master. Originally, the purpose of the actio noxalis was to demand that the paterfamilias or dominus should surrender the wrongdoer (noxae deditio) to the injured person so that vengeance could be taken on him. This entailed a conflict between the injured person's right of revenge and the potestas of the father or master, which was in later times resolved by allowing the latter to ‘buy off' the injured person by paying a penalty.^{^[1007]} An important principle in this regard was that noxal liability followed the wrongdoer (noxa caput sequitur). This meant that if the dependant person was emancipated or the slave freed before the action was brought, such dependant or slave became personally liable by means of an ordinary action; if the slave was sold, the actio noxalis had to be instituted against the person who was his owner at the time of the joinder of issue (litis contestatio).^{^[1008]}

During the late imperial age noxal liability in respect of free-born persons in potestate fell into disuse and, accordingly, the actio noxalis was retained only in respect of wrongful deeds committed by slaves. ^{^[1009]}

4.12.2.1 Actio de Pauperie

Roman law recognized a special form of noxal liability in cases where a four-footed animal caused damage in circumstances in which its owner could not be held at fault.

Such damage was known as pauperies and gave rise to an actio de pauperie— a remedy deriving from the Law of the Twelve Tables—by means of which the owner of the animal could be compelled either to compensate the wronged party or to surrender the animal.^{^{face="Times New Roman">[1010]}} Originally the actio de pauperie applied to all fourfooted animals but was later extended to other animals in the form of an actio utilis.^{^[1011]} At the same time, however, the jurists limited the class of animals covered to domestic animals (such as horses, sheep, oxen and dogs).^{^[1012]} For the plaintiff to succeed, he had to show that the animal had caused the damage by acting ‘contrary to its nature' (contra suam naturam).^{^[1013]} This somewhat obscure phrase means that the animal must have behaved in a manner contrary to what the aggrieved person could reasonably have expected of it, if all circumstances were taken into consider- ation.^{^[1014]} If the damage was caused by a wild animal, the actio de pauperie did not apply as it was considered to be in the nature of such an animal to cause damage.^{^[1015]}

4.13

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Noxal Liability

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