1. A special compartment

"[T]he law of torts has grown up historically in separate compartments and... beasts have travelled in a compartment of their own." This statement by Lord Simonds^[5703] applies to civilian legal systems no less than it does to the English common law.

It reflects a common appreciation of the fact that animals are a rather anomalous type of chattel. They kick and butt and gore;^[5704] they lie around in inappropriate places for people to stumble over them and they stray onto busy highways or railway lines where they collide with hapless cyclists^[5705] or cause trains to be derailed;^[5706] ^{^[5707] they attack human beings, as well as each other, they cause damage to movable and immovable property, they roam around, and they pick up and transmit all sorts of infectious diseases? Dogs, "for ages the companionls] and hunting agent[s] of man",^[5708] chase, kill and eat the neighbour's chickens,^[5709] they bite innocent postmen as well as unlawful intruders; they throw over little children in clumsy attempts to hug them; and they leave behind excrement on which people can slip. They also impregnate good-looking bitches and thus deprive them of their chances of winning for their owners handsome sums in beauty competitions.^[5710] Animals, obviously, constitute a constant source of danger. Yet, the law cannot simply aim at preventing people from keeping them, for
animals can also serve a whole variety of useful, even necessary functions. They provide milk and wool and meat, they can be used for transportation, sporting and entertainment purposes; dogs can assist the police as well as rescue workers and they can be indispensable to the blind. Animals are things, not persons, and they can be owned like cupboards, cars or toilet paper.
But the person in charge of them has to be responsible for the mischief that they cause. This liability, generally speaking, must be rather strict, for a person should not be allowed to derive the benefit from keeping animals, without at the same time being required to carry the concomitant risks. On the other hand, however, there must also be limits to the keeper's liability. Where a cat is picked up and used as a projectile,⁹ the person hit by it has, in a way, been injured by an animal; yet, his injury can hardly be said to constitute a realization of the specific risks attached to keeping animals. A cat has no greater propensity to be thrown about at other people than, say, a book or a tennis ball. This is a rather obvious example, but it illustrates that the law is faced with the necessity of carving out criteria to demarcate the keeper's sphere of risk. It may also be advisable to draw distinctions between different types of situations or animals. The farmer who depends for his livelihood on breeding sheep may have to be treated differently from the city dweller who keeps a horse to ride for pleasure.¹⁰ Some people keep dogs to guard their homes, others have pet racoons¹¹ or snakes. Lions, generally speaking, are more dangerous than rabbits;¹² but where, for instance, does the elephant fit in? After all, there is "the world of difference between the wild elephant in the jungle" and a docile circus elephant which may be as harmless "[as] a cow".¹³ 2.}

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

1. A special compartment

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