The actio de pauperie in Roman law

(a) The meaning of pauperies

The roots of liability for damage done by animals in countries of the civil-law tradition lie in the Roman actio de pauperie. The XII Tables are already said to have provided a remedy " [s]i quadrupes pauperiem fecisse dicetur".¹⁴ The term "pauperies" derives from "pauper"; it meant, at least in later, non-legal sources, "poverty".^[5711] Why the XII Tables used it in the present context (rather than the seemingly more appropriate word "damnum")^[5712] has remained something of a mystery.

Was it intended to indicate damage on account of which the injured party became poorer?^[5713] But it should then also have applied to other harmful events, such as those that were ultimately regulated by the lex Aquilia. Or was its original sense something like "the state of producing little or of being unproductive"?^[5714] The XII Tables would then have referred to incidents in which four-footed animals "caused the state of being unproductive"; which, in turn, would suggest that originally only injuries to the instruments of production, in the first place slaves and pecudes, were covered.^[5715] ^{^[5716] But whatever its meaning may have been around 450 B. C., Ulpian understood it, some 650 years later, to stand for damage done without any legal wrong on the part of the doer: "[P]auperies est damnum sine iniuria facientis datum."'° This definition has two important implications. First of all, the "doer" in terms of the actio de pauperie was obviously the animal itself. But, secondly, the animal did not commit a legal wrong when it inflicted damage by kicking, goring, biting, or in any other manner. Ulpian, in fact, specifically elaborated on this point: an animal, he said, is quite incapable of committing a legal wrong, because it is devoid of reasoning ("...
nee enim potest animal iniuria fecisse, quod sensu caret").^[5717] This argument, self-evident perhaps to us,^[5718] is rather remarkable in view of the fact that during various periods in European legal history a different attitude prevailed.^[5719] In ancient Greece, for instance, animals tended to be personified and were rewarded, as well as punished, like human beings.^[5720] In post-classical Rome they were taken to be subject to the rules of natural law,^[5721] and when an ox gored, such unruly behaviour could be regarded as a culpable breach of the good conduct owed by him to all human beings.^[5722] In the Middle Ages, a specifically Christian perception of the world and its relationship to God, blended curiously with some superstitious elements, moulded the approach adopted towards animals.^[5723] Not everybody, of course, went as far as St. Francis of Assisi, who even gave them the benefit of his sermons. Generally speaking, however, one appears to have looked upon animals as creatures of God in which, as in human beings, the good and evil forces could reveal themselves.^[5724] The evil, however, had to be rooted out, no matter where it appeared. Hence the necessity to punish wicked animals: cockerels that had violated the natural order of things by laying eggs, hens that crowed like cockerels, dogs or sows that killed or injured children, and so on. From about the 13th century onwards until well into the 18th century,^[5725] in some places even until the beginning of the 19th century, animals could be prosecuted, tried^[5726] and condemned— be it to be burnt at the stake, to be hung by their neck,^[5727] to be exiled to Siberia, or to suffer corporal punishment.^[5728] Yet, it was not so much the animal itself that had to be punished as the obnoxious demon that manifested itself in the sinister deed.^[5729] For the very same reason, incidentally, one had to burn witches: the fire was supposed to exterminate the evil.^[5730]
(b) The principle ofnoxality
Rather similar ideas may originally have prevailed in ancient Rome.^[5731] Our evidence is too scanty to determine whether or not animals causing damage were at some stage taken to be possessed by a demoniacal spirit.
Alternatively, the Romans may have proceeded from a rather similar kind of anthropomorphism to that of the Greeks.^[5732] But, for whatever reason, it was generally the animal that was seen to have committed the delict. The victim of the injury was thus allowed to wreak his vengeance upon the body of the animal—in the very same way as if the wrongdoer had been a human being.^[5733] If the animal was owned by someone, there was, however, a specific problem—the same problem that we have encountered when considering injuries done by slaves and children in power:^[5734] by simply killing the animal, the victim would have violated the owner's rights. Hence it was the delinquent's surrender that he could request. This surrender was known as "noxae deditio" and it remained a characteristic feature of the liability for damage caused by animals throughout the history of Roman law^[5735] ^{^[5736] (and, indeed, much of the ins commune). "Noxia autem est ipsum delictum", as Ulpian emphasized;*' and as a result, the actio de pauperie had the usual characteristics of a noxal action: it was the owner of the animal at the time of litis contestatio (not at the time when it had done the damage) who was liable ("noxa caput sequitur");^[5737] and if the animal died before litis contestatio, the right to bring the actio de pauperie fell away.^[5738] This was the more archaic side of the Roman regime of liability for damage caused by animals. But in the very notion of a noxal liability there also lay the key to a more rational and matter-of-fact approach to the issue.^[5739] For it was obviously not the animal against whom the victim had to institute proceedings, but its owner; and though the aim of these proceedings was, initially, to seize the anim.i and to avenge the injury, the notion of private vengeance as the basis of the law of delict gradually faded away.^[5740] A claim for damages was regarded as a more appropriate remedy and obviously, again, it was the owner of the animal who was the target of this claim.
As a result, in both classical and post-classical Roman law, the victim was given a choice: he could sue either for damages or for the surrender of the animal ("... aut noxam sarcire aut in noxam dedere").^[5741] The new view gained the ascendancy to such an extent that surrender was increasingly regarded as a means of avoiding the primary obligation of noxam sarcire.^[5742] But in any event it was firmly established that, one way or another, liability attached to the owner of the animal. The animal had caused the damage, but it was no longer thought to have committed a delict. The owner, of course, had not committed a delict either, but he was liable merely for being in charge of a potential source of risk for others. Fault on his part was required no more than "blameworthy" conduct on the part of the animal.^[5743] (c) Range of application
After these more general remarks about the nature of the actio de pauperie we may now turn to the details of its application. The remedy was available in cases of bodily harm to children in power and to free persons,⁴⁸ as well as damage to property. In the latter instance it was, of course, as a rule the owner who could sue; but where a non-owner, as a result of being liable for custodia, had a specific interest in the integrity of the object, he, rather than the owner, could bring the action.⁴⁹ The damage had to be done, according to the pre · ision of the XII Tables, by a quadrupes. Implicit in this term was probably a limitation that was to appear more clearly from the text of the lex Aquilia:⁵⁰ it was intended to cover four-footed beasts of the class of cattle ("... quadrupedemve pecudem"). By the time that Ulpian wrote his commentary on the Edict, this restriction had been dropped, however: "Quae actio ad omnes quadrupedes pertinet", he remarked.⁵¹ The classical lawyers were, in fact, even prepared to grant an actio utilis "et si non quadrupes, sed aliud animal pauperiem fecit":⁵² if the damage had been caused by two-footed animals like chicken, geese or ducks.
But was the actio de pauperie only applicable to domesticated animals solutus fuisser, contra." But the somewhat abrupt second alternative ("at si...") may well constitute a shortened and distorted version of the classical original. Unconvincing are the explanations by Haymann, (1921) 42 ZSS 362 sq. and Kerr Wylie, Studi Riccobono, vol. IV, pp. 508 sq. On D. 9, 1,2, 1 cf. also Jean Macqueron, "Les dommages causes par des chiens dans la jurisprudence Romaine", in: Flores legum H.j. Scheltema oblati (1971), pp. 137 sqq. As far as trie discussion of D. 9, 1, 2, 1 by the authors of the ius commune is concerned, cf. C.G. van der Merwe, op. cit., note 39, p. 101.
⁴³ Gai. D. 9, 1, 3 ("Ex hac lege iam non dubitatur etiam liberarum personarum nomine agi posse..."). From this text it can be deduced that in earlier times the matter was in doubt; originally probably, as in the case of the lex Aquilia, only injury to slaves (and grazing animals) could be recovered. Cf. Kerr Wylie, Studi Riccobono, vol. IV, pp. 465, 510; Van der Merwe, op. cit., note 39, pp. 115 sqq.; Watson, (1970) 17 RIDA 365 sq.; Jackson, (1978) 37 Cambridge LJ 124 sq.
⁴⁵ Paul. D. 9, 1, 2 pr. (mentioning as an example the fullo).
® Cf. supra, pp. 953, 959, 976.
³ D. 9, 1, 1, 2. This development appears to have occurred partly by interpretation, partly by statute. The statute in question was the so-called lex Pesolania, which is referred to in Paul. Sent. I, XV, 1 ("... etiam lege Pesolania de cane cavetur"); cf. Macqueron, Festschrift Scheltema, pp. 136 sq.; contra: Jackson, (1978) 37 Cambridge U 129 sq. (who argues that Cuiacius' conjecture that the term derives from a comparative reference to the lex Solonia (Solon's law), which was later misunderstood or erroneously copied, is still persuasive). Cf. also Voet, Commentariits ad Pandectas, Lib. IX, Tit. I, VI (lex Colonia); on which see Gane, The Selective Voet, vol. II, (1955), p.
541; cf. also Gluck, vol. 10, pp. 279 sq.). Determination of the legal regime applicable to dogs, incidentally, always appears to have presented certain difficulties. On the one hand, dogs "have been domesticated for ages: I am not quite sure, but I believe we find dogs associated with Neolithic man" (Boyce v. Robertson 1912 TPD 381 at 383). Yet, on the other hand, they display a "certain propensity towards ferocity" and are, therefore, "in some respects ferae naturae" (Boyce v. Robertson 1912 TPD 381 at 384). Cf, apart from the lex Pesolania and the article by Macqueron (dealing specifically with damage done by dogs), Williams, op. cit., note 23, pp. 137 sqq., 343 sqq., 354 sqq.; ss. 3 and 9 of the English Animals Act 1971 and P.M. North, The Modern Law of Animals (1972), pp. 184 sqq. ¹ Paul. D. 9. 1. 4.
or also to those which are wild by nature? This question may have been disputed among the classical Roman lawyers (it certainly is among contemporary Romanists),^[5744] but there can, I think, be little doubt that Ulpian reflected the prevailing view when he wrote: "In bestiis autem propter naturalem feritatem haec actio locum non habet."^[5745]
(d) The "contra naturam" test
By far the most interesting texts on the actio de pauperie are th jse which discuss the type of conduct on account of which the animal had to have caused the damage. As has been mentioned, the owner's liability, though strict, must still be kept within certain reasonable limits; and the Roman lawyers appear to have attempted, originally, to bring about the necessary delimitation by requiring a spontaneous action on the part of the animal. "[C]um commota feritate nocuit quadrupes"^[5746] the remedy could be brought, but not if some external cause was ultimately responsible for the damage. Thus, the actio de pauperie was not applicable, for instance, if a horse kicked someone because it was pricked or hit or wounded;^[5747] if one bull was provoked by another into doing damage;^[5748] or if a mule upset its load onto someone because it was overloaded, because it tripped as a result of the unevenness of the road or because the mule-driver had been negligent.^[5749] ^{^[5750] Yet there were certain situations where the owner was held responsible even though the behaviour of his animal could hardly be said to have been spontaneous. Thus we read of a mule that kicked out and broke a groom's leg after the groom had brought along a horse that had started to sniff at the mule. "[CJonsulebatur", reports Alfenus, "possetne cum domino mulae agi, quod ea pauperiem fecisset. respond! posse."⁵⁹ The same answer was given in the case of a horse that kicked someone who was stroking or patting it.^{^[5751]} ^{^[5752] ^[5753] ^[5754]} The spontaneity doctrine was obviously thought to overshoot the mark: it confined the owner's liability too narrowly. Another, more refined criterion was thus required to draw the line more aptly. It was u'rimately formulated by Ulpian in the following terms: "Et generaliter haec actio locum habet, quotiens contra naturam fera mota pauperiem dedit":^fll the general rule is that the action lies whenever an animal is moved against its nature to commit pauperies. "Contra naturam" was a conveniently flexible concept and allowed the Roman jurists to delimit the respective risk spheres of the owner of the animal, the victim of the injury and any third party that might have been involved, in a pragmatic fashion/¹² It was not designed to focus on the general disposition of the individual animal that had caused the damage, for Servius/Ulp. D. 9, 1, 1, 4 specifically state that the owner is liable even if a horse given to kicking actually kicks and thus inflicts an injury, or if an ox that is prone to goring gores someone; in cases, that is, where the damaging form of behaviour can hardly be regarded as uncharacteristic of the individual animal concerned. Nor, on the other hand, did "contra naturam" refer to the "nature" of the whole species of animals to which the one that had caused the damage belonged (contra naturam sui generis)/¹³ Kicking, after all, is not an unnatural form of behaviour in horses, goring is not unnatural in oxen:^M and yet, it is clear from our sources that the owner was liable. "Contra naturam" must rather have been used in classical Roman law as a common denominator for forms of behaviour that were uncharacteristic of a domesticated animal. Domesticated animals could be expected to be tame and peaceful, and thus a horse was not supposed to kick, nor was an ox supposed to gore. If they did, it was either because their innate, original wildness¹¹⁵ broke through what had become their second nature—and it was this risk which the owner had to bear—or they had acted secundum naturam: the horse had kicked because it had been hit, the ox had gored because it had been provoked, the mule had slipped because of the unevenness of the road. Such reactions could scarcely be seen as inconsistent with the peaceful nature of domesticated animals and the owner was thus relieved of liability/⁴⁰}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The actio de pauperie in Roman law

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