1. The fate of the Roman quasi-delicts

Noxal liability did not depend on fault; a Roman paterfamilias was liable for damage caused by children and slaves in his power, as well as by (domesticated) animals belonging to him, but his liability was effectively limited by virtue of the option of noxae deditio that was available to him.

Other instances of strict liability in classical Roman law, as we have seen, were thrown together sub titulo "obligationes quasi ex delicto":^[5908] the action against ajudge qui litem suam fecit and the actiones de deiectis vel effusis, de posito vel suspenso and de damno aut furto in navi aut caupone aut stabulo. But although all four remedies were incorporated into the ius commune, none of them can be said to have prospered. By the time of the usus modernus pandectarum, the strict liability of the iudex qui litem suam fecit had largely fallen into disuse; "... moribus hujus aevi non tenetur judex qui per imperitiam male judicavit", as Groenewegen reports.^[5909] He paints a somewhat sombre picture of the

competence of judicial officers of his time: "... manifestum esse videtur, quod imperitissimi quoque ludicandi raunus ambiant", he stated, the implication being that it would have been both unfeasible and inappropriate to hold them liable for giving wrong decisions merely because they did not know the law. Most importantly, however, disadvantaged litigants were no longer taken to require this specific form of protection, for they could seek redress by lodging an appeal against the incorrect decision:.. iniquitati sententiae

occurrendum est remedio appellationis.^1,231 The actio de posito vel suspense, too, was obsolete by the end of the 18th century. It had never served to compensate an injured party for his damages but had merely imposed a penalty on persons endangering safe traffic.²³² With the rise of the modern territorial states and their administrative organs, the maintenance of public safety became increasingly a concern of the State authorities and the remedy in private law was thus effectively superseded by recourse to the police, who could be asked to take appropriate steps to avert the danger:

"...

hoc casu nulla actio hodic instituatur, sed potius ab co, cui cura aedium et platearum forique public! commissa est, simpliciter mandatum inhibitoriale impetretur.^1,233

of the index qui litem suam fecit as (genuinely) delictual, Franciscus Hotomanus, Commetitarius in quatuor liberos Itistitutionum (Lugduni. 1588), Lib. IV. Tit. Ill. III. the other way round, by treating the imperitia liability of the medicus as another instance of an obligatio quasi ex delicto. For further details, see Hochstein, Obiigatioties. pp. 38 sqq., 64 sqq.

Vinnius, Instituttones. Lib. IV, Tit. V, pr., 1, and many others. The possibility of an appellatio had already led Bartolus as well as the humanists to suggest qualifications and restrictions of the liability of the index qui litem suam fecit; cf. Hochstein, Obligationes. pp. 44 sqq., 67 sqq.; as far as the usus modernus is concerned, cf. pp. 80 sqq.; cf. also Coing, p. 517. The index always remained liable for dolus; cf, today, § 839 II BGB (and the exception contained in § 839 III BGB), on which see "Motive", in: Mugdan, vol. II, pp. 460 sq.

The parallel to the liability of medici, incidentally, continued to be stressed (despite the fact that no "appeal" was available as an alternative remedy against a botched-up operation); cf, for example, Lauterbach, Collegium theoretico-practicum. Lib. L, Tit. XIII, III: "Hodie, sicut nee Medicorum errata, ita nee Judicantium imperitiam in jus vocari..."; lack of skill in doctors was scarcely ever brought to court and hence the somewhat cynical saying that for them it is permitted to kill with impunity. Cf. supra, p. 1028, note 198 and also Watson, Failures, pp. 65 sq.

²² Ulp. D. 9. 3. 5. 6; Ulp. D. 9. 3. 5. 11. Cf. also Bowden v. Rudman 1964 (41 SA 686 (N1 at 691E-F:.. it is clear that the object was to prevent harm being done by anything that

might fall, and that the law did not wait till the harm was done but provided punishment if the harm were possible."

²² Justus Henning Boehmer.

Doctrina de actionibus (Halae Magdeburgicae. 17891. Sect. II. Cap. XI. § XVIII; Gluck, vol. 10. pp. 411 sq.; cf. also Windschcid/Kipp. § 457. n. 4. The actio de posito vel suspense was. however, carried forward into Roman-Dutch law—cf. Grotius. Intending, III. XXXVIII. 5 sqq.; Voct. Commetitarius ad Pandectas, Lib. IX. Tit. HI. VI—and has even been discussed (though not appliedl in the South African case of Bowden v. Rudman 1964 (41 SA 686 (N1 at 690E sqq. In this case Caney J argued that the action had lost its penal character and was available only to recover damages for injury actually done (i.e. where the things lodged or hung had fallen downl. But what, under these circumstances, is its relationship to the actio de deiectis vel effusis? Cf. Voet. loc. cit.. on the The actio de damno aut furto adversus nautas, caupones, stabularios was obliterated, for all practical purposes, when it lost the specific sting attached to it: recovery oi double the value of the thing stolen or damage done.^{^[5910]} Once it had become available for no more than simplum,^{^[5911]} it did not give the customer anything which he could not obtain by means of the receptum liability of nauta, stabularius or caupo. In certain respects, in fact, it was more advantageous for him to proceed under the receptum rather than the quasi-delictual remedy.^{^[5912]}

A slightly more valiant struggle for survival was put up by the actio de deiectis vel effusis; in some half-forgotten corner of both Austrian^[5913] and South African law,^[5914]" indeed, it still exists today.^[5915] In Germany it passed relatively unmolested through usus modernus^[5916] and pandectism^[5917] and even made its way into the first draft of the BGB.^[5918] In the end, however, the legislator decided to jettison the remedy.^[5919] A special edict dealing with injuries caused by pouring down from or throwing out of houses may have been appropriate under the conditions prevailing in ancient Rome; but in 19th-century Germany police regulations and the provisions of the penal code could be relied upon to prevent people from emptying the contents of their chamber-pots over the heads of unsuspecting passers-by.

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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. The fate of the Roman quasi-delicts

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