1. The principle of noxality

(a) Roman law

If the BGB came down in favour of strict liability in the case of damage done by animals, it opted for a different regime with regard to another historically rather closely related problem.

When slaves or children in power had committed a delict, it was, in classical Roman law, their paterfamilias whom the victim had to sue.^[5858] This was another instance of no-fault liability, mitigated, again, by the fact that it was effectively limited by the intrinsic value of the delinquent: the paterfamilias, rather than pay the damages, could surrender the slave or child. The paterfamilias, in other words, was "vicariously" liable for the wrongful acts or persons in his power, but his liability was of a "noxal" character. One might therefore have expected a similar development to have occurred as in the case of the South African usus modernus of the actio de pauperie: noxae deditio and the rule of noxa caput sequitur falling into disuse and leaving behind a strict liability on the part of the master to render compensation.^[5859]

(b) "[NJoxaltum actionum nullus est usus"

This is, however, not what actually happened. As far as delicts by children in power were concerned, the principle of noxality had already been abandoned in post-classical Roman law,^[5860] and even Justinian, for once, did not revert to the classical position. What man, he asked rhetorically, would contemplate giving up his son, and especially his daughter, in surrender to the victim of the wrong?^[5861] "[E]t ideo placuit, in servos tantummodo noxales actiones esse proponendas", he concluded; filiifamilias could now be proceeded against directly.^[5862] By the time of the usus modernus, however, noxal liability had also fallen into disuse with regard to slaves, the reason simply being that the institution of slavery had largely been relinquished:^[5863] "Nostris Moribus, quoniam tales servos non habemus, noxalium actionum nullus est usus."^[5864] Did this mean that a master was no longer vicariously liable for wrongful acts committed by his servants? Many writers evidently thought so. "[S]ervi nostri s[u]nt liberi homines", they argued, "et hinc ipsi ex suis delictis, non autem domini illorum conveniendi."^[5865] The master could be held liable, under general principles, if he himself had been at fault, particularly if he had failed to show due care in the selection of his staff ("...

si in eligendis famulis culpam commiserit dominus, hos negotiis suis adhibendo, quos scivit vel scire potuit, perditi ingenii homines esse").^[5866] ^{^[5867] ^[5868] Others, however, were prepared to go further. "Door der dienaers misdaed en werden de mecsters ende vrouwen in t ghemeen niet verbonden, dan zoo veel de onbetaelde huir mag bedragen", we read in Grotius' Inleiding:^IHe the master was "vicariously" liable, but only up to the amount of unpaid wages. This kind of wage liability appears to have had its origin in Saxonian law¹⁸⁷ and became widely accepted in 17th- and 18th-century Roman-Dutch jurisprudence.¹⁸⁸ By a variety of authors it was confined, however, to instances where the servant had acted beyond the scope of his employment. For delicts committed within the scope of his employment, so these authors argued, the master was liable for full compensation. The locus classicus on the matter is Voet, Commentarius ad Pandectas, Lib. IX, Tit. IV, X: "Ac primo quidem admonendi sumus, dominos ac patrcs in solidum tcneri ex delictis famulorum ac filiorum... quotics illi deliquerunt in officio aut ministerio, cui a patrc dominovc fuerunt praepositi."
This was not based on the Sachsenspieget or any other Germanic source, but, ostensibly, on a rule of Roman law.}

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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 principle of noxality

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