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Liability in Roman Law for Damage caused by Animals

Published online by Cambridge University Press:  16 January 2009

D. I. C. Ashton-Cross
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Extract

Classification of Animals

In Roman law all animals are either wild or domestic.

(i) Wild: this category includes particularly those of an innate or natural feritas, and generally all animals not normally owned. Wild animals may, however, be owned and, as will be seen later, the owner may be under legal liability in respect of any damage done by them.

(ii) Domestic: these are normally owned. As a species they do not show feritas, though individually they may. Those which do show feritas are therefore regarded as acting contra naturam (of the species). So a horse which is a kicker, or a bull which gores, both of vicious disposition, are nevertheless governed by the rules relating to domestic animals; and a fortiori the domestic animal which has temporary lapses into feritas, e.g., the mare which is touchy, does not cease to be a domestic animal in law.

Type
Research Article
Information
The Cambridge Law Journal , Volume 11 , Issue 3 , November 1953 , pp. 395 - 403
Copyright
Copyright © Cambridge Law Journal and Contributors 1953

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References

1 Inst. IV.9.pr.

2 D. 9.1.1.10.

3 See Voet, , Commentarius ad Pandectas, IIGoogle Scholar, 9.1.4. As he puts it, “Since the horse and the bull are accustomed to graze in herds with other pecudes under a herdsman, and do not harm him, they are domestic animals and they therefore act contrary to the nature of their kind when they gore or kick.”

4 D. 9.1.1.4; Inst. IV.9.pr.

5 D. 21.1.43.

6 Inst. IV.9.pr.; D. 9.1.1.10. It has been suggested that this text is interpolated. See Buckland, A Text-Book of Roman Law, 2nd ed. (1932), p. 603.

7 p. 206; repeated from 1st ed., p. 208.

8 p. 598, 1st ed.; p. 603, 2nd ed.

9 The present writer's italics.

10 Paul, Sententiae, I.15.2. He is referring to the practorian action mentioned under (ii) below.

11 Paul, ibid.; D. 47.11.11.

12 Inst. IV.9.1; D. 21.1.42.

13 Buckland renders these words as “near a highway” (p. 206—my italics) and “by the wayside” (p. 603), and very much the same translation is found in most versions. This seems to mean that the animal, to fall within the rule, must be off, not on, the road, a meaning not attributable to the word “qua.” The writer therefore prefers Roby's “in any place where people commonly pass” ( Roman Private Law (1902), Vol. II, p. 199Google Scholar ).

14 D. 21.1.41, 43; post, pp. 401–402.

15 p. 603, n. 6.

16 Negligence in the Civil Law, at p. 38.

17 See Buckland's Text-Book, p. 603, n. 6.

18 Ibid., p. 206.

19 See Text-Book, p. 206 and p. 603. In his Manual he refers to a “dangerous” beast in this context.

20 D. 21.1.41, 43.

21 Sententiae I.15.4; D. 47.11.11.

22 Ante, p. 396.

23 It may not then have been noxal. (Lenel, Edictum Perpetuum, 3rd ed., p. 198.)

24 D. 9.2.39.1.

25 D. 19.5.14.3.

26 D. 9.1.4.

27 D. 9.2.57; D. 9.2.8.1.

28 D. 9.2.11.5.

29 D. 9.1.1.7.

30 D. 9.2.9.3.

31 D. 9.1.1.8.

32 See article by Pliniaux, A., in Milanges de Droit Romain (1926), Vol. I, p. 247Google Scholar.

33 p. 603, n. 13.

34 P.I. 15.1.a. (Krueger's (1878) ed.).

35 D. 21.1.41.

36 D. 21.1.43.

37 Inst. IV.9.1; ante, p. 399.

38 D. 9.1.1.11.