Animals, Pauperies (Loss, Caused by an Animal)
Animals were wild or, if they were tame, could still exhibit wild behaviour. If a wild animal or a tame one acting wildly caused harm, its owner and not the animal was liable: ‘Servius writes, this action lies when a four-footed animal does harm because its wild nature has been excited.’102 lang=EN-US>Noxality was also applied to damage and losses caused by animals on their own.
If they were under control, their owners or masters would be liable under the lex Aquilia: ‘Julian says the lex Aquilia only applies to this extent: it applies to a person who had a dog on a lead and caused it to bite someone; but if he was not holding it, an actio in factum must be brought.’103 The victim could sue the owner with the actio de pauperie, the action on loss caused by an animal. The action was penal, so if the animal died before joinder of issue the action failed.104 The owner had the choice either to pay the sum to which he was condemned or to surrender the animal.105 This delict was already included in the XII Tables.106 If the loss was large, it would be profitable to turn the animal over. If after joinder of issue such an animal was killed, under the lex Aquilia its owner could claim not the value of the animal as such but his interest in surrendering it: ‘the assessment must not be according to the beast’s physical value, but to the amount of liability in the case involving the pauperies action’ which obliges him ‘to pay the amount that it would have profited the owner to make a surrender on account of noxa rather than pay the assessment of the issue’.107 Alongside this action the aedilician edict provided a non- noxal remedy.10The harm could be done to slaves and animals, but the wounding of free people (sui and alieni iuris) was most likely the primary concern of the delict. They could sue for the ‘expenses of medical treatment and the loss of employment [operae amissae] and of the opportunity of taking a job caused by the party being disabled’, but ‘that is not to say that disfigurement can be taken into account, because the body of a free person is not susceptible of assessment (in court).’109 It is evident that the Romans were well aware of how the consequences of wounding could affect somebody’s earning power and that it mattered to them.
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