Liability for Animals
Animals give rise to special issues in the law, by virtue of the fact that they may act in unexpected ways. All legal systems are faced with the problem of how to deal with this.[2647] In part, damage caused by animals could be dealt with by other delicts.
For example, if your slave was injured by my dog, through my fault, Aquilian liability would be likely.[2648] Iniuria could certainly be committed using an animal,[2649] and a fierce dog might be used to cause enough fear for the purposes of coercion. However, there were also special delicts concerned with animals specifically.The development of the law on liability for animals is difficult to reconstruct from the available evidence. There seems to have been a variety of actions and remedies, some of which have left little trace.[2650] One such, for example, is the actio de pastu, an action provided by the Twelve Tables for damage done by livestock grazing on another's land.[2651] Two remedies in particular require attention.
(1) Actio de Pauperie
The Twelve Tables imposed liability for pauperies, which meant injury done by an animal.[2652] Liability was strict, which is to say that the owner of the animal was liable regardless of fault.[2653] This was a case of noxal liability,[2654] meaning that the owner was liable for the alternatives of paying compensation or handing over the animal.[2655]
The texts we have say that the owner is only liable when the animal is of a domestic species and acts ‘contrary to nature', meaning the nature of its species.[2656] For example, we are told that, if a horse kicks out when it is injured, there is no action for pauperies as it is natural for the horse to respond in that way.[2657] However, consider this text from Ulpian:
But this action does not lie in the case of animals that are wild by nature. AccordÂingly, if a bear escapes and thus causes harm, the former owner cannot be held liable, because he ceased to be owner as soon as the animal escaped.[2658]
There is a clear difficulty here: the word ‘Accordingly’ is out of place, because the second sentence does not follow from or explain the first.
What, for example, would be the position if a wild animal caused damage when it had not escaped? As has been said, ‘ if there is no liability for wild beasts in any case it is unnecesÂsary, and misleading, to add that there is no liability if they escape’.83 [2659] Because of this difficulty, it is widely believed that the ‘contrary to nature’ requirement is post-classical.(2) The Edict of the Aediles
The actio depauperie was supplemented by a provision of the edict of the aediles.[2660] This provided that a person was forbidden to bring a dog, boar, bear or lion into a place where people came and went. Where a freeman was killed, there was a fixed penalty.[2661] Where a freeman was injured, damages were payable according thejudge’s discretion.[2662] For other injuries, double damages were due.[2663] There was no requirement to show fault, and the person who brought the animal into a public place would be liable even if the animal had been bound or chained in order not to cause harm.[2664]