Noxal Liability

Persons of full legal standing (sui iuris) were liable for the delicts they committed. With slaves and children in paternal power (alieni iuris) who committed delicts the situation was complicated.

Under the lex Aquilia, however, it was the owner who was liable for his slave’s delicts and not the slave. Presumably this was because the statute aimed at compensation for the loss caused. It would be of no help to hold a slave liable, since a slave had no property. But the different approach of the XII Tables was not abolished, and the lex Aquilia apparently supplemented it (or was understood to supplement it). The two systems were fused. If a slave committed a delict (wrongful loss, furtum, injury), his owner was cited before the magistrate on account of the slave and asked whether he wanted to defend him. If the owner refused, the slave was at once assigned by the magistrate in ownership to the plaintiff. If the owner took the defence upon him, the action was allowed as a noxal action, using the phrase from the XII Tables. The owner had a second opportunity to repudiate his defence of the slave, since in the condemnation the owner was given the choice either of accepting liability to pay the compensation or surrendering his slave on account of noxa (noxal surrender, noxae deditio).

Noxal liability only applied where the owner (or pater) did not have knowledge of the delict. That was understood in this way: ‘ “knowledge” should be taken to mean knowledge on the part of someone who has the power to prevent’.^{lang=EN-US style='font-size:9.5pt;line-height:115%; font-family:"Arial",sans-serif'>99} In all other cases the owner was directly liable in his own person.

The rule became complicated in relation to ownership. What if a slave was meanwhile sold or inherited or enfranchised or owned by more than one person? Or a child was adopted or emancipated? Who was to be cited as master? The general rule was that whoever was the owner of the slave at the moment litigation started was cited and liable, not the person who was owner at the moment of the delict. This rule is comprised in the adage noxa caput sequitur (‘the wrong follows the head’). Usually head is understood to mean the head (caput) of the slave, but it might also refer to the owner, who had legal standing (caput), which legally a slave did not have. Perhaps the phrase even refers to the change from the XII Tables to the lex Aquilia.¹⁰⁰ Under the actio depauperie (see below, 267) the same rule applied. In practice it does not make a difference. Mutatis mutandis, the same applied to children in paternal power. Manumission or emanci­pation after the delict made the slave or child in person liable and released their former owner or pater.

In the case of iniuria, in later times the punishment for slaves was a thrashing (see above, 257). But in the second century that was not unusual, as this text shows:

When a slave effects an injury, he obviously commits a delict; and just as in the case of other delicts, so also a noxal action for injury will issue; but it is in the master’s discretion whether he will submit the slave to a thrashing to mollify the victim of the injury; the master will not be obliged to present him for a thrashing, but he will have the option of allowing him to be thrashed or, if that would not satisfy the affronted person, of giving him in surrender on account of noxa or of accepting an assessment in legal proceedings.

Here, if the owner did not want to defend his slave, the magistrate had the opportunity to have him thrashed but not to surrender him. We can also see that primarily the owner was supposed to exercise his power to discipline his slave.

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