Caput VII. Lex Aquilia, Actio de Pauperie

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ego tibi me obnoxium esse fateor culpae compotem

I confess, I am liable to you, sharing the guilt

                                                                          Said rarely, those who acknowledge own fault

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uberrimae fidei

Of the fullest confidence

                                                                             Said by the promisee to the promisor, the disclosure of all facts

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Introduction

legalis rusticis pro animalibus, legal liability for animals, the owners of animals under lex Aquilia were not usually liable for the damage their animals caused if the owner was not at fault for the loss

The usual course of action is to bring an action under the lex Duodecim Tabularum, the Laws of the Twelve Tables, or simply the Twelve Tables which creates the liability of pauperies, impoverishment

pauperies imposes liability on an animal owner on a no-fault basis. The actio de Pauperie is an action that is available to someone who has suffered damages due to the behaviour of another person’s animal

The animal owner can escape liability by surrendering the animal, the actio naxalis, noxal surrender. In addition, the animal owner’s liability may be further limited during court proceedings

Liability applies to domitae naturae, a tame animal or mansuetae naturae, a mild animal. An example of an animal of either nomenclature is “cattle” or “sheep”

Nota bene. Common practice refers to all animals within the farm or home as: domitae naturae

Finally, liability follows the animal, in the same manner as liability follows a slave

actio de Pauperie is not available in the circumstance of ferae naturae, naturally wild animals, such as bears or lions, designated as “dangerous”. If the wild animal escapes the owner’s control, special legal provisions exist under the curule Aediles, who has a policing function. Separate liability exists for animals designated ferae naturae

Nota bene: the ferae naturae, the ownership of a wild animal is qualified. The creature must be on a leash to indicate active, actual control and possession. If the ferae naturae is loose, the owner is liable

See Caput VII. Case LXIII. Edict Curule Aediles

actio de Pauperie

For the actio de Pauperie to succeed the petitor, the petitioner, also known as the plaintiff, alleges a harm committed and cites the defensor, the defendant animal owner, for the harm committed by the animal

Nota bene. Caput I. Lex Aquilia and Statute Law, January 2025 provides a comprehensive background to the development of Roman jurisprudence. The chapter also outlines the procedure to bring an action before the law court

Roman jurisprudence, for the actio de Pauperie to succeed, the petiitor must establish:

• The defensor is the owner of the animal in question,

• The animal is domitae naturae,

• The harm by the animal is actual physical damage or injury, and

• The animal’s behaviour is outside the accepted behaviour of a creature of that kind

Both the petitor and defensor put forward arguments to support position. The same argument may be cited by the other side asserting own interest. The first argument is volenti non fit iniuria, with the sense the plaintiff knows the risk of sustaining injury. The second argument is sponte feritate commota, with the sense the plaintiff knows the animal behaves according to instinct, with the added caveat, warning: the animal is neither provoked nor irritated by someone or something external

The lex Aquilia in 286 BCE provides legislative guidance when claiming pecuniary compensation for property damage

The physical damage or injury is damnum iniuria datum, damage unlawfully inflicted. The petitor must show actual harm or injury to establish his claim. If successful, the claim is praemia rei pecuniariae, a monetary reward for things. If the petitor is successful to this point in the proceedings, the actual sum awarded is based on the following formula. Again, the lex Aquilia provides guidance to calculate the formula, in that; the replacement value is pretium magni ex prior anno, the highest price from the previous year. The issue is agreeing on the previous year’s highest pecuniary sum

Nota bene. Pecuniary compensation is compensatory, not punitive

Prior to the petitor and the defensor going before the iudex, the judge; the respective lawyers meet outside the court for the purpose of agreeing on the relevant facts of the action to achieve the calculable sum to meet the requirement of pecuniary compensation

At the commencement of the trial, the lawyer for the petitor stands and makes opening remarks. His statement reviews the facts and concludes by stating the formula (with its agreed sum for pecuniary compensation)

The iudex reviews the statements by the respective lawyers. He then confirms the pecuniary compensation is in accord with accepted procedure and practice. If all is correct, the iudex pronounces the agreed sum for pecuniary compensation

Outside the court, a few days later; the defensor pays his lawyer the agreed sum, who pays his opposite colleague, then the petitor

Nota bene: Roman jurisprudence does now allow a lawyer to charge his client a fee for his appearance before the iudex in the law court. Lawyers may only charge fees for work outside the court room, such as writing legal documents or handling business affaires: a testamentary will, a bill of sale, a deed to a property, and so forth

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The Cases give an insight into daily life, the behaviour and attitudes, of lives lead

Cases cited below: LV to LXIII inclusive 

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Case LV  

The obiter dictum holds the animal owner is responsible, “Pauperies est damnum sine iniuria facientis datum,” “…without the doer’s wrongfulness.”

The obiter dictum clearly establishes: if an animal committed a harm, the owner is liable. The owner has two options, either noxal surrender of the animal or provide an evaluation for pecuniary compensation. Whatever act the animal committed, the act itself is the iniuria, the injury. Therefore, an animal can do no wrong

Roman jurisprudence considers a quadruped to be any four-footed creature, from a lamb to a bull. The animal is considered sensu caret, translated literally, “a sense of feeling” hence, “…lacks understanding”

Nota bene. The Romans extend the same legal argument of sensu caret to madmen and young children, a lack of understanding on the part of the person’s own behaviour, their acts

Paulus, a jurist; in action D.9.1.4, extends the category of animal to include “geese”

Case LVI  

This action examines the two central arguments cited above (in the opening of this chapter), namely, the first argument is volenti non fit iniuria, with the sense the plaintiff knows the risk of sustaining injury. The second argument is sponte feritate commota, with the sense the plaintiff knows the animal behaves according to instinct, with the added caveat, warning: the animal is neither provoked nor irritated by someone or something external

The opening phrase in the obiter dictum is commota feritate, the “wildness is stirred.” If you pet or stroke a horse and the animal kicks during the stroking, then the animal behaves according to instinct

The second example, mules are pulling a cart, but the hill is steep. The muleteers abandon the cart and team for fear of being crushed. The action is allowed

The third example. You are riding a horse. While riding, the horse inadvertently treads on the foot of a passing slave. The slave’s foot is broken. Neither you nor the slave are at fault. The action is not allowed. In the alternate, there may be an action for damages on the basis of an in factum suit

The fourth example. You are a groom and lead a horse into the stable. The horse sniffs the presence of a mule. The horse reacts and kicks the groom, breaking the groom’s leg. The groom sues the owner of the mule. The action is allowed

Note the closing sentence of the obiter dictum, sed et si instigatu alterius fera damnum dederit, cessabit haec actio, “But also, if a wild animal inflicted loss at a third party’s instigation, this action fails.”

Case LVII 

Roman jurisprudence, the bias is against dogs. Dogs are required to be kept on a leash during daylight hours. On what basis is the private shopkeeper exempt from this municipal ordinance? The shopkeeper has no exemption

The opening of the obiter dictum implies a bias against the plaintiff, his walking into a shop to avoid meeting someone on the street. A shop is a “private” enclosure for the specific purpose of conducting business particular to that shop. Example, it is about to rain heavily, you step inside a shop to avoid getting wet. Is there a difference between avoiding someone and avoiding rain?

The obiter dictum cites the phrase cane feroce, a “ferocious dog.”  Simply looking at the dog, you, the onlooker, assume the principle of sponte feritate commota, the animal’s behaviour is in accord with its instinct. The dog’s instinct may be either “mild” or “ferocious.”  What is the instinct of a dog? Is dog’s bite indicative of ferocity? What if the bite is a “nip’ by a toy-sized animal?

Proculus, a jurist; held the plaintiff had a statutory action under lex Aquilia. Julianus, a jurist; held a statutory action if the animal were on a leash, if not on a leash, then an in factum suit

Case LVIII

Causation and liability, the quadruped is an ox, a large and heavy animal

Roman jurisprudence and causation: does the defendant’s act cause the plaintiff loss? If the event was directly caused, the plaintiff can sue under lex Aquilia. In the alternate, if the event was indirectly caused, then sue under in factum action

Direct and indirect causation, the Romans exclude remote or speculative losses

Current era jurisprudence addresses the causal relationship of negligence and law in that losses may occur due to events involving numerous interlinked sequences, i.e., causes. The Romans did not address points of law, such as, “proximate cause” and limits to liability, such as “foreseeable” or “direct” results of acts 

Roman jurisprudence restricts the “duty of care” one citizen owes toward another regarding another’s property. lex Aquilia liability is defendant’s obvious misconduct. Controversies occurred within Roman law. The controversies occur in actions where the chain of causation did not run in accord with the likeliest outcome, instead; the event is interrupted by a second cause, particularly a second wrongful act by another person

Example: you, the teamster; swerve your cart to avoid running into a wildly, bucking horse. As a result of your swerving the ox and cart, the cart goes into a roadside ditch. The cart is destroyed

As the plaintiff teamster, the defendant alleges “contributory negligence.” You could have simply stopped the ox and cart in the road: no swerving, no damaged cart

The best course of action, sue in factum

Case LIX

Animals bump into each other

“Bumping” may be a matter of a crowded enclosure versus bumping during rutting season. If the bumping occurs during rutting, then the action may be sponte feritate commota, that is; “within the instinct” of the male species for access to the female species for the express purpose of matting with the corollary to exclude other male members of said species

Why is an animal held accountable for its behaviour, when the behaviour is “within the instinct of the species”? Further, an animal is considered sensu caret, translated literally, “a sense of feeling” hence, “…lacks understanding”

Case LX

Case LV establishes an animal, a quadruped can do no wrong, but if the creature causes harm, then liability, on a no-fault basis accrues to the owner, hence the owner is said to be pauperies, impoverished

The owner of the animal can avoid payment of damages by surrendering the creature to the petitor, known as noxal surrender

Nota bene: noxalis, noxale is a 3^rd declension adjective with the sense: harmful or guilty

noxia, noxia is a 1^st declension feminine noun, with the sense: harm, damage, guilt, fault

The following phrase is useful: desertori noxia fore…, “The blame should fall on…”

If the animal causes iniuria, “harm” and is then sold to another owner; the new owner is liable

Nota bene. Regarding slaves and animals: on sale to the new owner, existing liability transfers to the new owner

For the new owner to avoid liability, he demands of the seller, at the time of sale, a statement of no known liability 

If the seller denies liability at time of sale, but liability is revealed post-sale, the former owner is liable

If the animal dies before or during the action; the former owner is liable

If an animal dies, noxal surrender cannot be conducted; the former owner is liable

If a third party kills the animal, the third party is liable 

Case LXI

Gaius allows recovery of consequential damages for an injured free borne person, regardless of whether the person is in the power of the paterfamilias (as per Roman law and customary tradition)

Pecuniary compensation is compensatory, it is not punitive. The petitor, the “plaintive” may claim medical expenses and lost wages but cannot claim for disfigurement for bodily damage. The rationale for not allowing damages to a free borne person is on the basis that a free borne person: corpus liberum non aestimationem recipit, a “freeman’s body does not allow evaluation”.

If a bull gores a slave (a slave is a thing); since a slave can be purchased and sold, their body is subject to evaluation. Therefore, compensation may include disfigurement, along with medical expenses and lost earnings awarded to the master 

Nota bene: The Roman court struggled for a long time regarding the issue of awarding pecuniary compensation in instances of injury to free borne persons. A freeman, his body is not subject to evaluation, corpus liberum non aestimationem recipit

The leading case that allows the “thin edge of the wedge”, pecuniary compensation for a free borne man to receive compensation for personal, actual physical harm is the Cobbler’s Apprentice case. It is recommended you read the case. See: 

Caput IV, Case XXVIII. Cobbler’s Apprentice 

Caput IV, Case XXIX. Cobbler’s Apprentice. Excessive Punishment

Caput V, Case XLIII. Cobbler’s Apprentice. Settlement

The exact date of Cases XXVIII, XXIX, XLIII is presumed to occur in the first half of the 3^rd Century CE, the beginning of the late-Empire era

Case law has a significant effect on statute law, the recognition of damnum emergens, the “apparent damage” and lucrum cessans, the “forfeited profit”. Still, recognition of physical harm, that is “actual bodily damage”, in this circumstance, the cobbler’s apprentice lost sight of one eye; is not granted due to the lingering prohibition of corpus liberum non aestimationem recipit, a “freeman’s body does not allow evaluation”. A free borne person is a homo sapiens

The date of Case LXI is unknown but presumed to occur at the same time or after the celebrated Cobbler’s Apprentice case

The significant fact regarding the above cited cases is that the Roman court recognizes for the first time a free borne person may receive compensation, in addition to medical expenses and lost wages; compensation for personal, actual physical harm

Since the free borne person is homo sapiens, not a thing – a slave; compensation for personal, bodily injury is still not recognized, corpus liberum non aestimationem recipit

Case LXII

Roman jurisprudence asserts that a ferae naturae, a “wild animal” is the owner’s property, therefore, under owner’s control

Ulpianus contradicts established jurisprudence. A hypothetical case is posed. You visit a caged bear. The bear thrusts its paw out through the interval space between the bars and harms you, an open wound cut. The owner is liable for the damage

Nota bene. Case LXII cites Roman jurisprudence in error

Many jurists feel the opening sentence was altered when the obiter dicta were compiled under Emperor Justinian, reflecting Byzantine law

Case LXIII

The Curule Aediles imposes two sets of fines, death of a free man is 200 solidi, for the injury of a free man, …quanti bonum aequum iudici videbitur, “…as much as seems good and fair to a judge”

What is the worth of a fine? The Curule Aediles, as cited in the Digest; the original fine of 200 solidi may have been 200,000 sesterces, a sum of money equal to about two hundred times the annual wage of an unskilled workman in Rome

Conclusion

Concerning an actio de Pauperie, for the petitor to succeed, he must assert four points (bullet points, top of page 2). To either advance or refute the argument, lawyers on either or both sides assert two broad points concerning an animal’s behaviour relative to their client’s act or acts in the alleged action:

The first argument is volenti non fit iniuria, with the sense the person knows the risk of sustaining injury. The second argument is sponte feritate commota, with the sense the person knows the animal behaves according to instinct, with the added caveat: the animal is neither provoked nor irritated by someone or something external

In our era, for the defensor to avoid liability, many jurisdictions allow noxal surrender. See Case LX

Roman jurisprudence is concerned with herd animals. Over time, the definition of which creature constitutes a “herd” animal evolves to include horse, dog, and geese. Today, many animal species are often “classified” as “working” animals, such as: the seeing-eye dog. What is absent from the cited cases is a creature serving in the role of a “pet”

Case LXII. Wild Animal. Escaped Bear, cited above, the juristic comment may have been altered at the time the obiter dicta were compiled under Emperor Justinian. For another example of altered text, see Caput IV. Case XXIII. Defining Duty of Care. Tree Trimmer

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debitor non praesumitur donare

A debtor is not presumed to give

                                                                               Said of those who evade their legal obligation to pay debts

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neccessitas non habet legem

Necessity knows no law

                                                 Said of those whose acts lack plans

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