previous next


PAUPE´RIES was the legal term for damage to property done to a person by a domesticated animal belonging to another person, contrary to the nature of the animal causing the damage and without any fault of its owner. According to the law of the Twelve Tables, the animal must be a quadrupes pecus, to be able to give rise to pauperies; but a Lex Pesulania extended the law to dogs, and the praetorian law comprised under this head all domesticated animals. If the damage done by such animal was due to the fault of the owner, it was not pauperies, but unlawful damage to property [DAMNUM INJURIA DATUM]. Pauperies excluded the notion of unlawful conduct; it is defined as “damnum sine injuria facientis factum,” for an animal “quod sensu caret” could not be said to have done a thing injuria. It was required that the damage should be contrary to the ordinary nature of the animal: thus, if a horse was incited by some one, as by his striking it, or kicked by another animal, the damage it did to a person in consequence was not pauperies on its part. In case of pauperies arising, the law of the Twelve Tables gave the injured person an action against anyone who was owner of the animal at the time of action being brought, the liability passing to a transferee if the animal was alienated after it had done the damage (noxa caput sequitur). The right of action ceased if the animal died. By this action the owner of the animal was required either to give up the animal to the injured party (noxae dare), or to [p. 2.360]pay the full amount of damages. Thus the actio de pauperie belonged to the class of noxales actiones--such as were brought against a house-father on account of the delicts of his sons and slaves. (There was probably a special action of pauperies called actio de pastu pecoris, on account of cattle grazing on a neighbour's crops.) The actio de pauperie and other noxal actions seem to have been first given in order to prevent an injured party taking the law into his own hands, as he was likely to do if he had no other remedy. Noxal surrender originated in an archaic state of society, and traces of it are widespread. (Cf. the Greek βλάβη τετραπόδων καὶ ἀνδροπόδων, Meier and Schömann, Att. Proc. 477; Platner, Proc. 2.371; Voigt, Zwölf Tafeln, 2.143, n. 2; and see Holmes's Common Law, Lecture I., as to the suggestion that noxal liability arose out of a primitive notion of vengeance.)

Wild animals could not make their owner liable for pauperies, but an owner of such animal was liable under the Aquilian law for any damage it caused owing to his negligence, while in his custody; but if a wild animal got away from his master, he was not liable according to Jus Civile, because, when the animal got away, it ceased to be his property. The aedile's edict, however, made a person liable to an actio popularis for damage done in a place of public resort to a free person by a dog, boar, wild boar, bear, or lion, which he had neglected to keep under proper control (Inst. 4.9;--Dig. 21, 1, 40.1; 41, 42, de aed. Ed.).

(Inst. 4.9; Dig. 9, 1, si quadrupes pauperiem fecisse dicatur; Thibaut, Versuche, 2.8; Zimmern, System der römischen Noxalklagen, 79-117; Gesterding, Zeitsch. f. Civilrecht und Proc. 4.261-288; Vangerow, 3.689; C. Sell, Aus dem Noxalrechte der Römer; Voigt, Zwölf Tafeln, § 143.)

[G.L] [E.A.W]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: