PAUPE´RIES
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]
