!!Экзамен зачет 2023 год / The Law of Obligations

(с) Range of application

After these more general remarks about the nature of the actio de pauperie we may now turn to the details of its application. The remedy was available in cases of bodily harm to children in power and to free persons,48 as well as damage to property. In the latter instance it was, of course, as a rule the owner who could sue; but where a non-owner, as a result of being liable for custodia, had a specific interest in the integrity of the object, he, rather than the owner, could bring the action.49 The damage had to be done, according to the prc • ision of the XII Tables, by a quadrupes. Implicit in this term was probably a limitation that was to appear more clearly from the text of the lex Aquilia:50 it was intended to cover four-footed beasts of the class of cattle (". . . quadrupedemve pecudem"). By the time that Ulpian wrote his commentary on the Edict, this restriction had been dropped, however: "Quae actio ad omnes quadrupedes pertinet", he remarked.51 The classical lawyers were, in fact, even prepared to grant an actio utilis "et si non quadrupes, sed aliud animal pauperiem fecit":52 if the damage had been caused by two-footed animals like chicken, geese or ducks. But was the actio de pauperie only applicable to domesticated animals

solutus fuisser, contra." But the somewhat abrupt second alternative ("at si . . .") may well constitute a shortened and distorted version of the classical original. Unconvincing are the explanations by Haymann, (1921) 42 ZSS 362 sq. and Kerr Wylic, Studi Riccobono, vol. IV, pp. 508 sq. On D. 9, 1, 2, 1 cf. also Jean Macqueron, "Lcs dommages causes par des chiens dans la jurisprudence Romaine", in: Flores legum H.j. Scheltema oblati (1971), pp. 137 sqq. As far as trie discussion of D. 9, 1, 2, 1 by the authors of the ius commune is concerned, cf. C.G. van der Merwe, op. cit., note 39, p. 101.

48Gai. D. 9, 1, 3 ("Ex hac lege iam non dubitatur etiam liberarum personarum nomine agi posse . . ."). From this text it can be deduced that in earlier times the matter was in doubt; originally probably, as in the case of the lex Aquilia, only injury to slaves (and grazing animals) could be recovered. Cf. Kcrr Wylie, Studi Riccobono, vol. IV, pp. 465, 510; Van der Mcrwe, op. cit., note 39, pp. 115 sqq.; Watson, (1970) 17 RIDA 365 sq.; Jackson, (1978) 37

Cambridge LJ 124 sq.

49Paul. D. 9, 1, 2 pr. (mentioning as an example the fullo).

50Cf. supra, pp. 953, 959, 976.

51D. 9, 1, 1, 2. This development appears to have occurred partly by interpretation, partly by statute. The statute in question was the so-called lex Pesolania, which is referred to in Paul. Sent. I, XV, 1 (". . . etiam lege Pesolania de cane cavetur"); cf. Macqueron, Festschrift Scheltema, pp. 136 sq.; contra: Jackson, (1978) 37 Cambridge LJ 129 sq. (who argues that Cuiacius' conjecture that the term derives from a comparative reference to the lex Solonia (Solon's law), which was later misunderstood or erroneously copied, is still persuasive). Cf. also Voet, Commentariits ad Pandectas, Lib. IX, Tit. I, VI (lex Colonia); on which see Gane, The Selective Voet, vol. II, (1955), p. 541; cf. also Gluck, vol. 10, pp. 279 sq.). Determination of the legal regime applicable to dogs, incidentally, always appears to have presented certain difficulties. On the one hand, dogs "have been domesticated for ages: I am not quite sure, but I believe we find dogs associated with Neolithic man" (Boyce v.

Robertson 1912 TPD 381 at 383). Yet, on the other hand, they display a "certain propensity towards ferocity" and are, therefore, "in some respects ferae naturae" (Boyce v. Robertson 1912 TPD 381 at 384). Cf, apart from the lex Pesolania and the article by Macqueron (dealing specifically with damage done by dogs), Williams, op. cit., note 23, pp. 137 sqq., 343 sqq., 354 sqq.; ss. 3 and 9 of the English Animals Act 1971 and P.M. North, The Modern

Law of Animals (1972), pp. 184 sqq. 52 Paul. D. 9, 1, 4.

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or also to those which are wild by nature? This question may have been disputed among the classical Roman lawyers (it certainly is among contemporary Romanists),53 but there can, I think, be little doubt that Ulpian reflected the prevailing view when he wrote: "In bestiis autem propter naturalem feritatem haec actio locum non habet."54

(d)The "contra naturam" test

By far the most interesting texts on the actio de pauperie are th jse which discuss the type of conduct on account of which the animal had to have caused the dam age. As has been mentioned, the owner's liability, though strict, must still be kept within certain reasonable limits; and the Roman lawyers appear to have attempted, originally, to bring about the necessary delimitation by requiring a spontaneous action on the part of the animal. "[C]um commota feritate nocuit quadrupes"55 the remedy could be brought, but not if some external cause was ultimately responsible for the damage. Thus, the actio de pauperie was not applicable, for instance, if a horse kicked someone because it was pricked or hit or wounded;56 if one bull was provoked by another into doing damage;57 or if a mule upset its load onto someone because it was overloaded, because it tripped as a result of the unevenness of the road or because the m ule-driver had been negligent.58 Yet there were certain situations where the owner was held responsible even though the behaviour of his animal could hardly be said to have been spontaneous. Thus we read of a mule that kicked out and broke a groom's leg after the groom had brought along a horse that had started to sniff at the mule. "[C]onsulebatur", reports Alfenus, "possetne cum domino mulae agi, quod ea pauperiem fecisset. respondi

53 Fritz Litren, "Beitrage zur Lchrc von dcr Schadenszurechnung nach romischem und bfirgcrlichem Rechte", (1907) 49 Jhjb 425 sqq.; Haymann, (1921) 42 ZSS 373 sqq.; Barry Nicholas, "Liability for Animals in Roman Law", 1958 Acta juridica 187 sq.; Kerr Wylic, Studi Riccobono, vol. IV, p. 477; Thomas, TRL, p. 383; Jackson, (1978) 37 Cambridge LJ 135 sq.; but cf. Robbe, (1932) 7 RISC, 348 sqq.; D.I.С Ashton-Cross. "Liability in Roman Law tor Damage Caused by Animals", (1953) 11 Cambridge LJ 395 sqq.; idem, "Liability for Animals in Roman Law", 1959 Cambridge LJ 189 sqq.; Van der Merwe, op. cit., note 39, pp 59 sqq.

54_ Ulp. D. 9, 1, 1, 10. Cf. also lust. IV, 9 pr.

53 Servius/Ulp. D. 9, 1, 1, 4; Van der Merwc, op. cit., note 39, pp. 69 sqq. 5(4 Ulp. D. 9, 1, 1, 7.

Wylie, Studi Riccobono, vol. IV, pp. 511 sqq.). I f the first cart had rolle d back ( crashe d into

the se co nd o ne an d, as a re s ult, kn o cke d do w n a sl a ve ) , be c a use the m ule s h ad s hie d at

something, the actio de pauperie could be brought against their owner ("scd si mulae, quia aliquid reformidassent ct mulioncs timore permoti, ne opprimerentur, plostrum rcliquisscnt

. . . eum domino mularum [actioncm] esse"). But the action did not lie if the drivers had been at fault (if, for example, they had tried to lift the back of the first cart in order to make it easier for the mules to pull it up the hill, but had then suddenly, "sua sponte", let go), or if the mulesjust could not take the weight, or if in trying to do so, they had slipped and fallen and the (first) cart had then started to roll down the hill.

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posse."59 The same answer was given in the case of a horse that kicked someone who was stroking or patting it.60 The spontaneity doctrine was obviously thought to overshoot the mark: it confined the owner's liability too narrowly. Another, more refined criterion was thus required to draw the line more aptly. It was u'rimately formulated by Ulpian in the following terms: "Et generaliter haec actio locum habet, quotiens contra naturam fera mota pauperiem dedit":fl1 the general rule is that the action lies whenever an animal is moved against its nature to commit pauperies. "Contra naturam" was a conveniently flexible concept and allowed the Roman jurists to delimit the respective risk spheres of the owner of the animal, the victim of the injury and any third party that might have been involved, in a pragmatic fashion/12 It was not designed to focus on the general disposition of the individual animal that had caused the damage, for Servius/Ulp. D. 9, 1, 1, 4 specifically state that the owner is liable even if a horse given to kicking actually kicks and thus inflicts an injury, or if an ox that is prone to goring gores someone; in cases, that is, where the damaging form of behaviour can hardly be regarded as uncharacteristic of the individual animal concerned. Nor, on the other hand, did "contra naturam" refer to the "nature" of the whole species of animals to which the one that had caused the damage belonged (contra naturam sui generis)/13 Kicking, after all, is not an unnatural form of behaviour in horses, goring is not unnatural in oxen:M and yet, it is clear from our sources that the owner was liable. "Contra naturam" must rather have been used in classical Roman law as a common denominator for forms of behaviour that were uncharacteristic of a domesticated animal. Domesticated animals could be expected to be tame and peaceful, and thus a horse was not supposed to kick, nor was an ox supposed to gore. If they did, it was either because their innate, original wildnessfi5 broke through what had become their second nature—and it was this risk which the owner had to bear—or they had acted secundum naturam: the horse had kicked because it had been hit, the ox had gored because it had been provoked, the mule had slipped because of the unevenness

5y Alf. D. 9, 1, 5.

m Ulp. D. 9, 1, I, 7 in fine. 61 Ulp. D. 9, t, 1, 7.

f'~ Cf., in particular, Van dcr Mcrwc, op. dt., note 39, pp. 72 sqq. Many authors take the contra naturam requirement to be of post-classical origin; cf. Haymann, (1921) 42 ZSS 373 sqq.; Robbe, (1932) 7 RISC 343 sqq.; Kcrr Wylic, Studi Riccobono, vol. IV, pp. 461 sqq.; Nicholas, 1958 Acta Juridica 187 sqq. But see, apart from Van der Merwe, Kaser, RPr I, p. 634; idem, RPr II, p. 433.

63 This is how Colin Kolbcrt (Mommsen/Kriigcr/Watson, vol. I (1985) wrongly translates the phrase. Cf. also, for example, Windschcid/Kipp, § 457, 3 and other pandectists; Ashton-Cross, (1953) 11 Cambridge LJ 400.

But, for example, goring would be a behaviour contra naturam sui generis for horses, kicking contra naturam sui generis for oxen; cf. Fr. Eiselc, "Civilistischc Kleinigkeiten", (1886) 24JhJb4S2.

w Cf. Servius/Ulp. D. 9, 1, 1, 4 ("cum commota fcritate nocuit quadrupes").

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of the road. Such reactions could scarcely be seen as inconsistent with the peaceful nature of domesticated animals and the owner was thus relieved of liability.f4ft

3.The edictum de feris in Roman law

(a)Wild animals in Rome

But what about wild animals? Large numbers of lions and bears, of cheetahs and elephants, of tigers and rhinoceroses, of crocodiles and hippopotamuses67 were needed for circuses and training schools.68 Ever more sensational venationes54 were put up for the amusement of the populace. As early as 169 в.с did the aediles curules P. Cornelius Scipio Nasica and P. Lentulus display, amongst others, 63 "African beasts"70 and 40 bears at a show in the Circus Maximus.71 No less a personage than Quintus Mucius Scaevola (pontifex) is credited by Pliny with having arranged the first fight "of a number of lions together"

M' The case of the dog biting a man who, when fleeing from a magistrate, rushes into a tabema also fits in here (Paul. D. 9, 1, 2, 1, first alternative: ", . . non posse agi canis nomine quidam putant"; cf. supra, note 47). Cf. also Proc./Ulp. D. 9, 2, 11,5 (someone irritates a dog and thus causes it to bite another person); Ofilius/Ulp. D. 9, 2, 9, 3 (someone scares a horse which, as a result, throws its rider into [he river).

If it was due to the fault of a third party that the animal had inflicted the injury (as in the two last-mentioned cases) the injured person could bring an actio legis Aquiliae in factum against that third party. Cf. also Ulp. D. 9. I. 1,5, where it is held that a person who takes a dog out on a lead will be liable if the dog breaks loose "aspentate sua" and does some harm to someone else, provided it could have been better restrained or it should never have been taken to that particular place. According to Ulpian, this action excludes the victim's right to bring the actio de pauperie against the owner of the dog. This can, however, hardly have been a general rule; cf. also Gliick, vol. 10, p. 274; Haymann, (1921) 42 ZSS 386 sq.; but see Van der Merwe, op. cit., note 39, pp. 96 sq.

67 On the types of animals used in the Roman games cf. George Jennison, Animals for Show and Pleasure in Ancient Rome (1937), pp. 42 sqq.

flH On the "training of man-eaters", seejenmson, op. cit., note 67, pp. 194 sq. The schools were for the training of the bestiarii (who had to fight the animals) as well as of the beasts themselves (to turn them, where that was still necessary, into eager and ferocious fighters).

64 These were the animal contests or hunts with which the day in the circus usually started. "They finished before midday, the afternoons were always devoted to the far more important gladiatorial combats—the amusement of the cultured classes" ()ennison, op. cit., note 67, p. 176). Carcopino, pp. 26(1 sq., summarizes as follows: "There were some relatively innocent [animal shows] to break the monotony of the massacre: . . . teams of panthers obediently drawing chariots; lions releasing from their jaws a live hare they had caught; tigers coming to lick the hand of the tamer who had just been lashing them; elephants gravely kneeling before the imperial box or tracing Latin phrases in the sand with their trunks. There were terrible spectacles, in which ferocious beasts fought duels to the death: bear against buffalo, buffalo against elephant, elephant against rhinoceros. There were disgusting ones in which the men, from the safe shelter of iron bars or from the height of the imperial box — like Commodus later—let fly their arrows at animals roaring with baffled rage, and flooded the arena with the blood of butchery. . . ." For a description of the venationes given at the dedication of the Colosseum, see the Liber Spectaculorum of Martialis.

7(1 The term "Africanae bestiae", or simply, "Africanae", was normally used to refer to leopards and other large cats. They did not necessarily come from Africa but could also have been imported from the East. Cf. Jennison, op. cit., note 67, pp. 45 sq.

71 Livius, Ah urbe condita, XL1V, XVIII, 8.

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during his aedilship.72 In 58 в.с. 150 large spotted cats (predominantly leopards) were let loose together in the arena.73 Augustus records that 3 500 Africanae bestiae were killed in his 26 venationes;74 and during the games with which Titus inaugurated the Colosseum in 80 A.D., 5 000 beasts were killed in one single day.75 These animals had to be imported from all parts of the Empire,76 displayed for sale, shoved from their travelling dens into stockyards77 or cages and transported through the Roman streets before, ultimately, ending up in the carnage of the amphitheatres. There was an obvious risk that they, in turn, might find an opportunity to cause a bloodbath. The famous sculptor Praxiteles, for example, very nearly became one of their victims; while working at the docks in Ostia on the figure of a lion which had just arrived from overseas, he was attacked by a leopard that had managed to escape from another cage nearby.78 But then there were also people who earned their money as snake charmers79 or who displayed tame lions in a cage.80 Rich Romans fancied exotic animals as household pets81 or they kept big game in special hunting parks close to their country villae.82 Nero even had a multitude of all kinds of "pecudes et ferae" in his famous domus aurea at Rome.83 Again, the presence of these animals—whether tame or otherwise—in a densely populated city must have been somewhat more hazardous than the rural coexistence of man with sheep or mules or horses; and if it was thought necessary to make the owner strictly liable for injuries inflicted by a cow, the rules of the lex Aquilia can hardly have been regarded as having provided sufficient protection against the dangers emanating from ferocious panthers.

72Plinius, Historia naturalis. Lib. VIII, XX (53).

73Plinius, Historia naturalis, Lib. VIII, XXIV (64). These games were given by an aedil by the name of M. Scaurus and also included, as a special highlight, the first hippopotamus brought to Rome; it was exhibited with five crocodiles.

74Cf. Jennison, op. cit., note 67, pp. 63 sq.

75Suetonius, De vita Caesarum, Titus, VII, in fine. For further details on the animal shows under the Empire, see Jennison, op. cit., note 67, pp. 60 sqq., 83 sqq.

76Some came from as far afield as Scotland (ursus Calcdonicus); cf. Jackson, (1978) 37

Cambridge LJ 134.

77Described by Jennison. op. cit., note 67, pp. 174 sqq.

78Plinius, Historia namraUs, Lib. XXXVI, IV (4) (40).

74 Cf. Paul. D. 47, 11, 11: "In drculatores, qui serpentes circumferunt ct proponunt, si cui ob corum metum damnum datum cst, pro modo admissi actio dabitur"; cf. Ashton-Cross, (1953) 11 Cambridge LJ W.

80 Epietetus, Dissertaticmes ab Arriani digestae. Lib. IV, I, 25.

Ml For details, see Jennison, op. cit., note 67, pp. 126 sqq, "The Emperor Caracalla . . .

kept a number of lions which he took with him on his journeys, and one of them, called Scimetar, ate and slept in the same room with him . . . [The Emperor] Elagabahis . . ., a fantastic, effeminate, and vicious youth, is represented in the Historia Augusta as having a taste for . . . employing (his animals) in childish amusements and very disagreeable practical jokes" (pp. 132, 90). He used to let lions, leopards and bears (who had been deprived of their teeth and claws) loose on his guests, at table or in their beds.

82For details, see Jennison, op. cit., note 67, pp. 133 sqq.

83Suetonius, De vita Caesarum, Nero, XXXI.

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(b) The intervention of the praetor

In this instance it was, however, not the ius civile that took up the issi.<\ The safety of the public roads was a matter for which the curules aediles were responsible—the same magistrates that were also charged with the cura ludorum.84 They must soon have perceived that none of the existing remedies could adequately cope with the problems presented by transporting and marketing the animals that were required for the games and thus they issued an "edictum de fens". Very little, unfortunately, is known about this edict, not even its date of promulgation. Originally, it probably referred to dogs and boars;85 both were not, at that stage, covered by the actio de pauperie.86 Foreign animals began to be used for the games only around the beginning of the 2nd century B.C.87 The range of application of the aedilitian edict was then gradually extended; by the time of classical Roman law it appears to have included wolves, bears, "panthers""8 and lions.84 A person who had brought these kinds of wild beasts into the vicinity of a public road, or who kept them there, was liable for any damage that they did.9" It did not matter whether they were tied up or allowed to run around,91 nor whether they escaped or merely mauled a passer-by.92 The person in charge of the animal—who did not have to be its owner93—was liable, irrespective of whether he could have prevented the incident or not. The basis of his liability was thus not fault but the mere fact that by having a dangerous animal "qua vulgo iter fiet", he had created a risk to others. For the death of a freeman the edict provided a penalty of 200 solidi,94 in cases of non-fatal injuries to freemen the judge was instructed to award "quanti bonum aequum

H4 On the double responsibility of the aediles, in this context, see Alan Watson, Law Making in the Later Roman Republic (1974), p. 86.

85Cf. the analysis by Jackson, (1978) 37 Cambridge LJ 128 sqq.

1Dogs probably had to be brought under the actio dc pauperie by way of a special statute (cf. supra, note 51); they remained excluded from the ambit of the first chapter of the lex Aquilia (Gai. D. 9, 2, 2, 2). The same text reveals the interpretive difficulties that were experienced with regard to pigs. It is likely that for the same reason pigs (and that means also boars) were not originally taken to be included among the quadrupedes in terms of the actio de pauperie.

Jcnnison, op. cit., note 67, pp. 44 sq. One of the first foreign animals seen in a Roman

circus was possibly the ostrich from Africa.

HM On the meaning of the term "panthera", sec Jcnnison, op. cit., note 67, pp. 183 sqq. H9 Ulp. D. 21, 1, 40; cf. also Inst. IV, 9, 1 (leaving out the wolf and panther); Paul. D. 21, 1,

41 ("aliudve quod noceret animal"). According to Ashton-Cross, (1953) 11 Cambridge LJ, application of this edict was even extended to domestic animals. Contra: Nicholas, 1958 Acta Juridica 186 sq.; Van der Merwe, op. cit., note 39, p. 142.

1 "fA]iunt aediles: 'ne quis canem, verrem vel minorem aprum, lupum, ursum, pantheram, leonem, . . . qua vulgo iter fiet, ita habuisse velit, ut cuiquam noccre damnumve dare possit" (Ulp. D. 21, 1, 40 and 42; Lend, EP, p. 566).

91Cf. Paul. D. 21, 1, 41 (". . . sive soluta sint, sive alligata, ut contineri vinculis . . .").

92Nicholas, 1958 Acta Juridica 186; Van der Merwc, op. cit., note 39, p. 143.

93Nicholas, 1958 Acta Juridica 185; Van der Merwe, op. cit., note 39, p. 143; but cf. Ashton-Cross, (1953) 11 Cambridge LJ 395 sqq.

94But cf. Lenel, EP, p. 566.

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. . . videbitur", and in cases of damage to property "duplum" was recoverable.ys None of these consequences could be averted by way of noxal surrender. Provocation of the animal by the victim of the injury did perhaps exclude liability.96 According to Inst. IV, 9, 1 the actio de pauperie and the aedilitian action could be brought concurrently; but this can have applied only in the case of dogs and, possibly, boars.97

4. The actio de pastu in Roman law

Even less than about the edictum de feris is known about a third remedy that was available for damage caused lj>y animals. It dealt with a specific form of damage—depasturization of another person's land—and is known as the actio de pastu. It must have been of considerable importance at a time when Rome was still a predominantly agrarian society and in fact it is said to have been part and parcel already of the decemviral remedies.98 Whether only deliberate depasturization was actionable (in the sense that the defendant had to have driven his animals onto the plaintiff's land)" or whether we are dealing with another instance of strict liability, based on the principles of noxality"10 is a matter of uncertainty. Of our three sources which allude to the actio de pastu one appears to support the former,1"1 and two the latter proposition.102 The most explicit of the three is Pauli Sententiae I, XV, 1 ("Si quadrupes pauperiem fecerit damnumve dederit quidve depasta sit, in dominum actio datur, ut aut damni aestimationem subeat aut quadrupedem dedat . . ."); and although there are certain indications that Paulus' original text may have suffered somewhat at the hands of the post-classical compilers of the Sententiae, the reasons to suspect the clause "quidve depasta sit" cannot really be regarded as conclusive. But even if, as appears likely, the owner of the cattle was under a strict noxal liability, the practical importance of the actio de pastu dwindled considerably when liability under Aquilian principles came to be extended, by means of actiones in factum and

95 Ulp. D. 21, 1, 42; Inst. IV, 9. 1. For further details on the edictum de feris, cf. Van der Merwe, op. cit., note 39, pp. 142 sqq.; Jackson, (1978) 37 Cambridge Lj 132 sqq.

*' Cf. Paul. Sent. I, XV, 3.

Cf. also Van der Merwe, op. cit., note ЗУ, р. 145. 911 Ulp. D. 39, 5, 14. 3.

99 Kerr Wylie, Studi Riccobono, vol. IV, p. 475; A. Fliniaux, "Une vieille action du droit romain. L' 'actio de pastu'", in: Melanges de droit remain dedies ii Georges Cornit, vol. I, pp. 252 sqq., 280 sqq.; cf. also Jackson, (1978) 37 Cambridge LJ 137, who suggests that culpa may have been sufficient.

10" Cf. C.G. van der Merwe, "Die actio de pastu", (1973) 36 THRHR 107 sqq.; Kaser,

RPr I, pp. 162 (n. 67), 633 (n. 29); d. also Van Zyi v. Van Biljoti 1987 (2) SA 372 (O) at 401. 101 Ulp. D. 19, 5, 14, 3: "Si glans ex arborc tua in meum fundum cadat eamque ego

immisso pecore depascam: Aristo scribit поп sibi occurrere legitimam actionem, qua experiri possim: nam neque ex lege duodceim tabularum dc pastu pecoris (quia non in tuo pascitur)

ncquc de pauperie neque de damni iniuriae agi posse: in factum itaque erit agendum." 1112 Paul. Sent. I, XV, 1; С 3, 35, 6.

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actiones utiles, to cases of indirect causation of damage.103 Diocletian and Maximian specifically encouraged plaintiffs to use the actio legis Aquiliae in cases of depasturization when they decreed: "De his, quae per iniuriam depasta contendis, ex sententia legis Aquiliae agere minime prohiberis";104 and as long as fault could be established on the part of the defendant, this was indeed the more convenient remedy for the plaintiff.1"5 It may, however, also be concluded, e contrario, from C. 3, 35, 6, that where the land was not "depasta per iniuriam" the actio de pastu was thought to remain available.106

5. The actio de pastu in South African law

All three remedies have come to be incorporated into the ius commune. Via the old Roman-Dutch authorities they were transplanted to the Cape of Good Hope, from where they spread to the other European settlements in Southern Africa. There they have survived to this day. The range of application of the actio de pastu has, generally speaking, been defined rather liberally.107 It is applicable wherever damage has been done by grazing and it does not matter whether grass, crops, shrubs or trees have been affected.108 The defendant is liable even if his animals devour crops that have been reaped;109 and if, in the course of satisfying their appetite, the animals have trampled down the plaintiff's crops, the resulting damage is also recoverable by means of the actio de pastu.no Not only four-footed animals but also birds are covered by the remedy, as long, of course, as they can cause damage by grazing. Whether their owner is strictly liable, or only if he intentionally drove his animals onto the plaintiff's land, is still disputed; the Rhodesian Court of Appeal has adopted the latter view,111 but the (only) authority

1113 C{. supra, for example, pp. 903 sq.

104 С 3, 35, 6.

105

The defendant did, for example, not have the option of noxal surrender; in case of denial the amount of condemnation "crescit in duplum" (cf. supra, p. 974).

ки por further discussion, see Fliniaux, Melanges Cornil, vol. I, pp. 247 sqq.; Van der Merwc, op. cit., note 39, pp. 121 sqq.; idem, (1973) 36 THRHR 105 sqq.; Jackson, (1978) 37 Cambridge LJ 127 sq., 136 sqq.

107 For details, see V an de r Me rwe, op. cit ., note 39, pp. 130 sqq., 135 sqq.; ide m, ( 1973)

36 TH RH R 105 sqq. , 110 sqq. ; Van Zyt v. Van Biljon 1987 ( 2) SA 372 ( O) at 381 sqq. ( a

decision running over 40 pages and comprehensively covering all available historical sources, contemporary literature and South African precedents; cf. also the case note by J. Neethling, (1988) 51 THRHR 547 sqq.). In the 19th century the actio de pastu was in danger of being ousted by the (English) common-law remedy of "cattle trespass": De Blanche v. Zietsman

(1880) 1 N LR 185; Westhuyzen v. Lo ite r ( 1898) 19 N LR 162; d . also Thom son v. Sch ietekat

(1893) 10 SC 46.

108 Thomson v . S chie teka t ( 1893) 10 SC 46; Van Zy l v. Kotze 1961 ( 4) SA 214 ( T).

109 Voet, Commentarius ad Pandectas, Lib. IX, Tit. I, II; Crous v.Jaffe Bros. 1921 OPD 2; cf. also Struve, Syntagma, Exerc. XIV, Lib. IX, Tit. I, I I I (". . . ut si columbae in alterius granariis frumentum absumscrint").

110Vermaak v. Du Plessis 1974 (4) SA 353 (O).

111Heron v. Skinner 1971 (1) SA 399 (RAD).

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referred to, Voet's Commentarius ad Pandectasyn2 does not actually support it. On the contrary: ever since the French humanist Cuiacius attempted to reconstruct the Sententiae Pauli, the actio de pastu has predominantly been held not to require proof of fault.113

An alternative remedy that originated in Germanic customary law has, incidentally, been recognized by the Roman-Dutch writers, and is still applicable today in the Republic of South Africa on the basis of provincial ordinances: rather than institute the actio de pastu to claim damages, the plaintiff may impound the animals trespassing on his land and keep them until their owner has paid both the pound fees and compensation for the damage caused.114

6. The edictum de feris in South African law

The edictum de feris has apparently only once been applied by a South African court115—a dog had been taken onto a public road and had bitten to death an ostrich that was lawfully feeding on the commonage adjoining that road—but it has been mentioned in a number of other decisions.116 According to WesselsJA,117 "canis", in terms of the edict, refers only to a vicious dog, not to "a lady's lap dog". On the authority

112 Lib. IX, Tit. I, I.

1 15 Cf., for example, Struve, Syntagma, Exerc. XIV, Lib. IX, Tit. I, III; cf. also Van Zyl v. Kotze 1961 (4) SA 214 (T); Constant v. Umw 1951 (4) SA 143 (C) at 148B; Vermaak v, Du Plessis 1974 (4) SA 353 (O); Van Zyl v, Van Biljon 1987 (2) SA 372 (O) at 381 sqq. The main point to be decided in the latter case was whether or not vis maior constitutes a defence against the actio de pastu. The court held that it docs, provided "the animal [was] directly motivated to act by vis maior". If, on the other hand, the vis maior merely made available to the animals an access to the other person's land (in casu defendant's cattle had gained access to plaintiff's maize field due to the fact that the boundary fence had been struck down by lightning), "and the animals then made use of that access from their own volition to graze on the damaged land, the damage would have been caused by their own independent conduct . . . and the owner of the animals would be strictly liable for the damage done". It is hardly convincing, however, to derive this distinction (as M.T. Steyn J does) from "the decisive effect of the principle of causality" (all quotations from the translation of the hcadnote on pp. 373 sq.).

The "licentia pignorandi" derives trom Germanic customary law; for details, cf. Leyser,

Meditationes ad Pandectas, Spec. CXI; Stryk, Usus mademus pandectarum. Lib. IX, Tit. I, §§ 15sqq.;Gluck, vol. 10, pp. 302 sqq.; Van der Merwe, (1973)76 THRHR 112 sqq. The custom was recognized in Anglo-Saxon law, too, and has become part of the English common law ("distress damage feasant", defined by Williams, op. cit., note 23, p. XLVII, as "a process of self-help whereby chattels that are doing damage to or (perhaps) encumbering land or depasturing chattels may be taken and retained by way of security until compensation is paid". On its history (". . . for many centuries . . . a history of attenuation — almost of decay") and all details of its application, see Williams, op. cit., note 23, pp. 7 sqq.; c(. also Fleming, Tons, pp. 80 sq. A person who distrains animals has to impound them as soon as reasonably possible (see Williams, pp. 90 sqq.).

"5 Le Roux v. Pick (1879) 9 Buch 29 (cf. О'СаЦафап v, Chaplin 1927 AD 310 at 325 and 3671.

lif> Cowell v. Friedman & Co. (1888) 5 HCG 22 at 38; Chandler v. The Middetburg Municipality

1924 TPD 450 at 465 and 467; О'СаИафап v. Chaplin 1927 AD 310 (passim); Bristow v. Lycetl 1971 (4) SA 223 (RAD) at 229.

117 О'СаИафап v. Chaplin 1927 AD 310 at 371.

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of Brunnemann118 wild animals other than those specifically mentioned in the Edict have been held to be included—as, for example, snakes and crocodiles.119 Occasionally, a departure from the requirement that the animal must have been kept in the vicinity of a public road has been suggested,12" but in O'Callaghan v. Chaplin—where a dog had caused the damage in a private house—the edictum de feris was not in fact applied.121 Liability is still, predominantly, regarded to be strict.122

7.The actio de pauperie in South African law

(a)The nature of the remedy

Last, but not least, of course, there is the actio de pauperie. It is this remedy, more than any other, that has shaped the modern civilian approach to liability for damage caused by animals.123 But while in continental Europe, it has come to be incorporated into the modern codes of private law over the last two hundred years,124 it still subsists as part and parcel of the Roman-Dutch branch of the ius commune in South Africa.125 In the course of time, however, certain changes have

11H Commentarius in Pandectas, Lib. XXI, Tit. I, ad L. Hi cuim. 40.

119 O'Callaghan v. Chaplin 1927 AD 310 at 346.

Van Damhouder, Praxis rerum criminalium. Cap. CXLII, 9; cf. also O'Callaghan v. Chaplin 1927 AD 310 at 342 (per Kotze JA).

lA 1927 AD 310 at 330 (per Innes CJ).

122 Le Roux v. Pick (1879) 9 Buch 29 at 41; O'Callaghan v. Chaplin 1927 AD 310 at 377 (per Wessels JA). But see also Robertson v. Boyce 1912 AD 367 at 382; O'Cailaghan v. Chaplin 1927 AD 310 at 314 (per Innes CJ). For further details of the application of the edictum de feris in South African law, see Van der Merwe, op. cit., note 39, pp. 153 sqq.; but cf. also N.J. van der Merwc/P.J.J. Olivier, Die onregmatige daad in die Suid-Afrikaanse reg (5th ed., 1985), p. 495.

121 In Germany the edictum de feris was abrogated by § 367, n. 11 StGB (Windscheid/Kipp, § 457, 3); cf. also already Gliick, vol. 10, p. 272 (arguing that it had been replaced by art. 136 Constitutio Criminalis Carolina). The continued existence of the actio dc pastu was in dispute (Windscheid/Kipp, loc. cit.; Rudolf Bienenfeld, Die Haftungeti ohne Verschulden (1933), p. 45); it was not taken over into the BOB (cf. "Motive", in: Muydan, vol. II, p. 452).

X2A Cf. art. 1385 code civil (on which see Watson, Failures, pp. 4 sqq., 17 sq.), § 1320 ABGB, art. 356 OR, § 833 BGB.

12:1 In some of the earlier South African decisions liability of the owner was based on the English sdenter doctrine (on which see infra, p. 1136 sq.); cf., in particular, Botha v. Raubetiheimer 1918 EDL 200 (". . . however vicious a stallion may be by common knowledge, as there was no evidence to show that it is in the habit of kicking mares or is likely to do so, and as it was not shown that the defendant had knowledge of such vicious propensity on the part of his stallion, absolution from the instance should have been granted"); cf. further the cases referred to in Bealty v. Donelly (1876) 6 Buch 51. Contra:

Storey v. Stanner (1882) 1 HCG 40 at 41; Cowell \>. Friedman & Co. (1888) 5 HCG 22 at 50;

O'Callaghan v. Chaplin 1927 AD 310 at 378. For some time, however, the notion has lingered on that the owner had to have been at fault: Spires v. Scheepers 3 EDC 173 at 176;

Parker v. Reed (1904) 21 SC 496; Sephton v. Benson 1911 CPD 502; Chandler v. The MiddetbuTg Municipality 1924 TPD 450; cf. also still O'Callaqkati v. Chaplin 1927 AD 310 at 375 sqq. (per Wessels JA). Contra: O'Callaghan v. Chaplin 1927 AD 310 (with a very comprehensive discussion of the question by Innes CJ at pp. 313 sqq., and Kotzc JA at pp. 334 sqq.). This decision has authoritively settled the matter in favour of strict liability. Two very recent judicial utterances on the matter are Van Zyl p. Van Biljon 1987 (2) SA 372

(O) at 375 sqq. and Lawrence i'. Kondotet Inns (Ply.) Ltd.

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