!!Экзамен зачет 2023 год / The Law of Obligations

occurred. Most importantly, perhaps, the compensatory function of the actio de pauperie was increasingly stressed by the authors of the ius commune.12'1 In the first place, the plaintiff had to be compensated for the damage caused by the defendant's animal; in fact, it was often pointed out that this was what he had to ask for when he brought the action.127 The handing over of the animal was merely regarded as a way in which the defendant, if he so chose, was able to discharge his obligation. Clearly, the noxal surrender was a rather atavistic notion; as odd, in fact, as the concomitant rule that the action had to be brought against the owner tempore litis contestatae ("noxa caput sequitur"!).

For centuries, jurists were at pains to provide a rational explanation for the principle of noxality. One argument, for instance, that was frequently advanced, proceeded from the fact that it is the owner who derives the benefit from having the animal among his assets; it is only reasonable, under these circumstances, that he must also carry all the burdens associated with this piece of property.128 But why was he then liable only for the consequences of the animal's conduct contra naturam and not also for the damages caused secundum naturam? Others, therefore, rather emphasized the principle of "alterum non laedere": every person had to be responsible for all the damage that either he, or one of the assets under his control, inflicted upon others.129 But this, too, was a somewhat awkward explanation. For why should the owner of an animal be strictly liable if his liability depended otherwise on fault (lex Aquilia!)?130 Yet it was the notion of strict liability that provided

the most popularjustification for the option of noxal surrender: in view of the fact that the owner was free of any blame,131 it would have been

1989 (1) SA 44 (D) at 50 sqq.

In Scottish legal history, too, paupcrian liability and the scienter principle have vied for recognition; today, the position in Scottish law appears to correspond to that in modern English law (i.e.: liability for damage done by "harmless" animals based on foreknowledge— scienter); cf. D.L. Carey-Miller, "The Scottish Institutional Writers on Animal Liability; Civilian or Scienter?", 1974Juridical Review 5 sqq.; Bernard S. Jackson, "Liability for Animals in Scottish Legal Literature: From the Auld Lawes to the Sixteenth Century", (1975) 10 The Irish Jurist 334 sqq.; idem, "Liability for Animals in Scottish Legal Literature:

From Stair to the Modern Law", 1977 Juridical Review 139 sqq.

n<< Cf. the discussion by Van der Merwe, op. cit., note 39, pp. 31 sq.

127 Gluck, vol. 10, p. 292; cf. also O'Callaghan v. Chaplin 1927 AD 310 at 352.

i2H Cf., for example, Gabriel Vasques, as quoted by Struve, Syntagma, Exerc. XIV, Lib. IX, Tit. I, VIII; Stryk, Usus modermis pandeclarum. Lib. IX, Tit. I, § 4 (". . . ut qui commodum ex bestia captat, etiam incommodum ex reparatione damni sustineat") (quoted by De Villiers JA, in O'Callaghan v. Chaplin 1927 AD 31(1 at 334).

l2" Cf. Van der Merwe, op. cit., note 39, p. 33; Gluck, vol. 10, p. 289.

130 For ajustification of ownership (rather than fault) as the basis of the actio dc pauperie, sec O'Callaghan v. Chaplin 1927 AD 310 at 313 sqq., 320 sqq., 334 sqq., 365 and 370 sqq.; Van der Merwe, op. cit., note 39, pp. 51 sqq.

'If the owner had been at fault, he was liable under Aquilian principles.

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unreasonable to extend his liability beyond the intrinsic value of the animal.132

All this, at least to us, sounds rather unconvincing and it is surprising that the principle of noxality survived, in Germany, until the eve of codification.133 In actual practice, however, things often looked quite different. Saxonian law, for instance, did not recognize the option of a noxal surrender,134 and in other parts of Europe, too, the question was debated whether it had not been rendered obsolete. This view was, indeed, adopted by a whole variety of Frisian and Flemish authors,135 but not in Holland: ". . . mane[t] in reliquis apud nos intacta romani juris definitio [. . .], etiam quantum ad ipsam noxae dandi licentiam, et subsequentem inde liberationem", as Voet specifically stressed.136 The South African courts, though (in theory) applying "romeins-hollandse reg'V37 have not perpetuated this tradition. As a means of escaping "just liability for damage done by one's animals acting contra naturam", noxae deditio is regarded "as the remnant of an archaic practice wholly at variance with and unsuited to the notions of justice prevailing in modern times. Its observance was not in keeping with the legal philosophy of the past century and of our own day. The surrender of a harmful, and it may be worthless, animal is no compensation to an injured person".138 With noxae deditio, the doctrine of noxa caput sequitur, with all its consequences, was also bound to go.139 The only person liable is the original owner, "and he [is] liable for compensation pure and simple".140

132Cf., for example, Struve, Syntagma, Exerc. XIV, Lib. IX, Tic. I, VIII; Van der Merwe, op. cit., note 39, p. 33; cf. also Gliick, vol. 10, p. 290.

133Windscheid/Kipp, § 457, 3; Biencnfeld, op. dr., note 123, p. 45.

134On Saxonian law (based on II, 40 Sachsenspiegel), see Wescnbeck, Cow men tarius, Lib. IX, Tit. I, 6; Stryk, Usus modemus pandectarum. Lib. IX, Tit. I, §§ 6 sqq. Nor did art. 136 of the Constitutio Criminalis Carolina recognize the possibility of noxal surrender.

135Cf., for example, Sande, Decisioties Frisicae, Lib. II, Tit. VII, V; Ulrich Hubcr, Hutwmia Romana sive Centura CensuraeJurisJustinianaei (Francquerac, 1700), Lib. IV, Ulp. Lib. XVIII ad Edict.; cf. further Van der Mcrwc, op. cit., note 39, pp. 36 sq.; O'CaUaghan v. Chaplin 1927 AD 310 at 342 sqq.; see also Wesenbeck, Cowmentarius, loc. cit.; Vinnius, Iristitutiones,

Lib. IV, Tit. IX, 1, n. 1.

1V' Conmientaritts ad Pandectas, Lib. IX, Tit. I, VIII; cf. further Grotius, Inhiding, HI,

XXXVIII, 10; Groenewegen, De legibus abrogatis, Inst. Lib. IV, Tit. IX, Princ, 5. But see Grotius, Inteiding, III, XXXVIII, 13 recognizing an exception in cases where a dog has killed somebody's swans or other birds ("Den eigenaar van ecn hond die iemands zwaenen ofte andere vogelen hecft dood ghebcten, is ghehouden zulcks te beteren, zonder te moghen volstaen met overgewing van de hond").

n7 Zimmcrmann, RHR, pp. 4 sqq.

138 O'Caltaghan v. Chaplin 1927 AD 310 at 360; d. also Le Roux v. Fkk (1879) 9 Buch 29 at 40 ("I am afraid a suitor would scarcely think that, moribus hujus scculi, a judge was acting in accordance with the highest principles of equity in deciding that a Kafir dog was all the compensation he could obtain for the loss of a valuable breeding bird that had been bitten to death by that dog").

1W O'Callavhan v, Chaplin 1927 AD 310 at 322.

140 Ibid. '

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(b) Range of animals

A second point on which there has been some development is the range of animals covered by the pauperian remedy. It has always been generally agreed that the actio directa was applicable in the case of quadrupedes, while an actio utilis had to be granted if a two-footed animal had caused the damage;141 but this distinction was not of practical significance. A large number of writers, however, understood Paulus D. 9, 1, 4 ("Haec actio utilis competit et si . . . aliud animal pauperiem fecit") as referring also to wild animals (no matter whether twoof four-footed). "Quando autem Dominus illas bestias habet in domo et custodia sua quodammodo domesticorum animalium, aequum est, ut teneatur perindc ac aliorum nomine", it was argued:142 if a person preferred to keep a crocodile rather than a lap dog, this could hardly be regarded as a good reason to relax his liability.143 In modern South African practice the question has not yet been settled conclusively. On the one hand there arc judicial dicta in favour of the view that the damage must have been caused by a domestic animal;144 yet, on the other hand, the action has been granted where bees or meerkats have displayed their innate viciousness.145

(c) Contra ius naturale

This brings us to a third important aspect. The question of whether or not liability under the actio de pauperie extends to wild animals is obviously closely related to the way in which the "contra naturam" test

is taken to operate; for if one requires that an animal must have acted in "breach of the good behaviour that is its second nature"14fi in order to

make its owner liable, one can hardly apply the actio de pauperie to animals still persisting in a state of natural ferocity. This is why Struve, amongst others, argued:

141Cf., for example, Cluck, vol. 10. pp. 292 sq.

142Lautcrbach, Collegium theoretico-practictim, Lib. IX, Tit. I, IX sq. Cf. further Voet,

Commetitarius ad Pandectas, Lib. IX, Tit. I, IV; Van Leeuwen, Censura Forensis, Pars I, Lib. V,

Cap. XXXI, 3.

143 But cf. Gluck, vol . 10, pp. 271 sq. : a pe rson who docs not take spe cific care whe n

encounte ring a wild animal can only blame himse lf if he is attacke d. A pe rson approaching

a domestic animal, on the other hand, can normally expect not to be attacked by it. Occasionally, the question was discussed whether the actio de pauperie utilis could also be

granted if a lunatic had caused the damage. After all, the furiosus could, arguably, be regarded as an "animal . . . quod sensu caret" (UIp. D, 9, 1, 1, 3); and in D. 9, 2, 5, 2 Ulpian himself makes a comparative reference to the case of "si quadrupes damnum dederit" when discussing the situation of "si furiosus damnum dederit". For further discussion, see Stryk, Ustts modernus patidectamm, Lib. IX, Tit. I, §§ 1 sq.; Gliick, vol. 10, pp. 294 sqq.

144 O'Callaqhan v. Chaplin 1927 AD 310 at 337 and 370; South African Railways & Harbours

v. Edwa rd s 1930 AD 3 at 9 sq.

14:1 Coosen v. Reeders 1926 TPD 436 at 439 (where bees arc classified as "animals of vicious

propensities"); Kli'm v. Boshoff \93l CPD 188. Cf. also Beany v. Donelly (1876) 6 Buch 51 at 52

fconcerning monkeys).

l4fp Coweli v. Friedman & Co. (1888) 5 HCG 12 at 44.

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"Ad feras autem, licet in custodia rctincantur, non rcctc applicatur utilis actio de pauperie: quia et verbs et mens atquc ratio legis, quod sc. animal contra indolem suam et consuctudinem noccat, cessat."147

Interpretation of the "contra naturam" requirement, unfortunately, turned out to be a highly volatile affair. Even by the time of Justinian it was no longer used in the sense in which it had once been devised. The conduct of animals as well as human beings was thought by the Byzantines to be governed by certain rules of natural law. As "companion and hunting agent of man",148 a dog has to respect his master's property and person; and a cow is supposed to provide meat and milk, but not to fight with human beings. If they failed to comply with these standards, they acted "contra ius naturale", and their misbehaviour made the owner liable.149

(d) Contra naturam sui generis

The glossators further obscured the issue by introducing an amendment, which became almost universally accepted. Accursius, in his glossa "Contra naturam" ad lnst. IV, 9, provides the following definition:

"id est, consuctudinem generis illius animalis: licet sit sua consuetudo ut calcitrct. . .

[n]am maior pars cquorum non pessundat: et maior pars bo[v]ura cornu non petit: quia equi, ct boves dicuntur mansueti."

The "contra naturam" test had thus been turned into a "contra naturam sui generis" test.15" It was obviously intended to accommodate cases such as the ones discussed in Servius/Ulp. D. 9, 1, 1, 4 and thus to make it clear that, even if the individual animal was in the habit of acting rather viciously, the damage could still be taken to have been inflicted "contra naturam" if the class of animal to which it happened to belong, was not supposed to behave in such a way. In other words, horses in general act contra naturam if they kick, and hence the owner of a horse that has caused damage by kicking, is liable, even if this specific horse is notorious for kicking. But the choice of phrase ("contra naturam sui generis") was rather unfortunate in that it conveyed the idea that certain forms of behaviour are characteristic of specific classes of animals—the implication being that the owner would be liable only

147Syntagma, Excrc. XIV, Lib. IX, Tit. I, IX. It is also the main reason why in modern South African law application of the actio de pauperie is, as a rule, restricted to domestic animals: Van der Mcrwe, op. cit., note 39, p. 65. Other authors, who were in fact prepared to apply pauperian principles to damage done by wild animals tended to do this on the basis of an actio utilis; the contra naturam requirement, however, according to them, was confined to die actio de pauperie directa. Cf., for example, Lautcrbach, Collegium theoretico-practiatm. Lib, IX, Tit. I, VII, X.

148Boyce v. Robertson 1912 TPD 381 at 383.

144 Haymann, (1921) 42 ZSS 366; Kerr Wylie. Studi Riccobono. vol. IV, pp. 464, 477; Nicholas, 1958 Actajuridica 187; Van der Merwe, op. cit.. note 39, pp. 81 sq.

1511 Cf. further F. Litten, "Uber das 'contra naturam "sui generis ............, (1905) 28 ZSS 494 sqq.; idem, (1907) 49 Jhjb 422 sqq.

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if (to pursue the example) his horse had behaved in a way contrary to the nature of the class of horses. This inference, however, was very rarely, if ever, drawn;151 for it would largely have eroded the substance of the actio de pauperie. Kicking, after all, is a form of behaviour that can hardly be regarded as "unnatural" for horses in general. Most of the writers of the ius commune understood "contra naturam sui generis" in the sense of contrary to the "nature" of the animal as a domesticated being. This is apparent from their general definitions ("Contra naturam nocere dicuntur animalia, quotiens mansueta feritatem assumunt")152 as well as from the examples provided to illustrate the notion of an act "secundum naturam": a dog satisfying his hunger by eating bread or meat, cattle feasting on grass, a horse kicking out while in pain, a mule stumbling because of its too heavy load.153 But there was obviously a lot of room for manoeuvre. Accursius,154 for instance, argued that a dog that had been tied up, did not expose its owner to an actio de pauperie when it bit a passer-by: dogs that are not allowed to run around, are usually more ferocious and can therefore not be taken to act contra naturam sui generis if they attack a human being. Johannes Faber, to mention another example, contended that on account of special ferocity and mischievousness even an act that had to be classified, normally, as secundum naturam could acquire contra naturam dimensions.155 The same criterion has been employed by Jansen

Jin the case of Maree v. Diedericks.*56

(e)The "reasonable cow" test

Modern South African courts, as is apparent from this example, still apply the "contra naturam (sui generis)" test in order to determine whether the owner of an animal that has caused damage, is liable or not.157 But the case law that has emerged over the years clearly reveals its chameleonic nature. Occasionally, the courts have adopted what one

15' Van der Merwe, (1979) 42 THRHR 17.

152Voet, Commentarius ad Pandectcts, Lib. IX, Tit. I, IV.

153For details, see Van der Merwe, op. cit., note 39, pp. 84 sqq.

154Gl. Putant ad D. 9, 1, 2.

In quatuor Institutionum Libros Commentaria (Venctiis, 1582), Rub. Si quadrupes paupcriem fecisse dicatur (ad lust. IV, 9), 3. The example discussed is the following: ". . .

si habcbam pratum clausum, cuius clausuram bos tuus, vcl taums rupit per lasciviam, vel ferocitate, et herbam, vel bladum depastus est. hoc casu non esset deneganda hacc actio de pauperie." Absentc lascivia and ferocitaic, however, the actio de pauperie did not lie: "Quid ergo si animalia tua . . . depasta fuerunt glandem meam, vel prata, vel blada mea, quaeritur an agere possim . . .? glossa dicit, quod potest agi actione de pauperie. . . . Sed hoc non videtur verum . . . quia haec actio non datur, nisi quando animal delinquit contra naturam sui generis."

'* 1962 (1) SA 231 (T) at 237: "As die landdros se bevinding dat die twee honde gesamentlik al die hoenders doodgebyt het, korrek is, dan was bcide honde nie besig om op 'n natuurlike wyse hongcr te stil nie—hulle was besig met 'n baldadige slagting wat as contra

naturam aangemerk moet word."

157 For a detailed analysis, see Van der Merwe, op. cit., note 39, pp. 89 sqq., 91 sqq.; cf. also idem, (1979) 42 THRHR 17 sqq.

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could call a subjective approach: the animal must have been moved by its innate wildness, viriousness or perverseness to inflict the injury.158 An over-friendly, large dog that hugs a visitor can thus, for instance, not be taken to conduct himself contra naturam sui generis. Other decisions proceed from a more objective perspective. There the view has been adopted that, in order to be contra naturam sui generis, the action of the animal in question must have been in conflict with what may be expected of a well-behaved animal of its kind.159 What this boils down to, effectively, is thejudicial creation of the "reasonable cow" or the "reasonable duck" as a criterion to determine the owner's liability. The absurdity inherent in this form of anthropomorphism hardly needs to be elaborated upon.160

8. Liability for damage done by animals in modern German law

The European legislators of the late 18th and of the 19th centuries must have realized that the "contra naturam sui generis" test was not a particularly happy conceptual concoction,161 for they all abandoned it. In addition, they also tended to jettison both the option of noxal surrender and the principle of noxa caput sequitur.'62 As a result of these changes, the owner's liability was considerably extended and the question was therefore bound to arise whether it was still justifiable to dispense with what was otherwise a regular prerequisite for any claim for damages: the element of fault.

Some codes persisted in holding the owner strictly liable,163 others introduced the fault requirement.164 The fathers of the BGB vacillated for a long time.165 Eventually, the dice fell in favour of a comprehensively formulated § 833, that was based on the notion of strict liability:

bH Le Raux v. Pick (1879) 9 Buch 29 at 33; Cowelt v. Friedman & Co. (1888) 5 HCG 22 at

40;Boycev. Robertson 1912 TPD 381 at 384; Solomon v. De Waal 1972 (1) SA 575 (A) at 582E. l5v O'Calla^han v. Chaplin 1927 AD 310 at 314; South African Railways & Harbours v, Edwards 1930 AD 3 at 6, 10 and 12; Solomon v. De Waal 1972 (1) SA 575 (A) at 582E; Lawrence

v. Kondotel Inns (Ply.) Lid. 1989 (1) SA 44 (D) at 51 sq.

160 On the defences available against the actio de pauperie (vis maior, culpable conduct on the part of the injured or of a third party, provocation by another animal, unlawful presence of the injured person at the place of injury) cf. Van dcr Merwe, op. cit., note 39, pp. 100 sqq., 105 sqq.

So, too, as far as South Africa is concerned, Van der Merwe, (1979) 42 THRHR 26.

162Cf. the discussion in "Motive", in: Mugdan, vol. II, p. 452.

163Cf, in particular, art. 1385 code civil; and see §§ 1560 sq. Saxonian Civil Code (which,

however, retained the alternative of noxae deditio).

l f '4 Cf., in particular, § 1320 ABGB, art. 65 OR (both operating, however, with a reversal of

the burden of proof: it is up to the keeper of the animal to show that he exercised the necessary care in supervising the animal); § 73 I 6 PrALR, but see also §§ 70—72 (detailing instances of strict liability).

165 Cf. § 734 E I (read with "Motive", in: Mugdan, vol. II, pp. 452 sqq.: liability based on fault); § 756 E II (read with "Protokolle", in: Mugdan, vol. II, pp. 1123 sqq.: reversal of onus of proof of fault, as far as domestic animals are concerned; strict liability with regard to all other animals); § 817 Reichstagsvorlage (read with "Bericht der XII. Kommission des Reichstagcs", in: Mugdan, vol. II, pp. 1301, 1403 sqq.).

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"If a person is killed, or the body or health of a person is injured, or a thing is damaged, by an animal, the person who keeps the animal is bound to compensate the injured party."

Nevertheless, the agricultural lobby in the German Reichstag was to have the last word. In 1908 an amendment was accepted, according to which the duty to make compensation does not arise if the damage was caused by a domestic animal, which is kept for professional purposes (as opposed to merely constituting a luxury), provided its keeper either exercised the necessary care in supervising that animal or the damage would have occurred notwithstanding the exercise of such care.166 Foresters, officers, the police, the owners of horse-cabs and, in particular, farmers167 are thus allowed to exculpate themselves.

But even the liability of people who keep "luxury animals" has come to be restricted. In this case it was tradition, not partisan interest that prevailed, and it did not require legislative intervention, but worked through judicial interpretation. For a long time the courts have held that, in order to make its keeper liable, the animal must have acted in a spontaneous, arbitrary or capricious manner, unguided by any reasonable purpose or intention.168 More recently, the Federal Supreme Court has slightly changed the relevant criterion.169 Animals, it is now argued, can never be credited with acts of free volition: they do not, in this sense, act "arbitrarily", but their whole behaviour is guided rather by their instincts, whether inborn or acquired. The specific risk associated with the keeping of animals lies in the utter unpredictability of their conduct. Only if the damage is a realization of this risk may its keeper be held liable. Excluded, in particular, are the cases where the animal merely makes a reflex movement (a dog that has been narcotized, bites the doctor on the operating table)170 or where its actions are entirely determined by a human being (a horse, led by the bridle, treads on a person's heels).171 Whether the natural unpredictability of an animal is a particularly appropriate criterion by which to determine the respective risk spheres of the keeper and its victim, remains disputed.172 Apart from that, the courts are often called upon to decide whether the keeper's liability may be reduced, or even excluded, because of contributory negligence or voluntary assumption

166 § 833, 2 BGB.

167For details as to who may avail himself of the benefit of exculpation and as to which animals may be classified as domestic, see Hans-Joachim Mertens, in: Miinchener Komtnentar, vol. Ill, 2 (2nd cd., 1986). § 833, nn. 28 sqq.

168RGZ 141, 406 (407) ("сон keinem verniinftigen Wollen geleitetejsj willkiirliche[s]

Verhalten"); BGH, 1971 Nette Juristische Wochenschrift 509.

lfl'; BGHZ 67, 129 sqq. (dealing with the case of a roaming dog covering the plaintiff's

purebred chow bitch).

170OLG Munchen, 1976 Versicherungsrecht 334.

171OLG Schleswig, 1983 Versicherungsrecht 470.

172For a critical evaluation cf. Mertens, op. cit., note 167, § 833, nn. 13 sqq.; Erwin Deutsch, "Die Haftung des Tierhalters", 1987 juristische Schulung 675 sq.

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of risk on the part of the injured person (A is injured by B's horse which

he has hired for a ride;173 C, in spite ot several warning signs, parks his car on D's private property and is bitten by D's dogs174).175 Among

contemporary legal writers it is, furthermore, disputed whether the principles laid down in § 833 BGB may be extended to microorganisms that have been cultivated or preserved in a laboratory.176

II.VICARIOUS LIABILITY

1.The principle of noxality

(a) Roman law

If the BGB came down in favour of strict liability in the case of damage done by animals, it opted for a different regime with regard to another historically rather closely related problem. When slaves or children in power had committed a delict, it was, in classical Roman law, their paterfamilias whom the victim had to sue.177 This was another instance of no-fault liability, mitigated, again, by the fact that it was effectively limited by the intrinsic value of the delinquent: the paterfamilias, rather than pay the damages, could surrender the slave or child. The paterfamilias, in other words, was "vicariously" liable for the wrongful acts or persons in his power, but his liability was of a "noxal" character. One might therefore have expected a similar development to have occurred as in the case of the South African usus modernus of the actio de pauperie: noxae deditio and the rule of noxa caput sequitur falling into disuse and leaving behind a strict liability on the part of the master to render compensation.178

(b) "[NJoxaltum actionum nullus est usus"

This is, however, not what actually happened. As far as delicts by children in power were concerned, the principle of noxality had already

173 Cf., for example, OLG Diisseidorf, 1976 Neue Juristische Wochenschrift 2137; Kammergericht, 1986 Versicherungsrecht 820; but see BGH, 1986 Versicherungsrecht 1206.

174OLG Frankfurt, 1983 Vershhenmgsredit 1040.

175Cf. further Rolf KnCitel, "Ticrhalterhaftung gegeniiber dem Vertragspartner?", 1978 Neue Juristische Wochenschrift 297 sqq. (dealing with the liability of the keeper of the animal towards his contractual partner); Elkc Herrmann, "Die Einschrankung der Tierhalterhaftung nach § 833 S. 1 BGB in der modernen Judikatur und Literatur", 1980 Juristische Rundschau 489 sqq.; Deutsch, 1987 juristische Schulung ЫЬ sqq.

176Erwin Deutsch, "Gefahrdungshaftung fur laborgezuchtete Mikroorganismen", 1976 Neue Juristische Wochenschrift 1137 sqq.; Mertens, op. cit., note 167, § 833, n. 10. But cf. also

Bienenfcld, op. cit., note 123. p. 210.

177 For details, see Kaser, RPr I, pp. 161 sqq., 630 sqq.; von Lubtow, Lex Aquitia, pp. 41 sqq.; Gian Luigi Falchi, Ricerche sulla legittimazione passiva delle azioni nossali (1976); Hans-Peter Ben6br, "Zur Haftung fur Sklavendelikte", (1980) 97 ZSS 273 sqq.; Hans Ankum, (1981) 32 Iura 233 sqq.; Honsell/Mayer-Maly/Selb, pp. 381 sqq. Cf. also Lawson/Markesinis, pp. 160 sqq. and supra, pp. 916 sq.

178 Cf., as far as the development in France is concerned, Watson, Failures, pp. 6 sq.

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been abandoned in post-classical Roman law,179 and even Justinian, for once, did not revert to the classical position. What man, he asked rhetorically, would contemplate giving up his son, and especially his daughter, in surrender to the victim of the wrong?180 "[E]t ideo placuit, in servos tantummodo noxales actiones esse proponendas", he concluded; filiifamilias could now be proceeded against directly.181 By the time of the usus modernus, however, noxal liability had also fallen into disuse with regard to slaves, the reason simply being that the institution of slavery had largely been relinquished:182 "Nostris Moribus, quoniam tales servos non habemus, noxalium actionum nullus est usus."183 Did this mean that a master was no longer vicariously liable for wrongful acts committed by his servants? Many writers evidently thought so. "[S]ervi nostri s[u]nt liberi homines", they argued, "et hinc ipsi ex suis delictis, non autem domini illorum conveniendi."184 The master could be held liable, under general principles, if he himself had been at fault, particularly if he had failed to show due care in the selection of his staff (". . . si in eligendis famulis culpam commiserit dominus, hos negotiis suis adhibendo, quos scivit vel scire potuit, perditi ingenii homines esse").185 Others, however, were prepared to go further. "Door der dienaers misdaed en werden de mecsters ende vrouwen in !t ghemeen niet verbonden, dan zoo veel de onbetaelde huir mag bedragcn", we read in Grotius' Inleiding:1He the master was "vicariously" liable, but only up to the amount of unpaid wages. This kind of wage liability appears to have had its origin in

]7'} Kascr. RPr II, p. 430.

IH0 Inst. IV, 8, 7: ". . . quis enim patitur filium suum et maximc filiam in noxam alii dare, ut paene per corpus pater magis quam filius periclitetur, cum in filiabus etiam pudicitiae favor hoc benc excludit?"

181 On the decline (or "humanization") of patria potcsras in post-classical Roman law in general, see Kascr, RPr II, pp. 202 sqq.; cf. also (humanity) Schulz. Principles, pp. 189 sqq., 198 sqq.

1H2 Cf. Groenewegen, De legihus abrogatis, Inst. Lib. I, Tit. VIII, 3: ". . . servitus paulatim ab usu recessit, ejusque tiomen hodie apud nos cxolcvit" (he also points out, however, that "servos habere Christianis nefas non [estj, si niodo hcrili in servos potcstate non abutantur, sed eos secundum Christianam levitatcm mansuetudmem tractent . . ."). Cf also Going, PP205 sq.

Lauterbach, Collegium theoretko-practkum. Lib. IX, Tit. IV, IX. But cf, also, in the present context, Stryk, Usus modernus pandectarum, Lib. IX, Tit. IV, § 2: "Cum tamen hue usque post Budam in Ungaria occupatam frequentissima fuennt turcarum mancipia servitiis christianorum adhibita, nullus dubito, si aliquis horum delictum privatum commisisset, actioni noxali adhuc locum fore, ut hujus mancipi dominus, vel damnum resareiat, vel turcam noxac dedat, nam nee hie ultra corpus ipsorum nequitia dominis darnnosa csse debet."

184 Stryk, Usus modernus pandectarum. Lib. IX, Tit. IV, § 2.

181 Stryk, Usus modernus pandectarum. Lib. IX, Tit. IV, § 5; cf. also, particularly clearly, Leyser, Meditationes ad Pandectas, Spec. CXIII, I; Gluck, vol. 10, pp. 417 sq.

"*' III, XXXVIII, 8.

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Saxonian law187 and became widely accepted in 17thand 18th-century Roman-Dutch jurisprudence.188 By a variety of authors it was confined, however, to instances where the servant had acted beyond the scope of his employment. For delicts committed within the scope of his employment, so these authors argued, the master was liable for full compensation. The locus classicus on the matter is Voet, Commentarius ad Pandectas, Lib. IX, Tit. IV, X:

"Ac primo quidem admonendi sumus, dominos ac patrcs in solidum tcneri ex delictis famulorum ac filiorum . . . quotics illi deliquerunt in officio aut ministerio, cui a patrc dominovc fuerunt praepositi."

This was not based on the Sachsenspieget or any other Germanic source, but, ostensibly, on a rule of Roman law.

2.Liability for others in Roman law (apart from noxal liability)

(a)Within a contractual context

The Roman lawyers had, indeed, dealt with a whole variety of instances of liability for others even apart from those situations where the principle of noxality applied; but they did not develop any general and clear-cut rules in this regard. Thus, in particular, there were all those cases where a third party (no matter whether slave or freeman) was employed in performing a contractual obligation.189 Normally, the debtor could be held responsible only for his own fault and not (merely) for that of other persons. But in the present context his fault could take the form of culpa in eligendo.19" Thus, for example, we read of the stoker-slave of a colonus who dropped asleep at the furnace. As a result of his drowsiness the locator's house burnt down. According to Neratius, the colonus was liable ex locato "si neglegens in eligendis ministriis fuit".141 Occasionally, however, the level of what was expected of the debtor was pitched rather high—so high, in fact, that one came very close to no-fault liability. Julian, for instance, required a messenger whom a debtor employed to send back borrowed silver to

1M7 Cf. II, 32 Sachsenspiegel; Stryk, Usus modernus pandectarum, Lib. IX, Tit. IV, § 4. On the liability of the master in early German law in general cf. T.B. Barlow, The South African

Law of Vicarious Liability in Delict and a Comparison of the Principles of Other Legal Systems (1939), pp. 25 sqq.

Cf., for instance, Voct, Commentarius ad Pandectas, Lib. IX, Tit. IV, X; Groenewegen, De leqibus abrogatis. Digest. Lib. XV, Tit. I, 1; Van Lecuwen, Ccnsura Forensis, Pars I, Lib. II, Cap. XII, 1

1Й'' For a detailed analysis, sec now the authoritative study by Rolf Knutel, "Die Haftung fur Hilfspersonen itn romischen Recht", (1983) 100 ZSS 340 sqq.

''"' On which, in general, cf. Geoffrey MacCormack, (1971) 18 R1DA 525 sqq.

191 Ulp. D. 9, 2. 27, 9; cf. also Ulp. Coll. XII, VII, 7. On this text, see Bruce W. Frier, "Tenant's Liability for Damage to Landlord's Property", (1978) 95 ZSS 256 sqq.; Knutel, (1983) 100 ZSS 399 sqq. The culpa in eligendo has in the past often been regarded as spurious; cf. Wolfgang Kunkel, "Diligentia", (1925) 45 ZSS 329 sqq.

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