United States or Hong Kong ? Vote for the TOP Country of the Week !
Masters became personally liable for certain wrongs committed by their slaves with their knowledge, where previously they were only bound to surrender the slave. /2/ If a pack-mule threw off his burden upon a passer-by because he had been improperly overloaded, or a dog which might have been restrained escaped from his master and bit any one, the old noxal action, as it was called, gave way to an action under the new law to enforce a general personal liability. /3/ Still later, ship-owners and innkeepers were made liable as if they were wrong-doers for wrongs committed by those in their employ on board ship or in the tavern, although of course committed without their knowledge.
Similarly, if a master commits a wrong against his slave, the latter cannot sue him after manumission or alienation. 7 These rules were applied by the ancients to wrongs committed by children in power no less than by slaves; but the feeling of modern times has rightly rebelled against such inhumanity, and noxal surrender of children under power has quite gone out of use.
31 There are some actions again which we call arbitrary, because their issue depends on an 'arbitrium' or order of the judge. Here, unless on such order the defendant satisfies the plaintiff's claim by restoring or producing the property, or by performing his obligation, or in a noxal action by surrendering the guilty slave, he ought to be condemned. Some of such actions are real, others personal.
Accordingly, such noxal actions are permitted only where the wrongdoer is a slave, and indeed we find it often laid down by old legal writers that sons in power may be sued personally for their own delicts.
Thus, if a bear runs away from its owner, and causes damage, the quondam owner cannot be sued, for immediately with its escape his ownership ceased to exist. The term pauperies, or 'mischief, is used to denote damage done without there being any wrong in the doer of it, for an unreasoning animal cannot be said to have done a wrong. Thus far as to the noxal action.
1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the term applied to the wrong itself, that is, the theft, damage, robbery, or outrage. 2 This principle of noxal surrender in lieu of paying damages awarded is based on most excellent reason, for it would be unjust that the misdeed of a slave should involve his master in any detriment beyond the loss of his body.
The action followed the guilty thing into whosesoever hands it came. /2/ And in curious contrast with the principle as inverted to meet still more modern views of public policy, if the animal was of a wild nature, that is, in the very case of the most ferocious animals, the owner ceased to be liable the moment it escaped, because at that moment he ceased to be owner. /3/ There seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his master's hands. /1/ Gains and Ulpian showed an inclination to cut the noxoe deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master. /2/
5 Noxal actions always follow the person of the wrongdoer. Thus, if your slave does a wrong while in your power, an action lies against you; if he becomes the property of some other person, that other is the proper person to be sued; and if he is manumitted, he becomes directly and personally liable, and the noxal action is extinguished.
3 If a master is sued by a noxal action on the ground of his slave's delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of ownership is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master.
1 Accordingly, if he is trying a noxal action, and thinks that the master ought to be condemned, he should be careful to word his judgement thus: 'I condemn Publius Maevius to pay ten aurei to Lucius Titius, or to surrender to him the slave that did the wrong.
Word Of The Day