王名扬法国行政法第9卷.doc

THE DIGEST OR PANDECTS. BOOK IX.TITLE I.CONCERNING THE COMMISSION OF DAMAGE BY A QUADRUPED.1. Ulpianus, On the Edict, Book XVIII.Where a quadruped is said to have committed damage, an action which has come down from a Law of the Twelve Tables may be brought; which Law prescribes that either whatever caused the damage must be given up, that is, that the animal that committed it shall be surrendered, or an amount of money equivalent to the damage shall be paid.(1) The term noxia means the offence itself.(2) This action has reference to every kind of quadruped.(3) The prtor says pauperiem fecisse, which signifies the damage caused without wrong by the animal which commits it, for an animal cannot be guilty of wrong in law, because it is deficient in reason.(4) Therefore, as Servius states, this action is available where an animal commits damage after its ferocity has been aroused; for example, where a horse which has the habit of kicking, kicks, or an ox which is accustomed to butt, does so; or a mule commits damage by reason of extreme savageness. But if an animal should upset a load on anyone on account of the inequality of the ground, or the negligence of the driver, or because the animal was overloaded; this action will not lie, but proceedings must be instituted for wrongful injury.(5) Where, however, a dog, while he is being led by someone, breaks away on account of his viciousness, and inflicts injury upon another; then if he could have been held more securely by some one else, or if the party should not have led him through that place, this action will not lie, and the party who had charge of the dog will be liable.(6) Moreover, this action will not lie if the savage animal causes any damage through the instigation of another.(7) And, generally speaking, this action can be brought whenever a savage animal does any damage which is contrary to its nature, and, therefore, if a horse irritated by pain, kicks, this action will not lie; but the party who struck or wounded the horse will be liable rather to an action in factum, than under the Lex Aquilia, for no other reason than that the party did not commit the injury with his own body. But where anyone caresses a horse, or pats him, and he is kicked by it, there will be ground for this action.(8) Where one animal provokes another and causes it to commit some damage, the action must be brought with reference to the one that caused the provocation.(9) This action is available whether the animal committed the damage with its own body or through something else with which it wasin contact; as for instance, where an ox bruises someone by means of a wagon or by anything else that is upset.(10) This action will not be available in the case of wild beasts, on account of their natural ferocity; and therefore if a bear should escape and commit damage, its former owner cannot be sued, because when the animal escaped he ceased to be the owner; and therefore, even if I should kill it, the carcass will be mine.(11) Where two rams or two bulls fight and one kills the other, Quintus Mucius makes a distinction; for he holds that the action will not lie if the one that was the aggressor is killed, but if the one not guilty of the provocation is killed, the action may be brought; and therefore the owner must either pay the damage or surrender the animal in lieu thereof.(12) Also, in the case of quadrupeds, the offence follows the animal; and this action can be brought against the party to whom the animal belongs, and not against him to whom it belonged when it committed the damage.(13) It is evident that if the animal should die before issue is joined, the right of action will be extinguished.(14) To surrender the animal by way of reparation is to give it up while it is alive. If it belongs to several parties, an action for damages can be brought against them individually, just as in case of a slave.(15) Sometimes, however, the owner will not be sued to compel him to give up the animal by way of reparation, but an action will be brought against him for the entire amount; as for instance, where having been asked in court whether the animal belongs to him he answers that it does not, and if it should be proved that it was his, judgment shall be rendered against him for the entire amount.(16) If the animal should be killed by anyone after issue has been joined, since an action will lie against the owner under the Lex Aquilia, consideration of the Lex Aquilia will be taken in court, because the owner has lost the power to surrender the animal by way of reparation; and therefore, in the case which has been stated, he must tender the estimated amount of damages, unless he is ready to assign his right of action against him who killed the animal.(17) There is no doubt whatever that this action will pass to an heir and the other successor of the party injured; and also that it can be brought against heirs and other successors, not by the right of succession but on the ground of ownership.2. Paulus, On the Edict, Book XXII.This action will lie, not only in favor of the owner of the damaged property, but also in favor of any party in interest; as for instance, of one to whom the property was loaned, and also of a fuller, because those who are liable are held to have sustained damage.(1) Where anyone who is trying to escape from another, for example, from a magistrate, betakes himself to a neighboring shop and is bitten there by a ferocious dog, certain authorities hold that he hasno right of action on account of the dog; but that he would have one if the dog was loose.3. Gaius, On the Provincial Edict, Book VII.There is no doubt that an action can be brought under this law in behalf of persons who are free; as, for instance, where an animal wounds the head of a family, or the son of a family, provided no account is taken of disfigurement, since anyone who is free does not admit of appraisement; but account may be taken of the expenses incurred for the cure of the injury and of the loss of labor which the party could not perform for the reason that he was disabled.4. Paulus, On the Edict, Book XXII.An equitable action will be available under these circumstances where the damage was committed, not by a quadruped but by some other animal.5. Alfenus, Digest, Book II.While a groom was leading a horse to the stable of an inn, the horse sniffed at a mule, and the mule kicked and broke the grooms leg. An opinion was requested whether suit could be brought against the owner of the mule, on the ground that it had caused the injury, and I answered that it could.TITLE II. ON THE LEX AQUILIA.1. Ulpianus, On the Edict, Book XVIII.The Lex Aquilia annulled all laws previously enacted with reference to the reparation of unlawful damage, whether these were the Twelve Tables or any others; which laws it is not necessary to specify at present.(1) The Lex Aquilia is a plebiscite; whose enactment Aquilius, a tribune of the people, proposed to the populace.2. Gaius, On the Provincial Edict, Book VII.It is provided by the first section of the Lex Aquilia that, Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year.(1) And then the law further provides that, An action for double damages may be brought against a person who makes a denial.(2) It therefore appears that the law places in the same category with slaves animals which are included under the head of cattle, and are kept in herds, as, for instance, sheep, goats, oxen, horses, mules, and asses. The question arises whether hogs are included under the designation of cattle, and it is very properly decided by Labeo that they are. Dogs, however, do not come under this head; and wild beasts arefar from being included, as for instance, bears, lions, and panthers. Elephants and camels are, as it were, mixed, for they perform the labor of beasts of burden, and yet their nature is wild, and therefore they must be included in the first Section.3. Ulpianus, On the Edict, Book XVIII.Where a male or a female slave has been unlawfully killed, the Lex Aquilia is applicable. It is added with reason that it must be unlawfully killed, as it is not sufficient for it to be merely killed, but this must be done in violation of law.4. Gaius, On the Provincial Edict, Book VII.Therefore, if I kill your slave who is a thief and is attacking me at the time, I shall be free from liability, For natural reason permits a man to protect himself from danger.(1) The Law of the Twelve Tables permits anyone to kill a thief who is caught at night, provided, however, that he gives warning by an outcry; and it permits him to kill the thief in the day-time, if he is caught and defends himself with a weapon, provided always, that he calls others to witness with an outcry.5. Ulpianus, On the Edict, Book XVIII.Where, however, anyone kills another who is attacking him with a weapon, he is not held to have killed him unlawfully; and where anyone kills a thief through fear of death, there is no doubt that he is not liable under the Lex Aquilia. But if he is able to seize him, and prefers to kill him, the better opinion is that he commits an unlawful act, and therefore he will also be liable under the Lex Cornelia.(1) We must here understand the term injury to mean not some insult, as we do with reference to an action for injury, but something done illegally, that is to say contrary to the law; for instance, where anyone kills by negligence, and hence sometimes both actions can be brought, namely, that under the Lex Aquilia, and that for injury; but, in this case there will be two assessments, one for damage, and the other for insult, consequently, we must here understand the term injury to signify damage committed through negligence, even by a party who did not intend to do wrong.(2) Therefore we ask whether an action under the Lex Aquilia will lie where an insane person causes damage? Pegasus denies that it will, for how can anyone be negligent who is not in his right mind? This is perfectly true. Hence an action under the Lex Aquilia will not lie; just as where an animal causes the damage, or where a tile falls from a roof.Again, if a child causes any damage the same rule applies. If, however, a boy who has not reached puberty causes it, Labeo says that he is liable under the Lex Aquilia, because he would be liable for theft; and I think this opinion is correct, if he is capable of committing a breach of the law.(3) Where a teacher wounds or kills a slave while instructing him, will he be liable under the Lex Aquilia on the ground that he committedunlawful damage? Julianus says that a person was held liable under the Lex Aquilia, who blinded a pupil in one eye while instructing him; and much more would he have been liable, if he had killed him. He supposes the following case. A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boys eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him. Still, he is in doubt as to whether an action on a contract will lie, because only moderate punishment is conceded to a person who imparts instruction. I do not doubt, however, that an action can be brought under the Lex Aquilia;6. Paulus, On the Edict, Book XXII.As extreme severity on the part of an instructor is attributed to negligence.7. Ulpianus, On the Edict, Book XVIII.By this action the father will obtain damages to the amount of the value of the services of his son which he lost on account of the destruction of his eye, as well as the expenses he incurred for his medical treatment.(1) We must understand the term kill to mean where this was done either with a sword, a club, or some other weapon, or with the hands if strangulation was used, or with a kick, or by striking him on the head, or in any other way whatsoever.(2) The Lex Aquilia will apply where anyone who has been too heavily laden throws down his load and kills a slave; for it was in his power not to be overloaded in this manner. Pegasus says that if anyone should slip and crush with his load a slave belonging to another, he will be liable under the Lex Aquilia, if he loaded himself more heavily than he should have done, or walked carelessly over a slippery place.(3) In like manner, where anyone injures another because of someone pushing him, Proculus holds that neither he who gave the push is liable, because he did not kill him, nor he who was pushed either, because he did not commit wrongful injury; according to which opinion an action in factum should be granted against the party who gave the push.(4) Where anyone in a wrestling match or in a wrestling and boxing contest or where two boxers are engaged, kills another; and he does so in a public exhibition, the Lex Aquilia will not apply, because the damage must be considered to have been committed for the sake of renown and courage, and not with the intent to cause injury. This, however, is not applicable to the case of a slave, since freeborn persons are accustomed to take part in such contests, but it does apply where the son of a family is wounded. It is evident that if one party inflicts a wound while the other was retiring, the Lex Aquilia will be applicable; or if he kills a slave where there is no contest, unless this is doneat the instigation of the master; for then the Lex Aquilia will not apply.(5) Where anyone lightly strikes a slave who is sick, and he dies; Labeo justly holds that he will be liable under the Lex Aquilia, for a blow that is mortal to one man, often will not be so to another.(6) Celsus says that it makes a great deal of difference whether the party actually kills, or provides the cause of death, as he who provides the cause of death is not liable under the Lex Aquilia, but is to an action in factum. With reference to this, he cites the case of a party who administered poison as medicine, and who he says provided the cause of death; just as one who places a sword in the hands of an insane person, for the latter would not be liable under the Lex Aquilia, but would be to an action in factum.(7) But where anyone throws another from a bridge, whether he is killed by the blow which he received, or is submerged and drowned, or, overcome by the force of the current, dies exhausted; the culprit, Celsus says, is liable under the Lex Aquilia, just as if he had dashed a boy against a rock.Proculus holds that if a physician should operate upon a slave unskillfully, an action will lie either on the contract, or under the Lex Aquilia.8. Gaius, On the Provincial Edict, Book VII.The same rule is applicable where he wrongfully makes use of a drug; but if a surgeon operates properly, and does not employ any further curative measures, he will not be free from responsibility, but is considered to be guilty of negligence.(1) Moreover, where a muleteer, through want of skill, is unable to restrain the course of his mules, and they crush a slave belonging to another, it is ordinarily said that the driver is liable on account of negligence. The same view is held if he cannot control his mules because of want of strength; nor does it seem to be unjust that want of strength should furnish ground for negligence, because no one ought to undertake anything which he knows, or ought to know, will be dangerous to others on account of his weakness.The law is the same in the case of a person who, through want of skill or want of strength, cannot manage the horse on which he is riding.9. Ulpianus, On the Edict, Book XVIII.Moreover, where a midwife administers a drug to a woman and she dies in consequence, Labeo makes a distinction, namely: that if she administered it with her own hands she is held to have killed the woman, but if she gave it to the latter in order that she might take it, an action in factum should be granted, and this opinion is correct; for she rather provided the cause of death, than actually killed the woman.(1) Where anyone, either by force of persuasion, administers a drug to another, either by the mouth, or by injection, or anoints him with some poisonous substance; he will be liable under the Lex Aquilia, just as the midwife who administers a drug is liable.(2) Where anyone kills a slave by starvation, Neratius says he is liable to an action in factum.(3) If my slave is riding on horseback, and by frightening the horse you cause the slave to be thrown into a river, and he loses his life in consequence, Ofilius writes that an action in factiim should be granted; just as if my slave had been drawn into ambush by one man and killed by another.(4) Again, where a slave is killed by parties who are practicing with javelins for amusement, the Lex Aquilia is applicable; but where others are practicing with javelins, and a slave crosses the place the Lex Aquilia will not apply, because he should not have rashly crossed the field where this practice was going on; but still, if anyone intentionally casts a javelin at him, he will be liable under the Lex Aquilia.10. Paulus, On the Edict, Book XXII.For a dangerous game should be classed as an act of negligence,11. Ulpianus, On the Edict, Book VIII.Mela also says that if, while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus