NOXA´LIS ACTIO
NOXA´LIS ACTIO Those actions were
“noxal” which were brought on the delict (e. g. theft, assault,
damage to property) or quasidelict of a slave or child in power, or on
damage done by an animal, against the .master, paterfamilias, or owner.
Primarily they claimed damages for the wrong, but the defendant could escape
the pecuniary loss, if he preferred it, by surrendering (
noxae dedere) the guilty body to the plaintiff: and from
noxa (meaning that guilty body) the name of
the action was (according to Justinian,
Inst. 4.8, 1)
derived, though by other writers
noxa is used
to express the wrong itself (e. g.
Liv. 21.30）
or the punishment (e. g. Servius). No action properly lay against the
dependent wrong-doer himself under the older law; but the remedy against the
dominus or paterfamilias was the ordinary action on the delict, or
quasi-delict, to which the edict or statute (
Inst. 4.8, 4;
Dig. 9,
4,
2,
1;
47,
1,
1,
2) gave the “noxal” character by
permitting the defendant to escape damages by surrendering the delinquent to
the plaintiff: “Namque erat iniquum” (says Justinian)
“nequitiam eorum ultra ipsorum corpora dominis damnosam
esse.” The true significance of the legal principle involved is
admirably expounded in Mr. O. W. Holmes'
Common Law, chap. i.
In practical effect, though not in form, noxal actions were
arbitrariae [
ACTIO]; the defendant, if the judge pronounced against him, being
condemned in the alternative, either to pay the damages assessed, or to give
up the delinquent: “praetor ait . . . si servus insciente domino
fecisse dicetur, in judicio adiciam aut noxam dedere” (
Dig. 9,
3,
1, pr.).
It would seem from
Inst. 4.8, 7, that daughters were
originally as liable to noxal surrender by their paterfamilias as sons in
power, but that so far as they were concerned the usage had gone out in the
time of the classical jurists, for Gaius (4.74, 79) speaks of the
deditio of filiifamilias and slaves only. By the age
of Justinian even the father's right of surrendering sons in his power in
this manner had ceased to be exercised, and he expressly took it away,
directing that children in power should be suable in person for their own
delicts, the damages being paid out of their peculium. The master's right,
however, of evading damages by noxal surrender of his slave was explicitly
retained in his legislation. It would seem that the property in the slave
was transferred by decree of the praetor: sons had been conveyed by
mancipation, and stood
in mancipio to the
surrenderee (Gaius, 4.79), but could demand their release as a matter of
right as soon as by the result of their labour or otherwise they contrived
to pay the damages assessed in the action (Papinian,
Coll. 2,
3). This principle, as Justinian remarks in
Inst. 4.8, 3, was
extended to the case of surrendered slaves. For the
deditio of animals in a noxal action, see
PAUPERIES
A leading rule in all such cases was “noxalis actio caput
sequitur,” which apparently became a proverb. The action followed the
noxa, and had to be brought against the
person under whose lawful control he or it was, not at the commission of the
wrong, but at the commencement of legal proceedings. Thus, if A´s
slave stole a purse, and then was sold to B, B was the proper defendant; and
if the delinquent were manumitted, he could be sued in person by direct, not
noxal action. Similarly, if a free man did the wrong, and then became a
slave, the remedy was against his master; and on the same principle, if the
slave died before the action had reached the stage of
litis contestatio, the master's liability terminated, even though
his death was not known (
Dig. 9,
4,
39,
4). A master
had no remedy by action if a delict were committed against him by a slave of
his own, even though the latter were manumitted or alienated
(
Inst. 4.8, 6); and if A´s slave stole from B, and
then became B‘s property, B‘s right of action was
absolutely lost (as the law was settled by Justinian), though the Proculian
School of jurists had maintained that it was only suspended, recovering its
vitality so soon as his ownership over the delinquent determined (Gaius,
4.78). It has been conjectured that noxal actions were originally the
expression of an absolute claim to have the offender delivered
[p. 2.247]up for the exercise of private vengeance, whether
his offence were delictual or merely breach of contract. The surrender of
Postumius to the Samnites by the Romans with all the forms of
noxae deditio (
Liv. 9.10）
was made as atonement for non-observance of the treaty which he had
concluded with them, and from which the Romans wished to release
themselves--“ut populus religione solvatur.” Under Roman
municipal law non-fulfilment of a promise made by sponsio entailed in the
end quasi-slavery [
MANUS
INJECTIO], and the idea was consistently applied by them in
international relations. See Mr. Holmes' work already referred to, pp. 8-12,
and cf. Ihering,
Geist des römischen Rechts, i. p.
131.
The chief original authorities for
noxae deditio
are Gaius, 4.74-79; Paulus,
Sent. rec. 2.31, 7-9;--
Dig. 2,
9;
9,
4;--Cod. 3, 41;
Inst. 4.8
and 9.
[
J.B.M]
