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Fundamina

On-line version ISSN 2411-7870

Abstract

WACKE, Andreas. Der Vogel Strauβ als frühes Beispiel für Gesetzesanalogie: Ein Phantasma? Grenzfragen bei der römischen Tierhalterhaftung. Fundamina (Pretoria) [online]. 2014, vol.20, n.2, pp. 1015-1030. ISSN 2411-7870.

The action for damage caused by four-footed animals, which during the Middle Ages was called the actio quadrupedaria, had to be extended by an actio utilis in Roman formulaic procedure to damage caused by other animals. Zoological observations and archeological artifacts reveal that these other animals were mainly ostriches. Modern juristic methodology would regard the example of the ostrich as an early application of an old statutory provision by analogy. The praetor had to modify the formula in the first stage of the procedure as the appointed judge was limited to a literal interpretation. The question asked in modern literature whether in Roman law the keeper was liable for damage caused by wild animals, must be answered in the affirmative. Special regulations applied to performances of wild animals and snakes before audiences. In the Lex Romana Burgundionum such liability extended to all animals, including bipeds. The Basilica make explicit mention of geese, falcons and ostriches. During the nineteenth century it was suggested that liability for the acts of persons of unsound mind be extended per analogiam to the persons responsible for their supervision.

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