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p807 Noxalis Actio

Article by George Long, M.A., Fellow of Trinity College
on pp807‑808 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

NOXA′LIS ACTIO. If a filiusfamilias or a slave committed theft or injuria, the person injured p808had a Noxalis Actio, or a legal remedy for the Noxa or wrong done to him, against the father (paterfamilias) or the owner of the slave, as the case might be; but he had no action against the son or the slave. The word Noxa (from noceo) properly signified injury done; in its legal sense it comprehended every delictum (Dig. 50 tit. 16 s.238). The father or the master might either pay damages to the injured person, or surrender the offender to him. The surrender of the offender was expressed by the phrase "noxae dare or dedere;" and the acceptance of the offender in satisfaction of the injury was expressed by the phrase "noxae accipere": in these expressions "noxa" does not mean "punishment," as is sometimes supposed, but the meaning of the expression is that the person was surrendered in respect of or as a compensation for his Noxa. In the Institutes (4 8) Noxa is defined to be the person that does the mischief, that is, the slave, and Noxia the mischief that is done.

Noxales Actiones were given both by Leges and by the Edict. In the case of Furtum they were given by the Twelve Tables; and in the case of Damni Injuria by the Lex Aquilia. In the case of Injuriae and of Vi Bonorum Raptorum, they were given by the Edict. This action was said "caput sequi," which is thus explained by instances: if a son or slave committed Noxa, the action was against the father or owner, so long as the offender was in his power; if the offender became sui juris, the injured party had a directa actio against him; and if he came into the power of another person, that other person was liable to the action. If a paterfamilias committed a Noxa, and was adopted (adrogated), the actio which was originally against him (directa), became an action against the adopting person. A paterfamilias or master could have no action against a son or slave in respect of a Noxa done to himself, the ground of which was that no obligatio could be contracted between such parties; and as the foundation of all obligatio was wanting in such case, it followed that there could be no action against such son or slave, if he became sui juris, nor against another person into whose power he might come. If another person's slave or son committed Noxa, and then came into the power of the injured person, it was a question between the two schools whether the right of action was extinguished, or only suspended so as to revive in case the offending party was released from the power of the injured person. The opinion of the Proculiani, which was in favour of the suspension only, appears more consistent with the principles on which this right of action was founded.

The mode of the "noxae deditio" was by mancipatio. The Proculiani contended that three mancipationes were required by the Law of the Twelve Tables [Emancipatio]; but the Sabiniani contended that the Law only applied to the case of voluntary mancipations, and that one mancipatio was sufficient.

If the father or owner made no defence to a noxalis actio, the offender was given up by a decree of the praetor to the injured person, and thus became his praetorian property (in bonis). If several slaves committed theft, the Edict required the master to pay only the amount of damage which would be payable, in case a single freedman had committed the theft.

Justinian abolished the noxae datio in the case of children; observing that it appeared from the ancient jurists, that there might be an action against a filiusfamilias in respect of his own delicts.

As to damage done by an animal, see Pauperies.

(Gaius, IV.75‑79; Instit. 4 8; Dig. 9 tit. 4.)


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