Damage Caused by Animals: When Professionals are Privileged

Anežka Janoušková

1. Introduction

Today’s popularity of pets is undisputable. Around half of the world’s population owns a pet.[1] In the Czech Republic, around 41% of households have at least one dog.[2] But being an owner of a pet is not only about fun; more importantly, it may trigger your liability when your ‘little friend’ causes damage to others.

The question of liability has quite recently gained importance, as the newly adopted Czech Civil Code (the ‘CC’)[3] brought some significant changes in this regard. Animal owner liability is regulated in Sections 2933 to 2935 CC. The explanatory report to the CC states that the rules enacted therein ‘correspond to standards of continental law[4]. But, is this really true? Is the Czech regulation actually in compliance with the general approach within the continental Europe?

The main purpose of this article is to analyse the grounds and limits of the liability of an animal owner pursuant to the provisions of the CC. In more specific terms, it is designed to assess critically the solution opted for by the Czech legislator by comparing it with other legal orders. At the same time, it is intended to identify the main problems and paradoxes resulting from the new legislation and to give some possible explanations why such a regime was selected.

2. Ratio legis

It is an old mantra that, from the legal point of view, live animals have a unique nature. Naturally, they live, feel pain, and experience emotions.[5] They are thus often excluded from the notion of ‘a thing’ as defined by law.[6] On the other hand, one cannot compare animals to persons either, as their behaviour is predominantly determined by instinct. Indeed, even the best animal trainer can hardly eliminate these factors.[7] And it is exactly the ubiquitous danger which leads many countries to impose strict liability on the animal keeper.[8] There are several arguments justifying such a solution:

  • Firstly, a person keeping an animal must be well aware of the unpredictability of the animal’s behaviour.[9]
  • Secondly, it would not be fair and proportionate to shift the related risks to the damaged party since it is this party that incurs the damage.[10]
  • Thirdly, the keeper could easily protect itself from the negative consequences of liability by, for instance, arranging appropriate insurance.[11]
  • Last but not least, the risk of damage may never be excluded completely, even if the keeper has complied with the general standard of care. The regime of strict liability thus plays the role of an incentive to achieve an optimal level of activity.[12]

3. The former approach adhered to by the Czech legislator: Liability based on fault

The former Czech Civil Code from 1964[13] (the ‘1964 CC’) did not contain any specific provisions dealing with the liability of an animal owner. The Supreme Court thus derived the liability from the general duty to act with a due standard of care (‘general prevention duty’).[14] Under the relevant provisions of the 1964 CC, the liability was based on fault. It was the owner who had to prove that it did not act negligently.[15] Nevertheless, the Czech Supreme Court was rather strict as regards the burden of proof of the keeper. In fact, the criteria for the keeper’s release from liability were so stringent that they were very difficult to fulfil.[16] Without prejudice to the aforementioned, the owner could still claim that the damage was caused by the contribution of a third party, the victim, or as a result of force majeure.[17]

4. Legislation in force: Strict liability, except for entrepreneurs, farmers, or disabled persons

Pursuant to Section 2933 CC, ‘an owner shall provide compensation for the damage, regardless of whether an animal was under his supervision or under the supervision of another person to whom he entrusted it, or whether or not the animal strayed or escaped […]’. The general rule sets forth a strict liability regime. Owners are liable for their animals, irrespective of whether or not they have observed the standard duty of care. This liability is referred to as absolute liability. The owner cannot be exonerated from liability under any circumstances, not even in the case of force majeure.[18]

Section 2933 CC is a general provision in terms of the keeper’s liability. However, an exception to this regime may be found in Section 2934 CC: ‘[i]f a domesticated animal is used by its owner to pursue an occupation or other gainful activity or livelihood, or if it serves a disabled person as a helper, the owner is released from the duty to provide compensation if it proves either that the necessary care, in supervision over an animal, has not been exercised in a neglectful manner, or unless the damage would have been incurred had it exercised the necessary care […]’.

In certain cases, the strict liability principle does not apply. Keepers of animals can exempt themselves from liability, provided they comply with the prescribed conditions. At the same time, they must demonstrate their adherence to the required standard of care or prove that the damage would be incurred anyway. This privilege applies to those who breed animals (i) for occupational purposes, (ii) in pursuit of other gainful activities, (iii) to earn their livelihood or (iv) if the animal is being used as a helper. Furthermore, this privilege concerns domestic animals only. As a corollary, wild animals (e.g. ostriches or camels) held in captivity fall outside this scope.

5. Practical implications

What does the above-stipulated entail from the perspective of a legal practitioner? It leads to several paradoxes. A family who owns a dog solely as a household pet is subject to the regime of absolute liability, whereas a dog breeder by profession who sells dogs as a business activity may be exempt, under certain circumstances, from this liability. Likewise, damage inflicted by a goat kept in a zoo is assessed more leniently than damage caused by a giraffe in the same zoo.[19] Certainly, these outcomes raise some serious questions.

Is it really fair and legitimate to set different levels of liability according to the particular purpose? Is it reasonable to distinguish between domestic and other animals? It might be useful to explore how other legal systems tackle this issue.

6. The BGB as inspiration

As stated above, the explanatory report to the CC refers to other civil law systems as a source of inspiration. One of the examples is undoubtedly Germany, and that is exactly where the new rules come from.

The first sentence of Section 833 BGB[20] states: ‘[…] the person who keeps the animal shall be liable for compensating the injured person for the damage occurred. Liability in damages does not apply if the damage is caused by a domestic animal intended to support the occupation, economic activity, or livelihood of the keeper of the animal and either the keeper of the animal in supervising the animal has exercised reasonable care or the damage would also have occurred had this care been exercised.’

As a general rule, the BGB sets forth a regime of strict liability.[21] However, if a person breeds a domestic animal for the purposes of its (i) occupation, (ii) economic activity or (iii) livelihood (i.e. Nutztier), the liability is governed by a fault-based regime[22] with a rebuttable presumption of fault.[23] Animals used by disabled persons are regarded as animals serving one’s livelihood.[24]

The liability for an animal under the new Czech CC is thus evidently similar to the liability of an animal keeper pursuant to the BGB.

7. Can a common European approach be identified?

Admittedly, the German legal system traditionally belongs to the civil law system. Nevertheless, one country surely does not build ‘standards of continental law’. It is, therefore, necessary to examine some other pieces of this European puzzle.

Pursuant to Section 1320 of the Austrian ABGB, a keeper shall be held liable for an animal, unless he/she proves to have arranged for necessary custody or supervision. Austrian doctrine tends to summarise that such a liability is neither based on fault, nor is it strict.[25] Rather, it is up to the keeper to provide evidence as to the standard of care he/she exercised. Once the owner fails to provide the evidence, he/she is liable irrespective of fault. According to case law, the requirements for necessary care cannot be excessively stringent. Only measures which are considered reasonable from the keeper’s perspective may be upheld.[26]

A similar stance can be found in Article 56 of the Swiss Obligationsrecht (the ‘OR’). An animal keeper shall be held liable, unless he/she proves that the necessary standard of care had been exercised or that the damage would have been incurred anyway. According to the Swiss doctrine, this leads to a so-called ‘mild’ strict liability (milde Kausalhaftung)[27] where a keeper can be held liable, regardless of fault. As to the standard of necessary care, the Swiss courts adopted a rather strict approach.[28] Their approach is thus similar to that of the Czech Supreme Court under the 1964 CC.

What about our northern neighbours? The Polish Kodeks cywilny determines that ‘whoever keeps or uses an animal shall be obliged to redress the damage it caused, regardless of whether it was under his care or went astray or escaped, unless he or a person for whom he is responsible is not at fault’.[29] Evidently, the law provides for the regime of liability based on fault. Although the presumption of fault may be rebutted,[30] in reality, it will be very difficult for the keeper to provide a court with sufficient evidence to that end.[31] In that sense, the Polish model again resembles that of the Czech 1964 CC.

Other important codes, including the Spanish Codigo Civil[32], the Italian Codice civile[33], or the Dutch Burgerlijk Wetboek[34] set out a strict liability regime, regardless of the animal type or the purpose of its keeping. On the other hand, all of these countries take into consideration extraordinary and unforeseeable circumstances, such as force majeure. In these cases, the keeper has the possibility to produce appropriate evidence, thereby escaping liability.

The general approach in Europe is quite the opposite to that in Germany. Other legal systems do not explicitly differentiate between certain animals or their purpose. They either set out strict liability or fault-base liability, usually with little chance for the keeper to escape liability. This outcome corresponds to Article VI. – 3:203 of the Draft Common Frame of Reference, which in the case of animal keepers prefers a strict liability regime regardless of whether or not the kept animal is domestic or whether it is used for business and livelihood.

Such a conclusion raises another issue, namely why Czech legislators declare to follow a common standard and then take up the isolated path of Germany? The explanation is rather straightforward. The original wording of animal owner’s liability was different: ‘If the damage was caused by an animal, its owner shall provide for compensation, even if it was not under his supervision. [35] The first draft of the CC was thus actually in accord with the prevailing attitude in Europe, as it provided for a strict liability regime without any exception. Although the wording of the provision changed significantly during the legislative process, the explanatory report remained the same.

8. Germany and the Czech Republic: one step ahead of the common European approach?

 8.1 Historical remarks

In the light of the aforementioned, the German and the Czech regulation of animal keeper’s liability is quite distant from what can otherwise be spotted in continental Europe. This does not necessarily imply that such a ‘minority’ solution is wrong. But does it respect the ratio legis as described above? And where, in the first place, does this ‘deviation’ stem from? In order to tackle these questions, it is necessary to briefly look back into the history of Section 833 BGB.

Perhaps surprisingly, the original wording of Section 833 BGB from 1900 set out a strict liability regime for everyone. It was only after the massive lobbying of the agriculture industry that in 1908 an amendment was adopted which introduced the interesting distinction between ‘luxury’ and ‘production’ animals.[36] This alteration was denied by the Association of German Jurists in 1906[37] and has been subject to unsparing criticism on the part of German jurisprudence ever since.[38] On the other hand, every coin has two sides, and one must look at the reform from the perspective at that time.

At the beginning of the 20th century, the social circumstances were obviously different. Society was more agricultural, and domestic animals used for business or livelihood were very common. Hence, the original undifferentiated regime had a negative impact on small and medium-size agricultural and industrial businesses.[39] On the contrary, the wide popularity of pets kept only for pleasure was not common until the second half of 20th century.[40]

8.2 Justification today: voluntary and involuntary animal keepers

Is the differentiated regime for ‘hobby’ and ‘professional’ keepers defensible today, notably with regard to social and industrial development? To deliver a satisfying answer, one must distinguish between voluntary and involuntary keepers.

‘Voluntary keepers’ could be defined as those who deliberately decide to bread animals in order to carry out their business, other gainful activity, or to maintain their livelihood. Such animal keepers are expected to have some experience in animal keeping and exercise a higher standard of care than ‘hobby keepers’. In other words, they should be ‘professionals’. In this case, the criteria justifying strict liability as described above are satisfied:

  • The professional is expected to be well aware of the risks of animal keeping as well as a hobby keeper. By definition, the professional ought to realise these risks even more.[41]
  • Even here, it would be unfair to let the victim alone bear the consequences of the harmful event.
  • Professionals can take into account the potential financial strain. In fact, professionals have even more options than hobby keepers as they can include the risk of liability in the price of the products or services.[42]
  • Lastly, in the case of professionals, the strict liability regime can very well contribute to achieve an optimal level of breeding.

One may object that the legislators might have intended to support agricultural production and/or the self-sufficiency of society. However, the exception does not include only agriculture or livelihood. It encompasses any gainful activity for which the animals are traditionally being used. Besides, if this were the case, there would be no reason to limit such exception to domestic animals. Not just cows or goats are kept for milk. Why should someone who breeds ostriches for eggs be subject to different liability than someone who breeds hens for the same purpose? Alongside this, it is questionable whether tort law, rather than public law (e.g. financial subsidies), is the most suitable tool to achieve the goal. As opposed to public law, the interests of the two parties are at stake in tort law, namely the wrongdoer and the victim. Lastly, the situation today is very different from that of 1908 since a wide variety of insurance products are available to cover any risks of animal keeping.

On the other hand, ‘involuntary keepers’ are dependent on their animals because they do not have a choice – a disabled persons who need animal assistant for day-to-day activities. Of course, disabled persons should also be aware of the danger of animals and can also take advantage of insurance. Even here, the interests of the damaged party must be taken into consideration. But doesn’t the fact that these people don’t have a choice make a difference? Although the state could use some other legal and economic instruments to prevent unjust results, this exception seems to be justifiable under certain circumstances. Even the last argument for strict liability, the optimum level of activity, is somewhat weakened in this case. Yet again, it is hardly understandable to limit this exception to domestic animals only and hence exclude, for instance, ‘monkey helpers’.[43]

9. Conclusion

With effect from 2014, the Czech CC has introduced a new regulation on the liability of an animal owner. The general rule provides for strict liability in the form of absolute liability. However, owners of a domestic animal kept for business, livelihood, or serving as an animal helper may be exempt from liability under certain circumstances. In this regime, a professional dog breeder who carries out this activity as part of a business is subject to less liability than a ‘hobby’ keeper.

This approach does not reflect the predominant European stance. It may be found only in the German BGB, which clearly served as inspiration. To allow such an exception for ‘professionals’, legislators need justification that is well-founded. In Germany, the exception was introduced in 1908 under the then social and economic circumstances. But what is legitimate in 1908 can hardly be justified at the beginning of the 21st century. And it is precisely social development that creates the difference. Even though support of agriculture may serve as a valid argument even today, insurance offers a perfect tool for avoiding the negative economic impact of potential liability. When someone voluntarily decides to profit from animal keeping, they should also fully bear the related risks.

Only an exception in favour of disabled persons may be deemed legitimate, as they do not economically profit from keeping an animal. They need animal assistance in order to satisfy basic human needs, and they do not have a choice. However, had this been a motive for excluding helper animals from the strict liability, then there is no reason to restrict such an exclusion to domestic animals only.

The new Czech CC naturally derived a lot of inspiration from Germany. But this time, the inspiration drawn from the BGB appears to be fairly unfortunate. Indeed, the nature of the animal (dog fighting breed v. pug) or the purpose it serves should be taken into account when assessing the degree of standard care on a case-by-case basis.[44] Yet, to differentiate liability with regard to certain animals or their function ex ante is generally not a good idea.

Anežka Janoušková is currently a Ph.D. student focusing on civil law at the Law Faculty of Charles University in Prague. She gained her Master’s degree at the same faculty in 2016. She also spent one year in Germany studying German civil law at Universität Hamburg. Anežka is interested in civil law (especially contracts and torts), civil procedural law and comparative law. She works at the Legislative department of the Czech Ministry of Justice.

[1] See Global Study on Pet Ownership [online]. Available at: http://www.gfk.com/global-studies/global-studies-pet-ownership/ [Accessed 17 Dec. 2016].

[2] See Statistics of The European Pet Food Industry [online]. Available at: http://www.fediaf.org/facts-figures/ [Accessed 17 Dec. 2016].

[3] Zákon č. 89/2012 Sb., občanský zákoník.

[4] See Důvodová zpráva. [online] Available at: http://obcanskyzakonik.justice.cz/images/pdf/Duvodova-zprava-NOZ-konsolidovana-verze.pdf [Accessed 15 Oct. 2016] p. 574.

[5] Hager, J., Belling, D.W. and Eberl-Borges, Ch. (2008). J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch: Staudinger BGB – Buch 2: Recht der Schuldverhältnisse. §§ 830 – 838 (Unerlaubte Handlungen 3). Neubearb. Berlin: Sellier – de Gruyter, p. 246.

[6] See for instance s. 90a BGB or s. 494 CC.

[7] Achatz, M. and Rummel, P. (2007) Kommentar zum ABGB mit EheG, KSchG, MRG, WGG, WEG 2002, BTVG, HeizKG, IPRG, EVÜ. Bd. 2. 3rd Ed. Wien: Manzsche Verlags- und Universitätsbuchhandlung, p. 143.

[8] Bar, C. von and Clive, E.M. (2009) Principles, definitions and model rules of European private law: draft common frame of reference (DCFR). Munich: Sellier-European Law Publishers, p. 3494.

[9] See also decision of the Czech Supreme Court, dated 17 March 2009, Ref. No. 25 Cdo 3516/2007.

[10] Oertel, C. (2010) Objektive Haftung in Europa: rechtsvergleichende Untersuchung zur Weiterentwicklung der verschuldensunabhängigen Haftung im europäischen Privatrecht. Tübingen: Mohr Siebeck, p. 27–28.

[11] Habersack, M. et al. (2013) Münchener Kommentar zum BGB – Band 5: Schuldrecht, Besonderer Teil III (§§ 705-853), PartGG, ProdHaftG. 6th Ed. München: Verlag C.H. Beck, s. 833 BGB, Rn. 2.

[12] Ibid.

[13] Zákon č. 40/1964 Sb., občanský zákoník.

[14] S. 415 1964 CC – see Bezouška in Hulmák, M. et al. (2014) Občanský zákoník VI. Závazkové právo. Zvláštní část (§ 2055–3014). Komentář. 1st Ed. Praha: C. H. Beck, p. 1189.

[15] S. 415 and s. 420 1964 CC.

[16] Vojtek in Švestka, J. et al. (2014) Občanský zákoník – Komentář – Svazek VI (relativní majetková práva 2. část). Praha: Wolters Kluwer, p. 1036.

[17] Ibid.

[18] Bezouška in Hulmák, op. cit., note 14, p. 1629. Nonetheless, the damage must be attributable to the animal’s behaviour. Thus when someone throws a cat passing by onto their annoying neighbour, the owner cannot be held liable – Bar and Clive, op. cit., note 8, p. 3496.

[19] Similarly, Vojtek in Švestka, op. cit., note 16, p. 1036.

[20] Bürgerliches Gesetzbuch in der Fassung der Bekanntmachung vom 2. Januar 2002 (BGBl. I S. 42, 2909; 2003 I S. 738), das zuletzt durch Artikel 3 des Gesetzes vom 24. Mai 2016 (BGBl. I S. 1190) geändert worden ist.

[21] Palandt, O. (2010) Bürgerliches Gesetzbuch: BGB mit Nebengesetzen. 69th Ed. München: C.H. Beck, p. 1365.

[22] This is a prevailing legal opinion.

[23] Palandt, op. cit., note 21, p. 1365 or Habersack, op. cit., note 11, s. 833 Rn. 36 et seq.

[24] See Palandt, op. cit., note 21, p. 1367.

[25] Koziol, H., Bydlinski, P. and Bollenberger, R. (2014) Kurzkommentar zum ABGB: allgemeines bürgerliches Gesetzbuch samt Ehegesetz und Konsumentenschutzgesetz. 4th Ed. Wien: Springer, p. 1527.

[26] Ibid.

[27] Brehm, R. and Hausheer, H. (1998) Obligationenrecht. Abt. 1, Allgemeine Bestimmungen. Teilband 3, Unterteilband 1, Die Entstehung durch unerlaubte Handlungen, Kommentar zu Art. 41-61 OR. 2nd Ed., Bern: Stämpfli & Cie, p. 606.

[28] Ibid., p. 613.

[29] Art. 431 § 1 USTAWA z dnia 23 kwietnia 1964 r., Kodeks cywilny.

[30] Bar and Clive, op. cit., note 8, p. 3500.

[31] Dohnal, J. (2015) K povinnosti náhrady škody způsobené zvířetem dle občanského zákoníku. Právní rozhledy 4/2015, p. 123 et. seq.

[32] Art. 1905 Spanish CC.

[33] Art. 2052 Italian CC.

[34] Art. 6:179 BW.

[35] See s. 2433 of the first version of the draft CC from 2005 [online]. Available at: http://obcanskyzakonik.justice.cz/images/pdf/OZ_verze_2005.pdf [Accessed 15 Oct. 2016].

[36] Habersack, op. cit., note 11, s. 833 BGB, Rn. 1 and Rn. 3.

[37] The majority of lawyers attending the 28th Deutsches Juristentag (10—12 September 1906 in Kiel) refused any changes in favour of the specific groups of animal keepers – see Hager, Belling, and Eberl-Borges, op.cit., note 5, p. 245.

[38] Habersack, op. cit., note 11, s. 833 BGB, Rn. 37.

[39] Hager, Belling, and Eberl-Borges, op.cit., note 5, p. 248.

[40] Ibid., p. 247.

[41] See s. 5 or s. 2912 CC.

[42] Habersack, op. cit., note 11, s. 833 BGB, Rn. 3.

[43] For more information on monkey helpers, see Monkey Helpers [online]. Available at: https://monkeyhelpers.org/ [Accessed 18 Nov. 2016].

[44] This applies mainly to legal systems that derive liability from the standard duty of care. Achatz and Rummel, op. cit., note 7, p. 592.