ENACTMENTS OF JUSTINIAN.
THE DIGEST OR PANDECTS.
|~ Book IV ~|
( S. P. Scott, The Civil Law, III, Cincinnati, 1932 ).
Tit. 1. Concerning complete restitution.
1. Ulpianus, On the Edict, Book XI.
The usefulness of this Title needs no commendation, for it speaks for itself. Under it the Praetor in many ways comes to the relief of parties who have made mistakes, or have been cheated, and who, through intimidation, cunning, youth, or absence, have been overreached.
2. Paulus, Sentences, Book I.
Or through a change of condition, or excusable error.
3. Modestinus, Pandects, Book VIII.
All persons are promised complete restitution by the Praetor when proper cause is shown; so that he may examine the justice of the case, and ascertain whether it belongs to that class to which he can afford relief.
4. Callistratus, Monitory Edict, Book I.
I know that it has been held by some authorities that a party who applies for complete restitution shall not be heard where some very insignificant affair or sum is involved, if this would prejudice the hearing of some more important matter, or the collection of a larger sum.
5. Paulus, On the Edict, Book VII.
No one is held to be barred to whom the Praetor promises to grant complete restitution.
6. Ulpianus, On the Edict, Book XIII.
Complete restitution may be granted to the successors of minors, as well as to the successors of those who are absent on public business, and, in fact, of all those who were themselves entitled to complete restitution; and this has very frequently been decided. Therefore, an heir, or a person to whom an estate has been delivered, or the successor of the son of a family who was a soldier, can obtain complete restitution. Hence if a minor of either sex is reduced to slavery, complete restitution will be granted to his or her master, within the time prescribed by law. But if it should happen that such a minor was overreached with reference to an estate which he had entered upon, Julianus says, in the Seventeenth Book of the Digest, that his master will have the right to reject it, not only on the ground of youth, but even where youth cannot be alleged; because patrons have used the benefit of the laws not for the sake of obtaining an estate, but for the purpose of revenge.
7. Marcellus, Digest, Book III.
The Divine Antoninus made the following statement in a Rescript addressed to Marcius Avitus, the Praetor, on the subject of relieving a person who had lost his property while absent: "Although changes should not be readily made in matters which have been solemnly established, still, where equity clearly demands it, relief must be granted; and therefore, where a party who was summoned did not appear, and on this account judgment was formally rendered against him, and he soon afterwards appeared before the court where you were presiding; it may be supposed that his non-appearance was due, not so much to his own fault, as to the imperfectly heard voice of the crier, and therefore he is entitled to restitution."
(1) The aid of the Emperor does not seem to be limited to cases of this kind alone, for relief should be granted to persons who have been deceived without their own fault, and especially where fraud was committed by their adversaries, since it is usual for an action based upon fraud to be requested; and it is the duty of a just praetor to grant a new trial, which both reason and justice demand, rather than to allow an action involving turpitude to be brought, which should be resorted to only when no other remedy is available.
8. Macer, On Appeals, Book III.
This difference exists between the case of minors under twenty-live
years of age and parties who are absent on public business, namely:
minors, even where they are defended by their guardians and curators,
may still obtain complete restitution against the State, that is,
where proper cause is shown; but where anyone is absent on public
business, or where others who enjoy the same privilege, if they are
defended by their agents, are usually only relieved by complete restitution
to the extent of being permitted to appeal.
Tit. 2. Where an act is performed on account of fear.
The Praetor says: "I will not approve anything which has been done through fear." It was formerly stated in the Edict: "What was done through force or fear." Mention was made of force to indicate compulsion imposed against the will, and fear to show trepidation of mind on account of some present or future danger; but afterwards the mention of force was omitted, because whatever is caused by a vehement display of force is held also to have been caused by fear.
2. Paulus, On the Edict, Book I.
Force is an attack of superior power which cannot be resisted.
3. Ulpianus, On the Edict, Book XI.
This clause therefore contains both force and fear; and where anyone is compelled by violence to perform some act, restitution is granted to him by this Edict.
(1) But force we understand to be extreme violence, and such as is committed against good morals, not that which a magistrate properly employs, namely, in accordance with law and with the right of the office which he occupies. Still, if a magistrate of the Roman people, or the Governor of a province, commits an illegal act, Pomponius says that this Edict will apply; as, for instance, if Re extorts money through the fear of death, or of scourging.
4. Paulus, On the Edict, Book XI.
I am of the opinion that the fear of slavery, or any other of the same kind should be included.
5. Ulpianus, On the Edict, Book XI.
Labeo says that the term "fear" must be understood to mean not any apprehension whatever, but the dread of some extraordinary evil.
6. Gaius, On the Provincial Edict, Book IV.
The fear which we say is meant by this Edict is not that experienced by an irresolute man, but that which would reasonably affect a man of very decided character.
7. Ulpianus, On the Edict, Book XI.
Pedius states in the Seventeenth Book, that neither the fear of infamy, nor that of being subjected to some annoyance, are included in this Edict, as affording ground for restitution under the same. Thus, if anyone who was constitutionally timid, should be apprehensive of something for which there was no foundation, he could not obtain restitution under this Edict, since no act had been performed either by force or intimidation.
(1) Therefore, if anyone who had been caught in the act of theft, or adultery, or any other crime, either paid something, or bound himself to do so; Pomponius very properly says in the Eighteenth Book, that this comes within the terms of the Edict, where the party was in fear of either death or imprisonment; although it is not lawful to kill an adulterer, or a thief, unless he defends himself with a weapon, but they can be killed illegally; and therefore the fear was well founded. But where a party gives up his property to prevent the person by whom he was caught from betraying him, he is held to be entitled to relief under this Edict; since, if he had been betrayed, he would have been subject to the penalties which we have mentioned.
8. Paulus, On the Edict, Book XI.
These persons indeed, come under the Lex Julia, because they have accepted money to conceal a detected act of adultery. The Praetor, however, should intervene to compel them to make restitution, for the act is contrary to good morals, and the Praetor does not consider whether the party who paid is an adulterer, or not, but only the fact that the former obtained the money by threatening the latter with death.
(1) If a person takes money from me by threatening to deprive me of the documents which establish my civil condition, if I do not pay; there is no doubt that I am under compulsion caused by extreme intimidation, above all if an attempt is being made to reduce me to slavery, and if the said documents were lost, I could not be declared free.
(2) If a man or woman gives anything to avoid being compelled to suffer a rape, this Edict applies; since to good persons the fear of this is greater than that of death.
(3) In these matters which we have mentioned as coming within the Edict, it makes no difference whether anyone fears for himself or for his children; as, because of their affection, parents are more easily alarmed on account of their children than on account of themselves.
9. Ulpianus, On the Edict, Book XI.
We must understand the fear to be a present one, and not the mere suspicion that it may be exercised. This Pomponius states in the Twenty-eighth Book, for he says, "The fear must be understood to have been occasioned", that is to say, apprehension must have been excited by someone. Thereupon, he raises this point, namely: "Would the Edict apply if I have abandoned my land, after having heard that someone was coming armed to forcibly eject me?" And he states that it is the opinion of Labeo that the Edict would not be applicable in this instance, nor would the interdict Unde vi be available; for I do not appear to have been ejected by force, as I did not wait for this to be done, but took to flight. It would be otherwise if I had departed after armed men had entered upon the land, for, in this case the Edict could be employed. He also states that if you forcibly erect a building upon my premises by means of an armed band, then the interdict Quod vi aut clam, as well as this Edict would apply, because in fact I suffer you to do this through intimidation. If, however, I deliver possession to you because of the employment of force; Pomponius says that there will be ground for this Edict.
(1) It should also be noted, that the Praetor in this Edict speaks in general terms and with reference to the facts, and he does not add by whom the act was committed; and, therefore, whether it is an individual, or a mob, or a municipality, or an association, or a corporation that causes the intimidation, the Edict will apply. But although the Praetor includes violence committed by anyone, Pomponius very properly says that if I accept something from you, or induce you to bind yourself to me in consideration of my defending you from the violence of enemies, robbers, or a mob, or in order to obtain your freedom, that I should not be liable under this Edict, unless I myself employed this force against you. If, however, I was not guilty of violence, I should not be held liable; for I ought rather to be deemed to have received compensation for my services.
(2) Pomponius also says that the opinion of those is well founded who hold that restitution can be obtained under this Edict, when any person is forced to manumit a slave, or to demolish a house.
(3) Now let us see what is meant by the statement of the Praetor, that he will not approve of something which has been done. And, indeed, a matter may remain unfinished, even though intimidation is used; as, for instance, where a stipulation was entered into but no money was paid; or where the transaction was complete where the money was counted after the stipulation was entered into; or where a debtor is released by his creditor through intimidation; or any other similar circumstance occurs which completes the transaction. Pomponius says that where the transaction is complete, the party will sometimes be entitled to an exception, as well as an action; but where it is incomplete, he will be entitled to an action alone. Still, I know of an instance where some Campanians, by the employment of intimidation against a party, extorted from him a promise in writing to pay a sum of money, and a Rescript was issued by our Emperor that he could apply to the Praetor for complete restitution, and while I was with him as assessor, he decided: "That if the party desired to proceed against the Campanians by an action, he could do so; or if he wished to plead an exception against them, if they brought suit, it would not be without effect." It may be inferred from this constitution that whether the transaction is complete, or incomplete, an action as well as an exception will be granted.
(4) An action in rem, or one in personam, will be granted to a party who desires it, the discharge, or any other kind of release given by him having been rescinded.
(5) Julianus, in the Third Book of the Digest, thinks when property has been delivered to a person through intimidation, that the latter should not only restore it, but also be liable for malice.
(6) Although we are of the opinion that an action in rem should be granted, because the article delivered forms a part of the property of him who was subjected to violence; still, it is alleged, and not without reason, that if a man brings suit for fourfold damages, the action in rem is terminated, and the converse is also true.
(7) The restitution to be made under this Edict, that is, complete restitution by the authority of the judge is of this description, namely, where the property was given up through intimidation it must be surrendered, and the bond to indemnify the owner against malice (as already stated) provide against injury to the property. Where a release took place through a discharge, the obligation must be restored to its former condition; so that, as Julianus stated in the Fourth Book of the Digest, if money was owed and a release extorted by force, unless payment was made, or the obligation reestablished and issue joined, the party must be condemned to pay fourfold damages. Moreover, if through violence I made a promise by way of stipulation, there must be a release of the stipulation, and if any usufructs or servitudes were lost, they must be restored.
(8) As this action is in rem, it does not coerce any person who employed violence; but the Praetor intends that where anything has been done through intimidation, the right of restitution shall be exerted against all; and it has not unreasonably been remarked by Marcellus, with reference to a decision of Julianus, that if a surety used violence to obtain a discharge by a release, no action for restitution will be granted against the principal debtor; but the surety should be condemned to pay fourfold the amount, unless he restores the right of action against the principal debtor. The opinion stated by Marcellus is the better one, for he holds that this action will lie against the principal debtor, as it is stated in rem.
10. Gaius, On the Provincial Edict, Book IV.
It is certain that if the sureties are released by the principal debtor employing intimidation, an action may be brought against the sureties to compel them to renew their liability.
(1) If I, compelled by you through fear, release your obligation, it is in the discretion of the judge, before whom proceedings are instituted under this Edict, not only to cause the obligation to be renewed by you personally, but to compel you to furnish sureties, either the same ones, or others, no less solvent; and, in addition, to renew the pledges which you gave in the same place.
11. Paulus, Notes on the Digest of Julianus, Book IV.
Where a third party, without fraud on the part of the surety, employs violence to obtain a release of said surety, the latter shall not also be liable to renew the obligation of the principal debtor.
12. Ulpianus, On the Edict, Book XI.
The offspring of female slaves, the young of cattle, the crops, and everything depending upon the same, must be restored; not only those which have been already obtained, but, in addition, I must be indemnified for those I would have been able to obtain, if I had not been prevented by intimidation.
(1) It might be asked, if the person who employed violence also had violence used against him, whether the Praetor would rule that under the Edict those things should be restored which he had alienated? Pomponius says in the Twenty-eighth Book, that the Praetor is not required to come to his relief; for he holds that since it is lawful to repel force by force, he suffered the same thing that he inflicted. Wherefore, if anyone compels you by intimidation to promise him anything, and afterwards I compel him through fear to discharge you by a release, nothing can be restored to him.
(2) Julianus says that where a creditor employs force against his debtor to obtain payment of his debt, he is not liable under this Edict, on account of the nature of the action based on intimidation, which requires that loss should be caused; although it cannot be denied that the party comes within the scope of the Lex Julia de vi, and has lost his right as a creditor.
13. Callistratus, On Judicial Inquiries, Book V.
There is extant a Decree of the Divine Marcus in the following terms: "The best course to pursue if you think that you have any legal claim, is to test it by an action"; and when Marcianus said, "I have employed no force"; the Emperor replied, "Do you think that there is no force employed except where men are wounded? Force is employed just as much in a case where anyone who thinks that something is owing to him and makes a demand for it, without instituting judicial proceedings; therefore, if anyone is proved before Me to have boldly, and without judicial authority obtained possession of any property of his debtor, or any money which was due to him, and which was not voluntarily paid to him by the said debtor; and who has established the law for himself in the matter, he shall not be entitled to the right of a creditor".
14. Ulpianus, On the Edict, Book XI.
Moreover, if I am protected against you by a perpetual exception, and compel you to give me a release, the Edict does not apply because you have lost nothing.
(1) The Praetor promises that where a party does not make restitution, an action can be brought against him for fourfold damages, which means quadruple the entire amount which should have been restored. The Praetor treats the debtor with sufficient indulgence by giving him the opportunity for restitution, if he wishes to escape the penalty. After a year has elapsed, however, he promises him only a simple action, but not always, and only where proper cause is shown.
(2) In the examination for cause, it is important that this action should be permitted only where another does not lie; and, in fact, since in a case of injury inflicted by intimidation, the right of action is lost in a year, by which is understood a year with the usual allowance; and there should be some suitable cause for this action to be granted after a year has elapsed. Another right of action can be obtained in the following manner, that is, where the person against whom the violence was directed has died, his heir is then entitled to an action for the estate, as the party who employed violence is in possession; for which reason the heir will not be entitled to an action on the ground of intimidation, although if a year had not expired, the heir could bring suit for fourfold damages. The suit is granted to successors because it includes the pursuit of the property.
(3) In this action, inquiry is not made whether the party who is sued employed intimidation, or whether someone else did so; for it is sufficient to establish the fact that either fear or force was used, and that the defendant, even though innocent of crime, nevertheless, profited by the transaction; for as fear includes ignorance, it is reasonable for a party not to be compelled to point out who employed intimidation or force against him; and therefore the plaintiff is only required to show that fear was used to compel him to give someone a release for money due, or to surrender property, or to perform some other act. For it does not seem unjust for one person to be condemned to pay fourfold damages on account of the act of another; because in the beginning the action is not brought for fourfold the amount involved, but where restitution of the property is not made.
(4) Since this action is one subject to arbitration, the defendant has the right to make restitution before the award has been made by the arbiter, as we have stated above; and if he does not do so, he justly and deservedly must have judgment rendered against him for fourfold damages.
(5) Sometimes, however, even where intimidation has been employed, the award of the arbiter discharges the defendant. For if Titius employed intimidation without my knowledge, and property obtained in this manner came into my possession, and, if, without any fraud on my part, it is no longer in existence, shall I be discharged by the mere act of the judge? Or, if the slave in question takes to flight, and the judge requires me to give security to restore him if he comes under my control, then I ought to be released. Wherefore, certain authorities are of the opinion that a purchaser who obtained property in good faith from the person who employed force, should not be held liable; nor should one who has received the property as a gift, or one to whom it has been bequeathed. It is very properly held by Vivianus, that these persons are liable, otherwise I should be placed at a disadvantage because I suffered intimidation. Pedius also stated in the Fourth Book, that the authority of the judge, in a case involving restitution, is such that he should order him who employed force to make restitution, even if the property has passed into the possession of a third party; or compel the latter to make restitution, even though another had employed intimidation; for intimidation employed by one person should not enure to the benefit of another.
(6) Labeo says that where anyone has been made a debtor through intimidation, and gave a surety who was willing, both the debtor and the surety will be released; but if the surety alone was intimidated, and not the principal debtor, only the surety will be released.
(7) Fourfold the value includes the entire property in question, that is to say, the crops, and all the increase.
(8) Where anyone is compelled by force to promise to appear in court, but afterwards furnishes a surety, both of them will be released.
(9) Where anyone has been compelled by force to enter into an agreement, and because he did not give a release has been condemned to pay fourfold damages; Julianus is of the opinion that he can reply, when he brings suit on the stipulation, and is opposed by an exception; as the simple value of the property obtained by the defendant was included in the fourfold damages. Labeo says, however, that even after the action for fourfold damages has been settled, the party who used violence would nevertheless be barred by an exception; but as this seems hard, it should be modified so as to render him liable for triple damages, and also so that in every instance he shall be compelled to give a release.
(10) With reference to what we have said concerning the simple value being included in the quadruple damages, this should be understood to mean that in the order granting quadruple damages, the property obtained by violence is of course included; and hence restitution of the same is made, so that the penalty is limited to triple damages.
(11) What if a slave should be lost without the malice or negligence of the person who employed force, and against whom judgment was rendered? In this instance, if the slave should die before suit is brought on the judgment, the rule will be relaxed in enforcing the judgment; because the party is compelled to give satisfaction for his offence by the penalty of triple damages. With reference to a slave who is said to have taken to flight, the defendant shall be compelled to give security that he will pursue him, and restore him; and nevertheless the party who has suffered the violence will fully preserve all his rights of action in rem, or for production, or any other which he possessed for the recovery of the slave; so that, if his master should in any way recover him, and the other should be sued on the stipulation he will be protected by an exception. All this takes place after judgment has been rendered, but if the slave should die before the judgment, without the malice or negligence of the defendant, the latter will nevertheless be liable. This results from the following words of the Edict: "If the property is not restored in consequence of the decision of the Court". Hence, if the slave should take to flight without the malice or negligence of the party against whom the suit was brought, security must be furnished in court that he will follow up and return the slave; but where the property has not been lost through the negligence of the defendant, still, if it would not have been lost at all if intimidation had not been employed, the defendant will be liable, just as is the case in an interdict Unde vi, or Quod vi aut clam; for the reason that a man can sometimes recover the price of a dead slave whom he would have sold if he had not suffered intimidation.
(12) Where anyone uses force against me, as he obtains possession from me, he is not.a thief; although Julianus is of the opinion that anyone who obtains property by force is a more unprincipled thief.
(13) Where a man employs intimidation, it is certain that he is also liable for malice; and Pomponius says the same; and either action is a bar to the other, where an exception in factum is pleaded.
(14) Julianus states that fourfold damages represents merely the interest of the plaintiff, and therefore if a man who owed forty aurei by reason of a trust, promises under compulsion to pay three hundred, and makes payment; he can recover four times two hundred and sixty aurei, for this was the amount with reference to which he suffered duress.
(15) According to this rule, if several persons employ duress, and only one of them is sued, and he voluntarily makes restitution before judgment; all the others are released. But if he does not do this, but pays fourfold the amount after judgment, the better opinion is, that the action based on intimidation is also terminated, so far as the others are concerned.
15. Paulus, On the Edict, Book XI.
For an action will be granted against the others for the amount which has not been recovered from the party against whom the suit was brought.
16. Ulpianus, On the Edict, Book XI.
What we have stated in the case where several employ intimidation, should also apply where the property came into the hands of one, while another was responsible for the duress.
(1) Where slaves employ intimidation, a noxal action will lie with reference to them; but anyone can sue their master into whose possession the property passed; and if, after having been sued, he surrenders the property, or, as has already been stated, he pays fourfold damages, this will also benefit the slaves. If after having been sued in a noxal action he prefers to surrender the slave, he himself can also be sued, if he acquired possession of the property.
(2) This action is granted to the heir, and to other successors, since it includes the right to follow up the property. It is also granted against the heir and other successors, for the amount of what has come into their possession; and this is not unreasonable, for although the penalty does not pass to the heir, still (as is stated in the rescript), whatever has been obtained dishonorably should not enure to the benefit of the heir.
17. Paulus, Questions, Book I.
Let us see then, where the heir has acquired possession of something, and has consumed what he obtained, will he cease to be liable, or will the fact that he once had possession of the property be sufficient? And if he should die after having consumed it, will an action absolutely lie against his heir, since he received an indebtedness with the estate; or will no action be granted because the second heir received nothing? It is the better opinion that, in any event, an action will lie against the heir of the heir; for it is sufficient that the property once passed to the original heir, and the right of action becomes perpetual. Otherwise, it must be held that the heir himself, who consumes what had come into his hands, will not be liable.
18. Julianus, Digest, Book LXIV.
If the actual property which came into the hands of the person was destroyed, we cannot say that he is enriched, but if it was converted into money, or something else, no further inquiry should be made of what became of it; but the party is held to be enriched, even though he may have afterwards lost what he obtained. For the Emperor Titus Antoninus stated in a Rescript to Claudius Frontinus, with reference to the value of the property of an estate, that suit might be brought against him on account of the estate, for this very reason; because, although the property which was originally included in the estate was not in his possession, still, the price of the property by which he became more wealthy, no matter how often the individual articles had been changed in their character, rendered him liable to the same extent as if the articles themselves had remained in their original form.
19. Gaius, On the Provincial Edict, Book IV.
With reference to the fact that the Proconsul promises an action against the heir only to the extent of what has come into his hands, it must be understood that this refers to the granting of a perpetual right of action.
20. Ulpianus, On the Edict, Book XI.
In order to ascertain the amount which has come into the hands of the heir, we must go back to the time when issue was joined; provided it is certain that anything did come into his hands. The same rule applies where something passes into the bulk of the estate of the party who employed force, in such a way that it is evident that it will come into the possession of the heir; that is to say, if the debtor is released from liability.
21. Paulus, On the Edict, Book XI.
Where a freedwoman is guilty of ingratitude against her patron, and is aware that she has been ungrateful; and thus, being in danger of losing her status, gives, or promises something to her patron to prevent her from being reduced to slavery; the Edict does not apply, for the reason that she herself is the one who caused the fear.
(1) Where any act has been performed on account of fear, the Praetor will not confirm it on the ground of lapse of time.
(2) Where a party gave possession of land which he did not own, the fourfold damages, or the simple value with the profits which he will recover, is not the value of the land, but that of the possession; for the estimate of what is to be restored is based upon what was lost, and, in this instance, it is the mere possession with the crops; which is also the opinion of Pomponius.
(3) Where a dowry has been promised through intimidation, I do not think that any obligation arises, since it is perfectly certain that such a promise of a dowry is equivalent to none at all.
(4) Where I have been compelled by intimidation to abandon an agreement for purchase, or rent, it must be considered whether the transaction is void or not and the former obligation remains in full force; or whether this resembles a release, because we cannot rely on an obligation based in good faith, as such a one is terminated when it is lost. The better opinion is that the case resembles a kind of release, and therefore a praetorian action will lie.
(5) If, being compelled by fear, I enter upon an estate, I think that I have acted as heir, because although if I had been free I would have been unwilling to do so; still, having been subjected to compulsion, I had the will to act; but I should get an order of restitution from the Praetor, that the power to reject the estate may be conferred upon me.
(6) If, having been forced to do so, I reject an estate, the Praetor can come to my relief in two ways; either by granting an equitable action as he would to an heir, or by allowing an action on the ground of duress; and I have the right to select whichever way I choose.
22. Paulus, Sentences, Book I.
Where anyone has put a person in prison for the purpose of extorting something from him, whatever is done under the circumstances is of no importance.
23. Ulpianus, Opinions, Book V.
It is not probable that a person would pay in a city, under compulsion and unjustly, something which he did not owe, if he showed that he was of illustrious rank; since he could invoke the public law, and apply to someone vested with authority who would forbid his being treated with violence. The strongest possible proof of violence must be given in order to overcome this presumption.
(1) Where anyone being justly terrified at the prospect of a judicial examination to which a powerful adversary threatens to send him in chains; sells under compulsion what he had a right to retain, the matter shall be restored to its proper condition by the Governor of the province.
(2) Where a money-broker keeps an athlete in confinement contrary to law, and, by preventing him from engaging in contests, compels him to give security for a larger sum of money than he owes; a competent judge will, where this is proved, order the matter to be restored to its proper condition.
(3) Where anyone is compelled, by the intervention of the
officers of the Governor, by force and without judicial proceedings,
to pay money which he does not owe to a party claiming under an assignment;
the judge will order what was unlawfully extorted to be restored by
him who inflicted the injury. If, however, he paid his debt upon a
simple demand, and not as the result of judicial proceedings, even
though the party should have acted legally and not have collected
the debt in an irregular way, still, it is not in accordance with
law to set aside a transaction which brought about the payment of
an obligation which was due.
Tit. 3. Concerning fraudulent intent.
In this Edict the Praetor gives relief against tricky and deceitful persons, who use artifice to the injury of others, to prevent the former from profiting by their malice, or the latter from being harmed by their simplicity.
(1) The following are the terms of the Edict: "Where anything is said to have been done with fraudulent intent and no other action is applicable in the matter, I will grant an action if there seems to be good ground for it."
(2) Servius defines "fraudulent intent" to be a scheme for the purpose of deceiving another party, where one thing is pretended, and another is done. Labeo, however, states that it is possible for this to be accomplished, without pretence, for the overreaching of another; and it is possible for one thing to be done without deceit, and another pretended; just as persons act who protect either their own interests or those of others, by the employment of this kind of dissimilation. Thus, he gives a definition of fraudulent intent as being: "An artifice, deception, or machination, employed for the purpose of circumventing, duping, or cheating, another." The definition of Labeo is the correct one.
(3) The Praetor was not content merely to mention dolus, but he added malus, as the ancient authorities were accustomed to say dolus bonus, and they understood this expression to mean adroitness, especially where anyone used a stratagem against an enemy, or a thief.
(4) The Praetor says: "And no other action is applicable in the matter." Thus he reasonably promises this action where no other is available, because an action involving infamy should not rashly be ordered by him if a civil or praetorian one can be brought, just as Pedius states in the Eighth Book; but even where an interdict will lie by means of which a man can bring suit or an exception be pleaded, by which he may be protected, this Edict is not applicable. Pomponius says the same thing in the Twenty-eighth Book, and he adds that, even if a man may be protected by a stipulation, he cannot have an action founded on fraudulent intent; as, for instance, where a stipulation was made with reference to fraudulent intent.
(5) Pomponius also says that where no action can be brought against us, for instance, where the stipulation was so shamefully tainted with fraud that no court would allow an action founded upon it; I should not attempt to obtain an action based on fraudulent intent, since no judge would allow such an action to be brought against me.
(6) Pomponius also says Labeo holds that, even if anyone could obtain complete restitution, he ought not to have the benefit of this action; and if some other right of action is lost by lapse of time, still, this one ought not to be permitted; for he who postpones bringing suit has only himself to blame, unless the fraud was perpetrated for the special purpose of allowing time to elapse.
(7) Where anyone who has some civil or praetorian right of action inserts it into a stipulation, and then annuls it by a release, or by some other means; he cannot institute proceedings based upon fraud, because he has another right of action, unless he was maliciously deceived when he lost his right of action.
(8) For it is only where some other action can be brought against him whose deceit is the subject of investigation.
2. Paulus, On the Edict, Book XI.
Or where the matter which is the basis of inquiry against him can be secured in some other way.
3. Ulpianus, On the Edict, Book XI.
This Edict does not apply; and it also ceases to be available when a third party:
4. Paulus, On the Edict, Book XI.
Can be sued; or where the property can be secured for me through another.
5. Ulpianus, On the Edict, Book XI.
Therefore, if a ward has been circumvented by Titius, and his guardian acted in collusion with him, he is not entitled to an action against Titius, based upon fraud, since he has an action on guardianship, by which he can recover what his interest amounts to. If his guardian is insolvent it must undoubtedly be said that an action on the ground of fraud can be granted him:
6. Gaius, On the Provincial Edict, Book IV.
For a person cannot be held to be entitled to any action, when it would be useless on account of the insolvency of his adversary.
7. Ulpianus, On the Edict, Book XI.
Pomponius very properly explains the words: "No other action is applicable," to signify its being impossible for the matter in question to be preserved for the party interested in any other way. Nor does this seem to be opposed to the opinion which Julianus stated in the Fourth Book; namely, that where a minor under twenty-five years of age having been misled by the advice of a slave, sold him with his peculium, and the purchaser manumitted him; the minor was entitled to an action on the ground of fraud against the manumitted slave; for we must understand that the purchaser is free from fraud, and that he cannot be held liable on account of the purchase, or that the sale is void if the minor was induced to make it through fraudulent representations. The fact that the party is presumed to be a minor does not entitle him to complete restitution, since no complete restitution can be available against a manumitted slave.
(1) In accordance with this, where a man can provide for his own indemnity by means of a penal action, it should be stated that a suit on the ground of fraud will not lie.
(2) Pomponius says, however, that if the action is a popular one, one based on fraud does not apply.
(3) Labeo thinks that an action based on fraud should not be granted, not only where no other right of action exists, but even where it may be doubtful whether another is available, or not; and he adduces the following instance: Where a party owed me a slave on account of a sale, or a stipulation, and gives him poison, and delivers him to me, or where he owes me a tract of land, and, during the delivery, he imposes a servitude upon it; or demolishes buildings, or cuts down, or roots up trees; Labeo says that whether he gave me security against malice or not, an action based upon it should be granted against him; since, if he did give security, it is doubtful whether a right of action founded on the stipulation exists. The better opinion is, however, that if security was given against malice, an action based upon it will not lie, since an action on the stipulation is available; but where there is no security, then, in case an action on purchase is brought, one based upon fraud will not lie, because one based on purchase does; but where one on the stipulation is brought, an action on the ground of fraud will be necessary.
(4) Where the master of a slave, to the use of whom another party was entitled, kills him; both the action of the Lex Aquilia, and that for production will be available, if the master was in possession of the slave when he killed him; and therefore the action founded on fraud will not lie.
(5) Moreover, where an heir, before he enters upon the estate, kills a slave who has been bequeathed; as the latter was destroyed before he became the property of the legatee, the action of the Lex Aquilia does not apply, but the action based upon fraud, no matter what time he killed him, does not apply either, because a right of action based upon the will is available.
(6) Where an animal belonging to you does some damage to me through the malice of a third party, the question arises whether I am entitled to an action for malice against him? I agree with the opinion of Labeo, that where the owner of an animal is insolvent, an action based upon malice should be granted; although if there was a surrender of the animal by way of reparation, I do not think it should be granted, even for the excess.
(7) Labeo also asks the following question: "If you release my slave from his shackles in order that he may escape, should an action on the ground of malice be granted?" Quintus in a note on this states that if you did not commit the act through motives of pity, you can be held liable for theft, but where you were influenced by pity, an action in factum should be granted.
(8) A slave brings to his master a person who agrees to be responsible for the agreement of the slave relating to his freedom, on the condition that after he is free, the obligation is to be assigned to him; but after having been manumitted, the slave would not consent for the obligation to be assigned. Pomponius says that an action on the ground of malice will lie. But if the patron is to blame because the obligation was not assigned, it must be held that he will be barred by an exception of the guarantor, if the latter is sued. I am embarrassed by the point, how can an action on the ground of malice be allowed, when another is available? Unless, perhaps, some one might allege that, as the patron can be barred by an exception if he brings suit against the other party, it should be held that an action on the ground of malice should be granted; as one which can be barred by an exception is no action at all. But if the patron then is barred because he is unwilling to accept the manumitted slave instead of the guarantor, it is clear that the party who assumed the obligation instead of the slave should be granted an action on the ground of malice against the latter after he was manumitted; or if the guarantor is insolvent, the right of action should be given to the owner.
(9) If my agent permits my adversary to win his case through malice, so that the latter may be released from liability; it may be asked whether I am entitled to an action on the ground of malice against the party who won the case? I think that I am not entitled to one, where the party is ready to defend the action against this exception, if there is collusion; otherwise, an action on the ground of malice should be granted, provided I cannot bring suit against my agent for the reason that he is not solvent.
(10) Moreover, Pomponius says that the Praetor Caecidianus did not grant an action on the ground of fraud against one who had alleged that a certain person to whom money was to be lent was solvent, which is the proper view of the case; for an action on the ground of fraud should not be granted unless bad faith was flagrant and evident.
8. Gaius, On the Provincial Edict, Book IV.
If, however, you knew that the person had lost his property, and, for the sake of gain, stated to me that he was solvent, and action on the ground of fraud would properly be granted against you; since you falsely recommended another with the intention of deceiving me.
9. Ulpianus, On the Edict, Book XI.
Where anyone asserts that an estate is of very little value, and then purchases it from the heir, an action on the ground of fraud will not lie, as the one based on sale is sufficient.
(1) If, however, you persuaded me to reject the estate, under the pretext that it would not pay the creditors, or induced me to choose a certain slave because there was none better in the household; I say that an action on the ground of fraud should be granted, if you did this with malicious intent.
(2) Moreover, if a will was suppressed for a long time, in order to prevent it being declared inofficious, and after the death of a son it was produced; the heirs of the said son can bring suit on the ground of fraud, as well as under the Lex Cornelia, against the parties who suppressed it.
(3) Labeo states in the Thirty-seventh Book of the Posteriora, that if Titius claims your oil as his, and you deposit the said oil in the hands of Seius for him to sell, and keep the purchase money until the controversy as to which of you the oil belongs is settled, and Titius refuses to join issue; since you can neither bring an action against Seius, either on mandate, or as agent, because the condition of the deposit has not yet been fulfilled; you can sue Titius on the ground of fraud. Pomponius, however, says in the Twenty-seventh Book, that an action can be brought in general terms, on the ground of agency; or if the party is not solvent, it can be brought on the ground of fraud against Titius; which would seem to be the proper distinction.
(4) If at the suggestion of the judge you have surrendered your slave to me to indemnify me for damage which he committed, and in consequence thereof have been released from liability; you can be sued in an action based upon fraud, if it should appear that the said slave was pledged to another. This action based upon fraud is noxal, and therefore Labeo stated in the Thirtieth Book of the Praetor for Foreigners, that the action based on fraud committed with reference to a slave is sometimes De Peculio and sometimes noxal. For if the matter with reference to which fraud was committed is one for which an action De Peculio would be granted, then an action upon that ground would be allowed; but if it is one in which the action would be noxal, then it also must be one of the same character.
(5) The Praetor with reason inserts the words "proper cause must be shown", for this action ought not to be granted indiscriminately; for instance, in the first place if the amount involved is insignificant,
10. Paulus, On the Edict, Book XI.
that is to say, not over two aurei,
11. Ulpianus, On the Edict, Book XI.
it should not be granted.
(1) The action is not granted to certain persons, for instance, to children or to freedmen against their parents or their patrons; since it implies infamy. Nor should it be granted to a person in humble circumstances against another who is superior in station; for example, to a plebeian against a person of consular rank and acknowledged position, or to a licentious person, or a spendthrift, or anyone who is otherwise contemptible, against a man of blameless life; and Labeo holds the same opinion. What then is to be done? It must be said with respect to such persons that an action in factum should be allowed; attention being paid to the phraseology, so that mention of good faith may be made:
12. Paulus, On the Edict, Book XI.
To prevent the parties from profiting by their own deceit.
13. Ulpianus, On the Edict, Book XI.
An action on the ground of fraud should be granted to the heirs of these persons, as well as against the heirs of the other parties.
(1) Labeo says that in the examination for cause, care must be taken that an action on the ground of fraud should not be granted against a ward, unless suit be brought against him as heir. I think that he can be sued on the ground of his own fraud, if he has almost reached the age of puberty, and especially if he became more wealthy by the act.
14. Paulus, On the Edict, Book XI.
What would be the result if he should gain the consent of the plaintiff's agent for the dismissal of the suit against him; or if he should have obtained money from his guardian by false representations; or if he had committed some other similar fraud which did not require any great duplicity?
15. Ulpianus, On the Edict, Book XI.
I think that an action should also be granted against him, if he profited pecuniarily by the fraud of his guardian; just as an exception can be granted.
(1) Doubt exists, however, whether an action on the ground of fraud can be granted against a municipality? It is my opinion that it cannot be granted on the ground of its own fraud, for how can a municipality commit fraud? But I think that it should be granted where any profit accrues to it from the fraud of those who administer its affairs. An action on the ground of fraud will be granted against Decurions as individuals.
(2) Moreover, if any advantage is obtained by a principal through the fraud of his agent, an action will be granted against the former for the amount which came into his hands; for there is no question that the agent is liable for his own fraudulent conduct.
(3) In this action, it is necessary to point out who committed the fraudulent action, although it is not necessary to allege intimidation.
16. Paulus, On the Edict, Book XI.
The Praetor also requires that a statement should be made of what was fraudulently done, as the plaintiff is entitled to know in what respect he was cheated, so as not to express himself in a vague manner in an offence of such a serious character.
17. Ulpianus, On the Edict, Book XI.
Where several persons commit fraud, and one of them makes restitution, all will be released from liability; and if one of them pays an amount equal to the damage caused, I am of the opinion that the others are released.
(1) This action is granted against the heir and other successors to an estate, but only to the amount which they have obtained.
18. Paulus, On the Edict, Book XI.
Again, restitution is included in this action according to the discretion of the judge; and unless restitution is made, judgment shall be rendered in proportion to the amount involved. Hence in this action, and in the one based on intimidation, a certain sum is not specified, in order that the defendant, when guilty of contumacy, may have judgment rendered against him for the amount which the plaintiff may swear to in court, although, in both actions, by the interposition of the judge, this may be restrained by the taxation of the amount.
(1) The granting of this action, however, is not always left to the discretion of the judge, where it is evident that restitution cannot be made, as, for instance, where a slave, after having been fraudulently delivered, dies; hence the party ought to immediately be compelled to pay a sum equal to the interest of the plaintiff in the property.
(2) Where the owner of a house, whose usufruct has been bequeathed, burns it; an action on the ground of fraud does not lie, as other actions arise from this act.
(3) Trebatius grants an action on the ground of fraud in a case where a party knowingly lent false weights, with which a vendor might weigh merchandise for a purchaser. If, however, he furnished weights which were too heavy, the vendor can recover the excess of the merchandise by a personal action; and if he furnished weights which were too light, the purchaser can bring an action on sale for the delivery of the remainder of the merchandise; unless it was sold on the condition that it should be weighed with those weights, the party who lent them with the intention to defraud having alleged that they were correct.
(4) Trebatius states that a suit on the ground of fraud should be granted against a person by whose deceit a right of action was lost through lapse of time; not in order that restitution might be made by the judge, but that the plaintiff might recover damages for the interest he had in the right of action not being extinguished; because if other measures were taken the law would be evaded.
(5) If someone kills a slave whom you have promised me, many authorities justly think that an action grounded upon fraud should be granted against him; because you are discharged so far as liability to me is concerned, and therefore an action on the Lex Aquilia would be refused you.
19. Papinianus, Questions, Book LVII.
Where a surety kills an animal which had been promised before the principal was in default in its delivery; Neratius Priscus and Julianus hold that an action on the ground of fraud ought to be brought against him; since the debtor having been discharged, he himself, in consequence, is released from liability.
20. Paulus, On the Edict, Book XI.
Your slave who owed you money, and who had no means of making payment, by your advice borrowed money from me, and paid you. Labeo says that an action on the ground of fraud should be granted against you, because I could not avail myself of an action De Peculio, as there was no private property; nor does there seem to have been anything expended for the benefit of the master, since he received it in payment of a debt.
(1) If you persuade me that no partnership existed between you and the person of whom I am the heir; and I, on this account, permit you to be discharged from liability in court; Julianus states that I am entitled to an action on the ground of fraud.
21. Ulpianus, On the Edict, Book XI.
If you took an oath through my agency, and you are discharged, and afterwards it is proved that you have committed perjury; Labeo says that an action on the ground of fraud should be granted against you; for Pomponius holds that the act is equivalent to a compromise, and Marcellus also entertains this opinion in the Eighth Book of the Digest, as attention should be paid to the religious character of an oath:
22. Paulus, On the Edict, Book XI.
For, in this Instance, the penalty for perjury is sufficient.
23. Gaius, On the Provincial Edict, Book IV.
If a legatee, to whom property was bequeathed in addition to what is prescribed by the Lex Falcidia, persuades the heir, who is still ignorant of the value of the estate, either by oath, or by some other deception, that the estate is amply sufficient to pay all the legacies, and by this means obtains the payment of his own legacy in full; an action on the ground of fraud will be granted.
24. Ulpianus, On the Edict, Book XI.
If it should happen, through the fraudulent act of a party who appears in behalf of a person attempting to gain his freedom; that a decree in favor of his freedom is rendered when his adversary is not present; an action on the ground of fraud should at once be granted against him, because a decision rendered in favor of freedom cannot be reconsidered.
25. Paulus, On the Edict, Book XI.
When I bring suit against you for a sum of money, and issue has been joined, and you persuade me falsely that you have paid the money to my slave, or my agent, and on this ground you have secured the dismissal of the case with my consent; we have asked whether an action on the ground of fraud should be granted against you, and it was held that an action of this kind could not be granted, for the reason that I could obtain relief in another way; for I could bring suit over again, and if an exception on the ground of a former judgment was interposed, I could lawfully make use of a reply.
26. Gaius, On the Provincial Edict, Book IV.
A proconsul promises to grant an action against an heir to the amount of what comes into his hands, that is to say, to the amount by which the estate is enriched by the transaction when it passes to him:
27. Paulus, On the Edict, Book XI.
Or which he would have received, if this had not been prevented by the fraud which he committed.
28. Gaius, On the Provincial Edict, Book IV.
Therefore, if a release fraudulently obtained by you has been given you for a debt, an action can, without doubt, be brought against your heir. But where property has been delivered to you in this way, and you die, if the property is in existence, proceedings can be instituted against your heir; and if it is not in existence, this cannot be done. An action, however, is granted against an heir without reference to time, for the reason that he must not profit by another's loss. In accordance with this, an action in factum, without reference to time, should be granted against the party who was guilty of the fraud for the amount to which he became enriched.
29. Ulpianus, On the Edict, Book XI.
Sabinus is of the opinion that the heir is sued rather for the correction of an account, than for wrong-doing; and, in any event, the action does not imply infamy, and, therefore, the liability of the party should not be limited by lapse of time.
30. The Same, On the Edict, Book XI.
Proper cause need not be shown where proceedings are instituted against an heir.
31. Proculus, Epistles, Book II.
Where anyone induces my slave to abandon possession of my property, the possession of the same is not actually lost; but an action on the ground of fraud will lie against the party in question, if I have suffered any loss.
32. Scaevola, Digest, Book II.
A son who had received a slave as a preferred legacy having been asked to manumit him after a certain time, provided he had, in the interval, rendered his account to the said heir and to his brothers who were his co-heirs, gave the slave his freedom by manumission before the time had elapsed, and before the account had been rendered. The question arose whether he was liable to his brothers as trustee to render them the account for their shares? I answered that since he had liberated his slave he was not liable to his brothers as trustee, but that if he hastened to manumit him to prevent him from rendering an account to his brothers, then an action could be brought against him on the ground of fraud.
33. Ulpianus, Opinions, Book IV.
A certain man was the possessor of an article which he wished to sell, and another brought suit to establish the right of property, and after having deprived him of the opportunity of selling the article to the purchaser, he abandoned the case. It was held that the party in possession was under the circumstances entitled to an action in factum for the purpose of indemnification.
34. The Same, On Sabinus, Book XLII.
If you permit me to remove stone from your land, or to dig chalk, or sand, and I have incurred expense in doing so, and you do not allow me to remove it, no other action will lie in my favor against you, except that on the ground of malicious contrivance.
35. The Same, On the Edict, Book XXX.
If anyone destroys a will left with him after the death of the testator, or mutilates it in any way, the person mentioned therein as heir will be entitled to an action against him on the ground of fraud. The same action should be granted to those to whom legacies have been bequeathed.
36. Marcianus, Rules, Book II.
Where two persons have been guilty of fraud, they cannot bring actions against one another on this ground.
37. Ulpianus, On Sabinus, Book XLIV.
Where a vendor says something in praise of his merchandise, it should be considered that he has neither said nor promised anything; but where he has made such statements with a view to deceive a purchaser, it is justly held that no right of action arises on account of what he has said or promised, but that an action on the ground of fraud may be brought.
38. The Same, Opinions, Book V.
A certain debtor caused a letter to be sent to his creditor, which appeared to have been written by Titius, asking that he be discharged from liability; and the creditor, having been deceived by this letter, discharged the debtor by an Aquilian stipulation and a release. If the letter should afterwards be ascertained to be forged, or worthless, the creditor, if he is over twenty-five years of age, will be entitled to an action on the ground of fraud, and the minor shall obtain complete restitution.
39. Gaius, On the Provincial Edict, Book XXVII.
If you offer yourself to Titius with respect to something of which you are not in possession, in order that another may obtain the use of the same; and you give security that the judgment will be complied with, even though you may be released, you will still be liable for fraud; and this was the opinion of Sabinus.
40. Furius Anthianus, On the Edict, Book XI.
He who deceives anyone in order to induce him to enter upon
an estate which is not sufficient to pay its creditors, shall be liable
for fraud, unless he himself is the sole creditor; for then it will
be sufficient to plead an exception on the ground of fraud against
Tit. 4. Concerning persons under twenty-five years of age.
The Praetor proposed the following Edict in compliance with the principles of natural equity, by which he assumes protection of minors; for, as is known to every one, the judgment of persons of this age is weak and indecisive, exposed to many snares, and subject to many disadvantages, and therefore the Praetor promised them aid by this Edict and relief from deception.
(1) The Praetor says in the Edict: "When any transaction is said to have taken place with a minor under twenty-five years of age, I will examine what was done".
(2) It appears that the Praetor promises assistance to minors under twenty-five years of age, for, after that time, manly vigor is held to have been established.
(3) For this reason, minors at present are subjected to the direction of curators until that age; nor should the administration of their own affairs be committed to them before that time, even though they may be capable of transacting them properly.
2. The Same, On the Lex Julia et Papia, Book XIX.
Nor will a minor obtain possession of his property from his curators any sooner on account of his having children; for what is provided by the law, namely: that a year is remitted for every child, the Divine Severus states has reference to capacity for public office, and not for the management of property.
3. The Same, On the Edict, Book XI.
Finally, the Divine Severus and our Emperor have interpreted the decrees of consuls and governors of this description as dictated by their own interest, for they themselves very rarely indulged minors in the administration of their own affairs, contrary to the established custom; and this is our practice to-day.
(1) Where anyone makes a contract with a minor, and the contract takes effect at some time after he has attained his majority, shall we consider the beginning or the end of the transaction? It is held, and has been established by a constitution that where a party confirms what he did while a minor, there is no ground for restitution. For this reason, Celsus, in the Eleventh Book of the Epistles, and in the Second of the Digest, treats this question in an able manner with reference to a case in which he was consulted by the Praetor Flavius Respectus. A minor under twenty-five years, and who, perhaps, was in his twenty-fourth year, had begun an action on guardianship against the heir of his guardian, and the result was that the said heir of the guardian was released before the trial was terminated; as the plaintiff had already attained his majority of twenty-five years and therefore complete restitution was applied for. Celsus, accordingly, advised Respectus that the former minor could not readily obtain complete restitution; but if it were proved to him that this had been brought about by the craft of his adversary in order that he should be discharged as soon as the minor attained his majority, restitution could then be granted: "for," he said, "the minor only appeared to have been overreached on the last day of the trial, and the entire affair had evidently been planned so that the guardian might be discharged after the minor had attained his majority". Nevertheless, he admits that where only slight suspicion exists that his adversary had been guilty of deception, he could not obtain complete restitution.
(2) I know, also, that once the following question arose. A minor under twenty-five years of age meddled with the estate of his father, and, having attained his majority, exacted payment from certain of his father's debtors, and then demanded complete restitution in order to enable him to reject the estate. It was argued on the other side that after he became of age he had approved of what he had done while a minor; and it is our opinion that complete restitution should be granted for the reason that the commencement of the transaction should be considered. I am of the opinion that the same rule would apply if he had entered upon the estate of a stranger.
(3) It should also be taken into consideration with reference to the birth of a man twenty-five years of age, whether we should say that he is still a minor on his birthday before the hour at which he was born, so that if he has been deceived he may obtain restitution; and if he has not yet fully attained that age, it must be held that the time should be counted from one moment to another. Hence, if he was born in a bissextile year, Celsus thinks that it makes no difference whether he was born on the earlier or on the later day, but the two days are considered as one, and the latter is intercalated.
(4) In the next place, it must be considered whether relief should be given only to those who are their own masters, or also to those who are under the control of others; and the point which causes doubt is, that if anyone should say that the sons of a family are entitled to relief in matters relating to their peculium, the result would be that the benefit would accrue through them to those who are of age, that is to say, to their fathers, which was, at no time, intended by the Praetor; for the latter promised assistance to minors and not to those who had attained their majority. I, however, think that the option of those who hold that the son of a family, who is a minor under twenty-five years of age, is entitled to complete restitution only in matters in which he himself has an interest; for example, where he is bound by some contract. Thus, if he is bound by the command of his father, the latter can certainly be sued for the entire amount, and, so far as the son is concerned, (since he himself can be sued to the extent of his solvency whether he is still under the control of his father, or has been emancipated, or disinherited, and, indeed, while he is living under the control of his father, an action to enforce a judgment can be brought against him), he should apply for relief, if he himself is sued. But whether this relief will also benefit his father, as sometimes happens in the case of a surety, is a matter to be considered, and I do not think that it will. Therefore, if suit is brought against the son, he can apply for relief, though if a creditor sues his father, no relief can be obtained except where money is loaned; and also, in this instance, if he borrowed the money by the order of his father no relief can be given him. Hence, if he made a contract without the order of his father, and was overreached, and an action De Peculio is brought against the father the son cannot obtain restitution, but if the latter is sued he can obtain it; nor does any difficulty arise on account of the son having an interest in the peculium, for the interest of the father is greater than that of the son, although in some cases the peculium belongs to the son; for example, where the property of the father is seized by the Treasury on account of a debt; for, in this instance, according to the Constitution of Claudius, the peculium of the son is separated from it.
(5) For this reason, where the daughter of a family has been deceived with respect to her dowry, when she gave her consent to the stipulation of her father, entered into subsequently, that the dowry should be returned, or some one be found who would stipulate for it; I am of the opinion that she should be granted restitution, since the dowry is the personal property of the daughter herself.
(6) Where a minor under twenty-five years of age has given himself to be abrogated, and alleges that he was deceived in the arrogation; for example, that he, being a man of property, was arrogated by a party for the purpose of robbery; I hold that he should be heard if he applies for complete restitution.
(7) Where a legacy, or a trust is bequeathed to the son of a family, to be paid after the death of his father, and he is imposed upon; for instance, where he gave his consent to the agreement of his father that suit should not be brought for the legacy; it may be said that he is entitled to complete restitution, since he has an interest, by reason of his expectation of the legacy to which he is entitled after the death of his father. But where something is bequeathed to him, which relates to him personally, as for instance, a command in the army; it must be held that he is entitled to complete restitution, for it is his interest not to be deceived, since he does not acquire this for his father but is to have it himself.
(8) Where an heir is appointed on condition that he shall be emancipated by his father within a hundred days, he should notify his father at once; and if he did not do so when he was able, and his father would have emancipated him if he had known of it, it must be held that he is entitled to complete restitution, if his father is ready to emancipate him.
(9) Pomponius adds that in those instances in which the son of a family can obtain restitution in a matter in which his peculium, is concerned, his father can, as the heir of his son, claim complete restitution after his death.
(10) But where the son of a family has a castrense peculium, there is no question that in matters relating to the castrense peculium he will be entitled to complete restitution; just as if he had been deceived with respect to his own patrimony.
(11) A slave who has not reached the age of twenty-five years cannot, under any circumstances, obtain restitution, as it is the person of his master which is considered, and he must blame himself where he entrusted anything to a minor. Wherefore, if he makes any contract through a minor who has not reached the age of puberty, the same rule applies; as Marcellus states in the Second Book of the Digest. And if the free administration of his peculium should be granted to a slave who is a minor, his master, if he is of age, cannot obtain restitution on this account.
4. Africanus, Questions, Book VII.
For, whatever a slave does in a case of this kind, he is understood to do with the consent of his owner; and this will appear more clearly if the question arises with reference to an institorian action, or where a person over twenty-five years of age directed a minor to transact some business, and the latter was deceived while doing so.
5. Ulpianus, On the Edict, Book XI.
Where, however, the slave was one who had a right to immediate freedom under a trust, and was imposed upon, as he suffered through default, it can be stated that the Praetor will be obliged to grant him relief.
6. The Same, On the Edict, Book X.
Relief is afforded by complete restitution of minors under twenty-five years of age not only when they sustain some loss of property, but also when they are interested in not being annoyed with lawsuits and expense.
7. The Same, On the Edict, Book XI.
The Praetor says: "Any transaction which is said to have taken place". We understand the term "transaction" to mean one of any kind whatsoever, whether it is a contract, or whether it is not.
(1) Thus, if a minor purchases anything, if he sells anything, if he enters a partnership, or borrows money and is cheated, he will have relief.
(2) Also, if he has been paid money by a debtor of his father or by one of his own, and loses it, it must be held that he is entitled to relief; as the business was transacted with him. And, therefore, if a minor brings suit against the debtor, he should have curators present, in order that he may be paid, for otherwise a debtor cannot be compelled to pay him. At present, however, it is customary to deposit the money in a temple (as Pomponius states in the Twenty-eighth Book), so that the debtor may not be oppressed by the payment of excessive interest, or a minor creditor lose his money; or payment be made to the curators, if there are any. It is also allowed a debtor, by an Imperial Constitution, to compel a minor to have curators appointed for himself. But what if the Praetor should order the money to be paid to a minor without the intervention of curators, and it should be paid? It may be doubted whether he will be secure. I am of the opinion, however, that if he was compelled to pay after pointing out that the creditor was a minor, he would be free from responsibility; unless someone might hold that he ought to appeal on the ground that he had suffered an injury. I believe, however, that the Praetor would not hear a minor if he were to apply for complete restitution in a case of this kind.
(3) Relief is not only granted to a minor under these circumstances, but also where he intervenes in obligations contracted by others; for example, where he binds himself, or encumbers his property as a surety. Pomponius, however, appears to agree with those who make a distinction between a minor where an arbiter has appointed a party for the purpose of approving of sureties, and where his adversary has accepted him. It seems to me that, in all these instances, if the party is a minor, and proves that he has been circumvented, he will be entitled to relief.
(4) Relief is also granted in trials, whether the party who was overreached, brought suit, or was sued.
(5) Where, however, a minor has entered upon an estate, which is not sufficient to pay the creditors, he is given relief that he may be able to reject it; for in this instance also, he is deceived. The same rule applies in the case of the possession of property or any other succession. Not only the son who meddled with the estate of his father will obtain restitution, but likewise any other minor belonging to the family will also be entitled to it, as for instance, a slave who is appointed heir and granted his freedom; for it must be held that if he meddled with the affairs of the estate, he can be relieved on the ground of his age, so that he may have a separation of his own property. It is evident that if he obtains restitution after entering upon the estate, that he must deliver up any portion of the same which has been mingled with his own property, and has not been lost through the infirmity of his youth.
(6) At the present time, it is the practice for minors to be relieved where they have failed to obtain profit.
(7) Pomponius also stated in the Twenty-eighth Book, that where a person rejects a legacy without anyone being guilty of fraud, or is taken advantage of in making a choice of two legacies, having selected the one of inferior value; or where he promises to give a man one or the other of two things, and gives him the more valuable one, he is entitled to relief, and it should be granted him.
(8) The question arose with respect to the point which states that relief must be granted to minors, even where they do not obtain profit, as where the property of a minor was sold, and someone comes forward who is willing to pay more for it; whether complete restitution should be made, on account of the profit which he failed to obtain? The Praetors grant restitution every day under these circumstances, so that new bids may be offered. They do the same thing with regard to property which ought to be preserved for minors. This, however, should be done with great care, otherwise no one would attend the sales of the property of wards; not even if they were conducted in good faith; and it is a principle to be thoroughly approved, that, with respect to property exposed to accident, no relief should be granted a minor as against the purchaser, unless it is established that there was corruption, or evident partiality of the guardian or curator.
(9) Where a minor has been granted restitution, and interferes with the affairs of an estate, or enters upon one which he had rejected, he can again obtain restitution to enable him to reject it; and this has also been stated in rescripts and opinions.
(10) Papinianus, however, says in the Second Book of Opinions, that where a slave is substituted for a minor as a necessary heir, and the minor rejects the estate, the said slave will become the necessary heir, and, if the minor obtains restitution, he will nevertheless remain free; but if, before the minor enters upon the estate in the first place and afterwards rejects it, the slave who was substituted for him with a grant of freedom, cannot become the heir, or be free; and this is not entirely true. For if the estate is not solvent, and the heir rejects it, the Divine Pius, as well as our Emperor, stated in a Rescript that, in the case of a minor who is a stranger, there will be ground for the substitution of a necessary heir; and where he says that he will remain free, it signifies apparently that he will not also remain the heir, since the minor obtains restitution after having rejected the estate; so that since the minor does not become the heir, but has a right of equitable action, he will undoubtedly continue to be the heir who once appeared as such.
(11) Moreover, if the heir did not appeal within the prescribed time, relief will be given him in order that he may appeal; supposing that he desires to do so.
(12) Moreover, relief is granted him where judgment is taken against him by default. It has, however, been settled that men of every age are entitled to a new trial in case of default, if they can prove that they were absent for some good reason.
8. Hermogenianus, Epitomes of Law, Book I.
Even where a minor has lost his case on account of contumacy, he can petition for the relief of complete restitution.
9. Ulpianus, On the Edict, Book XI.
If, as the result of a judgment, the pledges of a minor are taken in execution, and sold; and he afterwards obtains restitution in opposition to the decree of the Governor, or of the Imperial Procurator, it must be considered whether the property which was sold should not be recovered; for it is certain that money paid on account of the judgment must be refunded to the minor, but it is more to the interest of the latter to recover the property; and I think, in some instances, it should be allowed, that is if the minor would otherwise sustain great loss.
(1) Relief is also granted to a woman in the matter of her dowry, if, having been imposed upon, she gave more than her estate would warrant, or gave her entire patrimony.
(2) It must now be considered whether relief should be granted to minors only where they are imposed upon in contracts, or also where they are guilty of offences; for example, where a minor committed fraud with reference to property deposited, loaned, or subject to some other kind of contract, would he be entitled to relief if nothing came into his hands through the transaction? It is held that no relief should be granted to minors guilty of breaches of the law; and therefore, in this instance, no relief should be allowed, for where a minor commits a theft, or causes damage to property, he will not be entitled to relief. Where, however, after having committed the injury he could have confessed and thereby not be held liable in double damages, but preferred to deny what he had done; he should be granted restitution only that he may be treated as if he had confessed. Therefore, if he was able to make good the loss caused by his theft, rather than be sued for double or quadruple damages, relief will be granted him.
(3) Where a married woman, after being separated from her husband through her own fault, wishes to obtain relief, or her husband does so, I do not think that restitution should be granted, for this is not an ordinary offence, and if the minor has committed adultery relief cannot be granted him.
(4) Papinianus states that if a minor of from twenty to twenty-five years of age permits himself to be reduced to slavery — that is if he shares in the price paid for him — he is not entitled to restitution; and this is reasonable, for the case does not admit of restitution, as the party has changed his condition.
(5) Where a minor is said to have incurred the penalty for nonpayment of taxes, he will be entitled to complete restitution; but it must be understood that no fraud existed on his part, otherwise restitution will not be allowed.
(6) It is also impossible for restitution to be granted by a Praetor against the freedom of his slave.
10. Paulus, On the Edict, Book XI.
Unless where he obtains this favor from the Emperor for some good reason.
11. Ulpianus, On the Edict, Book XI.
An action based on fraud, or an equitable action will lie for the amount to which the minor was interested in not having the slave manumitted; hence, whatever he could have had if he had not manumitted the slave must now be delivered to him. Again, with reference to those articles belonging to his master which the manumitted slave purloined; a right of action exists against him, for their production, or for theft, or for the recovery of what was stolen; because he appropriated them after he had been manumitted; otherwise, where the crime was committed while he was in slavery, his master will not be entitled to an action against him after he has obtained his freedom. This is contained in a Rescript of the Divine Severus.
(1) What if a minor under twenty-five years of age, and over twenty, should sell a slave under this law, in order that he might be manumitted? I refer to one over twenty, as Scaevola also mentioned this age in the Fourteenth Book of Questions; and it is the better opinion that the rule set forth in the Constitution of the Divine Marcus addressed to Aufidius Victorinus, does not include this case, that is, the one of a minor over twenty years of age. For this reason it should be considered whether relief can be granted to a minor over twenty years of age, he should be heard if he makes application before the slave obtains his freedom, for if he does so afterwards, he cannot. It also may be asked whether, if the party who makes a purchase under this law is a minor, he is entitled to restitution? If the freedom of the slave has not yet been granted he will be entitled to relief, but if he makes application after the appointed day has arrived, then the will of the vendor, if he has attained his majority, liberates the slave.
(2) Inquiry was made with respect to the following statement of facts. Certain youths, who were not of age, had accepted as curator a man named Salvianus, and he, having administered his trust for a time, obtained a municipal office through the favor of the Emperor, and procured from the Praetor his release from the curatorship of the aforesaid minors during their absence. The minors then appeared before the Praetor and asked for complete restitution, because the curator had been discharged contrary to the constitution, for it is not customary for parties to relinquish their guardianship unless they are absent beyond sea on public business, or when they are employed in the personal service of the Emperor; as where this was granted in the case of Menander Arrius the Councilor. Salvianus however, had obtained his discharge, and the minors, having been, as it were, imposed upon, petitioned the Praetor for complete restitution. Arrius Severus, being in doubt, referred the question to the Emperor Severus, who, in answer to this consultation, stated in a Rescript to his successor, Benidius Quietus, that there was no reason for the intervention of the Praetor, because it was not stated that a contract had been made with a minor under twenty-five years of age; but it was the duty of the prince to interpose, and cause him who had been improperly excused by the Praetor to resume the administration of the trust.
(3) It must also be noted that relief cannot be granted to minors indiscriminately, but only where proper cause is shown, and they prove that they have been taken advantage of.
(4) Again, restitution will not be granted where a person who has been conducting his business properly applies for restitution on account of some loss which resulted, not through his own negligence, but through inevitable accident; but it is not the mere occurrence of loss which confers the right of restitution, but the want of reflection which encourages deceit; and this Pomponius stated in the Twenty-eighth Book. Wherefore, Marcellus says in a note on Julianus, that where a minor purchased a slave whom he needed, and the slave soon after died, he was not entitled to restitution; for he was not taken advantage of when he purchased property which was absolutely necessary for him to have, even though it was mortal.
(5) Where anyone becomes the heir of a wealthy man, and the estate is suddenly destroyed; for instance, where lands were ruined by an earthquake, or houses were consumed by fire, or slaves escaped, or died; Julianus speaks in such a way in the Forty-sixth Book as to imply that a minor is entitled to complete restitution, but Marcellus says in a note on Julianus that complete restitution will not be allowed, as the party was not deceived on account of the infirmity of youth, when he entered upon a valuable estate, and that what happened to him through accident, might also happen to the most careful head of a household; but in the following instance, restitution can be granted to a minor, that is to say, where he entered upon an estate to which much property belonged that was liable to destruction; for example, land occupied "by buildings, but heavily encumbered with debt, and he did not foresee that the slaves might die. or the buildings be destroyed, or did not sell the property exposed to so many accidents quickly enough.
(6) The question is also asked, where one minor petitions for restitution against another minor, shall he be heard? Pomponius simply states that restitution should not be granted him; but I think that the Praetor should investigate which one of them was imposed upon, and if they were both deceived, for instance, if one minor lent the other money and he lost it; then (according to Pomponius), he who borrowed the money and squandered or lost it, is in the better condition.
(7) It is clear that where a minor entered into a contract with the son of a family who was of age, then, as Julianus states in the Fourth Book of the Digest, and Marcellus in the Second Book of the Digest, he will be entitled to complete restitution; so that the rule relating to age receives more consideration than the Decree of the Senate.
12. Gaius, On the Provincial Edict, Book IV.
Where a woman intervenes in behalf of a third party in the suit of a minor, no action can be granted him against the woman, but he, just like other persons, will be barred by an exception; because under the Common Law he will be entitled to restitution by an action against the original debtor; and this is the case if the original debtor is solvent, otherwise, the woman cannot invoke the aid of the Decree of the Senate.
13. Ulpianus, On the Edict, Book XI.
In the investigation of cause, attention must be paid to the fact whether relief is to be granted to the minor alone, or also to those who have bound themselves in his behalf; as, for instance, sureties. Therefore, if I know that the party is a minor and have no faith in him, and you become surety for him, it is not just that the surety should be given relief, to my injury; hence the action on mandate should rather be refused the surety. In a word, it should be carefully weighed by the Praetor who is more entitled to relief, the creditor or the surety; for the minor who is taken at a disadvantage will be liable to neither. It will be more easy to state that no relief should be granted in the case of him who directed the creditor, for he was, so to speak, the adviser and persuader who was responsible for the contract with the minor. Hence the point may arise whether a minor ought to apply for complete restitution against the creditor, or against the surety? I think the safer way would be to apply for it against both; for proper cause having been shown, and the parties being present — or while absent if they are in default through contumacy — the question as to whether complete restitution should be granted ought to be carefully weighed.
(1) Sometimes the restitution granted to the minor is in rem; that is to say, it is against the possessor of his property, although no contract was made with him; as, for example, where you purchased property from a minor and sold it to another party, he can sometimes petition for restitution against the possessor to prevent losing his property, or being deprived of it; and in this instance the case is either heard by the Praetor, or the transfer is set aside and an action in rem is granted. Pomponius also states in the Twenty-eighth Book, that Labeo held where a minor under twenty-five years of age sold a tract of land and gave possession, and the purchaser disposed of it; then, if the second purchaser was informed of what has been done, restitution can be granted against him, but if he was ignorant of the facts, and the first purchaser is solvent, this will not be done; but where he is not solvent, it will be more just to grant relief to the minor, even against the purchaser who was uninformed, although he bought the property in good faith.
14. Paulus, On the Edict, Book XI.
It is evident that so long as he who purchased property from a minor, or the heir of said purchaser, is solvent, no decree should be granted against the party who purchased the property in good faith; and this also is the opinion of Pomponius.
15. Gaius, On the Provincial Edict, Book IV.
But where restitution is granted, the second purchaser can have recourse against his vendor. The same rule applies where the purchase has passed through the hands of several persons.
16. Ulpianus, On the Edict, Book XI.
When the case is heard, it also should be taken into consideration whether there is not perhaps some other action available, except the one for complete restitution; for if the party is properly protected by the usual remedy and the ordinary law, extraordinary relief ought not to be granted him; as, for instance, where a contract has been made with a ward without the authority of his guardian, and he does not become more wealthy in consequence.
(1) Moreover, it is stated by Labeo that where a minor has been fraudulently induced to enter a partnership, or even where he does this with a view to making a donation, no partnership exists, even among minors; and hence the Praetor has no reason to intervene. Ofilius is of the same opinion, for the minor is sufficiently protected by operation of law.
(2) Pomponius also says in the Twenty-eighth Book, that when an heir was called upon to deliver certain articles to the daughter of his brother, upon the condition that if she were to die without issue, she should restore them to the heir, and the heir having died, she made provision for them to be restored to his heir; whereupon Aristo thought that she was entitled to complete restitution. Pomponius adds, however, that the bond given could be made the basis of a personal action for an uncertain amount of damages even in the case of a person who is of age, for the party is protected not only by the ordinary law, but also by the personal action.
(3) It is generally established that where a contract is not valid, the Praetor should not interfere if this is certain.
(4) Pomponius also states with reference to the price in a case of purchase and sale, that the contracting parties are permitted to take advantage of one another in accordance with natural law.
(5) It should now be considered who those are who can grant complete restitution. The Prefect of the City, together with the other magistrates, as far as permitted by their jurisdiction, can grant complete restitution in other cases, as well as in those against their own decisions.
17. Hermogenianus, Epitomes of Law, Book I.
Praetorian prefects can also grant complete restitution against their own decisions, although no one can appeal from them. The reason for this distinction is, that an appeal is equivalent to a complaint that the decision is unjust; and complete restitution includes a petition for relief from the party's own error, or an allegation of the fraud of his adversary.
18. Ulpianus, On the Edict, Book XI.
An inferior magistrate cannot grant restitution in opposition to a decree of his superior.
(1) If, however, the Emperor has rendered the decision, he very seldom permits restitution, or allows a party to be introduced into his audience-room who alleges that he was imposed upon because of the infirmity of his youth; or says that matters which were favorable to him were not mentioned; or complains that he was betrayed by his advocate. Hence the Divine Severus and the Emperor Antoninus would not hear Glabrio Acilius, who petitioned for restitution against his brother without stating proper cause, after the case had been heard to its termination in their audience-chamber.
(2) The Divine Severus and Antoninus, when Percennius Severus petitioned for complete restitution, and two decisions had already been rendered, permitted them to be examined in their audience-chamber.
(3) The same Emperor stated in a Rescript to Licennius Fronto, that it was unusual for anyone, except the Emperor himself, to grant restitution after a decision had been rendered on an appeal by a magistrate appointed by the Emperor to preside in his place.
(4) But where a judge appointed by the Emperor hears the case, restitution cannot be made by anyone but the Emperor who appointed the judge.
(5) Complete restitution is granted not only to minors, but also to their successors, even though they themselves may be of age.
19. The Same, On the Edict, Book XIII.
Sometimes, however, we grant a successor a longer time than a year to begin proceedings, as is stated in the Edict, if his age should give occasion for it; for, after his twenty-fifth year, he will be entitled to the time granted by law; as, in this instance, he is held to have been deceived since he could have obtained restitution within the time allowed with respect to the deceased, but did not make application for it. It is clear that if the deceased had only a small portion of the available time remaining in which to obtain complete restitution, his heir, if a minor, will be granted time to obtain it after the completion of his twenty-fifth year, not the entire term prescribed, but only so much as the minor, who was his heir, was entitled to.
20. The Same, On the Edict, Book XI.
Papinianus states in the Second Book of Opinions, that the time appointed for complete restitution should not be extended for the benefit of a party returning from exile, for the reason that he was absent, for he could have applied to the Praetor through an agent, and did not do so, or could have made application to the Governor in the place where he was. But where the same author says that he is not entitled to relief, on account of the punishment imposed upon him; his opinion is not correct, for what is there is common between a criminal offence and an excuse based upon the infirmity of youth?
(1) However, where anyone over twenty-five years of age, having joined issue within the time established by law for restitution, should afterwards abandon the case, the joinder of issue will be of no advantage to him in obtaining complete restitution; as has been very frequently set forth in rescripts.
21. The Same, On the Edict, Book X.
He is considered to have abandoned a case, not if he merely postpones it, but where he entirely renounces it.
22. The Same, On the Edict, Book XI.
Where complete restitution is demanded against the entry on an estate made by a minor, any expense which has been paid out for legacies, or for the value of slaves who have obtained their freedom by means of his entry, will not have to be refunded by the minor. In the same way, on the other hand, when a minor obtains restitution for the purpose of entering upon an estate, any business which has been transacted by his curator, for the disposition of property under the order of the Praetor authorizing the sale of the same according to the form established by law, must be ratified; as Severus and Antoninus stated in a rescript to Calpurnius Flaccus.
23. Paulus, On the Edict, Book XI.
Where the son of a family transacts business under the mandate of his father, he cannot claim the benefit of restitution; for if another had given him the mandate he would not be entitled to relief, as, under these circumstances, the party principally interested would be of age, and he would be liable to loss. But if, in the end, the minor suffered loss because he was not able to recover the amount which he had expended from the party whose business he transacted, for the reason that he was not solvent, the Praetor undoubtedly will come to his aid. If, however, the principal was a minor, and the agent the party of full age, the principal would not readily be heard, unless the business had been transacted by his order and he cannot be indemnified by his agent. Therefore, if a minor is taken advantage of while in the capacity of agent, the blame must be imputed to the principal who entrusted his business to a person of this description, and this also is the opinion of Marcellus.
24. Paulus, Sentences, Book I.
But where a minor voluntarily meddles with the business of a person who is of age, he is entitled to restitution to prevent loss from being incurred by the party who is of age; and if he refuses to do this, and he then is sued on the ground of business transacted, he will not be entitled to restitution against the action; but he may be compelled to surrender his right to complete restitution, in order to constitute the principal an agent in his own behalf, so that, by this means, he may be able to make good the loss which he suffered through the minor.
(1) Business transactions with minors should not, however, always be rescinded, but such matters should be based upon what is good and just, to prevent persons of this age from being subjected to great inconvenience, since, otherwise, no one would contract with them; and, to a certain extent, they would be excluded from commercial affairs. Hence the Praetor ought not to interpose his authority unless there is manifest evidence of fraud, or the parties have acted with gross negligence.
(2) Scaevola, our master, was accustomed to say that if anyone induced by the frivolity of youth, abandoned or rejected an estate, or the possession of property, and everything remained intact, he should by all means, be heard; but if, after the estate had been sold and the business settled, he should appear and claim the money which had been obtained by a substitute, his application should be denied; and, in a case of this kind, the court should be much more careful in granting restitution to the heir of the minor.
(3) Where a slave, or the son of a family, has deceived a minor, the father or the owner should be ordered to make restitution of whatever has come into his hands, and whatever he did not secure possession of, should be paid out of the peculium. If satisfaction cannot be obtained from either of these sources, and the slave was guilty of fraud, he either should be scourged, or surrendered by way of reparation. Where, however, the son of a family committed fraud, judgment should be rendered against him on that ground.
(4) Restitution should be granted so that every one may recover his entire rights. Therefore, where restitution is granted to a party who has been cheated in the sale of land, the Praetor must order the purchaser to restore the land with the crops, and receive the price paid for the same; unless when he paid it, he was not ignorant that the vendor would squander it, as where money is lent to a person to be expended. Restitution is not so freely granted in the case of a sale, however, for the reason that the purchaser pays the vendor a debt which he is obliged to pay, as nobody is obliged to loan money; for although the contract in its origin may be of such a character that it ought to be annulled, nevertheless, if the purchase-money is required to be paid, the purchaser should not, by any means, be subjected to loss.
(5) No peculiar action or undertaking arises from this Edict, for all depends upon the examination by the Praetor.
25. Gaius, On the Provincial Edict, Book IV.
There is no question about the following, namely, that where a minor pays something which he does not owe, in a matter where demand for restitution is not allowed by the Civil Law, he is entitled to a praetorian action for its recovery; since such a demand is usually granted on proper grounds, even to persons who are over twenty-five years of age.
(1) Where a young man of this kind, who is entitled to restitution applies for it, it should be granted upon his application, or upon that of his agent, who has been expressly directed to ask for it; but where the party only alleges a general mandate for transacting the business of his principal, he should not be heard.
26. Paulus, On the Edict, Book XI.
Where any doubt arises with reference to a special mandate when restitution is applied for; the matter can be arranged by the introduction of a stipulation that the principal will ratify the transaction.
(1) Where the person who is said to have been imposed upon is absent, his defender should give security that the judgment will be complied with.
27. Gaius, On the Provincial Edict, Book IV.
Restitution should be granted under all circumstances to a father in behalf of his son; even though the latter does not consent to it; for the reason that a risk attaches to the father who is liable to an action De Peculio. From which it is evident that other relatives or connections are in a different legal position, and should not be heard, except where they make application with the consent of the minor; or where the life of the minor is such that there is reason for him to be prohibited from having charge of his property.
(1) Where a minor borrows money and squanders it, the Proconsul should refuse to grant his creditor an action against him. Where, however, the minor lends money to a party who is needy, no other proceedings should be taken, except that the minor should be ordered to assign to his creditor those rights of action which he has against him to whom he loaned the money. If he has purchased, with the money, some land for a higher price than he should have been asked, the matter ought to be settled by ordering the vendor to take back the land and return the price, so that the creditor may recover his money from the minor without any loss to another. From this we learn what should be done where a minor purchases with his own money something for more than it is worth; but in this, as well as in the former instance, the vendor who returns the purchase-money must also return the interest which he obtained, or which he ought to have obtained from the use of said money, and shall receive the profits of the land by which the minor was enriched. Also, on the other hand, where a minor sells property for less than it is worth, the purchaser must be ordered to return to him the land with its profits, and the minor must restore as much of the price as enured to his profit.
(2) Where a minor under twenty-five years of age gives a release to his debtor without good reason, he is entitled to an action for restitution not only against the debtor, but also against his sureties; as well as an action for any pledges delivered to him; and where he had two principal debtors, and gave one of them a release, he will have a right to an action for restitution against both.
(3) From this we understand that if a minor should make a renewal of a contract to his disadvantage; for instance, if he should, for the purpose of novation, transfer the liability from a solvent debtor to one who is insolvent, he must be granted restitution against the former debtor.
(4) Restitution also must be granted against those who cannot be proceeded against on the ground of fraud, unless they are persons who are excepted by some special law.
28. Celsus, Digest, Book II.
Where a minor under twenty-five years of age obtains restitution against a party whom he sued on the grounds of guardianship, the guardian cannot, on this account, have the right to a counter action on guardianship restored to him.
29. Modestinus, Opinions, Book II.
Even where it can be established that a minor has been imposed upon by his father, who was also his guardian, and a curator is afterwards appointed for him, the latter cannot be prevented from applying for complete restitution in behalf of the minor.
(1) Where a female ward who had judgment rendered against her in a case based on curatorship, wished to obtain restitution with reference to one part of the decision; and as it appeared that she had succeeded with reference to the other matter in the case, the plaintiff, who was of age, and had at first acquiesced in the decision, claimed that a new trial should be granted. Herennius Modestinus answered to this, that if the point with reference to which the female ward requested complete restitution had no connection with the others, no reason was alleged for which the plaintiff could demand that the entire judgment should be set aside.
(2) Where a minor obtains complete restitution on account of his youth, and by reason of this rejects his father's estate, none of the creditors of the latter being present, or having been summoned by the Governor for the purpose of instituting proceedings; the question arises whether restitution should be considered to have been properly granted? Herennius Modestinus gave it as his opinion that since the creditors were not summoned, and the judgment of restitution had been rendered without this, the rights of the creditors were not in the least impaired.
30. Papinianus, Questions, Book III.
Where a son, who has been emancipated, fails to appear to demand possession of an estate, but petitions for restitution, and having reached the age of twenty-five years brings suit for a legacy under his father's will; he is held to have abandoned the case, for if the time for obtaining possession of the property has not elapsed, still, having chosen to accept the will of the deceased, he must be considered to have rejected the benefit of the intervention of the Praetor.
31. The Same, Opinions, Book IX.
Where a woman, after becoming an heir, obtained complete restitution for the purpose of enabling her to reject the estate; I gave it as my opinion that the slaves belonging to the estate who had been manumitted by her in proper form, under a trust, were entitled to retain their freedom, and that they would not be compelled to pay twenty aurei in order to retain it, as they appeared to have obtained it in the most approved manner. For if any of the creditors had recovered their money from her before she had obtained restitution, the claims of others against those who had been paid, with a view to having the money divided among them, would not be allowed.
32. Paulus, Questions, Book I.
A minor under twenty-five years of age having applied to the Governor convinced him, from his appearance, that he was of age, which was not the case; but his curators, as they knew him to be a minor, continued to conduct his affairs. In the meantime, after his age had been proved, and before he had completed his twenty-fifth year, certain sums of money that were due to the minor were paid to him, which he squandered. I ask who is responsible for the loss; for if the curators had been in error, and thinking that he had attained his majority, had relinquished the administration of his property, and rendered their accounts, would they have to assume the risk for the time which had passed after proof of his age had been established? I answered that those who have paid their debts are released by operation of law, and cannot be sued a second time. It is evident that the curators who, knowing the party to be a minor, persevered in the discharge of their duties, ought not to have allowed him to receive the money which was due; and on this account suit should be brought against them. If, however, they themselves accepted the decision of the Governor, and ceased to administer their trust, or even rendered an account; they are in the same legal position as other debtors, and therefore should not be sued.
33. Aburnius Valens, Trusts, Book VI.
Where a minor under twenty-five years of age is requested to manumit his slave, who is worth more than the legacy bequeathed in the will to said minor, and he accepts the legacy; he cannot be forced to grant freedom to the slave if he is ready to return the legacy. Julianus was of the opinion that, as minors have the right to decline a legacy if they are unwilling to manumit a slave; so a minor, in this instance, if he returns the legacy, is released from the necessity of manumission.
34. Paulus, Sentences, Book I.
Where a minor under twenty-five years of age lends money to the son of a family who is also a minor, the position of the one who spends the money is the better; unless he who receives it was found to be the more wealthy for this reason, at the time when issue was joined.
(1) Where minors have agreed with one another to submit their case to a certain judge, and have, with the consent of their guardian, stipulated to abide by his decision, they can legally ask for complete restitution against an obligation of this kind.
35. Hermogenianus, Epitomes of Law, Book I.
Where, in a purchase of property at auction, another party makes a better bid than a minor, if the latter asks for complete restitution, he must be heard, if it is proved that he was interested in the purchase of the property, for instance, because it had belonged to one of his ancestors; but this is only upon condition that he offers to the vendor the amount of the excess bid by the other party.
36. Paulus, Sentences, Book V.
A minor under twenty-five years of age who has failed to make some allegation, can do so by the aid of complete restitution.
37. Tryphoninus, Disputations, Book III.
The aid granted by complete restitution was not provided for the imposition of penalties; and hence where a minor has once neglected to bring an action for injury, he cannot recover the right to do so.
(1) Where the sixty days have elapsed, during which a man can accuse his wife of adultery by the right of a husband; complete restitution will be refused him, and if he now wishes to recover the right which he failed to exercise, how would this differ from an application to be released from the commission of an offence; that is to say, from the institution of a suit for the purpose of annoyance. Since it is a well established principle of law that the Praetor should not come to the aid of parties who have committed crimes, or have instituted vexatious proceedings; complete restitution will not apply under such circumstances. In a case of crime, a minor under twenty-five years of age is not entitled to complete restitution, at all events, where more serious offences are concerned; unless, when compassion for his youth may sometimes cause the judge to impose a milder penalty. But with reference to the Lex Julia which relates to the punishment of adultery, where a minor confesses that he has been guilty of adultery, he cannot escape the penalty for this offence; nor, as I have stated, can he do so where he commits any of these offences which the law punishes as it does adultery; for instance, where he knowingly marries a woman who has been convicted of adultery; or does not dismiss his own wife who was caught in adultery; or where he profits by the adultery of his wife; or accepts a reward for the concealment of unlawful intercourse; or permits his house to be used for the commission of fornication or adultery; for the excuse of youth cannot be pleaded against legal provisions, where a man although he invokes the law himself violates it.
38. Paulus, Decrees, Book I.
Aemilius Larianus purchased from Obinius the Rutilian tract of land, subject to the condition of payment on a certain day, and paid down a part of the purchase-money; it being understood that if, within two months from that date, he should not have paid half of the remainder of the price, the sale should be considered void; and also, if he did not pay the remainder within two months more, the sale should also be held to be void. Larianus, having died before the first two months had elapsed, was succeeded as heir by Rutiliana, a minor, whose guardians neglected to make payment within the specified time. The vendor, having served several notices upon the guardians, after a year had elapsed sold the property to Claudius Telemachus; and then the ward applied for complete restitution, and having lost the case before the Praetor, as well as the Prefect of the City, she appealed. I was of the opinion that the decision was correct, because her father, and not herself, made the contract; the Emperor, however, decided that, as the day when the condition was to be fulfilled came during the time when the girl was a ward, this was good cause why the condition of the sale should not be observed. I stated that she was rather to be granted restitution for the reason that the vendor, by notifying her guardians after the time when it was agreed that the sale should be annulled, and by demanding the purchase-money, should be held to have abandoned the condition which was for her benefit, and that I was not influenced by the fact that the time had afterwards elapsed; any more than I would have been had a creditor sold a pledge after the death of a debtor, when the day of payment had passed. Still, because the law of conditional avoidance was displeasing to the Emperor, he decreed that complete restitution should be granted. He was also influenced by the fact that former guardians, who had not applied for restitution, had been declared to be liable to suspicion.
(1) When it is stated that relief is not ordinarily granted to the son of a family after he has been emancipated, if he is still a minor, with reference to matters which he had neglected while under paternal control; this is only held to be the case where he would otherwise acquire property for the benefit of his father.
39. Scaevola, Digest, Book II.
Where minors appeared before the Governor, within the proper time, to obtain relief, and petitioned for complete restitution, and proved their age; and judgment having been granted on account of their minority; their opponents, for the purpose of preventing further proceedings before the Governor, appealed to the Emperor, and the Governor deferred the other matters which were to be decided in the action until the result of the appeal was ascertained; the question arose whether, when the examination of the appeal was concluded, and the appeal was dismissed, and the parties found to have become of age, they can bring the case to a termination, since it was not their fault that it was not finished? I answered that, considering the question as stated, the case could be tried just as if the parties were still under age.
(1) Lucius Titius purchased a tract of land sold by the curators of a minor, and held it in his possession for nearly six years, and greatly improved the property. I ask whether the minor has the right of complete restitution against Titius, the purchaser, if his curators are solvent? It is my opinion, from all that has been stated, that the minor would hardly be entitled to restitution, unless he preferred to reimburse the bona fide purchaser for all the expense which the latter could prove he had incurred, and especially as he could readily obtain relief, since his guardians were solvent.
40. Ulpianus, Opinions, Book V.
A minor under twenty-five years of age obtained a judgment ordering that a legacy, based upon a trust, be paid to him; he gave a release for it, and the debtor furnished him security, just as if he would have done if the money had been borrowed. Under these circumstances, the minor is entitled to complete restitution; for the reason that he had obtained a right to bring an action for money on account of a judgment, and by a new contract he had changed that right for one for the institution of proceedings of another kind.
(1) A minor under twenty-five years of age, without proper deliberation, surrendered land which belonged to his father in settlement of debts shown by the accounts to belong to the guardianship of other minors, whose affairs his father had transacted. Complete restitution was ordered that matters might be equitably restored to their former condition, and the amount of interest which appeared to be due on account of the guardianship was calculated and set off against the amount of the profits received.
41. Julianus, Digest, Book XLV.
When a judge orders land to be restored where a minor has been overreached in a sale, and directs him to return the price of the same to the purchaser, and he is unwilling to take advantage of complete restitution, having changed his mind; the minor is entitled to an exception against the party demanding the purchase-money, as in the case of res judicata; because every one is permitted to reject what was introduced for his own benefit. Nor can the purchaser complain if he is restored to the same condition in which he was placed by his own act, and which he could not have changed if the minor had not sought the aid of the Praetor.
42. Ulpianus, On the Office of Proconsul, Book II.
The Governor of a province can grant complete restitution to a minor, even against his own decision, or that of his predecessor; because minors can, on account of their age, obtain the same benefit which an appeal confers upon persons who have reached their majority.
43. Marcellus, On the Office of Governor, Book I.
The age of a party who states that he is over twenty-five must be proved by investigation, because by this means his complete restitution, as well as other matters, may be prevented.
44. Ulpianus, Opinions, Book V.
All the acts of minors under twenty-five years of age are not invalid, but only those of such as, after investigation, are ascertained to have been overreached; as where they were imposed upon by others, or were deceived by their own credulity, or lost something which they formerly had, or failed to obtain some profit which they could have acquired, or subjected themselves to some liability which they ought not to have assumed.
45. Callistratus, Monitory Edict, Book I.
Labeo states than an unborn child is entitled to an action for restitution, where he has lost something by usucaption.
(1) The Emperor Titus Antoninus stated in a Rescript that where a minor alleged that his adversary had been discharged through the fraud of his guardian, and wished to begin a new action against him, he could first bring suit against his guardian.
46. Paulus, Opinions, Book II.
Where anyone voluntarily undertakes to defend a minor in a trial, and the latter loses his case, suit can be brought against him to enforce the judgment; and the youth of the party whom he defended will be of no benefit to him in obtaining restitution, since he cannot object to the judgment. From this it appears that the minor, on whose account judgment was rendered against him, cannot apply for the aid of restitution against the decision.
47. Scaevola, Opinions, Book I.
A guardian, being pressed by creditors, made a bona fide sale of the property of his ward, and his mother protested against the sale to the purchasers. I ask, since the property was sold on the demand of the creditors, and nothing could reasonably be alleged concerning the corruption of the guardian, whether the ward was entitled to complete restitution? I answered that inquiry must be made in order to determine this; and therefore, if there was just cause for restitution, it ought not to be refused because the guardian was not guilty of any offence.
(1) A guardian of minors sold certain lands which he held in common with his wards, and of which he had charge. I ask if the minors are entitled to complete restitution by the decree of the Praetor, or whether the sale should be rescinded only so far as they had an interest in the common property? I answered that it should be rescinded to that extent; unless where the purchaser desired to have the entire contract rescinded, because he was unwilling to purchase only a share in the land. I also ask whether the purchaser should receive from the wards, Seius and Sempronius, the purchase-money, with interest; or whether he should receive it from the heir of the curator? I answered that the heir of the curator would be liable, but that actions would be granted against Seius and Sempronius for the shares which they owned in the land; at all events, if the money received had come into their hands to that amount.
48. Paulus, Sentences, Book I.
Where a minor obtains complete restitution in a matter for which he became surety, or gave a mandate, he does not release the principal debtor.
(1) A minor sold a female slave; if the purchaser manumitted her, the minor could not obtain complete restitution on this account, but he would be entitled to an action against the purchaser to the extent of his interest.
(2) Where the condition of a woman under twenty-five years of age becomes worse on account of an agreement relating to her dowry; and she made such a contract as no woman who had attained her majority would ever make, and for that reason she wished to rescind it, she should be heard.
49. Ulpianus, On the Edict, Book XXXV.
Where property belonging to a minor or a ward which the law does not forbid to be sold, is alienated, the sale is valid. If, however, great loss results to the ward or the minor, even if there is no collusion, the sale may be rescinded by complete restitution.
50. Pomponius, Letters and Various Passages, Book IX.
"Julius Diophantus, to his friend Pomponius, Greeting.
A minor under twenty-five years of age, with the intention of renewing
a contract, intervened in behalf of the party who was liable in an
action which would be barred by lapse of time, while ten days of said
time still remained, and he afterwards obtained complete restitution.
Should the right of restitution be granted to the creditor against
the former debtor, for ten days, or for a longer period? I held that
so much time should be granted from the day of complete restitution
as remained, and I wish that you would write to me what you think
about it." I answered, I undoubtedly think that your opinion
with respect to the right of action dependent upon the time in which
the minor intervened, is the more correct one; and therefore that
the pledge which the former gave will still remain encumbered.
Tit. 5. Concerning the change of condition.
Capitis Minutio is a change of condition.
2. Ulpianus, On the Edict, Book XII.
This Edict has reference to such changes of condition as happen without affecting the rights of citizenship. But where a change of condition takes place either through loss of citizenship or of freedom, the Edict will not apply, and such persons cannot, under any circumstances, be sued, but it is clear that an action will be granted against those into whose hands their property has passed.
(1) The Praetor says: "If any man or woman is said to have suffered the loss of civil rights after having performed some act, or made some contract, I will permit an action to be brought against him or her, just as if such change of condition had not occurred."
(2) Those whose condition has been changed remain naturally bound, for the reason which existed before said change took place; but if they arose afterwards, anyone who agrees to pay the said parties money, or enters into a contract with them, will have only himself to blame, so far as relates to the terms of this Edict. Sometimes, however, an action should be granted where a contract is made with them after their change of condition; and, indeed, where the party is arrogated, there is no difficulty, for then he will be liable just like the son of a family.
(3) No one is exempt from the penalty for crime, even though his civil condition be changed.
(4) Where a party has arrogated his debtor, his right of action against him will not be restored after he becomes his own master.
(5) This right of action is perpetual, and is granted both to and against heirs.
3. Paulus, On the Edict, Book XI.
It is established that children, when they follow their father who has been arrogated, sustain a loss of civil rights, since they come under the control of another, and change their family.
(1) A change of condition evidently takes place where a son or other persons are emancipated, since no one can be emancipated without having been first reduced to a fictitious servile condition. The case is entirely different where a slave is manumitted, as a slave enjoys no civil rights whatever, and therefore he cannot change his condition:
4. Modestinus, Pandects, Book I.
For he first begins to have a civil status on the day when he is manumitted.
5. Paulus, On the Edict, Book XI.
A change of condition takes place by loss of citizenship, as in the case of the interdiction of fire and water.
(1) Those who desert lose their civil rights, and they are said to desert, who abandon the person under whose command they are, and place themselves in the class of enemies; and this applies to persons whom the Senate declares to be enemies, or renders them such by an enactment to the extent that they forfeit their citizenship.
(2) It should now be considered what things are lost by a change of civil status; and in the first place, with reference to that loss of condition which happens when citizenship is retained, and by which it is established that a party is not deprived of his public rights; for it is certain that the rank of magistrate, Senator, or judge is preserved.
6. Ulpianus, On Sabinus, Book LI.
For other public offices are not lost by a person whose status is changed in this way; for a change of status deprives a man of certain private and domestic rights, but it does not deprive him of those of citizenship.
7. Paulus, On the Edict, Book XI.
A change of condition does not deprive a person of the rights of guardianship; except in those cases where they are given to parties who are subject to the authority of others; and therefore guardians appointed by will, by law, or by a decree of the Senate will still remain such; but legal guardianships based on the law of the Twelve Tables are abrogated, for the same reason as legitimate inheritances, because they are given to agnates who cease to be such when their families are changed. Both inheritances and guardianships based upon new laws are generally so bestowed that the parties who receive them are designated by their natural relations; as, for instance, where decrees of the Senate confer inheritances on mothers and sons.
(1) Obligations arising from injuries, and actions derived from crimes, follow the individual everywhere.
(2) Where a party is deprived of freedom, he changes his condition in consequence, and no right of restitution can be granted against a slave, because a slave cannot be bound so as to be liable even in an action under Praetorian jurisdiction; but an equitable action will be granted against his master, as Julianus asserts, and unless he is defended for the entire amount, an order must be granted me to seize the property which he formerly held.
(3) Likewise, where citizenship is forfeited, there is no justice in admitting restitution against a party who has lost his property, and having left the city, goes into exile stripped of everything.
8. Gaius, On the Provincial Edict, Book IV.
Those obligations which are understood to be fulfilled in accordance with natural law, it is evident cannot be lost by a change of condition, because no civil rule can destroy natural rights; therefore a right of action for dowry which is founded on what is good and equitable, will still remain unimpaired after a change of condition.
9. Paulus, On the Edict, Book XI.
So that a woman, even after she has been emancipated, may bring suit.
10. Modestinus, Differences, Book VIII.
Where a legacy is left to be paid every year, or every month, or a legacy of habitation is bequeathed, it is extinguished by the death of the legatee; but where there is a change of condition it continues without interruption, for the reason that a legacy of this kind is rather dependent upon fact than upon law.
11. Paulus, On Sabinus, Book II.
There are three kinds of changes of condition, the greatest,
the intermediate, and the least; as there are three conditions, which
we may have, namely, those of freedom, citizenship, and family. Therefore,
when we lose all of these, that is to say freedom, citizenship, and
family, the greatest change of condition ensues; but where we lose
citizenship and retain freedom, intermediate loss of condition occurs;
and when freedom and citizenship are retained, and only the family
position is altered, it is established that the least change of condition
Tit. 6. What the grounds are on which persons over twenty-five years of age are entitled to complete restitution.
No one will refuse to acknowledge that the basis of this Edict is perfectly just; for where a man's rights have been impaired during the time when he was in the service of the State, or where he suffered some misfortune, it affords a remedy; and relief is also granted against such persons, so that whatever occurred will neither benefit nor injure them.
(1) The following are the terms of the Edict: "Where any portion of the property of a party has been injured while he was under duress, or, without the existence of fraud, absent in the service of the State, or in prison, or in slavery, or in the power of the enemy; or has permitted the time to elapse for beginning an action, or where anyone has acquired property by use, or obtained anything and lost it by want of use; or has been released from liability to be sued, because of lapse of time, and he being absent, was not defended; or was in chains; or had made no provision by which he might be sued; or, when it was not lawful for him to be brought into court against his will, no defence was offered for him; or when an appeal was made to a magistrate or to someone acting as magistrate, and his right of action was lost, withany fraud on his part; in all these instances I will grant an action within the year during which the party had the right to apply. Moreover, where any other just cause seems to exist, I will grant complete restitution, when this is authorized by the laws, the plebiscites, the decrees of the Senate, or the edicts and the ordinances of the Emperors."
2. Callistratus, Monitory Edict, Book II.
This Edict, so far as it relates to those who are included therein, is not much used at present, as justice is administered in the case of such persons by extraordinary procedure, based upon the decrees of the Senate and the Imperial Constitutions.
(1) Those persons are chiefly relieved under this head who are absent on account of fear; that is to say, where they were not deterred by alarm that had no foundation.
3. Ulpianus, On the Edict, Book XII.
Anyone is considered to have been absent on account of fear who remains away through just apprehension of death or corporeal torture, and this must be ascertained from its effect upon him; for it is not sufficient that, influenced by any kind of apprehension, he remained in terror, but the determination of this fact is the duty of the judge.
4. Callistratus, Monitory Edict, Book II.
Those who are included who, without fraudulent intent, were absent in the service of the State. The expression "fraudulent intent" must be understood to have reference to a case in which a person who can return, does not do so and is not relieved, in case any wrong has been committed against him during his absence; as, for instance, where he remained away for the purpose of obtaining some substantial advantage for himself while he was absent in the service of the State, he would be deprived of this privilege.
5. Ulpianus, On the Edict, Book XII.
The case would be the same where he contrived to be absent or took care to do so, even if he obtained no benefit by it; or if he departed too soon; or where the cause of his absence originated in a lawsuit. The addition of fraudulent intent refers to parties who are absent in the service of the State, and not to those who are absent on account of fear, since there is no fear where fraud is involved.
(1) Parties, however, who are employed in public offices at Rome, are not considered to be absent in the service of the State:
6. Paulus, On the Edict, Book XII.
As, for example, magistrates.
7. Ulpianus, On the Edict, Book XII.
It is evident that soldiers who are stationed at Rome must be considered as absent in the service of the State.
8. Paulus, Abridgments, Book III.
Relief is granted to municipal envoys by a Constitution of the Emperors Marcus and Commodus.
9. Callistratus, Monitory Edict, Book II.
Relief is also granted to anyone who is in prison, which not only refers to those who are in public prisons but also to persons who are kept in confinement by thieves, or robbers, or by the employment of resistless force. The term has a broader signification, for those also are considered to be imprisoned who are confined in stone quarries, because it makes no difference whether they are restrained by walls, or by fetters. Labeo thinks, however, that the term should only be understood to mean legal imprisonment.
10. Ulpianus, On the Edict, Book XII.
Those persons are also in the same position who are guarded by soldiers, attendants of the Magistrates, or Municipal Authorities, where it is proved that they are unable to manage their own affairs. We also consider those to be under restraint who are bound to such an extent that they cannot appear in public without disgrace.
11. Callistratus, Monitory Edict, Book II.
Relief is also granted to those who are in slavery, whether, being freemen, they served as slaves in good faith, or whether they were simply detained.
12. Ulpianus, On the Edict, Book XII.
He also, who is engaged in litigation with reference to his status is not included in this Edict, as soon as the case is brought into court; and therefore he is considered to be in slavery only so long as proceedings of this kind are not instituted.
13. Paulus, On the Edict, Book XII.
Labeo very properly says that a party who has been appointed heir, and granted his freedom, is not included in the terms of the Edict before he really becomes the heir; for before that, he cannot hold property, and the Praetor speaks of men who are free.
(1) I am of the opinion, however, that the son of a family conies within the terms of this Edict where his castrense peculium is involved.
14. Callistratus, Monitory Edict, Book II.
Relief is also granted to him who is in the power of the enemy, that is to say who has been captured by him, for it must not be thought that any benefit is accorded to deserters, to whom the right to return is denied. Those, however, who are in the power of the enemy may be considered to be included in that part of the Edict, in which persons who have been in slavery are mentioned.
15. Ulpianus, On the Edict, Book XII.
Relief is granted to persons captured by the enemy, where they return under the right of postliminium, or where they die; since they cannot appoint an agent, while the others above mentioned can be readily aided by means of one; with the exception of those who are held in slavery. I think, however, that aid can be rendered in behalf of a party who is in the power of the enemy, if a curator is appointed for the management of his property, as is generally the case.
(1) Relief is granted to a child born in the hands of the enemy, if he has the right to return, just as to one who was captured.
(2) Where a man is placed in possession of the house of a soldier for the purpose of preventing threatened injury; and the Praetor grants possession to anyone while he is present, he will have no right to demand restitution; but, where the custodian was absent, it must be held that he is entitled to relief.
(3) Where the Praetor says in the Edict: "Or afterwards" without anything further, it must be understood that if a possessor in good faith held the property before the absence of the owner, and the possession terminated on his return, he would have ground to apply for restitution, not at any time, but only where this happened soon after his return; that is to say, during the time required to find a lodging, arrange his baggage, and seek an advocate; for Neratius states that he who defers an application for restitution should not be heard.
16. Paulus, On the, Edict, Book XII.
Relief is not granted to persons who are negligent, but only to those who are hindered by force of circumstances. All this is to be referred to the judgment of the Praetor; that is to say, he must only grant restitution where a person could not join issue by reason of want of time, and not where he was guilty of negligence.
17. Ulpianus, On the Edict, Book XII.
Julianus stated in the Fourth Book, that relief could not only be granted to a soldier against the party in possession of an estate, but also against those who had purchased from the possessor; so that if the soldier should accept the estate, he can recover the property, but if he does not accept it, prescription would evidently continue to run afterwards.
(1) Where a legacy has been bequeathed in the following terms: "Or for every year, that he shall remain in Italy"; restitution may be granted so that he may receive the amount as if he had been in Italy, as Labeo states; and Julianus in the Fourth Book, and Pomponius in the Thirtieth Book, approved of this opinion; for the right of action is not extinguished through lapse of time where the aid of the Praetor becomes necessary, but the case is conditional.
18. Paulus, On the Edict, Book XII.
It must be remembered that we grant the aid of restitution when the parties have attained their majority, only where they attempt to recover their property; and not where they desire relief to be given them, for the purpose of gain, or to inflict a penalty or loss on some other person.
19. Papinianus, Questions, Book III.
Moreover, if a purchaser, before obtaining a title to property by prescription, is captured by the enemy, it is settled that the possession, which was interrupted, is not restored by the right of postliminium; because prescription is not operative without possession, for possession is generally a question of fact, and this does not come under the rule of postliminium.
20. The Same, Questions, Book XIII.
A praetorian action cannot be granted to the purchaser, since it would be most unjust to deprive an owner of anything where this was not done by use; nor can that be understood to be lost which was not taken away by another.
21. Ulpianus, On the Edict, Book XII.
The Praetor also says: "Where anyone acquires property by use, or loses it by non-user, or is released from liability because his right of action is barred by lapse of time when the party was absent and no defence was made for him." The Praetor inserted this clause so that, just as he comes to the relief of the above mentioned persons, to prevent them from being taken advantage of; so also, he may intervene to prevent them from taking advantage of others.
(1) It should be noted that the Praetor expresses himself more fully, where he grants restitution against those who are absent, than where he grants it to them; for, in this instance, he does not enumerate the persons against whom he gives relief, as above, but he adds a clause which includes all who are absent and are not defended.
(2) This restitution is also granted whether those who are absent and are not defended have obtained a title to the property by prescription, either by themselves or through persons under their control, but only where none of them appeared as a defender; for if there was an agent, as you have someone to bring suit the other party should not be disturbed. Moreover, if no defender appeared, it is perfectly just that relief should be granted; and there is the more reason for this, if any of those who were not defended remain concealed; as the Praetor promises in the Edict to grant possession of the property and, if the case requires it, it may be sold; but where the parties do not remain concealed, although no one appears to defend them, he promises merely to give possession of the property.
(3) A party is not considered to be defended where someone voluntarily appears as his representative, but where he is requested by the plaintiff and does not fail to conduct the defence; and a complete defence must be understood to be one where the party does not avoid the trial, and gives security to comply with the judgment.
22. Paulus, On the Edict, Book XII.
It must, therefore, be remembered that this Edict is only operative where when the friends of the party were asked whether they would defend him, or where there was no one who could be asked to do so; for an absent person is not considered to be defended if the plaintiff of his own accord calls upon him, and no one offers himself to conduct the defence, and thus must be established by evidence.
(1) Therefore, as the Praetor is not willing that the parties should suffer loss; so, on the other hand he does not permit them to obtain any advantage.
(2) Labeo states that this Edict also has reference to insane persons, infants, and municipalities.
23. Ulpianus, On the Edict, Book XI.
The Praetor says: "Or was in prison, and had made no provision by which he could be sued." Persons of this kind are added with good reason, for it could happen that a party might be imprisoned, and still be present, whether he was placed under restraint, by the authorities, or by private individuals; for it is well settled that a person who is imprisoned can acquire property by use so long as he is not in slavery. Restitution will not apply where the party who is in prison has someone to conduct his defence.
(1) A person who is in the power of the enemy cannot acquire property for himself by use, nor can he, as long as he is in captivity, complete possession which had begun to run; nor, if he returns under the right of postliminium, can he recover the acquisition of ownership by use.
(2) Moreover, Papinianus states that a person should be granted relief who, during captivity, has lost the possession of land or the quasi possession of the usufruct of the same; and he thinks that it is just that the profits received from the usufruct by another, in the meantime, should be restored to the captive on his return.
(3) It is evident that those who are under the control of the captive can acquire property by use, through their peculium; and it will be just that under this clause relief should be granted to those who are present; that is to say, to such as are not in captivity, where anything was acquired by another by usucaption when they were not defended. But where the time for bringing an action against the captive has elapsed, relief will be granted against the party who brings it.
(4) The Praetor next adds: "Or makes no provision by which he could be sued"; and if, while he was doing so, the acquisition by use should be completed, or something else above mentioned should happen, restitution should be granted. There is reason in this, for an order of court to place the party in possession of the property is not always sufficient, because sometimes conditions are such that possession of the property of a person who is concealing himself cannot be given; as, for example, where the action is barred by lapse of time, while the party is seeking an advocate, or something else occurs to delay the trial.
24. Paulus, On the Edict, Book XII.
The Edict also has reference to those who, when sued, attempt to embarrass the plaintiff, and endeavor by delay and artifice to prevent the trial of the case.
25. Gaius, On the Provincial Edict, Book IV.
In like manner, we say that it has reference to a person who conceals himself, not for the purpose of avoiding a suit, but because he is impeded by a press of business.
26. Ulpianus, On the Edict, Book XII.
But where the Praetor is to blame, restitution will be granted.
(1) Pomponius says that restitution against a man who has been relegated will be granted under the general terms of the Edict; but it will not be granted to him, because he could have appointed an agent. I think, nevertheless, that, where proper cause is shown, he himself would be entitled to relief.
(2) The Praetor further says: "Or where it was not lawful for him to be summoned against his will, and no one defended him." This clause has reference to those who, according to the custom of our ancestors, could not with propriety be cited into court; for instance the consul, the Praetor, and others who exercise power or authority; this Edict, however, does not apply to those whom the Praetor forbids to be summoned without his permission (since application to him might have obtained permission), for example, patrons and parents.
(3) He next adds: "And no one defended him"; which has reference to all the parties above-mentioned, except to one who, while absent, obtained something by usucaption, because this case has already been fully provided for above.
(4) The Praetor also says: "Or where his right of action was held to be lost, through the act of the magistrate, without any fraud on his part." What is the object of this? It is that restitution may be granted if a right of action is taken away on account of delays caused by the judge. Again, if there is no magistrate at hand, Labeo says that restitution should be granted. Where the right of action was "lost through the action of the magistrate", we must understand that this was done where he refused to permit the case to be filed; but otherwise, where investigation was made, and he declined to permit the action to be brought, restitution does not apply; and this opinion is held by Servius. Moreover, the magistrate appears to be to blame if he denied the application through favor to the other party, or through corruption; in which instance this section as well as the former one will be operative, namely: "Or made no provision by which he could be sued"; for the litigant did this when he corrupted the judge to avoid being sued.
(5) By the "loss of right of action", it must be understood that the party was no longer able to bring suit.
(6) He also adds, "Without any fraud on his part", for the reason that if he was guilty of fraud, he should not obtain any relief; as the Praetor does not aid persons who themselves commit offences. Consequently, if the party wishes to bring suit before the next Praetor, and the time for doing so before the present one has elapsed, he will not be entitled to relief. Also, if he did not obey the order of the Praetor, he will refuse to hear his case; and Labeo says that restitution should not be granted. The same rule applies where the case was not heard by him for any other good reason.
(7) If any unusual holiday should be appointed, for instance, because of some fortunate event, or in honor of the Emperor, and for this reason the Praetor refused to hear the case, Gaius Cassius expressly stated in an Edict that he would grant restitution, because it was held this must have been done by the Praetor, for the ordinary holidays ought not to be taken into account, as the plaintiff could and should foresee them, so as not to interfere with them; which is the better opinion, and this Celsus also adopts in the Second Book of the Digest. But when holidays are responsible for lapse of time, restitution ought only to be granted with reference to the said days, and not on account of the entire time; and this Julianus stated in the Fourth Book of the Digest, for he says that where rescission of usucaption takes place, those days must be restored during which the plaintiff was willing to act, but was prevented by the occurrence of the holidays.
(8) Whenever a person by his absence, does not exclude anyone from acting for the entire time; as, for instance, if I had been in possession of your property for less than one day of the term prescribed for acquisition by usucaption, and then I began to be absent in the public service, restitution should be granted against me for only one day.
(9) The Praetor also says: "Where any other just cause seems to exist, I will grant complete restitution." This clause is necessarily inserted in the Edict, for many instances may occur which would establish ground for restitution, but which cannot be separately enumerated; so that, as often as justice calls for restitution, resort can be had to this clause. For example, if a party is acting as the envoy of a city, it is only just that he should obtain restitution, though he is not absent in the service of the State; and it has been repeatedly established that he is entitled to relief, whether he had an agent, or not. I think that the same rule applies where he has been summoned from one province or other to give testimony either in the city, or before the Emperor; for it has very often been stated in rescripts that he should be relieved. Moreover, relief should be granted to those who have been in foreign countries on account of some judicial investigation or appeal. And, generally speaking, as often as a party is absent from necessity, and not voluntarily, it must be said that he is entitled to relief.
27. Paulus, On the Edict, Book XII.
And where a person loses something, or fails to obtain a profit, restitution should be granted, even though none of his property was lost.
28. Ulpianus, On the Edict, Book XII.
Also, where a person is absent for some reasonable cause, the Praetor should consider whether he is entitled to relief; as, for example, where his absence was due to his studies, or because his agent was dead; the intention being that he should not be wronged when his absence was due to some good cause.
(1) Moreover, where a person is not in custody, or in chains, but has furnished security with sureties, and then, on account of this, is unable to go away, and is taken at a disadvantage, he is entitled to restitution; and restitution will also be granted against him.
(2) The Praetor also says: "When this is authorized by the laws, the plebiscites, the decrees of the Senate, the Edicts, and the Ordinances of the Emperors." This clause does not promise that restitution will be granted if the laws permit it, but if the laws do not prohibit it.
(3) Where a person has been absent very frequently in the service of the State, Labeo thinks that the time he should be permitted to apply for restitution should be reckoned from his last return. But if all his absences together amount to a year, and each one separately to less than a year, whether we shall grant him an entire year for restitution, or only so much time as his last absence endured, is a matter to be considered, and I am of the opinion that an entire year should be granted.
(4) If, while you have a residence in the province, you also pass some time in the city, does the year run against me because I have the power of bringing suit against you? Labeo says that it does not. I, however, am of the opinion that this is only true where an adversary has the right of demanding that you be sent into your province; otherwise, it should be held that I have the power to bring suit because issue can also be joined at Rome.
(5) An exception is also available for a person who has been absent in the service of the State, just as he is granted a right of action to rescind; for instance, if, having obtained the property, an action should be brought against him for its recovery.
(6) In a rescissory action, which can be brought against a soldier, Pomponius states that it is entirely just, but that the defendant should surrender the profits which he obtained during the time that he was absent and made no defence; and, therefore, on the other hand, the profits should also be surrendered to the soldier, as there is a right of action on both sides.
29. Africanus, Questions, Book VII.
The reason for this is that a public duty should not be a source of loss or profit to anyone.
30. Paulus, On the Edict, Book XII.
Where a soldier who has acquired a right to property by usucaption dies, and his heir completes the time required for it, it is just that what has been acquired subsequently to his death should be rescinded; and the same rule should be observed in the case of heirs who succeed to the right of usucaption, as the possession of the deceased being, as it were, joined to the estate, should descend to the heir, and very frequently the right becomes complete before the estate has been entered upon.
(1) Where a person who has been absent in the service of the State has obtained property by usucaption, and afterwards alienates it, restitution should be granted; and even though there was no fraud connected with his absence and his acquisition of ownership, he should be prevented from profiting by them. Also, in all other cases, restitution should be granted just as if judgment had been rendered against him.
31. The Same, On the Edict, Book LIII.
Where he, whose property was acquired by someone through usucaption while he was absent in the service of the State, obtains possession of the property acquired by him in that way, and he afterwards loses the same; he will be entitled to a perpetual right of action and not to one that is limited by time.
32. Modestinus, Rules, Book IX.
A person is considered to be absent in the service of the State as soon as he has left the City, although he may not have yet reached the province; and when he has gone, he is held to be absent until he returns to the city. This is applicable to Proconsuls and their Deputies, as well as those who preside over provinces, to the Imperial Procurators who occupy positions in the provinces, to military tribunes, prefects, and the attendants of envoys, whose names are inscribed in the books of the Treasury, or in the Imperial registers.
33. The Same, On Cases Explained.
Among those who are entitled to relief under the general clause of the Edict is included the Advocate of the Treasury.
(1) Those who record the decisions of the magistrates are certainly not absent in the public service.
(2) Physicians of the soldiers have a right to petition for relief by restitution, as the functions they perform are for the public benefit, and ought not to be a source of injury to them.
34. Javolenus, On Cassius, Book XV.
A soldier who is at home on a furlough is not held to be absent in the service of the State.
(1) A person who gives his services for the collection of public taxes which have been farmed out, is not absent in the service of the State.
35. Paulus, On the Lex Julia et Papia.
Parties who are sent to conduct soldiers, or bring them back, or have charge of recruiting, are absent in the public service.
(1) This is the case also, where persons are sent for the purpose of congratulating the Emperor.
(2) Likewise, the Imperial Procurator, and not only he to whom is entrusted the affairs of a province, but also one who is charged with the transaction of certain business pertaining thereto, but not of all of it. Therefore, where there are several Imperial Procurators charged with different matters, they are all considered to be absent in the service of the State.
(3) The Prefect of Egypt is also absent in the service of the State; and also whoever, for any other reason, departs from the City on a public errand.
(4) The Divine Pius established the same rule with reference to the garrison of a city.
(5) It has been asked whether a party who is dispatched for the suppression of evil-doers, is absent in the public service, and it has been determined that he is.
(6) The same rule applies where a civilian joined an expedition by the command of an officer of consular rank, and was killed in battle, for relief should be granted his heir.
(7) A person who has repaired to Rome on business for the State, is considered to be absent in the public service. Moreover, if he should leave his own country on business for the Government, even if he has a right to pass through the city, he is absent in the service of the State.
(8) In like manner, where a man who is in a certain province, when he has left his home, or remains in his own province for the purpose of transacting public business, as soon as he begins to discharge his duties he is treated as a party who is absent.
(9) A man going to camp, as well as on his return, is absent in the service of the State; as anyone who is about to serve as a soldier must go to camp and return from it. Vivianus says that it was held by Proculus, that a soldier who is on a furlough is absent in the service of the State, while he is coming home and returning to the army, but when he is at home he is not absent.
36. Ulpianus, On the Lex Julia et Papia, Book VI.
We only understand those to be absent on public business who are absent not for their own convenience, but from necessity.
37. Paulus, On the Lex Julia et Papia, Book III.
Those who serve as assessors in their own province beyond the time prescribed by the Imperial Constitutions, are not understood to be absent on public business.
38. Ulpianus, On the Lex Julia et Papia, Book VI.
I am of the opinion that he is absent in the service of the State whom the Emperor, as a special favor, has permitted to act as assessor in his own province; but if he does not so act by his permission, we must hold that, by doing so, he is guilty of an offence, and is not entitled to the privileges of those who are absent in the service of the State.
(1) A party is considered to be absent in the service of the State, as long as he fills some office, but as soon as his term of office is ended, he ceases to be absent on public business. We, however, calculate the time allowed him for his return from the date when he ceased to be absent in the public service, that is to say, as much as he requires to return to the City, and it will be reasonable to grant him the time which the law allows to other returning officials. Wherefore, if he turns aside on account of some affair of his own; there is no doubt that the time so consumed will not be granted him, but will be calculated with reference to the period within which he could have returned; and when this has elapsed we must say that he has ceased to be absent in the service of the State. It is evident that if he is prevented from continuing his journey by illness, humane considerations must prevail; just as is customary in case of bad weather, difficulties of navigation, and other things which accidentally happen.
39. Paulus, Sentences, Book I.
He who is about to be absent on public business, and has left an agent by whom he can be defended, and applies for complete restitution, shall not be heard.
40. Ulpianus, Opinions, Book V.
Where it is in the power of a soldier to institute criminal proceedings during the time that he is devoting his services to the State, he is not deprived of his right to do so.
(1) Where a person is detained on an island in accordance with the penalty imposed upon him on account of which he obtained restitution, and it is proved that a portion of the property of which he had not been deprived has been appropriated by some one else, it must be restored to him.
41. Julianus, Digest, Book XXXV.
Where a person bequeathed a legacy to Titius, provided that, at the time of the testator's death, the former should be in Italy, or he leaves it payable each year, as long as he remains in Italy; and the legatee obtains relief on the ground that he was excluded from the legacy because he was absent on public business, he is compelled to carry out any trust with which he was charged. Marcellus asks in a note, where an estate is restored to a soldier which he had lost because he was absent in the service of the State, whether any one can doubt that the right to legacies and trusts will not be impaired?
42. Alfenus, Digest, Book V.
He cannot be said correctly to be absent in the service of the State, who has joined an embassy on account of his own private affairs.
43. Africanus, Questions, Book VII.
Where anyone stipulates for a certain sum every year, as long as he, or the party who makes the promise, shall remain in Italy, and one or the other happens to be absent in the service of the State; it is the duty of the Praetor to grant an equitable action. We hold that the same rule applies where the stipulation is in the following words: "If a certain man should be at Rome for the next five years"; or "If he should not be at Rome, do you agree to pay a hundred aurei?"
44. Paulus, On Sabinus, Book II.
He who is absent in the service of the State and is injured in any way will not be granted restitution if he suffered the injury under circumstances where he would have sustained loss, even if he had not been absent on public business.
45. Scaevola, Rules, Book I.
All soldiers who cannot leave their standards without risk to themselves, are considered to be absent in the service of the State.
46. Marcianus, Rules, Book II.
A person who is absent in the service of the State is entitled
to restitution against one who is also absent on public business,
if he has just cause for complaint on account of having sustained
Tit. 7. Concerning alienations made for the purpose of changing the conditions of a trial.
The Proconsul takes every precaution to prevent any person's legal position from becoming worse through the act of another; and as he understands that the result of a trial sometimes causes us a great deal more hardship when we have a different adversary than we had at the beginning, he provided against this by stating: "That if anyone, by transferring the property in question should substitute another party in his place as an opponent, and he did this purposely with fraudulent intent, he will be liable to an action in factum to the extent of the interest which the other party had in not having another adversary."
(1) Therefore, if a litigant opposes a man from another province, or one who is more powerful, to us as an adversary, he will be held liable;
2. Ulpianus, On the Edict, Book XIII.
Or anyone who will probably annoy the adversary.
3. Gaius, On the Provincial Edict, Book IV.
The reason for this is that if I institute proceedings against some one who belongs to another province, I am compelled to do so in his own province, and we can do nothing on an equal footing where the other party is more powerful.
(1) Moreover, if the man whom we are suing manumits a slave who is claimed in the action, our condition becomes less advantageous, because the Praetors favor freedom.
(2) Moreover, if you have erected some structure on a tract of land where you may become liable to an interdict Quod vi aut clam; or, in an action granted against a person who diverts rain-water from its natural course, you alienate said piece of property, our condition is understood to be worse; because if I institute proceedings against you, you will be compelled to remove the structure at your own expense, but now I am forced to bring an action against a different party from the one who performed the act, and will be compelled to remove the structure at my own expense; for the reason that he who is in possession of anything of this kind erected by another, is only liable under these proceedings so far as to permit the structure to be removed.
(3) If I give you notice of a new structure, and you then alienate the land, and the purchaser finishes the work; it is held that you will be liable to this action, for the reason that I cannot bring suit against you based on a notice of a new structure, because you have not built anything; nor can I do so against the party to whom you have conveyed the property, because he has not been notified.
(4) From all which it is evident that as the Proconsul promises to grant complete restitution, the plaintiff in this action may by order of court obtain damages to the extent of his interest in not having another adversary; as, for instance, if he had incurred some expense, or had suffered some other inconvenience on account of the substitution of another adversary.
(5) What then would happen, if the person against whom a praetorian action can be brought is ready to defend it, just as if he was still in possession of the property? In this instance it is very properly held that the action based upon this Edict will be refused him.
4. Ulpianus, On the Edict, Book XIII.
The same Edict also applies where the property has been acquired through usucaption by the party to whom it was transferred, so that no suit could be brought to recover it from him.
(1) It can also happen that possession is terminated without bad faith, but that this was done for the purpose of altering the conditions of the trial, and there are numerous other cases of this kind. On the other hand, a party may fraudulently relinquish possession, and he may not have acted for the purpose of changing the conditions of the suit; and then he will not be liable under the terms of this Edict, for he does not alienate property, who merely relinquishes possession. The Praetor, however, does not disapprove the act of a party who was so desirous to give up property to prevent his being constantly engaged in litigation on account of it; and this is, in fact, a very modest determination of one who detests lawsuits, and is not to be blamed; but the Praetor only concerns himself with a party who, while desiring to retain the property, transfers his part in the case to another, so that the latter, instead of himself may give his adversary trouble.
(2) Pedius states in the Ninth Book, that this Edict has not only reference to a transfer of ownership, but also a transfer of possession; otherwise, he says that where the plaintiff brings a suit in rem, and the defendant relinquishes possession, he will not be liable.
(3) Where, however, anyone through illness, old age, or necessary business, transfers his right of action to another, this is not a case in which he is liable under this Edict, as mention of fraud is made in the Edict; for, otherwise, it would be forbidden to litigate through agents, as ownership is generally transferred to them where proper cause exists for this to be done.
(4) This Edict also has reference to real servitudes, where their alienation is fraudulently made.
(5) This action has for its object the amount of the plaintiff's interest; and therefore, if the property did not belong to him, or if the slave who was alienated should die without the fault of the party who alienated him, the action will not lie, unless there was some additional interest of the plaintiff.
(6) This action is not a penal one, but it is for the purpose of recovering property by order of court for which reason it is granted to an heir, and also against an heir,
5. Paulus, On the Edict, Book XI.
Or anyone in similar circumstances;
6. Ulpianus, On the Edict, Book XIII.
Or after a year it is not granted.
7. Gaius, On the Provincial Edict, Book IV.
Because it relates to the recovery of property it still appears to be granted on account of an offence.
8. Paulus, On the Edict, Book XII.
A person is liable under this Edict, even where he produces the property, if he does not, after notification by the judge, place the case in its original condition.
(1) The Praetor says: "Or an alienation made for the purpose of changing the conditions of the trial"; that is to say, the conditions of a future trial and not these of the present one.
(2) To "alienate" is also understood to sell the property of another.
(3) But where a person alienates anything either by appointing an heir, or by making a bequest, the Edict will not apply.
(4) Where anyone alienates property, and takes it back again, he will not be liable under this Edict.
(5) Where a purchaser compels his vendor to take back the property sold, he is not considered to have alienated it for the purpose of changing the conditions of the trial.
9. Paulus, On the Edict of the Curule aediles, Book I.
For the reason that when a slave is returned, everything has a retroactive effect, and, therefore, the party who returns the property is not held to have alienated it, in order to change the conditions of the trial; unless he restores the slave for this very purpose, and otherwise would not have restored him.
10. Ulpianus, On the Edict, Book XII.
For if, being in debt, I deliver the property for which you wished to sue me, this Edict will not apply.
(1) Where the guardian of a ward, or the curator of an insane person alienates property, a praetorian action will lie, because one cannot presume that either the ward or the insane person can have the intention of committing fraud.
11. The Same, Opinions, Book V.
When a soldier applied to bring suit in his own name in order to obtain an estate which he alleged had been presented to him; he was told that if the gift had been made for the purpose of changing the conditions of the trial, the action must be brought by the former owner, so that it might appear that he had transferred the property to the soldier, rather than a lawsuit.
12. Marcianus, Institutes, Book XIV.
Where anyone alienates his share in a piece of property for
the purpose of avoiding a suit in partition, he is prohibited by the
Lex Licinia from bringing an action in partition himself, for
example, in order that some purchaser who is more powerful may obtain
it by a lower bid; and he in this way can recover it. He, however,
who has disposed of his share, and wishes afterwards to bring suit
in partition, shall not be heard; but if the party who purchased it
desires to institute proceedings, he is forbidden to do so under that
Section of the Edict by which it is provided that no alienation shall
be made for the purpose of changing the conditions of a trial.
Tit. 8. Concerning matters referred to others for arbitration and those who accept them for the purpose of making an award.
Arbitration is conducted in the same manner as a trial in court, and is intended to put an end to litigation.
2. Ulpianus, On the Edict, Book IV.
It is established that an exception cannot arise from arbitration, but an action for a penalty imposed can.
3. The Same, On the Edict, Book XIII.
Labeo says that where an award is given under an arbitration, by which a party is released from an action on guardianship by a minor under twenty-five years of age, it should not be confirmed by the Praetor; nor will an action for the recovery of the penalty on account of it be granted.
(1) Although the Praetor does not compel anyone to undertake an arbitration (since this is voluntary and depends upon the exercise of the will, and is outside his jurisdiction), nevertheless, where a party has once assumed the duties of the office, the Praetor thinks that the matter requires his care and attention; not so much because it is his object that legal controversies should be terminated, but in order that persons should not be disappointed who have selected someone to decide between them who was considered to be a reliable man. For, suppose that after the case had been examined one or more times, and the private concerns of both parties had been made public, and the secrets of the business had been disclosed, the arbiter should refuse to give an award; either for the purpose of showing partiality, or because he had been corrupted by bribery, or for some other reason; could anyone deny that it was not perfectly right that the Praetor should intervene in order to compel the arbiter to discharge the duties of the office which he had assumed?
(2) The Praetor says: "A party who undertakes arbitration by which submission is made to his award under a pecuniary penalty."
(3) Let us first consider the personality of the arbiters. The Praetor can compel an arbiter, no matter what his rank may be, to perform the duties of the office which he has undertaken, even though he be of consular rank, unless he holds some magisterial position, or is invested with other authority; as, for instance, that of Consul, or Praetor, since he then has no jurisdiction;
4. Paulus, On the Edict, Book XIII.
For magistrates cannot be subject to coercion where they possess higher or equal authority; nor does it make any difference whether they accepted the office of arbiter during the term of their magistracy, or previously. Inferior officials, however, can be subjected to compulsion.
5. Ulpianus, On the Edict, Book XIII.
The son of a family can also be compelled to act.
6. Gaius, On the Provincial Edict, Book V.
Moreover, the son of a family can also be appointed arbiter in a matter in which his father is interested; and it is held by many that he can also be a judge.
7. Ulpianus, On the Edict, Book XIII.
Pedius says in the Ninth Book, and Pomponius in the Thirty-third Book, that it is of little importance whether a party who was appointed arbiter is free born, or a freedman of good reputation, or has been branded with infamy. Labeo says that a slave cannot act as arbiter, and this opinion is correct.
(1) Therefore Julianus states that where a question for arbitration is referred to Titius and a slave, Titius cannot be forced to give an award, because he undertook the arbitration with another; although he states that there is no arbitration by a slave. What then would be the result if Titius should give an award? In this instance the penalty would not be payable, because he did not render the award in compliance with the conditions under which he assumed the office.
8. Paulus, On the Edict, Book XIII.
But where the terms of the arbitration were, "that the award of either party alone should be valid", then force can be brought to bear against Titius.
9. Ulpianus, On the Edict, Book XIII.
But where a slave had been appointed arbiter and makes an award after he has become free, I am of the opinion that if he does this after obtaining his freedom, and the parties consent, that his act will be valid.
(1) Neither a ward, nor an insane person, nor one who is deaf or dumb, can be appointed an arbiter; as Pomponius asserts in the Thirty-third Book.
(2) Where a party is a judge, he is forbidden by the Lex Julia to act as arbiter in the same matter in which he is to decide as judge, or to appoint himself; and if he makes an award, a suit for the penalty shall not be granted.
(3) There are others who cannot be compelled to give an award; for instance, where the corruption or the turpitude of the arbiter is evident.
(4) Julianus says that if the litigants defame the arbiter, the Praetor should by no means dismiss him, but only where proper cause is shown. The same jurist says that if the parties treat the authority of the arbiter with contempt, and apply to the court,
10. Paulus, On the Edict, Book XIII.
Or to some other arbiter;
11. Ulpianus, On the Edict, Book XIII.
And afterwards the litigants return to the original arbiter, the Praetor should not compel him to decide between those who have treated him insultingly, and rejected him in order to have recourse to another.
(1) An arbiter cannot be compelled to give an award, unless arbitration was agreed upon.
(2) Where the Praetor says: "Under a pecuniary penalty"; we must understand that a sum of money is not payable on both sides, but that there may be other property promised by way of a penalty, where one of the parties does not abide by the award; and this was the opinion of Pomponius. What, then, if property was deposited with the arbiter under the condition that he should deliver it to the party who gained the case, or should deliver it if one of the parties did not comply with the award; will he be compelled to make an award? I think he will be. The case would be the same where a certain amount is left in his hands for this purpose. Hence, if one party has promised in the stipulation to deliver property, and the other to pay money, the submission to arbitration is complete, and the arbiter can be forced to make an award.
(3) Sometimes, as Pomponius remarks, submission to arbitration may properly be made by a mere agreement; as, for instance, where both parties are debtors, and agree that if either of them does not comply with the award of the arbiter, he shall not have the right to collect what is owing to him.
(4) Moreover, Julianus states that an arbiter cannot be forced to give an award, where one party makes a promise and the other does not.
(5) He is of the same opinion where the penalty was agreed upon subject to a condition; as, for instance: "If a certain ship should return from Asia so many thousand", for the arbiter cannot be compelled to make an award until the condition has been fulfilled, lest it may be void on account of the failure of the condition; and Pomponius also says the same thing in the Thirty-third Book on the Edict.
12. Paulus, On the Edict, Book XIII.
In this case, perhaps, the only reason for applying to the Praetor will be where the time appointed for the hearing can be prolonged, for then it may be done.
13. Ulpianus, On the Edict, Book XIII.
Pomponius says that if either party is released from the penalty agreed upon, the arbiter should not be forced to give an award.
(1) He also states that if my demands alone are submitted to arbitration, and I have stipulated for a penalty to be paid by you; it must be considered whether or not this is a reference to arbitration. I do not see, however, wherein he finds any difficulty; for, if the understanding of the parties only relates to the claims of one of them, there is no reason in his statement, as it is lawful for one thing to be arbitrated; but if he means that the stipulation is only made on one side, what he says is reasonable. If, however, the party who made the stipulation is the one bringing the action, the submission to arbitration may be said to be more complete, for the reason that the party who is sued is protected; as, for instance, by an exception based upon contract, and if he does not comply with the award, he who brings the suit can have recourse to the stipulation. I do not think, however, that this opinion is correct; for it is not sufficient for the party to have an exception, as the arbiter may be compelled to make an award.
(2) A person is held to have accepted the office of arbiter (as Pedius says in the Ninth Book), when he undertook the duties of a judge, and promised to settle the controversies of the parties by his award. But if, as he says, the arbiter should only proceed so far as to ascertain whether the parties will permit their controversy to be settled by his advice or authority, he is not held to have assumed the duties of arbiter.
(3) An arbiter who has been appointed is not compelled to give an award upon those days on which a judge is not required to render a decision; unless the term fixed by the arbitration is about to expire, and cannot be prolonged.
(4) Thus, if the arbiter is urged by the Praetor to render his award, it will be perfectly just that he should have time granted him for the doing so, if he swears that the case is not yet sufficiently clear to him.
14. Pomponius, On Quintus Mucius, Book XI.
If the matter is submitted to arbitration without appointing a day for it to be heard, it is absolutely necessary for the arbiter to fix one, of course with the consent of the parties, and the case should then be decided; because if he should fail to do this, he can be compelled to make his award at any time.
15. Ulpianus, On the Edict, Book XIII.
Even though the Praetor should unqualifiedly state in the Edict that he will compel the arbiter to make an award; nevertheless, he should sometimes pay attention to his reasons, and accept his excuses, where proper cause is shown; as, for instance, where he is defamed by the litigants; or where deadly hostility arises between him and them or one of them; or where age or sickness, with which he was afterwards attacked, releases him from the discharge of his duty; or if he is occupied with his own affairs, or there is urgent necessity for his making a journey; or some public office requires his attention; and this is the opinion of Labeo.
16. Paulus, On the Edict, Book XIII.
Or where the arbiter is subjected to any other inconvenience after he has accepted the office. But in case of illness or other occurrences of this kind, he may be compelled to defer consideration of the matter, where proper cause is shown.
(1) An arbiter should be excused from acting where he is occupied in a case in his own behalf, whether it be either public or private; at all events, where the day of the hearing cannot be postponed; but if it can be, why should not the Praetor compel him to defer it as he has the right to do so, since this can sometimes be accomplished without any inconvenience to the arbiter? Where, however, both parties wish him to render an award, even though no bond was given for postponement; still, he cannot do otherwise, if he has an action of his own pending, unless he consents that the case may be submitted to him anew. This, of course, is dependent upon the fact that the time is about to expire.
17. Ulpianus, On the Edict, Book XIII.
Moreover, where one of the litigants has made an assignment of his property, Julianus states in the Fourth Book of the Digest that the arbiter cannot be compelled to give an award, since the party referred to can neither sue nor be sued.
(1) Where the litigants return to the arbiter a long time afterwards, Labeo states that he is not compelled to give an award.
(2) Where there are several arbiters who have assumed the office, one of them alone cannot be compelled to make an award, but all must do so, or none.
(3) For this reason Pomponius asks in the Thirty-third Book, if, where an arbitration was agreed upon in such a way that whatever Titius decided Seius was to award; which of the two would be subject to compulsion? I am of the opinion that an arbitration of this kind, in which the arbiter has not perfect liberty to render his decision is not valid.
(4) But where the terms of the arbitration are that the question shall be decided by either Titius, or Seius; Pomponius says — and we agree with him — that the arbitration is valid; but the arbiter who must be compelled to make the award is the one whom the litigants agree upon.
(5) Where the arbitration is referred to two persons, on the condition that if they disagree they may call upon a third; I think that a reference of this kind is not valid, for they may disagree as to the person applied to, but if the condition is that Sempronius shall be joined as the third party, the arbitration will be valid, since there can be no disagreement in calling upon him.
(6) Let us consider a special case, namely: where a question is submitted to two arbiters, should the Praetor compel them to give an award; for, on account of the natural tendency of men to disagree the question might be almost incapable of settlement. Where the number is odd, arbitration for that reason is sustained, not for the reason that it is easy for all of the parties to agree, but because, if they disagree, there is a majority upon whose decision reliance can be placed. It is usual, however, for the controversy to be submitted to two persons, and if they do not agree, the Praetor should compel these arbiters to select some third person whose authority may be obeyed.
(7) Celsus states in the Second Book of the Digest, that where the dispute is submitted to three arbiters, it is sufficient if two of them agree, provided the third is present; but if he is absent, even though the remaining two agree, the award will not be valid, because arbitration was submitted to more than two, and the third by his presence might have induced them to accept his own opinion:
18. Pomponius, Epistles and Various Passages, Book XVII.
Just as where three judges are appointed, and two of them render a decision by agreement, during the absence of the third, it is void; for the reason that a judgment is only valid where rendered by a majority, when it is evident that all have rendered some decision.
19. Paulus, On the Edict, Book XIII.
Labeo says that it does not concern the Praetor what kind of an award the arbiter makes, provided he states what his opinion is. Therefore, if the matter was referred to the arbiter to render some certain decision, this would be no arbitration; nor could he be compelled to make an award; as Julianus states in the Fourth Book of the Digest.
(1) We must consider that an arbiter renders a decision, when he does so with the intention that the entire matter in controversy shall be settled. But where arbitration with reference to several matters is involved, unless he disposed of all that are in controversy, he will not be held to have made an award, and he can still be forced by the Praetor to act.
(2) For this reason it should be considered whether an arbiter can change his decision; and the question has even been raised where an arbiter orders property to be delivered, and subsequently forbids this to be done, whether what he ordered, or what he forbade should stand. Sabinus thinks that he can change his decision. Cassius sustains the opinion of his master, and says that Sabinus did not have in his mind a decision which put an end to the arbitration, but only one made during the preparation of the case; for example, where he ordered the litigants to appear on the kalends, and afterwards on the ides; for he had a right to change the day. Thus, if he rendered a decision against the defendant, or in his favor, then, as he would cease to be arbiter, he could not change his decision;
20. Gaius, On the Provincial Edict, Book V.
Because one arbiter cannot amend his decision even if he committed an error in rendering it.
21. Ulpianus, On the Edict, Book XIII.
But, if an arbiter who has been appointed for the settlement of several controversies, which have no connection with one another, gives an award with reference to one of them, but not as to the others, what then? Has he ceased to be arbiter? Therefore, we must consider whether he has a right to change a decision which he has already rendered with reference to the first one. It makes a great deal of difference whether or not he was to decide all the matters submitted to him for arbitration at the same time, for if he was to decide with reference to all of them, he could change his decision, as he had not yet rendered it; but where he was to decide them separately, there were, so to speak, several things to be determined, and so far as that particular matter in controversy was concerned, he has ceased to be arbiter.
(1) Where an arbiter gives the award that Titius does not appear to owe Seius anything, although he does not forbid Seius to bring an action; still, if the latter should do so, he would appear to oppose the award of the arbiter; and both Ofilius and Trebatius are in accord upon this point.
(2) I think that an arbiter cannot appoint a special time for payment, and Trebatius also appears to be of this opinion.
(3) Pomponius says that where an arbiter gives an ambiguous award, it is invalid; for instance: "You must pay him what you owe him"; or, "You must adhere to your division"; or, "You must accept as your share what you have paid to your creditors".
(4) Moreover, where an arbiter forbids an action to be brought for a penalty, in accordance with the terms of the arbitration; I find it stated in the Thirty-third Book of Pomponius that this is void; and he is right, because the conditions of arbitration have no reference to the collection of the penalty.
(5) Papinianus states in the Third Book of Questions, that if the time fixed for the arbitration has expired, the litigants may agree upon a new one, with the same arbiter, but if the latter refuses to act in the second arbitration, he cannot be forced to do so; provided he was not responsible for the delay in performing his duty; as, if he was to blame for the delay, it would be perfectly right that he should be compelled by the Praetor to again act as arbiter. This question can only arise where no arrangement was made in the first arbitration to extend the time, but if such provision was made, and he himself extended it, he will continue to act as arbiter.
(6) The term "complete arbitration" is used where settlement is made with reference to the matters in controversy, for it relates to all disputes; but where there happens to be a difference concerning only one thing, although a complete arbitration may have been agreed upon, still, the rights of action in other cases remain unimpaired; for the only matter involved in an arbitration is that which it was agreed upon should be determined. It is, however, the safer way where anyone wishes only some certain matter to be settled by arbitration, to expressly mention the same when it is submitted.
(7) Where an arbiter orders some dishonorable act to be performed, the litigants are not obliged to obey.
(8) Where the parties appear before the arbiter within the time which was designated, and he orders them to appear after the time has elapsed, no penalty can be exacted.
(9) Where either of the parties does not appear, for the reason that he was prevented by illness, or by absence on public business, or by the duties of some magisterial office, or for any other good reason; Proculus and Atilicinus hold that the penalty can be collected; but where he was ready to appoint the same arbiter for a new arbitration, an action will not be permitted against him, or he can protect himself by an exception. This, however, is only true where the arbiter was willing to accept the second arbitration; for Julianus very properly stated in the Fourth Book of the Digest, that he could not be forced to do so if he was unwilling, and in any event, the party is released from the penalty.
(10) Where, for instance, the arbiter orders the parties to appear before him in a province, when it was agreed that the reference should take place at Rome; the question arises can he be disobeyed with impunity? The opinion given by Julianus in the Fourth Book is the better one, namely, that the place contained in the agreement to submit the matter in dispute is the one intended; and therefore, that he may be disobeyed with impunity if he orders the parties to appear elsewhere. What course then should be pursued if it does not appear what place was agreed upon? The better opinion is that that place was intended where the agreement for arbitration was entered into. But what must be done if the arbiter orders them to appear in some place adjoining the City? Pegasus holds that the order would be valid; but I think that this is only true where the arbiter is a man of such authority that he can perform his duties in retired places, and the litigants can readily go to the place designated.
(11) But if the arbiter should order the parties to go to some disreputable locality, as for instance, to a tavern, or a brothel, as Vivianus says, he can doubtless be disobeyed with impunity; and this opinion Celsus also approves in the Second Book of the Digest. With reference to this he very properly raises the question, if the place is of such a character that one of the litigants cannot honorably go there but the other can, and he who could go without forfeiting his self respect did not do so, and the other went in spite of his disgrace, can the penalty agreed upon at the time of the arbitration be collected because the act was not performed? He very justly thinks that it cannot be collected, for it would be absurd if the order should be valid with reference to one party, and void with respect to the other.
(12) It should be considered within what time an action should be brought on the stipulation, provided the party does not comply with the award of the arbiter. Celsus states in the Second Book of the Digest that if no certain time was specified, a reasonable time is understood, and that, when this has elapsed, suit can forthwith be brought for the penalty; nevertheless, he says if the party complies with the award before issue is joined in the case, the action based on the stipulation cannot proceed:
22. Paulus, On the Edict, Book XIII.
Unless the plaintiff had some interest in the immediate payment of the money.
23. Ulpianus, On the Edict, Book XXIII.
Celsus says that if the arbiter orders payment to be made by the kalends of September, and this should not be done, even though it was tendered afterwards, still, the penalty of the arbitration having once become due the right of action is not extinguished, since it is true that the money was not paid before the kalends. Where, however, the party accepted payment when it was offered, he cannot bring suit for the penalty, but will be barred by an exception on the ground of fraud. The case is different where he was only ordered to make payment.
(1) Celsus also states, if you order me to pay you and you are prevented from receiving the money by illness, or for some other good reason, that Proculus is of the opinion that the penalty cannot be exacted even if I do not pay you until after the kalends, although you may be ready to receive it. He also thinks, very justly, that there are two orders of the arbiter to be considered, one to pay a sum of money, and the other to pay it before the kalends; therefore, although the penalty cannot be exacted from you because you did not pay the money before the kalends, as you were not to blame, you will still be liable for the part which you did not pay.
(2) He also says that the words "Comply with the award", means nothing else than for the party to do all in his power to obey the decision of the arbiter.
(3) Celsus also says that if an arbiter orders me to pay you a sum of money on a certain day, and you refuse to receive it, the defence can be made that the penalty is not collectible by law:
24. Paulus, On the Edict, Book XIII.
But if he should afterwards be ready to receive it, I can not refuse to pay it with impunity, because I did not pay it before.
25. Ulpianus, On the Edict, Book XIII.
Labeo states that where it was provided in the submission for arbitration that the arbiter should give his award concerning all matters involved in the case on the same day, and should have authority to extend the time, and he did extend the time after certain matters were decided, while others were not; the extension will be valid, but his award may be disobeyed with impunity. Pomponius approves the opinion of Labeo, which also seems to me to be correct, because the arbiter did not perform his duty in making his award.
(1) This clause also: "He may extend the time for arbitration", does not give the arbiter the right to do anything else than to extend the time, and, therefore, he cannot diminish or make any change in the terms of the original agreement; hence he is always obliged to dispose of the other matters also, and must give an award with respect to everything.
(2) Where the bond of a surety has been furnished in the first agreement for arbitration, Labeo states it should also be offered in the second one. Pomponius, however, doubts whether the same, or other sureties who are solvent should be furnished; for he says what would be the result if the same ones should refuse to act as sureties? I think, however, that if they should refuse to act as sureties, then, others, as good as they, should be given:
26. Paulus, On the Edict, Book XIII.
So that it shall not be in the power of the sureties, who refuse to bind themselves again to cause the penalty to be executed. The same rule applies if they should die.
27. Ulpianus, On the Edict, Book XIII.
The arbiter can extend the time whether he is present, or whether he does so by a messenger, or by a letter.
(1) Where mention of the heir or of any other parties interested in the arbitration is not made, the arbitration is terminated by death. We do not accept the opinion of Labeo, who thought that if the arbiter orders a sum of money to be paid, and the party dies before paying it, the penalty could be exacted, even though the heir was ready to tender it.
(2) The award of the arbiter which he makes with reference to the matter in dispute should be complied with, whether it is just or unjust; because the party who accepted the arbitration had only himself to blame, as was stated in a Rescript by the Divine Pius, as follows: "The party must submit to the award with equanimity, even though it may be by no means well founded."
(3) Where there are several arbiters and they have given different awards, a party will not be obliged to abide by them, but if the majority agree their award must stand; otherwise the penalty can be exacted. Hence, we find the question raised by Julianus, where out of three arbiters one gives an award for fifteen aurei, another for ten, and another for five, whose decision is to stand? Julianus states that five must be paid, since all of them agreed upon that amount.
(4) Where anyone of the litigants fails to appear, since he did all he could to prevent the matter from being settled, the penalty may be exacted. Thus, a decision rendered when all the litigants were not present will not be valid, unless it was expressly stated in the agreement to submit the matter to arbiters that, whether one or both of them were absent the decision could be rendered, but he who was in default incurs the penalty, because he was responsible for the arbitration not taking place.
(5) He is held to make his award in the presence of the parties when he does so before those who are endowed with intelligence; but he is also not considered to have done this where he made it in the presence of a party who is insane, or demented. In like manner, a decision rendered in the presence of a ward, unless his guardian is present, is not legally made. Julianus makes the same statement with reference to all these matters in the Fourth Book of the Digest.
(6) Again, where either party being present, prevents the arbiter from giving his award, the penalty can be collected.
(7) Where no penalty was mentioned in the proceedings for arbitration, but the party simply promised to comply with the judgment, an action for damages may be brought against him.
28. Paulus, On the Edict, Book XIII.
It makes no difference whether the sum agreed upon as penalty is certain or uncertain; as, for example, where it was for, "As much as the property was worth".
29. Ulpianus, On the Edict, Book XIII.
Where suit is brought against a person whom the arbiter forbade to be sued, this is in violation of his award. What then should be done if suit was brought against his surety, could the penalty be collected? I think that it could, and Sabinus holds the same opinion; for suit is practically brought against the principal. But where the arrangement was made with a surety, to submit the matter to arbitration, and suit is brought against the principal, the penalty cannot be collected; unless it was to the interest of the surety that the action should not be brought.
30. Paulus, On the Edict, Book XIII.
When anyone brings a matter into court which it had been agreed to submit to arbitration, some authorities say that the Praetor cannot interpose to compel the arbiter to give an award, because now no penalty will be incurred, any more than if the arbitration had been dismissed. If, however, this opinion should be adopted, the result will be that where a party had agreed to arbitration, and changes his mind, he will be able to evade the reference of the case. Therefore, he can be sued for the penalty, and proceedings may be instituted in regular form before a judge.
31. Ulpianus, On the Edict, Book XIII.
When anything is done in contravention of a stipulation, suit can be brought for this cause only where the act was committed without fraud on the part of the person who made the agreement; for an action can be brought under the stipulation only on the ground that no one can profit by his own deceit. But if there is added to the agreement for arbitration, "If something is done fraudulently in the matter"; he who was guilty of fraud can be sued on the stipulation; and, therefore, if anyone corrupts an arbiter either with money, or by improper solicitation, or bribes the advocate of the other party, or anyone of those to whom he has entrusted his own case, he can be sued on the clause relating to fraud, as well as where he, through artifice, gets the best of his adversary. And, by all means, if he acts deceitfully in any way during the suit, an action on the stipulation can be brought; therefore, if his adversary desires to bring an action on the ground of fraud, he should not do so, as he is entitled to one based on the stipulation. Where, however, a clause of this kind is not included in the agreement for arbitration, then, an action on the ground of fraud or an exception will lie. This submission to arbitration is a complete one, because it mentions the clause relating to fraud.
32. Paulus, On the Edict, Book XIII.
In matters submitted to arbitration we do not consider whether the stipulated penalty is greater or less than the property involved.
(1) An arbiter is not compelled to make an award where the penalty has been incurred.
(2) Where a woman makes an agreement for arbitration in behalf of a third party, the proceeding for the collection of money will not be Valid on account of her appearance for another.
(3) The conclusion of the matter is: that the Praetor cannot interpose, either where there was no submission for arbitration in the beginning, or if there was, it is uncertain whether it is one for which a penalty may be exacted, or the penalty can no longer be recovered for the reason that the right of arbitration has been extinguished either by lapse of time, by death, by release, by a judicial decision, or by agreement.
(4) Where the arbiter is invested with a sacerdotal office, let us consider whether he can be compelled to make an award; for indulgence should be granted not only to the dignity of persons, but also to the majesty of God, whose ministers should only devote themselves exclusively to sacred affairs. Where, however, he assumed the office subsequently he should, under these circumstances, by all means render a decision.
(5) An arbiter should not be compelled to make an award after the matter in dispute has been compromised, or the slave who was the subject of the arbitration is dead; unless, in the last instance the parties still have some interest in the proceedings.
(6) Julianus stated ambiguously that if, through mistake, recourse was had to arbitration with reference to an offence involving infamy, or some matter which was liable to criminal prosecution, as, for instance, adultery, assassination, and other crimes of this kind; the Praetor should forbid an award to be made, and if it was made, should refuse to permit its execution.
(7) Where submission of a question of arbitration involving freedom is made, the arbiter cannot be compelled by law to render a decision; because the favor due to freedom requires that matters relating to it should be decided by judges of the highest rank. The same rule applies where the question involves either freedom of birth, or enfranchisement, and where it is stated that freedom should be conferred on account of a trust. The same must be said with respect to an action having reference to a breach of public order.
(8) Where one of the parties to a reference for arbitration is a slave, Octavenus says that the arbiter should not be compelled to render an award, and if he does so, that an exception cannot be granted for the penalty in an action De Peculio. But if the other party, being a freeman, makes an agreement with him, let us consider whether an exception should be granted against the freeman. The better opinion is that it should not be granted.
(9) Moreover, if anyone agrees to an arbitration at Rome, and, having departed, returns there as the member of an embassy, the arbiter is not compelled to give an award, any more than the party would be obliged to prosecute the case if he had previously joined issue; nor does it matter whether he was attached to an embassy in the first place, or not. But if he now submits the question to arbitration, I think that the arbiter can be compelled to make an award, because if the party voluntarily had joined issue in a suit at law he could be forced to proceed. Some authorities, however, are undecided with respect to this, but not properly so; as, at all events, they would entertain no doubts if the matter which the party consented to submit to arbitration while on an embassy was a contract which he entered into while under such employment; for the reason that he could be compelled in a matter of this kind to proceed with the trial. The question in the first instance is worthy of consideration, namely: whether if before the envoy agreed to arbitration, the arbiter could be compelled to render a decision if the envoy himself applied for it. And this, according to the first rule laid down, might seem to be unjust, because it was placed under the control of the party himself. This will come under the same rule, however, as if he wished to bring an action at law, which he had a right to do. An arbitration of this kind should be compared to an ordinary suit at law; so where the party is desirous for the arbiter to make an award, he will not be heard unless he sets up a defence.
(10) Where a person who had agreed to arbitration with some one who is dead, contests the succession to the estate, if the arbiter makes an award, the estate will be prejudiced; and therefore, in the meantime, the arbiter is prohibited from doing so.
(11) The time fixed for the arbitration may be extended, not by agreement of the parties, but by order of the arbiter, when it is necessary to extend it that liability for the penalty may not be incurred.
(12) If an arbiter attempts to conceal himself, the Praetor should cause him to be searched for, and if he does not appear for a long time, a fine should be imposed upon him.
(13) Where an agreement was made to submit a question to several arbiters, on condition that if any one of them should make an award the parties must abide by it; notwithstanding the other arbiters may be absent, a single arbiter who is present may be compelled to make the award. But where arbitration is agreed upon under the condition that all shall make the award, or that it must be sanctioned by a majority; each one cannot be compelled to render a decision separately, because in a case of this kind the decision of one arbiter will not give rise to liability for the penalty.
(14) Where an arbiter is evidently an enemy to one of the parties for other reasons, and was called upon before witnesses not to give an award and he, nevertheless, insisted on doing so, although no one compelled him; the Emperor Antoninus, to whom application was made, replied to the complaint of the party that he was entitled to an exception on the ground of malicious fraud. The same Emperor, when his advice was asked by a judge before whom a party had brought suit for a penalty, answered that, although an appeal could not be taken, the suit for the penalty would be barred by an exception on the ground of malicious fraud; therefore, an exception of this kind is a species of appeal, as it affords an opportunity for a rehearing of the award of the arbiter.
(15) In treating of the duties of an arbiter it must be remembered that the entire subject depends upon the terms of the agreement for arbitration, since the arbiter can lawfully perform no other act except what was provided that he should perform; and, therefore, he cannot decide anything he pleases, nor with reference to any matter that he pleases, but only what was set forth in the agreement for arbitration, and in compliance with the terms of the same.
(16) Inquiry has been made as to making the award, and it has been stated that any kind of an award will not be valid; although with respect to certain matters a difference of opinion exists. I think, in fact, that the penalty cannot be exacted if the arbiter states that the party in a question of this kind should begin a new reference before a judge, or himself, or some other arbiter. Julianus holds that he may be disobeyed with impunity, if he orders the parties to appear before another arbiter; for if they do so, there will be no end to the case; but if he decided as follows, namely: that land should be delivered, or security furnished, with the approval of Publius Maevius, the award should be obeyed. Pedius, also, adopts this opinion to avoid the continuance of arbitration, and to prevent it from being sometimes transferred to other arbiters who are hostile to the parties; and it is necessary, for the arbiter to render his award in such a way as to put an end to the controversy, for it will not be terminated when arbitration is either postponed or transferred to another arbiter. He also says that the award is partly dependent upon the kind of security furnished, and the character of the sureties; and that this cannot be delegated, unless it was agreed that the arbiter should determine by whose arbitration security should be furnished.
(17) Moreover, if the arbiter orders someone to be associated with him, and this was not included in the agreement for arbitration, it is not held to be an award; for the award ought to have reference to the matter stated in the agreement, but no arrangement of this kind was made.
(18) Where two principals have stipulated with one another, and wish their agents to conduct the proceedings before the arbiter, he can order the principals also to be present.
(19) Where mention is made of an heir in the agreement for arbitration, the arbiter can order the heir also to be present.
(20) It is included in the duty of an arbiter to determine in what way free possession shall be delivered. Can he also order a bond to be furnished that the principal will ratify the acts of his agent? Sextus Pedius thinks that this is not reasonable, for, if the principal does not ratify the act, he can be sued on the stipulation.
(21) An arbiter can do nothing beyond what is stated in the agreement for arbitration; and, therefore, it is necessary to add that he shall have the right to extend the time fixed by the agreement; otherwise, his order may be disobeyed with impunity.
33. Papinianus, Questions, Book I.
An arbiter who is selected by an agreement for arbitration with the understanding that he may extend the time, can do so; but if the parties object he cannot defer the proceedings.
34. Paulus, On the Edict, Book XIII.
Where there are two joint debtors, or creditors, and one of them submits a question to arbitration, and the award forbids him to sue, or not to be sued, it should be considered whether a penalty will be incurred if one party sues, or is sued, by the other. The same question arises where there are two bankers who are joint creditors, and perhaps we might place them on the footing of sureties, if they are partners; otherwise, no action can be maintained against you, nor can I bring suit, nor can suit be brought in my name, even if it is brought against you.
(1) I am of the opinion that the arbitration is entirely at an end where the penalty has once been incurred; nor can it be again incurred unless the parties expressly agreed that liability for it should be incurred as many times as occasion arose.
35. Gaius, On the Provincial Edict, Book V.
Where a ward makes an agreement for arbitration without the consent of his guardian, the arbiter is not compelled to render a decision, because, if it is rendered, the ward will not be liable for the penalty, unless he has furnished a surety from whom the penalty can be collected by an action; and this was also the opinion of Julianus.
36. Ulpianus, On the Edict, Book LXXVII.
When an arbiter makes an award under compulsion by the Praetor, upon a holiday, and suit is brought for the penalty on account of the arbitration; it is established that an exception is not available, unless by some law the holiday upon which the award was pronounced is excepted.
37. Celsus, Digest, Book II.
Although the arbiter may have forbidden one of the parties to bring suit against the other, and, notwithstanding this, an heir brings an action, he will be liable for the penalty; for recourse is had to arbiters, not for the purpose of postponing litigation, but to absolutely terminate it.
38. Modestinus, Rules, Book VI.
When suit is brought for the penalty arising out of an arbitration, he shall be required to pay it who incurred the liability for the same; nor does it make any difference whether or not it was to the interest of the other party for the award of the arbiter to be observed.
39. Javolenus, On Cassius, Book XI.
It is not in all cases where the decision of the arbiter is not obeyed that liability for the penalty arising from the arbitration is incurred, but only in those which have reference to the payment of money, or the performance of some service. Javolenus also states that an arbiter can punish the contumacy of a litigant by ordering him to pay a sum of money to his adversary; but a party must not be included among contumacious persons where he did not give the names of his witnesses in accordance with the decision of the arbiter.
(1) If an arbiter orders the time fixed for arbitration to be extended, where he is allowed to do this, the default of either party will not allow the penalty to be collected by the other.
40. Pomponius, Various Extracts, Book XI.
An arbiter ordered the parties to appear on the Kalends of January, but died before that day, and one of the parties failed to be present. In this instance there is no question that the penalty was not incurred, for Aristo says that he heard Cassius state that where an arbiter did not himself appear, there was no ground for the payment of the penalty, and Servius also says that if the stipulator is to blame for not receiving the money, no penalty is incurred.
41. Callistratus, Monitory Edict, Book I.
As it is provided by the Lex Julia that a minor under twenty years of age cannot be compelled to act as judge; likewise, no one is permitted to select a minor under twenty years of age to serve as judge in an arbitration; and therefore a penalty is not incurred under any circumstances through an award made by him. Many authorities have stated that, where a party is over twenty years of age, and under twenty-five, and he rashly undertakes to hear a case of arbitration, in an instance of this kind relief should be granted.
42. Papinianus, Opinions, Book II.
An arbiter ordered certain slaves to be restored within a specified time, and, as they were not restored, he ordered the party to pay a penalty to the Treasury, in compliance with the terms of the agreement for arbitration. No right is acquired by the Treasury by reason of such an award, but there is, nevertheless, liability for the penalty under the stipulation, because the decision of the arbiter was not obeyed.
43. Scaevola, Opinions, Book I.
Lucius Titius and Maevius Sempronius entered into an agreement to submit all their disputes to arbitration; but, through mistake, some matters were not included by Lucius Titius in his application, nor did the arbiter make any award with reference to them. The question arose whether those things which were omitted could be made the subject of a new application? The answer was that this could be done, and that no penalty was incurred in consequence of the arbitration; but if the party had committed the act maliciously, although indeed, he could makes a new application, he would be liable to the penalty.
44. The Same, Digest, Book II.
A controversy arose between Castelliannus and Seius with reference to boundaries, and an arbiter was chosen in order that the matter might be settled by his award; and he rendered his decision in the presence of the parties, and established the boundaries. The question arose whether, if the award was not complied with on the part of Castellianus, liability for the penalty growing out of the arbitration was incurred? I answered that the penalty was incurred where the arbiter was not obeyed in a matter which he decided in the presence of both parties.
45. Ulpianus, On Sabinus, Book XXVIII.
Where, in an agreement to arbitrate, it is stated that the award shall be made by a certain person, this cannot be extended to others.
46. Paulus, On Sabinus, Book XII.
An arbiter can make an award with reference to matters, accounts, and disputes, which in the beginning existed between the parties who submitted their affairs to arbitration, but not with reference to matters which took place subsequently.
47. Julianus, Digest, Book IV.
Where an agreement to arbitrate was in the following terms: "That the arbiter should make an award when both parties or their heirs were present"; and one of the litigants died, leaving a minor as his heir, it is held that the award will not be valid, unless the consent of the guardian is granted.
(1) The same rule will apply where one of the parties becomes insane;
48. Modestinus, Rules, Book IV.
For, in this instance, an arbiter is not compelled to render a decision.
49. Julianus, Digest, Book IV.
And he may even be ordered not to render one, because nothing can be legally done in the presence of an insane person. Where, however, the lunatic has a curator, or one is appointed while the case is pending, the award can be made in the presence of the curator.
(1) An arbiter can order the parties to appear either by a messenger, or by letter.
(2) Where mention is made of an heir only with reference to one of the parties, the arbitration will be abrogated by the death of either of the litigants; as would have been the case if no mention of the heir of either had been made.
50. Alfenus, Digest, Book VII.
An arbiter was selected under an agreement for arbitration, and, not having been able to make his award within the period mentioned in the agreement, ordered the time of the hearing to be extended. One of the parties was not willing to obey the order; hence an opinion was asked as to whether an action could be brought against him for the penalty arising from the arbitration? I answered that this could not be done, for the reason that authority had not been granted to the arbiter to extend the time.
51. Marcianus, Rules, Book II.
Where anyone has been appointed an arbiter in a matter in which he himself is interested, he cannot make an award, because he would order himself to do something, or forbid himself to bring suit; for no one can command himself to perform an act, or prohibit himself from doing it.
52. The Same, Rules, Book IV.
Where a party is ordered by an arbiter to pay a sum of money
in accordance with the terms of arbitration, and fails to do so, he
must pay the penalty in pursuance of the agreement, but if he afterwards
makes payment he will be released from the penalty.
Tit. 9. Sailors, innkeepers, and the proprietors of stables, must restore property entrusted to them.
The Praetor says: "When sailors, innkeepers, and the proprietors of stables have received property for safe keeping, I will grant an action against them if they do not restore it".
(1) This Edict is extremely useful, for the reason that it is very frequently necessary to place confidence in persons of this kind, and to entrust them with the care of property. No one should think that this Edict imposes any hardship upon them, for they have the choice of refusing to receive anyone; and, unless this rule was established, opportunity would be given for them to cooperate with thieves against those whom they receive as guests; since, even now, they do not abstain from fraudulent acts of this description.
(2) Therefore, let us consider who those are that are liable. The Praetor says "Sailors". We must understand a "sailor" to be the person who has charge of the ship, although all are called sailors who are on board the vessel for the purpose of navigating it, but the Praetor only has in mind the owner; for Pomponius says that the latter ought not to be liable for the act of an oarsman, or sub-pilot, but only for what he does himself, or for the act of the captain; although if he himself ordered anyone to commit something to the care of a sailor, he would himself undoubtedly be liable.
(3) There are also persons who occupy positions on board ships for the purpose of caring for merchandise such as nanfulaceV, that is to say, marine guards and stewards. Therefore, if any of these should receive anything, I think that an action should be granted against the owner of the ship, because he who appointed persons of this kind to office permits property to be placed in their charge; even though the captain, or master does that which is called ceirembolon that is to say, "taking the property in his hands". But even if he does not do this, the ship-owner will nevertheless be liable for what was received.
(4) No provision is made with reference to those who have charge of rafts or boats, but Labeo says that the same rule applies to them; and this is our practice.
(5) We understand by the terms "innkeepers" and "stablekeepers", those who conduct an inn or a stable, or their agents. Persons, however, who are engaged in menial occupations, are not included; as, for instance, door-keepers, cooks, and others like them.
(6) The Praetor says, "Where they have received the property of anyone for safe keeping"; that is to say, any article or any goods whatsoever. Hence, it is stated in Vivianus, that this Edict also has reference to things which do not come under the head of merchandise; as, for instance, clothing which is worn on board ship, and other things such as persons daily make use of.
(7) Moreover, Pomponius says in the Thirty-fourth Book, that it makes a little difference whether we bring in our own property or that of others, if we have an interest in having it kept safely, for the property should be returned to us rather than to those to whom it belonged; and, therefore, if I accept merchandise as a pledge for money loaned on a maritime risk, the owner of the vessel will be liable to me rather than to the debtor, if he had previously received the property from me. (8) Does he "receive the property for safe-keeping", only where having been placed on board the ship it was entrusted to him, or if it is not thus entrusted, is he still considered to have received it for this purpose, if it was merely placed on board the ship? I think that he always receives property for safe-keeping when it is placed on board, and that he not only should be liable for the acts of the sailors, but also for those of the passengers:
2. Gaius, On the Provincial Edict, Book V.
Just as an innkeeper is liable for the acts of travellers.
3. Ulpianus, On the Edict, Book XIV.
Pomponius says, in the Thirty-fourth Book, the same thing with reference to the acts of passengers. He also asks that where the property has not yet been placed on board a ship, but has been lost on land, it is at the risk of the owner of the vessel who at first took charge of it.
(1) The Praetor says: Unless they restore it, I will grant an action against them. The action arising from this Edict is one in factum. Let us consider, however, whether this is necessary, as the case is one in which a party can proceed by a civil action; that is to say, where any compensation is involved, an action based on leasing or hiring will lie. But where the entire ship was hired, the party who did so can bring suit on that ground, even for articles that are missing; but if the master contracted to transport the goods, an action on the ground of hiring can be brought against him; and if he received the goods gratis, Pomponius says that an action on deposit will lie. He, therefore, is surprised that a praetorian action was introduced, since civil actions are applicable; unless, as he states, it was for the purpose of making it known that the Praetor was desirous of checking the dishonesty of persons of this kind, and because in cases of leasing and hiring, a person is responsible for negligence, but in cases of deposit, only for fraud; but, under this Edict, the party who received the property is absolutely liable, even though the goods were lost, or damage resulted without his fault, unless something occurred to cause inevitable injury. Hence, Labeo holds that, where anything is lost through shipwreck, or by the violence of pirates, it is not improper to grant the owner an exception. The same must be said where irresistible force is used in a stable, or an inn.
(2) Inn-keepers and the proprietors of stables are also liable, if, in the transaction of their business, they take charge of property; but they are not liable if they do so outside of their business.
(3) Where the son of a family, or a slave receives property for safe-keeping, and the consent of the father or master is granted, an action may be brought against him for the entire amount. Moreover, if a slave of the owner of the vessel stole the property or injured it, a noxal action will not lie, for the reason that the owner can be sued directly, on account of his having received the goods; but if the son of the family, or the slave acted without the consent of his superiors, an action De Peculio will be granted.
(4) This action, as Pomponius states, has for its object the recovery of property; and therefore is granted perpetually, and against an heir.
(5) Finally, let us consider whether proceedings by a praetorian action on the ground of property received, and also on that of theft, can be instituted for the same property. Pomponius is in doubt as to whether it can, but the better opinion is that the party ought to be content with one or the other of the two proceedings; that is, either application to the court, or an exception on the ground of fraud.
4. Paulus, On the Edict, Book XIII.
But the captain of the ship himself who assumed the risk, has a right of action on the ground of theft, unless he himself stole the property, and afterwards it was stolen from him, or someone else stole it, where the captain is not solvent.
(1) Where the captain of a ship received for safe-keeping the property of another captain; or the proprietor of a stable, that of another proprietor; or an inn-keeper that of another inn-keeper; they are all equally liable.
(2) Vivianus states that this Edict also has reference to such property as has been on board after the merchandise whose carriage was agreed upon has been loaded, even though nothing is due for its transportation, as for instance, clothing, or provisions for daily consumption; for the reason that these things are included as additions to those for which compensation has been paid.
5. Gaius, On the Provincial Edict, Book V.
The owner of a ship, an inn-keeper, and the proprietor of a stable, receive pay, but not for the safe-keeping of property; the ship-owner receives it for the transportation of passengers; the inn-keeper for permitting the travellers to remain in his inn; the proprietor of a stable for allowing beasts of burden to be housed in his barn; nevertheless, they are all liable for the safe-keeping of property. A fuller, or a shoemaker receives pay, not for the safe-keeping of property, but for their labor; and they are also liable to an action of hiring for safe custody.
(1) What we have said with reference to theft should be understood to be equally applicable to damage, for it cannot be doubted that a party who receives property for safe-keeping is considered to do so in order to protect it from theft, as well as from injury.
6. Paulus, On the Edict, Book XXII.
Although you may be transported in a ship without charge, or be entertained gratuitously in an inn, still, an action in factum will not be refused you if your property is unlawfully damaged.
(1) If my slave is attending you on board a ship, or in an inn, and he injures my property, or steals it; although I will be entitled to actions on the ground of theft, or damage to property, yet in this instance, the action, because it is in factum can be brought against you, even on account of the act of my slave. The same rule applies if the slave is our common property; still, whatever you pay me on account of what he may have done, whether you were liable in an action for partition, or in an action on partnership, or where you hired only a share in said slave, or all of him, you can hold me liable on the contract also.
(2) But where some injury has been committed against the said slave by someone else, on the same ship, or in the inn, whose acts the Praetor is accustomed to investigate, Pomponius does not think that this action can be brought on account of the slave.
(3) An inn-keeper is also liable to the action in factum, on account of those who have lodgings in the inn, but this rule does not apply to a party who is entertained as a transient guest, as, for instance, a traveller.
(4) We can also have recourse to an action of theft, or for damages against sailors, if we can prove the act of any particular person; but we should be content with one action, and if we proceed against the owner of the vessel, we must assign to him our right of action; although an action based upon hiring will lie in his favor against the other party. Where, however, the owner is discharged from liability in this action, and the party injured then brings suit against the sailor: an exception will be granted the latter, in order to prevent frequent trials being held on account of the conduct of the same man. On the other hand, if proceedings are instituted on account of the conduct of one man, and afterwards an action in factum is brought against the owner, an exception will be granted.
7. Ulpianus, On the Edict, Book XVIII.
The owner of a vessel shall be responsible for the acts of all his sailors, whether they are freemen, or slaves, and not without reason, for he himself employed them at his own risk. But he is not responsible, except where the damage has been committed on board the vessel; for where it happens off the vessel, even though it was committed by the sailors, he will not be liable. Moreover, if he gives warning that every passenger must be responsible for his own property, and that he will not be liable for damage, and the passengers agree to the terms of the warning, he cannot be sued.
(1) This action in factum is for double damages.
(2) Where any of the sailors cause damage to the property of one another, this does not affect the owner of the ship. But where anyone is both sailor and merchant, he will be responsible, and where the party injured is one of those commonly called nanlepibatae that is to say one who works his passage the owner will be liable to him also; and he will be responsible for the acts of a person of this kind since he also is a sailor.
(3) Where the slave of a sailor causes damage, even though he himself is not a sailor, it is perfectly just to grant a praetorian action against the owner of the vessel.
(4) The ship-owner is liable in his own name in this action that is to say, he himself is to blame for employing persons of this description; and therefore, even if he should die, he will not be released from liability. Where, however, he becomes liable through the conduct of his own slave, only a noxal action can be brought; for where he employs the slaves of others, he must ascertain whether they are faithful and trustworthy, but he is excusable on account of his own slaves, no matter what kind of slaves he employed for the purpose of manning his ship.
(5) Where there are several owners of a ship, any one of them can be sued to the amount of the interest which he has in the same.
(6) These actions, although they are honorary, are still perpetual, but they are not granted against an heir; hence, if a slave has control of a ship, and dies, an action De Peculio will not be granted against his master, even within a year; but where a slave or a son manages a ship with the consent of his father or his master, or has charge of an inn or a stable; I am of the opinion that they will be compelled to defend the suit for the entire amount of damages, on the supposition that they assumed complete responsibility for everything which might happen.