THE DIGEST OR PANDECTS. BOOK IV.
TITLE I. CONCERNING COMPLETE RESTITUTION.
1. Ulpianus, On the Edict, Book XL
The usefulness of this Title needs no commendation, for it speaks for itself. Under it the prætor 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 prætor 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 prætor 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 prætor, 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 prætor 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.
TITLE II. WHERE AN ACT IS PERFORMED ON ACCOUNT OF FEAR.
1. Ulpianus, On the Edict, Book XL
The prætor 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 XL
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 XL
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 XL
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 XL
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 XL
These persons indeed, come under the Lex Julia, because they have accepted money to conceal a detected act of adultery. The prætor, however, should intervene to compel them to make restitution, for the act is contrary to good morals, and the prætor 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 prætor 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 prætor 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 prætor, 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 prætor 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 prætor 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 Mar-
cellus, 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 XL
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 prætor would rule that under the Edict those things should be restored which he had alienated? Pomponius says in the Twenty-eighth Book, that the prætor 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 XL
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 prætor 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 prætor 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 XL
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 XL
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 XL
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 prætor 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 prætorian 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 prætor, 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 prætor 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.1
1 The performance of acts obtained by the employment of violence or intimidation has been recognized as illegal by jurists from the earliest times. The Civil Law doctrine that the force exerted must be of such a character as to excite well-grounded apprehension in the mind of a person of ordinary decision of character, was accepted by all subsequent legislators. It was essential that the victim must firmly believe, at the time, that his life or liberty was imperiled, or, that in case of his non-compliance, some serious bodily injury would be inflicted upon him; which of course implies the conviction that his oppressor had the power to enforce his demands by violence. Subsequent acquiescence, given without restraint, did not confer validity upon the original act of extortion. These principles go back to the very beginning of the English Law, and are clearly stated by Bracton: "Metus autem est, presentis vel futuri periculi causa, mentis trepidatio, & presentum debemus accipere metum, non suspicionem inferendi ejus vel cuiaslibet mani vel meticulosi hominis, sed talem qui cadere possit in virum constantem, talis enim debit esse metus, qui in se contineat mortis periculum & corpus cruciatum. Refert autem utrum metus preveniat donationem, vel subsequatur: quia si primo compulsus promisero, & postea sponte & gratis dedero, talis metus non excusat." (Bracton, De Leg. et Consuetud. Angliæ, II, XVI, 5.) In both England and Scotland, in determining the existence of duress, all the circumstances of the case must be taken into consideration. Where any one is forcibly compelled to make a con-
TITLE III. CONCERNING FRAUDULENT INTENT.
1. Ulpianus, On the Edict, Book XI.
In this Edict the prætor 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.
tract he may ratify it afterwards, if he desires to do so. (Paterson, A Compendium of English and Scotch Law, I, 457.)
Under the American Law, as consent is the essence of a contract, and all transactions of this kind effected by violence being extortionate and iniquitous, are void; mere threats, unaccompanied by fear of death or severe corporeal injury, are not sufficient to establish a case of duress per minas. Nor does this apply where the menace has reference to an act of an unimportant character; or where recourse may be had to an adequate legal remedy. (Parsons, The Law of Contracts, I, XX, 4.)
The above-mentioned rules are also accepted by Moslem jurisprudence. The party who makes threats must have the power to execute them, which, of course, involves the existence of fear in him against whom they are directed. The transaction is voidable at the option of the oppressed individual, but his acceptance of the price renders it valid. When compulsion is exerted against the vendor, the purchaser is responsible for the article if it is lost while in his hands. (The Hedaya III, XXIV.)
In order to make a contract void the Austrian Code requires the duress to be caused by an illegal act, and the fear resulting from it to be well-founded, these points to be established to the satisfaction of the court: "Wer von dem annehmenden Theile durch ungerechte und gegründete Furcht zu einem Vertrage gezwungen worden, ist zu nalten nicht verbunden. Ob die Furcht gegrundet war, muss von dem Richter aus dem, umstanden beurtheilt werden." (Allgemeines Bürgerliches Gesetzbuch XVII, 870.)
The employment of duress by a third party having no interest in the transaction renders a contract void by the enactments of the various nations which have adopted the Roman system. Threats made, or force exerted against the wife or any of the ascendants or descendants of a contracting party have the same effect as against himself; and any violence used to obtain consent must be irresistible. (Código Civil de España, Arts. 1265, 1267, 1268, Code Civil de France, Arts. 1109, 1111, 1113, Codice Civile d'Italia, Arts. 1111, 1112, 1113, 1114.) — ED.
(3) The prætor 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 prætor 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 prætorian 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 prætorian 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 XL
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 XL
This Edict does not apply; and it also ceases to be available when a third party:
4. Paulus, On the Edict, Book XL
Can be sued; or where the property can be secured for me through another.
5. Ulpianus, On the Edict, Book XL
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 guardian-
ship, 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 XL
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 prætor Cæcidianus 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 XL
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 Prætor 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 prætor 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 XL 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 XL
To prevent the parties from profiting by their own deceit.
13. Ulpianus, On the Edict, Book XL
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 XL
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 XL
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 XL
The prætor 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 XL
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 XL
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 XL
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 XL
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 XL
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 XL
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 XL
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 XL
•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 XL
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 XL
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. Scævola, 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 XL1I.
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 XL
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 him.
TITLE IV.
CONCERNING PERSONS UNDER TWENTY-FIVE YEARS OF AGE. 1. Ulpianus, On the Edict, Book XI.
The prætor 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 prætor promised them aid by this Edict and relief from deception.
(1) The prætor 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 prætor 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 XL
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 Prætor 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 prætor; 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 en-
titled 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,1 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 prætor will be obliged to grant him relief.
1 The Actio Institoria was one involving the general agency of one person who was in the power or under the control of another, where the former was charged by the latter with the management of any kind of business. It nearly always had reference to the acts of a slave, the presumption being that they were done with the full consent of the master, whose responsibility was therefore held to be the same as if he himself had performed them. Provided the party discharged the duties of an agent, the age, sex, or civil status of the latter was of no conse-
6. The Same, On the Edict, Book X.
Relief is afforded by complete restitution of minors under twenty-five year's 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 XL
The prætor 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 prætor 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 prætor 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.
quence. The institor was prohibited from delegating his authority under any circumstances. While the principal was absolutely liable for the negligence of the institor, this rule did not apply to crimes, unless guilty knowledge was established. Injury arising from the commission of a misdemeanor by a slave comes under the head of noxa. The institor differed from the exercitor only in the fact that the former attended to matters on land, while the latter was the supercargo of a vessel. The Actio Exercitoria lay against the shipowner for expenses incurred, or damages for illegal acts perpetrated by his maritime agent. — ED.
(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 prætors 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 en-
tirely 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 XL
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 prætor against the freedom of his slave.
10. Paulus, On the Edict, Book XL
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 Scævola 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 prætor his release from the curatorship of the aforesaid minors during their absence. The minors then appeared before the prætor 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 prætor 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 prætor, 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 prætor 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 prætor 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 XL
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 prætor 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 prætor, 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 prætor 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 prætor 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.
Prætorian 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 XL
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 prætor 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 prætor 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 prætor 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 prætor ought not to interpose his authority unless there is manifest evidence of fraud, or the parties have acted with gross negligence.
(2) Scævola, 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 prætor 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 prætor.
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 prætorian 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 XL
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 prætor.
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 prætor 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.
Æmilius 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 Prætor, 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. Scævola, 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 aro