Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

386 PARTICULAR DELICTS AND TORTS

on dolo desinere possidere in the claim of a hereditas, in vindicatio ret (action to recover property) and in the actio ad exhibendum (for production) amply illustrate this meaning.1 It is dolus for a mandatary not to hand over what he has received under the mandate.2 It is dolus to take by force what is not yours.3 It is dolus to drive your cattle on to my land so that they may feed on my glans.* The word is also used still more widely to denote wilful breach of duty, with no specific allegation of dishonest intent, e.g. in deposit,* sepulchri violatio,6 under the lex Aquilia, where dolus is wilful damage, and in the law of maiestasJ Acts of a slave giving rise to noxal actions are generically described as dolus? setting fire to crops is dolus.^ It is dolus to pursue an action after a compromise,10 or to obstruct iudices in their official business.11 It is dolus to give a wrong judgement from inimicitia, gratia or sordes ;12 to incite a mob to do damage ;*3 to commit wilful adultery,14 etc. These wider and narrower meanings are well illustrated by texts on vis and dolus. In relation to rapina we are told that *qui vim facit, dolo facitV* Yet, for liability for carrying off one who has been summoned to court (in ius vocatus), we are told that it is enough that it is * vi, quamvis dolus malus cesset' .l6

All these texts, however, are concerned with the presence of dolus as creating ground for various specific legal liabilities: the question is how far they can be carried over to the actio doli where there is no other specific remedy. The extended meanings are clearly classical, and we are told on the one hand that the actio doli has the same causa

as the exceptio doli? and on the other, in a number of texts, that the exceptio doli is available in many cases where there is no element of concerted fraud or of deceit.2 There are also many texts in which the exceptio doli is given in rebuttal of a formally valid, but in the circumstances inequitable, claim.3 These applications are classical and have nothing to do with the so-called exceptio doli generalis which could be used in later law as a substitute for any other exceptio of which the availability was known to the plaintiff.4 Since the exceptio was available, without obvious limits, to adjust such cases, it seems that the actio doli would be equally available to adjust inequitable gains and losses where no other remedy was available. A licenses me to dig chalk on his land, not by binding contract, and when I have incurred some expense he stops me from digging the chalk. I have an actio doliJ A promises land and before delivery imposes an easement on it. The promisee has an actio doli with, so far as the text goes, no need to allege fraud.6 A man has promised the slave A or the slave B. Before delivery he kills A. This destroys the alternative and he must give B. Before delivery is due B dies. The promisor is released. There is no liability under the contract, but there is actio doliJ Under an informal agreement for mutual services, one having done his part, the other wilfully refused to do his; there was, before the development of the actio praescriptis verbis, no action in contract, but there was actio doli} A slave agrees with X that X shall promise his master money to free him, the slave to take over the liability when freed. He is freed and then refuses. There is actio doli? A promises B a slave.

1D. 44. 4. 2.

2E.g. D. 5. 3. 39. 1; 29. 7. 15; 35. 1. 89.

5D. 4. 3. 34; analogous case, D. 19. 5. 16. 1.

6D. 4. 3. 7. 3. The text gives analogous cases.

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C kills the slave and so releases A. B has actio dolt against C1 The depositee of a will obliterates it. Heres and legatees have actio doli.2

How far does this go ? Some of the texts deal with inequitable gain, but many only with inequitable loss. Many of the texts are suspected of interpolation. Mitteis3 thinks the cases are classical. Letter4 thinks the classical texts always required planned machinatio for the actio doli and that the texts have suppressed this. For our purpose that is not material: the question is how far the rule went in the Corpus Juris. There is no difficulty about the original rule: preconcerted fraud causing damage is a cause of action. But the case is different when we come to mere unfairness of conduct. What is the principle ? Machinatio is likely in some of the cases where it is not stated, but in others there is no hint or likelihood of it. It is not enough to say that the act must be wrongful. For since, by the hypothesis, there is no other remedy, it is not wrongful unless there is an actio doli, and to say that there is no actio doli unless the act is wrongful is thus circular. A rule that the action lay wherever one made a profit at another's expense or caused him a loss, wilfully and without justification, might not be unfair, but it would be somewhat unmanageable, and we should still have to determine what is a justification. Certainly the texts do not express any limit. In most of the cases the parties to the action are parties in some other relation, in the action appropriate to which the dolus cannot be dealt with, but sometimes, e.g. in D. 4. 3. 18. 5, the person liable for dolus has nothing to do with the transaction in connexion with which the liability arises; but it

1D. 4. 3. 18. 5; analogous case, D. 4. 3. 19.

2D. 4. 3. 35, but there are obvious difficulties of proof, and D. 9. 2. 41, 42 seem to give other remedies. Other cases expressing the same wide notion

of dolus are D. 4. 3. 9. 3; 11. 6. 2. \>ypr.\ 11. 7. 14. 2; 39. 3. 14.^., which however is so altered and abridged as to be hardly intelligible.

3 Rom. Privatr. pp. 316 sqq.

4 Festg.fur Guterbock, pp. 257 sqq.

may be* noted that, in the case referred to, the act done (the killing of the slave) was certainly wrongful, though the duty broken was not to the plaintiff in the actio doli but to the owner of the slave killed.

The question arises how far this principle extended, that an actio doli would lie in respect of an act which, apart from this action, infringed no right. If it applied where there was no negotium in the matter, it would give a basis for a theory of abuse of right, since it is clear that for the actio doli there need be no intent to make a profit. If I let my house to a tenant whom I know to be undesirable and noisy, in order to annoy my neighbour or to lessen the value of his property, is there an actio doli} The better answer seems to be that there is not. The very numerous texts like D. 50. 17. 55: 'nullus videtur dolo facere qui hire suo utitur',1 seem conclusive, though it is possible to quibble as to what are the limits of one's right. Such evidence as we have about abuse of rights is never in any way connected with the actio doliy but either with abuse of process or with oi-S of the various water rights between neighbours.2 On the whole the better view seems to be, as is said above,3 that there is no rule against abuse of right and that these applications of the actio doli which we have noted are no more than sporadic attempts to do justice and are partly, though certainly not entirely, postclassical. It is plain that in some of the Roman cases given there is no such 'inducement to an act* as seems to be necessary to the English action of deceit.4 Where A makes an agreement with B on a condition within B's power, and as things have turned out the contract would be highly profitable to 5, and C, not connected with the matter, wilfully prevents B from satisfying the condition, no contract has arisen in either system, but in Roman law B will

39O PARTICULAR DELICTS AND TORTS

have an actio doli against C. Whatever remedy there may be in English law, it will certainly not be an action of deceit.

Dolus was not a delict in the strict sense: it was a praetorian, not a civil law, institution. And it has characteristics which bring it, at least superficially, nearer to the notion of tort than to that of delict. It is conceived indeed as a penal actio: it does not, e.g., survive against the heres except to the extent of his profit.1 The fact that condemnatio in the action involves infamia does not make it a penal action: this occurs in many actiones ad rem persequendam? But the substantial aim of the action is reparation—rem servare? It follows that if the damage has been made good in any way the action does not lie. Thus while return of the property was no defence in theft, it was in the actio doli. From this it follows that if several were concerned the liability is not cumulative as it is in ordinary delict :4 if one has made complete restitution the others are released from liability.* It is for our purpose indifferent whether this rule is classical, as it probably is, or the work of the compilers, as it is sometimes said to be.

The residuary character both of the actio doli and the exceptio doli is striking. The first has many resemblances to our Case, which, as Maitland said,6 * becomes a sort of general residuary action'; the second was employed for many purposes for which we should look to a Court of equity. Probably every legal system affords instances of this constant struggle to make law do justice by a gradual and often unavowed extension of existing remedies.

5. METUS

Metus is, as to the facts which give rise to the action, very like our duress or menaces or intimidation. But in Rome it was a well-recognised praetorian wrong, handled in general like dolus, except that it was not subsidiary (i.e. it lay even though there were other remedies), that it lay at

least in later law against innocent third party acquirers to the extent of their benefit, and that, if it was allowed to proceed to condemnation the damages were fourfold, though this could always be avoided by restitution at any moment before condemnatio.1 In our law it is now established that intimidation is a tort, comprehending threats not only of criminal or tortious acts, but of breaches ofcontract as well? But the action for recovery of money obtained by unlawful intimidation seems usually to be treated as being quasicontract, involving waiver of tort.3 It is of course entirely outside the Roman notion of quasi-contract—indeed it seems to require a considerable sense of humour to appreciate the English way of looking at the matter. For it seems that in our courts a man who extorts money from me by threats of extreme violence is regarded as making an implied promise to pay it back again.

6. CALUMNI A

A praetorian wrong which can be called a delict is calumnia. This was the bringing of an action without reasonable grounds, i.e. in bad faith. It differed from our action for malicious prosecution in that it applied primarily to the bringing of a civil action,4 while our action for malicious prosecution applies primarily to the bringing of criminal proceedings. But while it is only in very few cases that an action lies under our law for maliciously taking civil proceedings, e.g. bankruptcy proceedings,* calumnia seems also to have applied to criminal charges generally. It is true that we are told this only of a cognate form, bringing proceedings corruptly for reward,6 but this may be due to the fact that under Justinian the ordinary actio de calumnia was obsolete; he substituted other machinery, so that we know but little of it.? As with us, it was normally essential

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that judgement should have gone for the injured party. It is curious to note that calumnia never seems to have been regarded as an iniuria except where a man was claimed as a slave.1

7. NUISANCE

A tort prominent in our books but having no direct parallel in Roman law is nuisance. In fact, however, the Roman law did provide a remedy in most of the cases which are nuisances under our law. With us a public nuisance such as digging a trench in a road or obstructing the use of a road gives no action unless the plaintiff suffers some damage other than that which falls equally on the public generally.2 On facts of this kind the Roman law gave a

remedy under the lex Aquilia for damnum iniuria datum^ if there was damage to limb or property.3 But where there was no actual damage of this kind it does not seem to have provided for such cases as expense incurred by reason of having to divert goods to another route owing to the obstruction.4 It is, however, possible that in Justinian's law, where the wrongful act was done in knowledge of its wrongfulness, an actio doli might lie, though such a case does not seem to be illustrated. So far as the normal type of private nuisance is concerned, the protection given by Roman law seems to be as effective as ours, though the machinery is entirely different. Some nuisances, such as overhanging trees, were dealt with by very early law.5 But the ordinary type of nuisance, consisting in unjustifiable interference with my enjoyment of my property, was not dealt with by an action oftort or delict. These nuisances are normally inroads on ownership or some other real right, and the existence in Rome of 'real actions', actions as-

1D. 47. 10.12, 22.

2Winterbottom v. Lord Derby (1867), L.R. 2 Ex. 316.

3D. 9. 2. 9. 4, 28. pr.y 29. pr.y etc.

4Rose v. Miles (1815), 4 M. and S. 101.

5XII Tables, 7. 9a; D. 43. 27. 1. 8, 2.