!!Экзамен зачет 2023 год / The Law of Obligations

CHAPTER 21

Metus and Dolus

I. METUS

1. Historical background

During the last hundred years of its existence the Roman Republic was in constant turmoil. The clashes in the wake of the Gracchian reform legislation had set a pattern of political violence which was to lead, eventually, to the downfall of the old order. Violence was used to force legislation through an assembly and to influence the outcome of elections and of trials.1 We read of tribunes, praetors2 and candidates for the consulate being lynched, of a consul being stoned and his fasces broken, of riots at assemblies, attacks of the mob on the Senate and of politicians cutting their adversaries off in midspeech by blocking their mouths.3 Since the days of the infamous Publius Clodius Pulcher4 (himself murdered after a brawl on the via Appia), armed gangs, composed of slaves, freedmen and urban poor were employed to maraud the streets and to intimidate political opponents.5 From time to time, a state of emergency had to be declared by passing the senatus consultum ultimum.6 Even a man like Cicero,

"who possessed by temperament and education refined sensibilities and a horror of internecine strife, encouraged violence, if it was undertaken by the boni in defence of the established order against the audaces and improbi who sought to disturb it. . . .

The Romans of the Republic seem genuinely to have considered it an essential constituent of libertas that a man should be allowed to use force in his personal interest to secure what he believed to be his due. So, when a conflict could not be resolved constitutionally, it was not surprising that the frustrated party employed violence, and this in turn frequently could not be countered except by further partisan violence. This vicious circle continued until the military force which was finally summoned to break it moved the conflict to the higher plane of civil war".7

1For details, see A.W. Lintott, Violence in Republican Rome (1968), pp. 175 sqq., 208 sqq. On the annulment of laws passed by violence cf. pp. 132 sqq.

2Cf, for example, the episode involving the praetor Asellio who was assassinated by

moneylenders: supra, pp. 167 sq.

3Cf., for example, the episode recounted in Plutarch, Vitae, Cato minor, 28, 1,

4On him cf. e.g. Hans Georg Gundel, in: Kleiner Pauly, vol. 1, col. 1227 sq.

5Lintott, op. cit., note 1, pp. 74 sqq.

6Details in Lintott, op. cit., note 1, pp. 149 sqq, Cf. further the observations by Frier,

Roman Jurists, pp. 52, 270 sq.

7Lintott, op. cit., note 1, pp. 175, 204 sq. For a more detailed discussion of the morality

of political violence, more particularly on Cicero's views ("misconceived and short sighted"), cf. pp. 52 sqq.; but see also Frier, Roman Jurists, pp. 118 sqq. On Roman reliance on self-help cf. also Gunter Wesener, "Offensive Selbsthilfe im klassischen romischen Recht", in: Festschrift Artur Steinwenter (1958), pp. 100 sqq.; Theo Mayer-Maly, RE, vol. IX A 1, 1961, col. 315 sqq.; Alfons Burge, "Vertrag und personale Abhangigkeiten im Rom der

651

Created with novaPDF Printer (www.novaPDF.com)

In the provinces, people lived in constant fear of being extorted and exploited by corrupt governors and their agents. Being in a position of supreme authority, unchecked by a colleague or tribunus plebis, a provincial governor was often tempted to use his term of office to recover financially from the election campaigns fought at home, and to prepare his private purse for those that were yet to lead him to even higher office. The leges de rebus repetundis8 (the mere volume of which is in itself an indication of the size of the problem) did little to ameliorate the situation: Rome was far away, and even if the worst came to the worst, a guilty governor could always slip away from Rome to the sanctuary of a provincial town.9

2. Coactus volui, tamen volui

Under these circumstances it is hardly surprising that people found themselves compelled, increasingly frequently, to give away movable and immovable property, to promise money, to waive claims, not to enter upon inheritances, etc. Whatever, therefore, the reaction of the public authorities on a constitutional level in these confused and turbulent times,10 it was clear that the praetor had to step in to grant relief to those whose private transactions had been affected by fear or force. "Nihil consensui tarn contrarium est . . . quam vis atque metus"1'—nothing is as opposed to consent as force and fear: this is how Ulpian formulated, as far at least as bonae fidei transactions based on consensus were concerned, what was obviously equitable. But the ius civile did not provide a satisfactory solution to the problem. Coactus volui, tamen volui was the principle that we still find proclaimed by a late classical jurist such as Paulus:12 even though I have formed my will under coercion, I have nevertheless formed a (legally relevant) will. There was no general rule declaring transactions concluded under the influence of duress or coercion invalid. On the

spaten Republik und dcr friihen Kaiserzeit", (1980) 97 ZSS 107 sqq.; cf. also the case underlying Cicero's speech pro Caecma (on which sec the detailed analysis by Frier, Roman Jurists, passim, e.g. pp. 24 sq.).

K Mommsen, Romisches Strafrechl (1899), pp. 705 sqq.; Bergc-r, p. 675; D.V. Simon, in: Kleiner Pauly, vol 4, col. 1379 sq. The term "repetundae" indicates things or money given to an official under extortion as a bribe which could therefore be claimed back (repetere).

9 This is what happened in the case of Verres, whose machinations Cicero exposed in a series of famous speeches. Verres withdrew to Massilia (Marseilles) where he lived most comfortably for the next 26 years off his proceeds and surrounded by the art treasures heaped up during the three years of his governorship in Sicily. He was killed in A.D. 43 after Antonius and Octavianus had seized power in Rome. Cf. e.g. M. Deissmann-Merten, in:

Kleiner Pauly, col. 1207 sqq.

' It was entirely inadequate. On the control of violence by the executive, see Lintott, op. cit., note 1, pp. 89 sqq.; on legislation against violence, see Lintott, pp. 125 sqq.

" Ulp. D. 50, 17, 116 pr.

12 "Si metu coactus adii hereditatem, puto me hcredem effici, quia quamvis si liberum esset noluissem, tamen coactus volui": Paul. D. 4, 2, 21. 5; cf. also Cels. D. 23, 2, 22. On these texts, their possible philosophical background and their implications, see A.S. Hartkamp, Der Zwang im Privatrecht (1971), pp. 84 sqq., 124 sqq.

Created with novaPDF Printer (www.novaPDF.com)

contrary: stipulations (and other formal transactions) were usually valid:

". . . si metu coactus . . . stipulanti Titio promisisti, quod non debueras promittere, palam est, iure civili te obligatum esse, et actio, qua intcnditur dare te oportere, efficax est."13

3. "Quod metus causa gestum erit, ratum non habeo"

It was either in 79 or 78 B.C. that a praetor by the name of Octavius for the first time introduced a formula into the edict which appears to have been directed against "per vim aut metum auferre";14 the actio Octaviana thus enabled the disadvantaged party to claim back what he had been compelled to hand over. This was the historic starting point for the legal protection against unconscionable coercion, as we find it laid down more fully in Hadrian's edictum perpetuum. "Quod metus causa gestum erit, ratum non habebo", were the generalizing words with which the relevant title was introduced.15 What exactly did that entail? The key term "metus" was defined by Gaius in the following manner: "Metum autem non vani hominis, sed qui merito et in homine constantissimo cadat, ad hoc edictum pertinere dicemus."16 This very restrictive concept of metus is a typical reflection of the Roman attitude towards "man's central virtue":17 constantia. A Roman citizen could normally be held responsible for his actions and his declarations, and any attempt to get away from what he had done or said was instinctively frowned upon. The typical vir constans was not thrown off balance when faced with "timor quislibet";18 if that made him rush into a contract then this was due, above all, to an embarrassing lack of resoluteness. Hence the requirement that the fear experienced must have been of such a magnitude that it would have had an impact even on a man of the most steadfast character, on the (model) vir constantissimus.19 Fear of death,20 imprisonment,21 enslavement22 or of

13lust. IV, 13, 1.

Hartkamp, op. cit., note 12, pp. 245 sqq.; Berthold Kupisch, In integrum restitutio und

vindkatio utilis hex Eigentumsiibertragungen im klassischen romischen Redit (1974), pp. 158 sqq.

15 Ulp. D. 4, 2, 1. Ulpian adds: "[O]Hm ita ediccbatur 'quod vi metusve causa': vis cnim fiebat mentio propter neccssitatem impositam contrariam voluntati: metus instantss vel futuri penculi causa mentis trepidatio. sed postea detracta est vis mentio ideo, quia quodcumquc vi atroci fit, id metu quoque fieri videtur." On the relationship between vis and metus and the development sketched by Ulpian, cf. Udo Ebcrt, "Vi metusve causa", (1969) 86 ZSS 403 sqq.; Hartkamp, op. cit., note 12, pp. 1 sqq.; Kupisch, op. cit., note 14, pp. 192

D. 4, 2, 6. Cf. also Ulp. D. 4, 2, 7 pr.: ". . . si quis meticulosus rem nullam frustra timuerit, per hoc edictum non restituitur, quoniam neque vi ncque metus causa factum est."

17Schulz, Principles, p. 224.

18Cf. Ulp. D. 4, 2, 5.

19He represents a Byzantine generalization of classic casuistry. For all details, see Hartkamp, op. cit., note 12, pp. 27 sqq.

Created with novaPDF Printer (www.novaPDF.com)

stuprum23 fell into this category, not, for instance, fear of being exposed to legal proceedings24 or to infamia.25

4. The meaning of metus causa

The exact meaning of the term "metus causa" as used in the praetor's edict ("quod metus causa gestum erit . . .") has given rise to scholarly dispute. Traditionally, the praetor was understood to disapprove of acts26 which had been caused by fear;27 but it has also been argued that the phrase refers to what has been done with the aim of causing fear.28 More recently, a third interpretation has gained ground which regards—more widely—all acquisitions as being covered by the praetorian veto which have been made as a consequence of fear.29 In other words: "metus causa" is not to be understood from the point of view of either the extortioner or the person who has been compelled to act, but from the position of whoever acquires something on the basis of duress: irrespective of whether he was himself responsible for the other party's predicament, whether he is merely exploiting it or whether he has acted in good faith. This latter opinion ties in best with the fact that the actio quod metus causa did not aim at penalizing extortionary behaviour (". . . haec actio . . . [non] personam vim facientis coerceat. . . "),30 and that even bona fide third parties could therefore be liable.31 If A has forced В to perform to C, who in turn sells the object to D, neither С nor D has acted "because of fear". Nevertheless, D's acquisition can be traced back to the fact that В once had to make a performance under compulsion; in this sense, it is (still) based on metus and can thus be regarded as something "quod metus causa factum est".32

5.The remedies

(a)The actio quod metus causa

This brings us to the remedies provided by the praetor in order to give teeth to his verdict of "ratum non habebo". The actio quod metus causa, without doubt, was the most potent and attractive weapon in the

23Paul. D. 4, 2, 8, 2.

24С 2, 19. 10 (Diocl. et Max.).

25Ulp. D. 4, 2, 7 pr.

2f' Legal transactions and factual acts; for examples of the latter cf. Pomp./Ulp. D. 4, 2, 9, 2; Paul. D. 4, 2, 21, 2; Kupisch, op. cit., note 14, pp. 129 sqq.

27 Cf. e.g. Fritz Schulz, "Die Lehre vom erzwungencn Rechtsgescha'ft im antiken romischen Recht", (1922) 43 ZSS 220 and passim; Kaser, RPr I, p. 244; Hartkamp, op. cit., note 12, pp. 52 sqq.

2H G.H. Maier, Pratorische Bereichemngsktagen (1932), pp. 96 sqq.

29 Kupisch, op. cit., note 14, pp. 145 sqq.; Max Kaser, "Zur in integrum restitutio, bcsonders wegen metus und dolus", (1977) 94 ZSS 123 sq.

30Ulp. D. 4, 2, 9, 8.

31Cf. infra, p. 655.

32Cf. Ulp. D. 4, 2, 9, 8.

Created with novaPDF Printer (www.novaPDF.com)

hands of a person who had acted under fear. It was characterized by a variety of interesting peculiarities. First of all, it was a penal action, for the defendant was liable for "quanti ea res erit, tantae pecuniae quadruplum":" fourfold the value which had been extorted.34 Secondly, it was "in rem scripta",35 that is, the defendant was not identified as the extortioner but only as the person who had acquired something on the basis of metus: "Si paret . . . Nm Nm fundum . . .

[mancipio] accepisse. . . ,"36 This could be the person to whom the plaintiff had been forced to perform or also any other person into whose hands the object in question had ultimately come, for instance a bona fide purchaser.37 Reason: ". . . in alterius praemium verti alienum metum non oportet."38 Thirdly, the actio quod metus causa was an actio arbitraria; it contained, in between intentio and condemnatio, the clause "neque ea res [arbitrio iudicis] restituetur".39 On the strength of it, the defendant was able to escape condemnation and payment of quadruplum by simply restoring the extorted objects. And finally, even if he refused such restoration, condemnation under the actio quod metus causa did not involve infamia.40

All of this presents a puzzling mixture of mildness and rigidity. On the one hand, one usually dealt with extortioners, or at least with persons who were not above suspicion. Hence the poena quadrupli, quadruplum being the highest multiple for which an action was available in Roman law.41 On the other hand, however, the defendant could also be free from any blame. Hence the formula arbitraria and the exclusion of infamia. That extortioners would also benefit from these concessions was to be accepted nolens volens; volens probably rather than nolens in view of the extortionary practices of many influential Roman office-

33Lend, EP, p. 112.

34After the lapse of one year, liability was confined to simplum: Ulp. D. 4, 2, 14, 1. Justinian broke down the amount of quadruplum into a (restitutionary) condemnation in simplum and a poena tripli. Cf. Ulp. D. 4, 2, 14, 10 sq. (itp.); Hartkamp, op. cit., note 12, pp. 285 sq. and, generally. Kaser, RPr II, p. 429.

Cf. Ulp. D. 4, 2, 9, 8: "Cum autem haec actio in rem sit scripta ncc personam vim facientis coerceat, sed adversus omncs restitui vclit quod metus causa factum est . . ."; Ulp. D. 4, 2, 9, 1: "Animadvertendum autem, quod praetor in hoc edicto generalker el in rem loquitur nee adicit a quo gestum." Very clear is Bartolus, Commentaria, ad D. 4, 2, 9, 8: "Haec actio est in rem scripta, ideo datur contra omnes, ad quos commodum pervenit ex mctu."

36Kupisch, op. cit., note 14, pp. 176 sqq.; Kaser, (1977) 94 ZSS 126 sqq.

37That the actio quod metus causa could be brought against (bona fide) third parties who had acquired the extorted thing has been disputed in the past; cf. e.g. Schulz, (1922) 43 ZSS

240sqq.; Ulrich von Lubtow, Der Ediktsiitel "Quod metus causa gestum erit" (1932), pp. 168 sqq. But d. Ulp. D. 4, 2, 14, 5; Ulp. 4, 2, 9, 8 (both not interpolated) and Hartkamp, op. cit., note 12, pp. 201 sqq.; Kaser, (1977) 94 ZSS 127 sqq. and particularly Kupisch, op. cit.,

note 14, pp. 199 sqq., who gives a detailed analysis of the historical development.

38Ulp. D. 4, 2, 14, 5 in fine.

39Cf. Ulp. D. 4. 2, 14, 4; Inst. IV, 6, 27; Lcnel, EP, p. 112. On actiones arbitrariae in general, see Kaser, RZ, pp. 256 sqq.

40Cf. e.g. Hartkamp, op. cit., note 12, pp. 245, 274.

41Inst. IV, 6, 21.

Created with novaPDF Printer (www.novaPDF.com)

bearers in the provinces, who were to be treated considerately for reasons of political expediency.42

(b) In integrum restitutio?

Orthodox doctrine has it that the person who had lost out on account of metus was also granted an in integrum restitutio. Actio quod metus causa and in integrum restitutio are thus seen as two distinct remedies, the one a purely penal one, the other of a restitutionary nature.43 This picture does not, however, conform to our sources. In the Digest we find a far-reaching amalgamation of in integrum restitutio and actio quod metus causa which is attributed, traditionally, to Justinian.44 The compilers, it is said, have modified the law by ruthlessly shortening and interpolating the classical texts; admittedly, therefore, "the short Digest title 4, 2 presents unusual difficulties".45 These difficulties, however, find their origin in those strenuous attempts to bring the sources into harmony with certain preconceived ideas. They are not inherent in the sources themselves. For it has recently been demonstrated how things can be made to fall into place: the actio quod metus causa was the main remedy46 which the praetor had made available in order to effect in integrum restitutio; we are not dealing with two separate remedies, but

42For speculations about the (political) background of the actio metus causa and its relationship with the leges de rebus repetundis, cf. in particular Hartkamp, op. cit., note 12, pp. 250 sqq.; Kupisch, op. cit., note 14, pp. 228 sqq.; Kaser, (1977) 94 ZSS 120 sqq.

43Cf. e.g. Lenel, EP, pp. 110 sqq.; Schulz, (1922) 43 ZSS 216 sqq.; idem, CRL, pp. 600 sqq.; von Lubtow, op. cit., note 37, pp. 81 sqq.; Ernst Levy, "Zur nachklassischen in integrum restitutio" (1951) 68 ZSS 361 sqq.; Hartkamp, op. cit., note 12, pp. 189 sqq.; Buckland/Stein, p. 593; Kascr, RPr I, p. 244; cf. also, most recently, Alvaro D'Ors, "El comentario de Ulpiano a los edictos del 'metus' ", (1981) 51 AHDE2B7 sqq.; Hans Ankum, "Eine neue Interpretation von Ulpian Dig. 4, 2, 9, 5-6 iiber die Abhilfe gegen metus", in:

Festschrift fur Heinz Hiibtter (1984), pp. 3 sqq.

44Cf. e.g. Schulz, (1922) 43 ZSS 229 sqq.; von Lubtow, op. cit., note 37, pp. 218 sqq.;

Levy, (1951) 68 ZSS 422 sq.; Hartkamp, op. ci t . , note 12, pp. 59 sqq., 285.

45Schulz, p. 604. Kaser, (1977) 94 ZSS 109 comments as follows: "Nur auf wenigen Gebieten des Juristenrechts erweckt . . . die neuzeitliche Interpolationen-Kritik durch Streichungen und Zusatze, zuweilen auch durch Umstellungen, so stark wie hier den Eindruck des Krampfhaften, die die angewandte Methode zu diskreditieren droht" (only rarely in modern contributions to the law of the Roman jurists does one find equally desperate and frantic efforts to spot interpolations and to amend the texts by way of deletions, additions and occasionally even by way of a rearrangement; efforts which threaten to discredit the method applied).

46Others, which could be used alternatively for the same purpose (namely that of restitutio in integrum) were the so-called rcscissory (from "rescindere". "to pull down") actions modelled by the praetor according to the circumstances of each case and designed to set aside the effects of quod metus causa gestum erat. They were based on a fiction, for the judge was instructed to treat the matter as if the transaction had not taken place. Thus, for instance, where ownership had been transferred under duress, the plaintiff was granted an actio in rem on the model of the rei vindicatio. Cf. Ulp. D. 4, 2, 9. 4 and 6 and 7; for details, see Kupisch, op. cit., note 14, pp. 134 sqq.; Kaser, (1977) 94 ZSS 138 sqq. The plaintiff apparently had the choice between this rescissory action (which did not involve a poena quadrupli) and the actio quod metus causa.

Created with novaPDF Printer (www.novaPDF.com)

the action was the means of attaining the aim of restoration.47 This explains, for instance, why the actio quod metus causa was incorporated into the edictal title De in integrum restitutionibus and why the in integrum restitutio is often—also in other contexts—described as actio. The only major obstacle seems to lie in the fact that the actio quod metus causa lay for quadruplum and was an actio poenalis: not, it would appear, the appropriate attributes for a remedy supposed to serve the end of restoration. But we have already seen that the actio quod metus causa did not aim at penalizing the extortioner and that, furthermore, it was an actio arbitraria. Restoration was in fact its main objective, and the poena quadrupli was not (primarily) intended as a punishment for criminal behaviour but as an inducement for the debtor to return "quod metus causa accep[erat]".48 Only on this basis was it possible, after all, to expose bona fide third parties to the actio quod metus causa: ". . . nee cuiquam iniquum videtur ex alieno facto alium in quadruplum condemnari, quia non statim quadrupli est actio, sed si res non restituatur."49

(c) Exceptio

In many cases, of course, it was not necessary for a person who had acted under the influence of fear to sound the charge by instituting an action. If, for instance, he had promised something by way of stipulation, he could just as well wait until the stipulator attempted to enforce the contract. He could then counter this action by asking for an exceptio to be inserted into the programme of litigation. This exceptio was known as the exceptio metus and it instructed the judge, quite simply, to inquire "si in ea re nihil metus causa factum est".50 With the actio quod metus causa the exceptio metus shared the important characteristic that it was "in rem scripta" with the effect, "ut non inspiciamus, an is qui agit metus causa fecit aliquid, sed an omnino metus causa factum est in hac re a quocumque, non tantum ab eo qui agit".51 The person of the extortioner was not identified in the formula of the exceptio, and thus it could be raised against any plaintiff, whether he himself had caused the fear or whether, for instance, he was a bona

47This is the main thesis of Kupisch's book on in integrum restitutio, op. cit., note 14, pp. 123 sqq. It was hailed as "revolutionary" by Kaser, (1977) 94 ZSS 110, 116.

48Kupisch, op. cit., note 14, pp. 145 sq., 228 sqq.; Kaser, (1977) 94 ZSS 115 sqq.; contra: Ankum. h'estschrift Hiibner, pp. 17 sq. This view appears to have prevailed among the authors of the ius commune too. Very clear on this point e.g. Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, VII: ". . . Sed nee refert, an ipse metum faciens, an tertius bonae fidei possessor, justo etiam munitus titulo, conveniatur, quantum ad hanc quadrupli persecutionem: neque enim existimandum est, ilium praestando quadruplum ex alieno admisso, seu illato per alium metu, poenam subiro: nam cum haec actio arbitraria sit, et inilio inspecto non nisi rei persecutionem comprchendat, . . . sic ut quadruplum non tamen metus lllati quam

contumaciae commissae coercitio dicenda sit." 4y Ulp. D. 4, 2, 14, 3 in fine.

50Ulp. D. 44, 4, 4, 33.

51Ibid.

Created with novaPDF Printer (www.novaPDF.com)

fide third party to whom the defendant had been coerced to make the

52

promise.

Naturally, it was not always easy to determine how actio and exceptio worked together in an individual case. Take the situation discussed in D. 4, 2, 14, 9.53 A had, through force, procured a promise in the form of a stipulation from В. В had sued him with the actio metus causa, which meant that A had had the option of restoring В to the former position; such restitutio in integrum would, in this instance, have entailed a formal release. A had, however, refused to give it and had consequently been condemned to pay the poena quadrupli. He now sued В on the stipulation, which, though brought about by metus, was after all still in existence. Was В able, under these circumstances, to bar A's claim with the exceptio metus? Yes, according to Labeo, who thus allowed actio and exceptio to be cumulated. Not so, said Julian, who was therefore prepared to grant A a replicatio to counter B's exceptio. Without such replicatio В would in effect have been able to obtain both penalty and restitution: a result which had quite clearly not been envisaged by the praetor.54

Finally, there was a variety of situations where the defendant did not need to invoke praetorian help in order to escape the consequences of a transaction entered into metus causa. Most importantly, the exceptio metus was inherent in the bonae fidei iudicia;55 it was part and parcel of the officium iudicis to refuse to entertain the plaintiff's claim under these circumstances. For all practical purposes that meant that the contract (of sale, lease etc.) was invalid.

6.The position under the ius commune

(a)The relief for metus and its limits

The Digest title 4, 2 provided the basis for all discussions about metus during the various ages of the ius commune; through the RomanDutch authorities it still exercises a dominant influence on modern South African law.56 For centuries, texts such as D. 4, 2, 2-7 were accepted as defining the limits of relief for metus. It was emphasized that only fear of a severe evil ("metus maioris malitatis'1)57 was a

52 Example: A forces В to promise (by way of stipulation) to С. В is able to raise the exceptio metus against C's condictio. On the exceptio metus, see Hartkamp, op. cit., note 12, pp. 270 sqq.; Kupisch, op. cit., note 14, pp. 170 sqq.

э3 "Sed et si quis per vim stipulatus cum acceptum non faceret, fuerit in quadruplum condemnatus, ex stipulatu cum agentem adversus exceptionem replicatione adiuvari Iulianus putat, cum in quadruplo et simplum sit reus consecutus. Labeo autem etiam post quadrupli actionem nihilo minus exceptione summovendum eum, qui vim intulit, dicebat."

54Cf. also Schulz, CRL, p. 604.

55Kaser, RPr 1, p. 245; Honsell/Mayer-Maly/Sclb, p. 127. Cf. further the detailed analysis by Hartkamp, op. cit., note 12, pp. 84 sqq., 148 sqq.

56Cf. e.g. De Wet en Yeats, pp. 43 sqq.; Joubert, Contract, pp. 104 sqq.; Wessels, Contract, vol. I, nn. 1165 sqq.

57Ulp. D. 4, 2, 5.

Created with novaPDF Printer (www.novaPDF.com)

sufficient cause of action, and the Roman case law on the topic was faithfully preserved. Instances of "maior malitas" came to be remembered by a little verse ("excusat career, status, mors, verbera, stuprum"),58 and we find long discussions about metus infamiae, the main example of what continued to be considered "non satis gravis".59 Metus reverentialis, fear due to the natural respect owed to persons in authority (such as parents or husbands), was identified by the Accursian gloss as a general ground for setting aside a contract,60 but this extension of the concept of metus remained disputed.61 "Ita expeditum illud", said Voet, "metum reverentialem huic restitutioni locum non facere";62 but he recognized an exception where fathers or husbands could be proved to have gone beyond the bounds of respectful fear and to have instilled a "terror exheredationis", or something equally obnoxious, in their wives or children. Eventually, however, this kind of casuistry was abandoned in favour of a more generalized approach. For, as was pointed out by Lauterbach,63 there could be vis in bonam partem and in malam partem, metus iustus and metus iniustus. Cutting, to a certain extent, across the established categories was therefore the more fundamental distinction whether the fear was inspired "contra bonos mores, adeoque injuste"64 or not. This criterion, too, had been foreshadowed in the Digest; we find it mentioned both in Ulp. D. 4, 2, 3, 1 and in the famous regula iuris of D. 50, 17, 116. Pothier required that in order to provide the basis for a remedy, the fear had to be "injuste",65 and this criterion has also been read into the French code civil.66 Specific limits as to which form the pressure might take were no longer prescribed. In the same vein, the German BGB merely states that the transaction must have been induced "unlawfully" by duress.67 This has brought about a considerable degree of flexibility and has enabled courts and legal writers to use the remedies provided in art. 1112 code civil and § 123 BGB in order to tackle the problem of economic duress68—a new and relatively subtle form of coercion which has come to the fore in the wake of the progress

5H Cf. Lauterbach, Collegium theoretico-practicum, Lib. IV, Tit. II, XI. 59 Voct, Commentarius ad Pandectas, Lib. IV, Tit. II, XII. Cf. also still art. 1114 code civil. 6(1 This was based, mainly, on Ulp. D. 44, 5, 1, 5 and 6 concerning the relationship between freedman and patron.

61For a detailed discussion c{. j.E. Scholtens, "Undue Influence", 1960 Ada Juridica 276

sqq^

62Commentarius ad Pandectas, Lib. IV, Tit. II, XL

63Collegium theoretico-practicum, Lib. IV, Tit. II, VI.

64Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, X. For South African law cf. Joubert,

Contract, p. 107.

Pothier, Traite des obligations, n. 26.

6fi Nicholas, FLC, pp. 101 sq. 67 § 123 BGB.

6HJohn P. Dawson, "Economic Duress and the Fair Exchange in French and German Law", (1936-37) 11 Tulane LR 345 sqq.; cf. also, more recently, idem, "Unconscionable Coercion: The German Version", (1976) 89 Harvard LR 1041 sqq.

Created with novaPDF Printer (www.novaPDF.com)

of economic individualism in the 19th century. Hand in hand with these developments went a relaxation of the standard for measuring the degree of pressure exercised on the contracting party.

By the time of Voet, the Roman vir constantissimus had been replaced by the more realistic homo constans,69 and from there it was not far to the "personne raisonnable" of the code civil.70 Apart from that, the standard was also individualized, for not everybody can be expected to display even an average degree of constantia or reasonableness. The judge was therefore usually asked to take into consideration the age, the sex and the condition of the person threatened.71 The BGB ultimately abandoned any attempt to set up specific standards of hypothetical constancy in order to confirm the range of operative metus.

(b) Effect of metus on the contract

Whether contracts induced by metus were ipso iure void or merely voidable at the instance of the injured party remained disputed. The distinction between negotia bonae fidei and stricti iuris having become obsolete, it seemed appropriate to subject all contracts to one and the same regime.72 Most authors of the later ius commune, when faced with this decision, seem to have been convinced by Paulus' "coactus volui" argument: ". . . consentire eum, qui metu conterritus quid fecit, ratio sana docet: eligit nempe ex duobus malis minimum."73 Vis compulsiva (as the mere threat of violence had by now come to be called), after all, left the person exposed to it with a choice, albeit the hardly enviable one of embracing what he considered to be the lesser of two evils. This was different in the case of vis absoluta.74 Where one party grabs the other's hand and makes him sign a document (not a very frequent incident outside of professorial textbooks) there is, of course, no freedom of choice: "Vis . . . absoluta . . . illius, qui earn patitur, excludit consensum."75 The same kind of argument was bound

09 Commentarius ad Pandectas, Lib. IV, Tit. II, XI.

7(1 Art. 1112 code civil; c(. also Pothicr, Traite des obligations, n. 25, who had specifically rejected the standard of the "most constant" man.

71 Cf. e.g. Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, XI; Pothier, Traite des obligations, n. 25; art. 1112 code civil (on the "unfortunate conflation of the objective Roman rule and the subjective approach preferred by Domat and Pothier", cf Nicholas, FLC, p. 101). Contra e.g. Grotius, De jure belli ac pads. Lib. II, Cap. XI, VII.

7i But see the discussion in Gluck, vol. 5, pp. 472 sqq.

73Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, I; cf. further Joubert, Contract, p. 105; Wessels, Contract, vol. I, n. 1197. Often, however, certain exceptions were recognized, e.g. in case of a promise of dowry or of a datio libertatis (Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, XV).

74The distinction between vis absoluta and vis compulsiva stems from the Middle Ages and has been developed by glossators and canonists; cf. Hartkamp, op. cit., note 12, pp. 3 sqq. The Romans did not deal with cases of vis absoluta.

Voet, Commentarius ad Pandectas, Lib. IV, Tit. II, I; today cf. De Wet en Yeats, pp. 43 sq.

Created with novaPDF Printer (www.novaPDF.com)