!!Экзамен зачет 2023 год / The Law of Obligations

to appeal particularly to the will theorists of the 19th century: as long as two or more courses of action are open to the declarant, his declaration reflects a real will (and not only the semblance thereof).76 This was the dominant view from Savigny77 down to Windscheid/ Kipp, and hence the BGB, too, leaves it to "whoever has been induced to make a declaration of intention . . . unlawfully by duress" to rescind the declaration.78 Rescission here works in the same way as in the case of error, that is, ex tune.79 Pothier, too, refers to "rescision",m and the code civil therefore does not regard contracts vitiated by violence as absolutely void either. The nullity is "relative", i.e. it may be invoked only by the victim of the threat.81

(c) Specific characteristics of the remedies for metus

According to both modern French and modern German law,82 the contract may be rescinded (i.e. the nullity be invoked)—and consequently all performances made be reclaimed—even if the duress had been exercised not by the contractual partner but by a third party. The contractual partner need not even have known about the predicament of the victim of the threat. To this extent, it is still true to say that the remedy against duress is "in rem scripta".83 Throughout the days of the ius commune, this characteristic of the Roman actio quod metus causa and of the exceptio metus had been faithfully retained;84 modern South African writers have, however, questioned the wisdom of treating duress more strictly in this regard than the other vices of consent, particularly dolus (fraud).85 In no modern legal system does the extortioner, or anybody else who happens to have received anything on account of metus, face a fourfold penalty any longer if he refuses to render restitution. This aspect of the actio quod metus causa was

Cf. also, from a philosophical point of view, Thomas Hobbes in his Leviathan, as quoted by Atiyah, Rise and Fall, p. 43: "Feare and Liberty are consistent; as when man throweth his goods into the Sea for feare that the ship should sink, he doth it neverthelesse very willingly, and may refuse to doc it if he will: It is therefore the action, of one that was free; so a man sometimes pays his debt, only for jeare of Imprisonment, which because no body hindered him from detaining was the action of a man at liberty." "Hobbes realizes, of course", Atiyah carries on, "that there must be certain exceptional cases where the civil law in a political society will . . . be disinclined to enforce a [promise extracted by duress]. But even in such case he appears to have some notion, peculiar though it may seem to us, that the promise is somehow prima facie binding, and it is only by the grace of the positive laws of the State that the promisor is freed from his promise."

Kahn, The Union of South Africa (1960), pp. 472 sq. Cfr^so^vig^y,, System^ Щ-.-Ш^р. 117, who described metus as the worse and more dangerous fonra oT "disHrtfti'hc fiUv and1 order.

Created with novaPDF Printer (www.novaPDF.com)

declared obsolete as far back as the 17th century: "Haec quadrupli poena nostris et Gallorum moribus exolevit. . . . In simplum actio . . .

datur."86 The intimidated party is entitled only to the simple value; the extortioner, moreover, is liable for full damages.87 In modern German law this follows from the general principles of the law of restitution and of delict, and a specific (restitutionary or delictual) actio quod metus causa has therefore not been taken over by the code.

In the English common law, at least since the 19th century, duress used to be about as narrowly defined as metus in the earlier ius commune; a contract may be avoided, if there has been a threat of physical violence to, or unlawful constraint of, the person of one of the contracting parties.88 More particularly, duress of goods and economic duress are traditionally not taken into consideration.84 The narrow common-law definition induced the Courts of Equity to step in and grant relief in cases of "undue influence".9'1

In South Africa attempts have not been wanting to read the doctrine of "undue influence" into the Roman-Dutch authorities:91 not particularly convincing92 efforts (from a historical point of view) to justify or legitimize the contamination (as the "purists" would see it) of an essentially civilian jurisdiction by an English import.93

II.DOLUS

1.The remedies for dolus and metus compared

The three dots in our quotation of § 123 I BGB94 stand for the words

86Groenewegen, Cod. Lib. II, Tit. XX, 1. 4.

87Cf. e.g. Windscheid/Kipp, § 462.

8H

Cf. e.g. Treitel, Contract, p. 312. As under the ius commune, it is not clear whether a contract procured by duress is void or voidable. According to Atiyah, Rise and Fall, pp. 434 sqq., duress (and mistake) "were whittled away in the nineteenth century as defences to actions on executory contracts till virtually nothing was left of them". He sees the "severe limitations now imposed on the concept of duress [as] a natural corollary of the will theory". Cf. particularly his analysis of Skeate v. Beaie (1841) 11 Ad & El 983.

8" But see Lloyds Bank Ltd. v. Buttdy [1975] QB 326 (CA) and Zweigert/Kotz, pp. 127 sq., as well as, more recently, Pao On p. Lan Yin Long [1980] AC 614 and Treitel, Contract, pp. 312 sqq.; Atiyah, Pragmatism and Theory in English Law (1987), pp. 15 sq. As to the exclusion of economic duress, Atiyah, Rise and Fall, p. 436, comments: ". . . the nineteenth-century rules were made in the context of a market-based law of contract. In the market economic pressures are commonplace, and a market-based law of contract cannot treat them as a vitiating ground."

9(1 Treitel, Contract, pp. 314 sqq.

91Cf. e.g. Mauerberger v. Mauerberger 1948 (4) SA 902 (C) at 909-13; Preller v.Jordaan 1956 (1) SA 483 (A) at 492H-493B; Wessels' Contract, vol. I, nn. 1208 sqq.; Lee, Introduction, p. 231.

92Van den Heever JA in Preller v.Jordaan 1956 (1) SA 483 (A) at 499H sqq.; De Wet en Yeats, pp. 47 sqq.

93Generally on undue influence in South African law, see L.F. van Huysteen, Onbehoorlike Bei'nvheding en Misbruik van Owstandighede in die Suid-Afrikaanse Verbintenisreg (1980), pp. 108 sqq.; Joubert, Contract, pp. I l l sqq.; Ellison Kahn, "Undue Influence in the Formation of Contract", (1974) 91 SALj 307 sqq.

94Cf. supra, p. 661.

Created with novaPDF Printer (www.novaPDF.com)

"(by) fraud (or)" ("arglistige Tauschung"). The BGB thus provides the same remedy in cases of metus and dolus: the affected party may rescind the contract. There is, however, one significant difference which becomes apparent if one reads § 123 II BGB:95 rescission on account of dolus is not "in rem scripta", at least not to the same degree as the remedy for metus. As a rule, the remedy for dolus is available only if the other party to the contract has been guilty of the fraudulent behaviour. If the conclusion of the contract has been induced by fraud on the part of a third party, the contract may be rescinded only if the "second" party (i.e. the one affected by the rescission: the contractual partner or whoever else might have acquired a right under the contract) had known or should at least have known of the fraud.96 The modern law thus still reflects the fact that the remedies against metus and dolus have grown up side by side, but not without characteristic differences. In classical Roman law no action could be granted on the basis of negotia bonae fidei affected by fraud (dolus): obviously a defrauder cannot successfully maintain that the other party "dare facere oportet ex fide bona". Like the exceptio metus, the exceptio doli was therefore inherent in the bonae fidei iudicia.97 Other transactions, however, as in the case of metus, remained originally unaffected.98 After all, the will to enter into the transaction was not lacking. Again, it was the praetor99

95 "If a third party was guilty of the fraud, a declaration which was required to be made to another person may be rescinded only if the latter knew or should have known of the fraud. Insofar as a person other than the one to whom the declaration was required to be made has acquired a right directly through the declaration, the declaration may be rescinded as against him if he knew or should have known of the fraud."

For the rationale and justification of this rule, cf. "Motive", in: Mugdan, vol. I, pp. 466 sq. On the problem of who may be regarded as third party in terms of this rule, cf. Flume, AT, § 29, 3; Ernst Kramer, in: Mtinchener Kommentar, vol. I (2nd ed., 1984), § 123, nn. 18 sq. French law permits rescission on account of dolus only if the other party to the contract has committed the fraud: "Le dol ne pent entrainer la nuttite que s'il emane du cocontractant": cf.

Zweigert/Kotz, p. 126.

97 Cf. e.g. Iul. D. 30, 84, 5: ". . . quia hoc iudicium fidei bonae est et continet in se doli mali exceptionem." On the classicity of this text (and others), cf. Rolf Knutel, "Die Inharenz der exceptio pacti im fidei bonae iudicium", (1967) 84 ZSS 133 sqq.

'm Cf., for example, the cause celebre involving the banker Pythius from Syracuse who sold a seaside villa to the Roman knight Canius. In order to create the impression that this was the great fishing-ground in the area, he had hired a fishing fleet to cruise around in front of the villa. The story is told by Cicero, De officiis, 3, XIV—60; cf. further Theo Mayer-Maly, "Privatautonomie und Vertragsethik im Digestenrecht" (1955) 6 lura 133 sqq.; von Liibtow, Eranion Maridakis (infra, note 99), pp. 184 sqq.; Max Kaser, "Unlautere Warenanpreisungen beim romischen Kauf", in: Festschrift fur Heinrich Detnetius (1973), pp. 133 sqq.; Ralf Michael Thilo, Der Codex accepti et expettsi im Romischen Recht (1980), pp. 300 sqq; Geoffrey MacCormack, "Aliud simulatum, aliud actum", (1978) 104 ZSS 640 sq. The parties were, however, able to protect themselves by way of a specific undertaking in the form of a stipulation ("dolum malum abesse afuturumque esse", "ut a te dolus malus absit", etc.). For details on the clausula doli, see Helmut Coing, "Die clausula doli im klassischen Recht", in: Festschrift fur Fritz Schulz, vol. I (1951), pp. 97 sqq.; Geoffrey MacCormack, "juristic Use of the Term Dolus: Contract", (1983) 100 ZSS 522 sqq.; idem, "'Dolus' in Republican Law", (1985) 88 BIDR 17 sq.

In this instance, it was Gaius Aquilius Gallus who either introduced or at least inspired the introduction of the relief (in about 66 B.C.). For details, see Ulrich von Lubtow, "Die

Created with novaPDF Printer (www.novaPDF.com)

who had to intervene in order to grant equitable relief Again, this relief could take the form either of an active or of a defensive remedy (the actio de dolo or the exceptio doli); again it has been controversial whether, apart from these two remedies, a separate in integrum restitutio was granted.100 As in the case of metus, the most probable solution to this problem is that the actio de dolo was the normal procedural avenue for achieving the aim of restitution:101 for, like the actio quod metus causa, the actio de dolo contained the clausula arbitraria.102 Unlike the parallel remedy for duress, however, the actio de dolo was not "in rem scripta" but was available only against the perpetrator of the fraud.103 Furthermore, it did not provide for a poena quadrupli: if the defrauder refused to render restitution, he was exposed merely to a condemnatio in simplum.104 On the other hand, this condemnatio involved infamia.105 Finally, the actio de dolo was subsidiary, that is, it could be brought only if no other remedy was available; for the words of the praetorian edict ran like this: "Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et iusta causa esse videbitur, iudicium dabo."106 Again, one has the impression that one is dealing with a compromise solution; the praetor wanted to suppress objectionable behaviour but at the same time did not want to hit out too hard, since a variety of high-ranking Roman officials were bound to be affected.107

2.The concept of dolus

(a)Aliud simulare, aliud agere

How potent and effective these remedies were depended, of course, to a large extent on the interpretation of the words dolus malus. As far as the

Ursprungsgeschichtc der exceptio doll und der actio de dolo malo", in: Eranion Maridakis, vol. I (1963), pp. 183 sqq.; Massimo Brutti, La problematica del dolo pracessuale nelV esperienza romana (1973), pp. 128 sqq. On C. Aquilius Gallus cf. Frier, Roman Jurists, pp. 140 sqq.; Wieacker, #ft, pp. 600 sq.

1Ш Cf. in particular Ernst Levy, "Zur nachklassischen in integrum restitutio", (1951) 68 ZSS 410 sqq.; Andreas Wacke, "Kannte das Edikt einc in integrum restitutio propter dolum?", (1971) 88 ZSS 105 sqq.

101 Kupisch, op. cit., note 14, pp. 241 sqq.; cf. further Kaser, (1977) 94 ZSS 143 sqq.; Brutti, op. cit., note 99, pp. 352 sqq.; Arthur Hartkamp, "Die Drittwirkung der in integrum

restitutio", in: Daube Noster (1974), pp. 133 sqq. 1(12 Cf. Lcnel, EP, p. 115.

1(13 The same applied to the exceptio doli; cf. Ulp. D. 44, 4, 4, 33 (". . . exceptio doli

personam complectitur eius, qui dolo fecit").

1(14 Cf. Ulp. D. 4, 3, 17 pr.; Paul. D. 4, 3, 18 pr.

Bernardo Albanese, "La sussidianeta dell' actio de dolo", (1961) 28 Annali Palermo 173 sqq.; cf. also Alan Watson, "Actio de dolo and actiones in factum", (1961) 78 ZSS 392 sqq.; Klaus Slapnicar, "Ubcr die Aktivlegitimation zur actio legis Aquiliae und actio dc dolo im Drcipersonenverhaltnis", in: De iustitia et iure, Festgabe fiir Ulrich von Liibtow (1980), pp. 233

sqq.

1117 Kaser, (1977) 94 ZSS 146.

Created with novaPDF Printer (www.novaPDF.com)

actio de dolo was concerned, we find a gradual extension of its range of application. This becomes immediately apparent if we look at the two famous definitions of dolus malus contained in Ulp. D. 4, 3, 1, 2;

"Dolum malum Servius quidem ita definiit machinationem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur. Labeo autem posse et sine simulatione id agi, ut quis circumveniatur: . . . itaquc ipse sic definiit dolum malum esse omnem calliditatem fallaciam machinationem ad circumveniendum fallendum decipiendum alterum adhibitam."

And Ulpian added as his own commentary: "Labeoni, defmitio vera est."108 Originally, therefore, some simulation was required: a person was taken to have acted fraudulently if he had pretended one thing but actually intended another. This was the meaning attributed to dolus malus not only by Servius Sulpicius but also by Gaius Aquilius Gallus, the father of the actio de dolo: ". . . cum esset aliud simulatum, aliud actum."109 Labeo/Ulpianus D. 4, 3, 9, 3 is a case that could have been decided along the lines of this definition.110 Between A and В a dispute has arisen as to whom some oil belongs. В deposits the oil with С. С is supposed to sell the oil but to keep the proceeds until the dispute has finally been decided by a court of law. A subsequently refuses to join issue. As a result of this, В is unable to claim the money from С since the condition under which the deposit had been made has not yet been fulfilled: В has not been declared owner of the oil. In this situation В is given the actio de dolo against A. A has frustrated B's claim by first pretending to defend the action but then refusing to join issue. В has been misled by A's expressed intention which did not correspond to his (i.e. A's) real intention.111

(b) Lab. D. 4, 3, 1, 2

It was soon recognized, however, that the aliud simulare, aliud agere definition was too narrow in scope, since a person can intend to deceive another without misleading him by a pretence. Hence Labeo's attempt to provide a more comprehensive definition of dolus malus comprising every kind of cunning, trickery or contrivance practised in order to

1(18 Ulp, D. 4, 3. 1, 2 in fine. For a decailed analysis of the definitions contained in D. 4, 3,

1. 2 and 3, cf. Antonio Carcaterra, Dohis bonus/dolus mainsEseyesi di D. 4 , 3 , 1, 2-3 (1970).

1(W Cicero, De officiis, 3, XIV—60. For details cf. MacCormack, (1987) 104 ZSS 639 sqq.; on dolus in Republican law generally, see MacCormack, (1985) 88 BIDR 1 sqq.

110 "Labeo libro trigensimo scptimo posteriorum scribit, si oleum tuum quasi suum defendat Titius, ct tu hoc oleum deposueris apud Seium, ut is hoc venderet et pretium servaret, donee inter vos deiudicetur cuius oleum essct, neque Titius vclit iudictum accipere: quoniam ncque mandati neque sequestrana Seium convenirc potes nondum impleta condicione depositionis, de dolo adversus Titium agendum, sed Pomponius libro vicensimo scptimo posse cum sequestre praescriptis verbis actione agi, vel si is solvendo non sit, cum Titio de dolo." Cf., on this and further examples, most recently Geoffrey MacCormack, "Dolus in the Law of the Early Classical Period (Labeo-Celsus)",' (1986) 52 SDMI 237 sqq.

1 However, the actio de dolo against A is granted only if С has fallen insolvent (i.e. as a last resort). In the first place, В is given an actio praescriptis verbis against C; any other solution would lead to the highly irregular result that С would be able to keep the oil.

Created with novaPDF Printer (www.novaPDF.com)

cheat, trick or deceive another.112 How the deceit was engineered was of no relevance. In terms of this definition, the actio de dolo could, for instance, be granted where the promisor of a slave had poisoned him before delivery, or where somebody who owed a piece of land under a stipulation, before delivering possession, had imposed a servitude on it or destroyed a building.113 It was dolus, too, if, having to deliver a slave, the debtor knowingly gave a thief (who duly stole something from the recipient)114 or if he deliberately gave a slave who did not belong to him (so that the recipient lost the slave through eviction),115 or if somebody knowingly lent incorrect weights for the seller to weigh out goods to his customers.116 But here, as elsewhere, the Roman lawyers were not fond of tying themselves down to abstract definitions: "Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset."117 If we survey the actual casuistry, we find a whole variety of decisions which can no longer have been squeezed even under the new definition.118 In fact, Labeo's definition is hardly ever even referred to. Take, for instance, the example, discussed by Papinian, of an alternative obligation ("Stichum aut Pamphilum, utrum tu velis, dare spondes?"), where Stichus had been killed by the debtor and Pamphilus afterwards died too.119 On account of the death of the first slave the promisor is not liable to the stipulator, since he is still able to specify Pamphilus as the slave he owes. Only with Pamphilus1 demise has the stipulator lost out. Even though the latter event is not in any way attributable to the promisor (and even though, incidentally, it is also not specifically stated that he had intentionally murdered Stichus), Papinian is prepared to grant the actio de dolo against him. The mere fact that the promisor has (intentionally or negligently) reduced the stipulator's chances of receiving a (living) slave prevents the promisor from escaping liability. Or, to put it the other way round: refusal to pay

112 Cf. e.g. Andreas Wacke, "Zum dolus-Begriff dcr actio dc dolo", (1980) 27 RIDA 350 sqq. against Carcaterra, op. cit., note 108, pp. 40 sqq.

"3 Lab./Ulp. D. 4, 3, 7, 3. Cf. MacCormack, (1986) 52 SDHI 239 sq.

114Afr. D. 30, 110.

115Paul. D. 19, 5, 5, 2.

!l6 Trebatius/Paul. D. 4, 3, 18, 3. Nota bene that the actio de dolo was granted in this instance even though the defendant had no intention of benefiting from the transaction.

117lav. D. 50, 17, 202. Generally, on the role of definitions in Roman jurisprudence, see, most recently, Wieacker, RR, pp. 630 sqq.

118Cf. particularly Wacke, (1980) 27 RIDA 360 sqq.; MacCormack, (1986) 52 SDHI 242 sqq. and Gliick, vol. 4, pp. 108 sqq.; Ludwig Mitteis, Romisches Privatrecht bis auf die Zeit Diokletians, vol. I, p. 320; also Kaser, RPr I, p. 628; Honsell/Mayer-Maly/Selb, pp. 371 sq. For a different view (extension of dolus concept only in post-classical times), cf. e.g. Fritz

Litten, "Zum dolus-Begriff in der actio de dolo", Festgabv fiir Karl Giiterbock (1910), pp. 257 sqq.

119 Pap. D. 46, 3, 95, 1 (". . . Quod si promissoris fuerit electio, defuncto altero qui superest aeque peti poterit. enimvero si facto debitons alter sit mortuus, cum debitoris esset electio . . ., si et alter servus postea sine culpa debitoris moriatur, nullo modo ex stipulatu agi poterit, cum illo in tempore, quo moriebatur, non commiscrit stipulationem. sane quoniam impunita non debent essc admissa, doli actio non immerito desidcrabitur . . .").

Created with novaPDF Printer (www.novaPDF.com)

damages for the death of Pamphilus, under these circumstances, must appear as a violation of good faith.

(c) Fidem placiti rutnpere

Codex 2, 20, 4120 presents another interesting example. Two slaves belonging to different masters lived in a permanent marriage-like union (contubernium). The master of the servus, wanting to manumit his slave, tried to induce the master of the ancilla to release her also. To this end he offered to give the latter another slave in the place of the ancilla. After the ancilla had been released, the master of the servus refused to provide the substitute slave. We are dealing here with what was to become known as an innominate real contract (facio ut des).121 An actio praescriptis verbis (in order to enforce counterperformance) does not (yet) seem to have been contemplated by the Emperors. In this case, the master of the ancilla could also not reverse his own transaction: "revocandae Hbertatis potestatem non habeft]."122 Under these circumstances, the actio de dolo is used to remedy the situation. The basis for its application is not fraudulent behaviour ("machinatio ad dedpiendum alterum") in the narrow sense, but what is described by the Emperors as "fidem placiti rump[ere]": the mere fact that a person does not keep his word. Thus we see that the actio de dolo could conveniently be used to fill inequitable gaps within the Roman contractual system. In the same vein, Paul. D. 19, 5, 5, 3 had already stated: "Quod si faciam ut des et posteaquam feci, cessas dare, nulla erit civilis actio, et ideo de dolo dabitur."123

(d) Bona fides and dolus

In actual practice, therefore, the concept of dolus was similarly broadly interpreted in connection with the actio de dolo as it was with reference to the exceptio doli. For here it is generally recognized that the insertion of an exceptio doli into the procedural formula provided thejudge with the same far-ranging discretion that he already had in bonae fidei iudicia, due to the ex bona fide clause contained in the intentio.124 The exceptio was worded in the alternative: "si in ea re nihil dolo malo A1 A1 factum sit neque fiat",125 and it was particularly the "neque fiat" clause that made it such a powerful instrument to bring about a just solution. "Factum est" referred to fraudulent behaviour before the institution of the action (against which the exceptio was now raised), particularly in the act of concluding the contract (dolus in

120Impp. Diocl. et Max.

121Cf. supra, pp. 534 sq.

122Generally e.g. Hartkamp, op. cit., note 12, pp. 137 sqq.

123D. 19, 5, 5, 3; cf. further Ulp. D. 11, 6, 5 pr. and Wackc, (1980) 27 RIDA 373 sqq.

™ Kaser, RPr I, pp. 488 sq.; Honsell/Mayer-Maly/Selb, p. 372.

123 Gai. IV, 119; on its origin, see von Lubtow, Eranion Maridakis, pp. 192 sqq.

Created with novaPDF Printer (www.novaPDF.com)

contrahendo).126 "Fiat", on the other hand, comprised all cases where the bringing of the action itself could be taken to constitute dolus. Thus, for instance, a person who claimed what he would have to return before long acted "dolo": "dolo facit, qui petit quod redditurus est."127 But, as Geoffrey MacCormack has pointed out recently,128 to pose the question in this form (does the bringing of the action itself constitute dolus?) invited an answer which located dolus not so much in personal misconduct, but rather in an inequity or injustice that would flow from the successful maintenance of the action. Thus, many cases came to be subsumed under the so-called exceptio doli generalis129 where the actual misconduct of the plaintiff fell short of deceit or trickery in terms of the Labeonic definition. "Ideo autem hanc exceptionem praetor proposuit, ne cui dolus suus per occasionem iuris civilis contra naturalem aequitatem prosit":130 the plaintiff was not supposed to turn a situation to his advantage against the precepts of natural equity. From here it is only a small step to the recognition of the fact that dolus was a kind of opposite number to bona fides.131 Whenever the behaviour of the plaintiff did not conform to the overriding standard of good faith,132 the exceptio doli could be granted; and it was ultimately the same criterion that determined whether or not the actio de dolo could be brought successfully. "Palam est autem hanc exceptionem ex eadem causa propositam, ex qua causa proposita est de dolo malo actio", said Ulpian,133 who made it clear that actio and exceptio did not refer to different types of situation.

(e) Dolus and dolus malus

If, then, the crucial dividing line appears to have been drawn between bona fides on the one hand and dolus on the other, we must keep in mind two further points. Dolus, in classical Roman law, always retained an element of moral disapproval.134 A person charged with dolus had not necessarily employed deceit and trickery, but had infringed one of the standard principles by which to conduct an honest

126 The so-called exceptio doli praeteriti or specialis. On dolus in contrahendo cf. the monograph by Karl Heldrich, Verschulden bei Vertragsabschluss (1924), and Peter Stein, Fault in the Formation of Contract (1958).

127Paul. D. 44, 4, 8 pr.; also Paul. D. 50, 17, 173, 3.

128(1986) 52 SDMI 263 sq.

129Cass./UIp. D. 44, 4, 4, 33; Brutti, op. cit., note 99, pp. 625 sqq. On the relationship

between exceptio doli and exceptio pacti, sec Brutti, op. at., note 99, pp. 648 sqq.; Andreas Wacke, "Zur Lehre vom pactum taciturn und zur Aushilfsfunktion der exceptio doli", (1973) 90 ZSS 227 sqq.

130Paul. D. 44, 4, 1, 1.

131Cf. e.g. Paul. D. 17, 2, 3, 3 (referring to societas).

132As revealed, for instance, in lav. D. 19, 2, 21: "[B]ona fides exigit, ut id quod convenit

fiat."

133Ulp. D. 44, 4, 2 pr.; cf also Ulp. D. 4, 3, 7, 8 and Wacke, (1980) 27 RIDA 371 sqq.

134Kaser, RPr II, p. 349: Wacke, (1980) 27 RIDA 384 sqq.; but cf. MacCormack, (1986) 56 SDHI 284 sq.

Created with novaPDF Printer (www.novaPDF.com)

life: fidelity.135 He had behaved in a manner in which a good Roman ought not to have behaved, and had thus departed from the premises and ethical precepts of the mores maiorum. After all, it must be remembered that the praetor spoke of "dolus malus", and even though the specific pejorative attribute was soon discarded, the term "dolus" was never taken to refer to what had once been designated dolus bonus.136 Thus, for instance, fraud or trickery against an enemy or robber was not objectionable,137 and even simulation (in the sense of Servius' old, more narrow definition) could be condoned where it had been resorted to in order to protect the simulating party's or somebody else's (legitimate) interests.138 Another example is provided in Ulp. D. 4, 3, 7, 7:

"Idem Labeo quaerit, si compeditum scrvum meum ut fugeret solveris, an de dolo actio danda sit? et ait Quintus apud eum notans: si non misericordia ductus fccisti, furti teneris: si misericordia, in factum actioncm dari deberc."

If A releases B's slave from his fetters with the result that the slave can run away, he has caused damage to B. However, he is not liable under the actio de dolo if he has acted out of compassion, that is, if his action has been prompted by a morally commendable impulse.139

(f) Dolus and sollertia

Even more important, practically, was a second factor limiting the range of application of the remedies against dolus. The standard of bona fides, as we have seen, !4° was determined in accordance with prevailing and average business decency, not from the refined but abstract point of view of moral philosophy. Thus, there was a broad grey area of "sollertia"141 (cleverness, deftness, craftiness; MacCormack translates:142 ingenuity) which fell short of constituting dolus (malus). In particular, invicem se circumscribere (or circumvenire) was not regarded as objectionable, but was expressly (and repeatedly) stated to be in accordance with the nature of trade and business.143 Or, in the

135 Generally Schulz, Principles, pp. 223 sqq.

1301 Ulp. D. 4, 3, 1, 3: "Non fuit autem contentus praetor dolum dicere, sed adiecit malum, quoniam veteres dolum etiam bonum dicebant et pro sollertia hoc nomen accipiebant. . . ." On dolus bonus cf. especially Carcaterra, op. cil., note 108, pp. 115 sqq.; Andreas Wacke, "Circumscribere, gerechter Preis und die Arten dcr List", (1977) 94 ZSS

221sqq

-Ulp. D. 4, 3, 1, 3 (". . . maxime si adversus hostem latronemve quis machinetur"). l3H Lab./Ulp. D. 4, 3, 1, 2; Wacke, (1977) 94 ZSS 227 sq.

139Cf. Wieslaw Litcwski, "Dolus et misericordia dans le droit romain classique", (1972) 5 Archh'um Iuridicum Cracoviense 91 sqq.

140Cf. supra, pp. 256 sqq.

141Ulp. D. 4, 3, 1, 3.

142M ommsen/Kruger/Watson, Ulp. D. 4, 3, 1. 3.

143Ulp. D. 4, 4, 16, l;Paul. D. 19, 2, 22, 3; for details, sec Mayer-Maly, (1955) 6/ига 128

sqq.; Wacke, (1977) 94 ZSS 185 sqq.

Created with novaPDF Printer (www.novaPDF.com)

words of the glossator Bulgarus: "[L]icet contrahentibus se invicem decipere, non tamen decere."144

3.Dolus causam dans and dolus incidens

(a)The medieval distinction

The most important and, in the long run, influential contribution of the medieval lawyers to the doctrine of dolus lay in the distinction they drew between dolus causam dans and dolus incidens (dolus qui incidit in contractum).145 It was summed up by Azo in the following words:

"De dolo malo dat causam contractui bonac fidei hoc est quia alias non erat contracturus nisi cssct dolo inductus non tenet ipso iure contractus. Ubi autcm

deceptus erat alias contracturus . . . tenet venditio, sed purgatur dolus per actioncm ex со contractu."146

In both instances, the fraudulent behaviour must have caused the deception of the other party. That was inherent in Labeo's, and also in Servius', definition of dolus. But, whereas in the one case the innocent party147 would not have contracted but for the fraud (so that the fraud could be said to have induced the fact that a contract had at all been concluded), dolus incidens merely concerned the terms of the contract, for instance the price: the innocent party would still have entered into the contract, but on different (i.e. better) terms. The glossators derived this distinction from an intricate and puzzling Digest fragment, attributed to Ulpian, which contained the phrase ". . . aut nullam esse venditionem, si in hoc ipso ut venderet [minor annis viginti quinque] circumscriptus est".148 This was understood to indicate that, where the dolus had induced the vendor to sell, the contract of sale was ipso iure void. E contrario, then, the sale remained valid where the vendor had indeed intended to sell (in this instance:) the slave, but (again, in the example discussed in D. 4, 3, 7 pr.) without peculium. What the

144Cf. Carcaterra, op. cit., note 108, p. 164.

145For details of the development cf. Brutri, op. cit., note 99, pp. 11 sqq., 35 sqq.; cf. also Paul Wezel, Dolus causam dans und dolus incidens (unpublished Dr. iur. thesis, Tubingen, 1928), pp. 2 sqq.

14' Azo, Summa Codicis, De dolo malo Rubrica.

147Where both parties have acted fraudulently, a kind of compensatio doli takes place; an

application of the more general principle that an action cannot be brought by a person who has himself been guilty of behaviour tinged with turpitudo (nemo auditur turpitudinem suam allcgans). Cf. Marc. D. 4, 3, 36 "Si duo dolo malo fecerint, invicem de dolo non agent"; further Ulp. D. 44, 4, 4, 13; Iul. D. 2, 10, 3. 3; Paul. D. 18, 1, 57, 3; Cluck, vol. 4, pp. 120 sqq. Cf. also infra, pp. 865 sq.

4 Ulp. D. 4, 3, 7 pr. For modern analyses of this text (which has often been regarded as being at least partly interpolated; cf. already Gerard Noodt, "De forma emendandi doli mali", in: Opera omnia (Lugduni Batavorum, 1724), Cap. XIV (pp. 377 sqq.), and many others, quoted by Gluck, vol. 4, p. 115), cf. J.C. van Oven, "D. 4, 3, 7 pr. Contribution a I'histoire du dol dans les conventions", in: Studi in onore di Emilio Albertario, vol. 1 (1953), pp. 273 sqq.; Stein, Fault, pp. 88 sqq.; Albanese, (1961) 28 Annali Palermo 187 sqq.; Hartkamp, op. cit., note 12, pp. 140 sqq.; Brutti, op. cit., note 99, pp. 18 sqq.; Wacke, (1977) 94 ZSS 236 sqq.

Created with novaPDF Printer (www.novaPDF.com)