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
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
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
(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
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
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
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
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
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
(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
(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
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
(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
(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
(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
(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
(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
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
(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
(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
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
(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
4. Paulus, On the Edict, Book XL
Can be sued; or where the property can be secured for me through
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
. (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
(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
(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
(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
(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
11. Ulpianus, On the Edict, Book XI. It should not be
(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
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
(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
(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
(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
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
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
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
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
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.
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
(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
(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
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
(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
(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
(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
(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
(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
(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
(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
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
(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
(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
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
(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
(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
(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
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
business to a person of this description, and this also is the opinion
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
(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
(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
(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
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
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 arose whether, when the examination of the appeal was concluded, and
appeal was dismissed, and the parties found to have become of age, they
can bring the case to a termination, since it was not their fault that it was
not finished? I answered that, considering the question as stated, the case
could be tried just as if the parties were still under age.
(1) Lucius Titius purchased a tract of land sold by the curators of a
minor, and held it in his possession for nearly six years, and greatly improved
the property. I ask whether the minor has the right of complete restitution
against Titius, the purchaser, if his curators are solvent? It is my opinion,
from all that has been stated, that the minor would hardly be entitled to
restitution, unless he preferred to reimburse the bona-fide purchaser
for all the expense which the latter could prove he had incurred, and
especially as he could readily obtain relief, since his guardians were
40. Ulpianus, Opinions, Book V.
A minor under twenty-five years of age obtained a judgment ordering that
a legacy, based upon a trust, be paid to him; he gave a release for it, and the
debtor furnished him security, just as if he would have done if the money had
been borrowed. Under these circumstances, the minor is entitled to complete
restitution; for the reason that he had obtained a right to bring an action for
money on account of a judgment, and by a new contract he had changed that right
for one for the institution of proceedings of another kind.
(1) A minor under twenty-five years of age, without proper deliberation,
surrendered land which belonged to his father in settlement of debts shown by
the accounts to belong to the guardianship of other minors, whose affairs his
father had transacted. Complete restitution was ordered that matters might be
equitably restored to their former condition, and the amount of interest which
appeared to be due on account of the guardianship was calculated and set off
against the amount of the profits received.
41. Julianus, Digest, Book XLV.
When a judge orders land to be restored where a minor has been
overreached in a sale, and directs him to return the price of the same to the
purchaser, and he is unwilling to take advantage of complete restitution,
having changed his mind; the minor is entitled to an exception against the
party demanding the purchase-money, as in the case of res judicata;
because every one is permitted to reject what was introduced for his own
benefit. Nor can the purchaser complain if he is restored to the same condition
in which he was placed by his own act, and which he could not have changed if
the minor had not sought the aid of the prætor.
42. Ulpianus, On the Office of Proconsul, Book II.
The governor of a province can grant complete restitution to a minor,
even against his own decision, or that of his predecessor; because minors can,
on account of their age, obtain the same benefit
which an appeal confers upon persons who have reached their
43. Marcellus, On the Office of Governor, Book I.
The age of a party who states that he is over twenty-five must be proved
by investigation, because by this means his complete restitution, as well as
other matters, may be prevented.
44. Ulpianus, Opinions, Book V.
All the acts of minors under twenty-five years of age are not invalid,
but only those of such as, after investigation, are ascertained to have been
overreached; as where they were imposed upon by others, or were deceived by
their own credulity, or lost something which they formerly had, or failed to
obtain some profit which they could have acquired, or subjected themselves to
some liability which they ought not to have assumed.
45. Callistratus, Monitory Edict, Book I.
Labeo states than an unborn child is entitled to an action for
restitution, where he has lost something by usucaption.
(1) The Emperor Titus Antoninus stated in a Rescript that where a minor
alleged that his adversary had been discharged through the fraud of his
guardian, and wished to begin a new action against him, he could first bring
suit against his guardian.
46. Paulus, Opinions, Book II.
Where anyone voluntarily undertakes to defend a minor in a trial, and
the latter loses his case, suit can be brought against him to enforce the
judgment; and the youth of the party whom he defended will be of no benefit to
him in obtaining restitution, since he cannot object to the judgment. From this
it appears that the minor, on whose account judgment was rendered against him,
cannot apply for the aid of restitution against the decision.
47. Scævola, Opinions, Book I.
A guardian, being pressed by creditors, made a bona-fide sale of
the property of his ward, and his mother protested against the sale to the
purchasers. I ask, since the property was sold on the demand of the creditors,
and nothing could reasonably be alleged concerning the corruption of the
guardian, whether the ward was entitled to complete restitution? I answered
that inquiry must be made in order to determine this; and therefore, if there
was just cause for restitution, it ought not to be refused because the guardian
was not guilty of any offence.
(1) A guardian of minors sold certain lands which he held in common with
his wards, and of which he had charge. I ask if the minors are entitled to
complete restitution by the decree of the prætor, or whether the sale
should be rescinded only so far as they had an interest in the common property?
I answered that it should be rescinded to that extent; unless where the
purchaser desired to have the entire con-
tract rescinded, because he was unwilling to purchase only a share in
the land. I also ask whether the purchaser should receive from the wards, Seius
and Sempronius, the purchase-money, with interest; or whether he should receive
it from the heir of the curator? I answered that the heir of the curator would
be liable, but that actions would be granted against Seius and Sempronius for
the shares which they owned in the land; at all events, if the money received
had come into their hands to that amount.
48. Paulus, Sentences, Book I.
Where a minor obtains complete restitution in a matter for which he
became surety, or gave a mandate, he does not release the principal debtor.
(1) A minor sold a female slave; if the purchaser manumitted her, the
minor could not obtain complete restitution on this account, but he would be
entitled to an action against the purchaser to the extent of his interest.
(2) Where the condition of a woman under twenty-five years of age
becomes worse on account of an agreement relating to her dowry; and she made
such a contract as no woman who had attained her majority would ever make, and
for that reason she wished to rescind it, she should be heard.
49. Ulpianus, On the Edict, Book XXXV.
Where property belonging to a minor or a ward which the law does not
forbid to be sold, is alienated, the sale is valid. If, however, great loss
results to the ward or the minor, even if there is no collusion, the sale may
be rescinded by complete restitution.
50. Pomponius, Letters and Various Passages, Book IX.
"Julius Diophantus, to his friend Pomponius, Greeting. A minor under
twenty-five years of age, with the intention of renewing a contract, intervened
in behalf of the party who was liable in an action which would be barred by
lapse of time, while ten days of said time still remained, and he afterwards
obtained complete restitution. Should the right of restitution be granted to
the creditor against the former debtor, for ten days, or for a longer period? I
held that so much time should be granted from the day of complete restitution
as remained, and I wish that you would write to me what you think about it." I
answered, I undoubtedly think that your opinion with respect to the right of
action dependent upon the time in which the minor intervened, is the more
correct one; and therefore that the pledge which the former gave will still
TITLE V. CONCERNING THE CHANGE OF CONDITION.
1. Gaius, On the Provincial Edict, Book IV. Capitis Minutio is a
change of condition.
2. Ulpianus, On the Edict, Book XII.
This Edict has reference to such changes of condition as happen without
affecting the rights of citizenship. But where a change of condition takes
place either through loss of citizenship or of freedom, the Edict will not
apply, and such persons cannot, under any circumstances, be sued, but it is
clear that an action will be granted against those into whose hands their
property has passed.
(1) The prætor says: "If any man or woman is said to have suffered
the loss of civil rights after having performed some act, or made some
contract, I will permit an action to be brought against him or her, just as if
such change of condition had not occurred."
(2) Those whose condition has been changed remain naturally bound, for
the reason which existed before said change took place; but if they arose
afterwards, anyone who agrees to pay the said parties money, or enters into a
contract with them, will have only himself to blame, so far as relates to the
terms of this Edict. Sometimes, however, an action should be granted where a
contract is made with them after their change of condition; and, indeed, where
the party is arrogated, there is no difficulty, for then he will be liable just
like the son of a family.
(3) No one is exempt from the penalty for crime, even though his civil
condition be changed.
(4) Where a party has arrogated his debtor, his right of action against
him will not be restored after he becomes his own master.
(5) This right of action is perpetual, and is granted both to and
3. Paulus, On the Edict, Book XL
It is established that children, when they follow their father who has
been arrogated, sustain a loss of civil rights, since they come under the
control of another, and change their family.
(1) A change of condition evidently takes place where a son or other
persons are emancipated, since no one can be emancipated without having been
first reduced to a fictitious servile condition. The case is entirely different
where a slave is manumitted, as a slave enjoys no civil rights whatever, and
therefore he cannot change his condition:
4. Modestinus, Pandects, Book I.
For he first begins to have a civil status on the day when he is
5. Paulus, On the Edict, Book XL
A change of condition takes place by loss of citizenship, as in
the case of the interdiction of fire and water.
(1) Those who desert lose their civil rights, and they are said to
desert, who abandon the person under whose command they are, and place
themselves in the class of enemies; and this applies to persons whom the Senate
declares to be enemies, or renders them such by an enactment to the extent that
they forfeit their citizenship.
(2) It should now be considered what things are lost by a change of
civil status; and in the first place, with reference to that loss of condition
which happens when citizenship is retained, and by which it is established that
a party is not deprived of his public rights; for it is certain that the rank
of magistrate, senator, or judge is preserved.
6. Ulpianus, On Sabinus, Book LI.
For other public offices are not lost by a person whose status is
changed in this way; for a change of status deprives a man of certain private
and domestic rights, but it does not deprive him of those of citizenship.
7. Paulus, On the Edict, Book XI.
A change of condition does not deprive a person of the rights of
guardianship; except in those cases where they are given to parties who are
subject to the authority of others; and therefore guardians appointed by will,
by law, or by a decree of the Senate will still remain such; but legal
guardianships based on the law of the Twelve Tables are abrogated, for the same
reason as legitimate inheritances, because they are given to agnates who cease
to be such when their families are changed. Both inheritances and guardianships
based upon new laws are generally so bestowed that the parties who receive them
are designated by their natural relations; as, for instance, where decrees of
the Senate confer inheritances on mothers and sons.
(1) Obligations arising from injuries, and actions derived from crimes,
follow the individual everywhere.
(2) Where a party is deprived of freedom, he changes his condition in
consequence, and no right of restitution can be granted against a slave,
because a slave cannot be bound so as to be liable even in an action under
prætorian jurisdiction; but an equitable action will be granted against
his master, as Julianus asserts, and unless he is defended for the entire
amount, an order must be granted me to seize the property which he formerly
(3) Likewise, where citizenship is forfeited, there is no justice in
admitting restitution against a party who has lost his property, and having
left the city, goes into exile stripped of everything.
8. Gaius, On the Provincial Edict, Book IV.
Those obligations which are understood to be fulfilled in accordance
with natural law, it is evident cannot be lost by a change of condition,
because no civil rule can destroy natural rights; therefore a right of action
for dowry which is founded on what is good and equitable, will still remain
unimpaired after a change of condition.
9. Paulus, On the Edict, Book XL
So that a woman, even after she has been emancipated, may bring
10. Modestinus, Differences, Book VIII.
Where a legacy is left to be paid every year, or every month, or a
legacy of habitation is bequeathed, it is extinguished by the death of
the legatee; but where there is a change of condition it continues
without interruption, for the reason that a legacy of this kind is rather
dependent upon fact than upon law.
11. Paulus, On Sabinus, Book II.
There are three kinds of changes of condition, the greatest, the
intermediate, and the least; as there are three conditions, which we may have,
namely, those of freedom, citizenship, and family. Therefore, when we lose all
of these, that is to say freedom, citizenship, and family, the greatest change
of condition ensues; but where we lose citizenship and retain freedom,
intermediate loss of condition occurs; and when freedom and citizenship are
retained, and only the family position is altered, it is established that the
least change of condition takes place.
WHAT THE GROUNDS ARE ON WHICH PERSONS OVER TWENTY-FIVE YEARS OP AGE ARE
ENTITLED TO COMPLETE
1. Ulpianus, On the Edict, Book XII.
No one will refuse to acknowledge that the basis of this Edict is
perfectly just; for where a man's rights have been impaired during the time
when he was in the service of the State, or where he suffered some misfortune,
it affords a remedy; and relief is also granted against such persons, so that
whatever occurred will neither benefit nor injure them.
(1) The following are the terms of the Edict: "Where any portion of the
property of a party has been injured while he was under duress, or, without the
existence of fraud, absent in the service of the State, or in prison, or in
slavery, or in the power of the enemy; or has permitted the time to elapse for
beginning an action, or where anyone has acquired property by use, or obtained
anything and lost it by want of use; or has been released from liability to be
sued, because of lapse of time, and he being absent, was not defended; or was
in chains; or had made no provision by which he might be sued; or, when it was
not lawful for him to be brought into court against his will, no defence was
offered for him; or when an appeal was made to a magistrate or to someone
acting as magistrate, and his right of action was lost, withany fraud on his
part; in all these instances I will grant an action within the year during
which the party had the right to apply. Moreover, where any other just cause
seems to exist, I will grant complete restitution, when this is authorized by
the laws, the plebiscites, the decrees of the Senate, or the edicts and the
ordinances of the Emperors."
2. Callistratus, Monitory Edict, Book II.
This Edict, so far as it relates to those who are included therein, is
not much used at present, as justice is administered in the case of
such persons by extraordinary procedure, based upon the decrees of the
Senate and the Imperial Constitutions.
(1) Those persons are chiefly relieved under this head who are absent on
account of fear; that is to say, where they were not deterred by alarm that had
3. Ulpianus, On the Edict, Book XII.
Anyone is considered to have been absent on account of fear who remains
away through just apprehension of death or corporeal torture, and this must be
ascertained from its effect upon him; for it is not sufficient that, influenced
by any kind of apprehension, he remained in terror, but the determination of
this fact is the duty of the judge.
4. Callistratus, Monitory Edict, Book II.
Those who are included who, without fraudulent intent, were absent in
the service of the State. The expression "fraudulent intent" must be understood
to have reference to a case in which a person who can return, does not do so
and is not relieved, in case any wrong has been committed against him during
his absence; as, for instance, where he remained away for the purpose of
obtaining some substantial advantage for himself while he was absent in the
service of the State, he would be deprived of this privilege.
5. Ulpianus, On the Edict, Book XII.
The case would be the same where he contrived to be absent or took care
to do so, even if he obtained no benefit by it; or if he departed too soon; or
where the cause of his absence originated in a lawsuit. The addition of
fraudulent intent refers to parties who are absent in the service of the State,
and not to those who are absent on account of fear, since there is no fear
where fraud is involved.
(1) Parties, however, who are employed in public offices at Rome, are
not considered to be absent in the service of the State:
6. Paulus, On the Edict, Book XII. As, for example,
7. Ulpianus, On the Edict, Book XII.
It is evident that soldiers who are stationed at Rome must be considered
as absent in the service of the State.
8. Paulus, Abridgments, Book HI.
Relief is granted to municipal envoys by a Constitution of the Emperors
Marcus and Commodus.
9. Callistratus, Monitory Edict, Book II.
Relief is also granted to anyone who is in prison, which not only refers
to those who are in public prisons but also to persons who are kept in
confinement by thieves, or robbers, or by the employment of resistless force.
The term has a broader signification, for those also are considered to be
imprisoned who are confined in stone quarries,
because it makes no difference whether they are restrained by walls, or
by fetters. Labeo thinks, however, that the term should only be understood to
mean legal imprisonment.
10. Ulpianus, On the Edict, Book XII.
Those persons are also in the same position who are guarded by soldiers,
attendants of the Magistrates, or Municipal Authorities, where it is proved
that they are unable to manage their own affairs. We also consider those to be
under restraint who are bound to such an extent that they cannot appear in
public without disgrace.
11. Callistratus, Monitory Edict, Book II.
Relief is also granted to those who are in slavery, whether, being
freemen, they served as slaves in good faith, or whether they were simply
12. Ulpianus, On the Edict, Book XII.
He also, who is engaged in litigation with reference to his status is
not included in this Edict, as soon as the case is brought into court; and
therefore he is considered to be in slavery only so long as proceedings of this
kind are not instituted.
13. Paulus, On the Edict, Book XII.
Labeo very properly says that a party who has been appointed heir, and
granted his freedom, is not included in the terms of the Edict before he really
becomes the heir; for before that, he cannot hold property, and the
prætor speaks of men who are free.
(1) I am of the opinion, however, that the son of a family conies within
the terms of this Edict where his castrense peculium is involved.
14. Callistratus, Monitory Edict, Book II.
Relief is also granted to him who is in the power of the enemy, that is
to say who has been captured by him, for it must not be thought that any
benefit is accorded to deserters, to whom the right to return is denied. Those,
however, who are in the power of the enemy may be considered to be included in
that part of the Edict, in which persons who have been in slavery are
15. Ulpianus, On the Edict, Book XII.
Relief is granted to persons captured by the enemy, where they return
under the right of postliminium, or where they die; since they cannot
appoint an agent, while the others above mentioned can be readily aided by
means of one; with the exception of those who are held in slavery. I think,
however, that aid can be rendered in behalf of a party who is in the power of
the enemy, if a curator is appointed for the management of his property, as is
generally the case.
(1) Relief is granted to a child born in the hands of the enemy, if he
has the right to return, just as to one who was captured.
(2) Where a man is placed in possession of the house of a soldier for
the purpose of preventing threatened injury; and the prætor grants
possession to anyone while he is present, he will have no right to demand
restitution; but, where the custodian was absent, it must be held that he is
entitled to relief.
(3) Where the prætor says in the Edict: "Or afterwards" without
anything further, it must be understood that if a possessor in good faith held
the property before the absence of the owner, and the possession terminated on
his return, he would have ground to apply for restitution, not at any time, but
only where this happened soon after his return; that is to say, during the time
required to find a lodging, arrange his baggage, and seek an advocate; for
Neratius states that he who defers an application for restitution should not be
16. Paulus, On the, Edict, Book XII.
Relief is not granted to persons who are negligent, but only to those
who are hindered by force of circumstances. All this is to be referred to the
judgment of the prætor; that is to say, he must only grant restitution
where a person could not join issue by reason of want of time, and not where he
was guilty of negligence.
17. Ulpianus, On the Edict, Book XII.
Julianus stated in the Fourth Book, that relief could not only be
granted to a soldier against the party in possession of an estate, but also
against those who had purchased from the possessor; so that if the soldier
should accept the estate, he can recover the property, but if he does not
accept it, prescription would evidently continue to run afterwards.
(1) Where a legacy has been bequeathed in the following terms: "Or for
every year, that he shall remain in Italy"; restitution may be granted so that
he may receive the amount as if he had been in Italy, as Labeo states; and
Julianus in the Fourth Book, and Pomponius in the Thirtieth Book, approved of
this opinion; for the right of action is not extinguished through lapse of time
where the aid of the prætor becomes necessary, but the case is
18. Paulus, On the Edict, Book XII.
It must be remembered that we grant the aid of restitution when the
parties have attained their majority, only where they attempt to recover their
property; and not where they desire relief to be given them, for the purpose of
gain, or to inflict a penalty or loss on some other person.
19. Papinianus, Questions, Book III.
Moreover, if a purchaser, before obtaining a title to property by
prescription, is captured by the enemy, it is settled that the possession,
which was interrupted, is not restored by the right of postliminium;
because prescription is not operative without possession, for possession is
generally a question of fact, and this does not come under the rule of
20. The Same, Questions, Book XIII.
A prætorian action cannot be granted to the purchaser, since it
would be most unjust to deprive an owner of anything where this was not done by
use; nor can that be understood to be lost which was not taken away by
21. Ulpianus, On the Edict, Book XII.
The prætor also says: "Where anyone acquires property by use, or
loses it by non-user, or is released from liability because his right of action
is barred by lapse of time when the party was absent and no defence was made
for him." The prætor inserted this clause so that, just as he comes to
the relief of the above mentioned persons, to prevent them from being taken
advantage of; so also, he may intervene to prevent them from taking advantage
(1) It should be noted that the prætor expresses himself more
fully, where he grants restitution against those who are absent, than where he
grants it to them; for, in this instance, he does not enumerate the persons
against whom he gives relief, as above, but he adds a clause which includes all
who are absent and are not defended.
(2) This restitution is also granted whether those who are absent and
are not defended have obtained a title to the property by prescription, either
by themselves or through persons under their control, but only where none of
them appeared as a defender; for if there was an agent, as you have someone to
bring suit the other party should not be disturbed. Moreover, if no defender
appeared, it is perfectly just that relief should be granted; and there is the
more reason for this, if any of those who were not defended remain concealed;
as the prætor promises in the Edict to grant possession of the property
and, if the case requires it, it may be sold; but where the parties do not
remain concealed, although no one appears to defend them, he promises merely to
give possession of the property.
(3) A party is not considered to be defended where someone voluntarily
appears as his representative, but where he is requested by the plaintiff and
does not fail to conduct the defence; and a complete defence must be understood
to be one where the party does not avoid the trial, and gives security to
comply with the judgment.
22. Paulus, On the Edict, Book XII.
It must, therefore, be remembered that this Edict is only operative
where when the friends of the party were asked whether they would defend him,
or where there was no one who could be asked to do so; for an absent person is
not considered to be defended if the plaintiff of his own accord calls upon
him, and no one offers himself to conduct the defence, and thus must be
established by evidence.
(1) Therefore, as the prætor is not willing that the parties
should suffer loss; so, on the other hand he does not permit them to obtain
(2) Labeo states that this Edict also has reference to insane persons,
infants, and municipalities.
23. Ulpianus, On the Edict, Book XL
The prætor says: "Or was in prison, and had made no provision by
which he could be sued." Persons of this kind are added with good reason, for
it could happen that a party might be imprisoned, and still be present, whether
he was placed under restraint, by the authorities, or by private individuals;
for it is well settled that a person who is imprisoned can acquire property by
use so long as he is not in slavery. Restitution will not apply where the party
who is in prison has someone to conduct his defence.
(1) A person who is in the power of the enemy cannot acquire property
for himself by use, nor can he, as long as he is in captivity, complete
possession which had begun to run; nor, if he returns under the right of
postliminium, can he recover the acquisition of ownership by
(2) Moreover, Papinianus states that a person should be granted relief
who, during captivity, has lost the possession of land or the quasi possession
of the usufruct of the same; and he thinks that it is just that the profits
received from the usufruct by another, in the meantime, should be restored to
the captive on his return.
(3) It is evident that those who are under the control of the captive
can acquire property by use, through their peculium; and it will be just
that under this clause relief should be granted to those who are present; that
is to say, to such as are not in captivity, where anything was acquired by
another by usucaption when they were not defended. But where the time for
bringing an action against the captive has elapsed, relief will be granted
against the party who brings it.
(4) The prætor next adds: "Or makes no provision by which he could
be sued"; and if, while he was doing so, the acquisition by use should be
completed, or something else above mentioned should happen, restitution should
be granted. There is reason in this, for an order of court to place the party
in possession of the property is not always sufficient, because sometimes
conditions are such that possession of the property of a person who is
concealing himself cannot be given; as, for example, where the action is barred
by lapse of time,
1 A very refined and artificial distinction exists between
the words "use" and "usufruct" as employed by the Civil Law. He who enjoyed the
usufruct of property whose ownership was vested in another had a right to every
benefit to be derived from it, the exercise of which did not impair its value
or ruin its substance. Properly speaking, usufruct only had reference to
whatever could be returned intact to the owner when the right to its enjoyment
was ended. The usufructuary could sell, lease, or give away his right, which,
however, did not attach to the products of the soil until they had been
gathered, and if he died before this was done, the title to them did not pass
to his heirs. The privilege of use, on the other hand, was much more limited in
its application. The party in whom it vested while, like the usufructuary, he
was required to be diligent in the preservation of the property, was only
entitled to as much of its yield or profit as would suffice for the daily
maintenance of himself and his family. The terms of the grant were strictly
construed, and no more liberal interpretation of them was permitted. The right
of use was a personal one and could not be alienated, or even temporarily
transferred in any way. — ED.
while the party is seeking an advocate, or something else occurs to
delay the trial.
24. Paulus, On the Edict, Book XII.
The Edict also has reference to those who, when sued, attempt to
embarrass the plaintiff, and endeavor by delay and artifice to prevent the
trial of the case.
25. Gaius, On the Provincial Edict, Book IV.
In like manner, we say that it has reference to a person who conceals
himself, not for the purpose of avoiding a suit, but because he is impeded by a
press of business.
26. Ulpianus, On the Edict, Book XII.
But where the prætor is to blame, restitution will be granted.
(1) Pomponius says that restitution against a man who has been relegated
will be granted under the general terms of the Edict; but it will not be
granted to him, because he could have appointed an agent. I think,
nevertheless, that, where proper cause is shown, he himself would be entitled
(2) The prætor further says: "Or where it was not lawful for him
to be summoned against his will, and no one defended him." This clause has
reference to those who, according to the custom of our ancestors, could not
with propriety be cited into court; for instance the consul, the prætor,
and others who exercise power or authority; this Edict, however, does not apply
to those whom the prætor forbids to be summoned without his permission
(since application to him might have obtained permission), for example, patrons
(3) He next adds: "And no one defended him"; which has reference to all
the parties above-mentioned, except to one who, while absent, obtained
something by usucaption, because this case has already been fully provided for
(4) The prætor also says: "Or where his right of action was held
to be lost, through the act of the magistrate, without any fraud on his part."
What is the object of this? It is that restitution may be granted if a right of
action is taken away on account of delays caused by the judge. Again, if there
is no magistrate at hand, Labeo says that restitution should be granted. Where
the right of action was "lost through the action of the magistrate", we must
understand that this was done where he refused to permit the case to be filed;
but otherwise, where investigation was made, and he declined to permit the
action to be brought, restitution does not apply; and this opinion is held by
Servius. Moreover, the magistrate appears to be to blame if he denied the
application through favor to the other party, or through corruption; in which
instance this section as well as the former one will be operative, namely: "Or
made no provision by which he could be sued"; for the litigant did this when he
corrupted the judge to avoid being sued.
(5) By the "loss of right of action", it must be understood that the
party was no longer able to bring suit.
(6) He also adds, "Without any fraud on his part", for the reason that
if he was guilty of fraud, he should not obtain any relief; as the prætor
does not aid persons who themselves commit offences. Consequently, if the party
wishes to bring suit before the next prætor, and the time for doing so
before the present one has elapsed, he will not be entitled to relief. Also, if
he did not obey the order of the prætor, he will refuse to hear his case;
and Labeo says that restitution should not be granted. The same rule applies
where the case was not heard by him for any other good reason.
(7) If any unusual holiday should be appointed, for instance, because of
some fortunate event, or in honor of the Emperor, and for this reason the
prætor refused to hear the case, Gaius Cassius expressly stated in an
Edict that he would grant restitution, because it was held this must have been
done by the prætor, for the ordinary holidays ought not to be taken into
account, as the plaintiff could and should foresee them, so as not to interfere
with them; which is the better opinion, and this Celsus also adopts in the
Second Book of the Digest. But when holidays are responsible for lapse of time,
restitution ought only to be granted with reference to the said days, and not
on account of the entire time; and this Julianus stated in the Fourth Book of
the Digest, for he says that where rescission of usucaption takes place, those
days must be restored during which the plaintiff was willing to act, but was
prevented by the occurrence of the holidays.
(8) Whenever a person by his absence, does not exclude anyone from
acting for the entire time; as, for instance, if I had been in possession of
your property for less than one day of the term prescribed for acquisition by
usucaption, and then I began to be absent in the public service, restitution
should be granted against me for only one day.
(9) The prætor also says: "Where any other just cause seems to
exist, I will grant complete restitution." This clause is necessarily inserted
in the Edict, for many instances may occur which would establish ground for
restitution, but which cannot be separately enumerated; so that, as often as
justice calls for restitution, resort can be had to this clause. For example,
if a party is acting as the envoy of a city, it is only just that he should
obtain restitution, though he is not absent in the service of the State; and it
has been repeatedly established that he is entitled to relief, whether he had
an agent, or not.
I think that the same rule applies where he has been summoned from one
province or other to give testimony either in the city, or before the Emperor;
for it has very often been stated in rescripts that he should be relieved.
Moreover, relief should be granted to those who have been in foreign countries
on account of some judicial investigation or appeal. And, generally speaking,
as often as a party is absent from necessity, and not voluntarily, it must be
said that he is entitled to relief.
27. Paulus, On the Edict, Book XII.
And where a person loses something, or fails to obtain a profit,
restitution should be granted, even though none of his property was lost.
28. Ulpianus, On the Edict, Book XII.
Also, where a person is absent for some reasonable cause, the
prætor should consider whether he is entitled to relief; as, for example,
where his absence was due to his studies, or because his agent was dead; the
intention being that he should not be wronged when his absence was due to some
(1) Moreover, where a person is not in custody, or in chains, but has
furnished security with sureties, and then, on account of this, is unable to go
away, and is taken at a disadvantage, he is entitled to restitution; and
restitution will also be granted against him.
(2) The prætor also says: "When this is authorized by the laws,
the plebiscites, the decrees of the Senate, the Edicts, and the Ordinances of
the Emperors." This clause does not promise that restitution will be granted if
the laws permit it, but if the laws do not prohibit it.
(3) Where a person has been absent very frequently in the service of the
State, Labeo thinks that the time he should be permitted to apply for
restitution should be reckoned from his last return. But if all his absences
together amount to a year, and each one separately to less than a year, whether
we shall grant him an entire year for restitution, or only so much time as his
last absence endured, is a matter to be considered, and I am of the opinion
that an entire year should be granted.
(4) If, while you have a residence in the province, you also pass some
time in the city, does the year run against me because I have the power of
bringing suit against you? Labeo says that it does not. I, however, am of the
opinion that this is only true where an adversary has the right of demanding
that you be sent into your province; otherwise, it should be held that I have
the power to bring suit because issue can also be joined at Rome.
(5) An exception is also available for a person who has been absent in
the service of the State, just as he is granted a right of action to rescind;
for instance, if, having obtained the property, an action should be brought
against him for its recovery.
(6) In a rescissory action, which can be brought against a soldier,
Pomponius states that it is entirely just, but that the defendant should
surrender the profits which he obtained during the time that he was absent and
made no defence; and, therefore, on the other hand, the profits should also be
surrendered to the soldier, as there is a right of action on both sides.
29. Africanus, Questions, Book VII.
The reason for this is that a public duty should not be a source of loss
or profit to anyone.
30. Paulus, On the Edict, Book XII.
Where a soldier who has acquired a right to property by usucaption dies,
and his heir completes the time required for it, it is just that what has been
acquired subsequently to his death should be rescinded; and the same rule
should be observed in the case of heirs who succeed
to the right of usucaption, as the possession of the deceased being, as
it were, joined to the estate, should descend to the heir, and very frequently
the right becomes complete before the estate has been entered upon.
(1) Where a person who has been absent in the service of the State has
obtained property by usucaption, and afterwards alienates it, restitution
should be granted; and even though there was no fraud connected with his
absence and his acquisition of ownership, he should be prevented from profiting
by them. Also, in all other cases, restitution should be granted just as if
judgment had been rendered against him.
31. The Same, On the Edict, Book LIII.
Where he, whose property was acquired by someone through usucaption
while he was absent in the service of the State, obtains possession of the
property acquired by him in that way, and he afterwards loses the same; he will
be entitled to a perpetual right of action and not to one that is limited by
32. Modestinus, Rules, Book IX.
A person is considered to be absent in the service of the State as soon
as he has left the City, although he may not have yet reached the province; and
when he has gone, he is held to be absent until he returns to the city. This is
applicable to proconsuls and their deputies, as well as those who preside over
provinces, to the Imperial Procurators who occupy positions in the provinces,
to military tribunes, prefects, and the attendants of envoys, whose names are
inscribed in the books of the Treasury, or in the Imperial registers.
33. The Same, On Cases Explained.
Among those who are entitled to relief under the general clause of the
Edict is included the Advocate of the Treasury.
(1) Those who record the decisions of the magistrates are certainly not
absent in the public service.
(2) Physicians of the soldiers have a right to petition for relief by
restitution, as the functions they perform are for the public benefit, and
ought not to be a source of injury to them.
34. Javolenus, On Cassius, Book XV.
A soldier who is at home on a furlough is not held to be absent in the
service of the State.
(1) A person who gives his services for the collection of public taxes
which have been farmed out, is not absent in the service of the State.
35. Paulus, On the Lex Julia et Papia.
Parties who are sent to conduct soldiers, or bring them back, or have
charge of recruiting, are absent in the public service.
(1) This is the case also, where persons are sent for the purpose of
congratulating the Emperor.
(2) Likewise, the Imperial Procurator, and not only he to whom is
entrusted the affairs of a province, but also one who is charged with the
transaction of certain business pertaining thereto, but not of all of it.
Therefore, where there are several Imperial Procurators charged with different
matters, they are all considered to be absent in the service of the State.
(3) The Prefect of Egypt is also absent in the service of the State; and
also whoever, for any other reason, departs from the City on a public
(4) The Divine Pius established the same rule with reference to the
garrison of a city.
(5) It has been asked whether a party who is dispatched for the
suppression of evil-doers, is absent in the public service, and it has been
determined that he is.
(6) The same rule applies where a civilian joined an expedition by the
command of an officer of consular rank, and was killed in battle, for relief
should be granted his heir.
(7) A person who has repaired to Rome on business for the State, is
considered to be absent in the public service. Moreover, if he should leave his
own country on business for the Government, even if he has a right to pass
through the city, he is absent in the service of the State.
(8) In like manner, where a man who is in a certain province, when he
has left his home, or remains in his own province for the purpose of
transacting public business, as soon as he begins to discharge his duties he is
treated as a party who is absent.
(9) A man going to camp, as well as on his return, is absent in the
service of the State; as anyone who is about to serve as a soldier must go to
camp and return from it. Vivianus says that it was held by Proculus, that a
soldier who is on a furlough is absent in the service of the State, while he is
coming home and returning to the army, but when he is at home he is not
36. Ulpianus, On the Lex Julia et Papia, Book VI.
We only understand those to be absent on public business who are absent
not for their own convenience, but from necessity.
37. Paulus, On the Lex Julia et Papia, Book HI.
Those who serve as assessors in their own province beyond the time
prescribed by the Imperial Constitutions, are not understood to be absent on
38. Ulpianus, On the Lex Julia et Papia, Book VI.
I am of the opinion that he is absent in the service of the State whom
the Emperor, as a special favor, has permitted to act as assessor in his own
province; but if he does not so act by his permission, we must hold that, by
doing so, he is guilty of an offence, and is not entitled to the privileges of
those who are absent in the service of the State.
(1) A party is considered to be absent in the service of the State, as
long as he fills some office, but as soon as his term of office is ended,
he ceases to be absent on public business. We, however, calculate the
time allowed him for his return from the date when he ceased to be absent in
the public service, that is to say, as much as he requires to return to the
City, and it will be reasonable to grant him the time which the law allows to
other returning officials. Wherefore, if he turns aside on account of some
affair of his own; there is no doubt that the time so consumed will not be
granted him, but will be calculated with reference to the period within which
he could have returned; and when this has elapsed we must say that he has
ceased to be absent in the service of the State. It is evident that if he is
prevented from continuing his journey by illness, humane considerations must
prevail; just as is customary in case of bad weather, difficulties of
navigation, and other things which accidentally happen.
39. Paulus, Sentences, Book I.
He who is about to be absent on public business, and has left an agent
by whom he can be defended, and applies for complete restitution, shall not be
40. Ulpianus, Opinions, Book V.
Where it is in the power of a soldier to institute criminal proceedings
during the time that he is devoting his services to the State, he is not
deprived of his right to do so.
(1) Where a person is detained on an island in accordance with the
penalty imposed upon him on account of which he obtained restitution, and it is
proved that a portion of the property of which he had not been deprived has
been appropriated by some one else, it must be restored to him.
41. Julianus, Digest, Book XXXV.
Where a person bequeathed a legacy to Titius, provided that, at the time
of the testator's death, the former should be in Italy, or he leaves it payable
each year, as long as he remains in Italy; and the legatee obtains relief on
the ground that he was excluded from the legacy because he was absent on public
business, he is compelled to carry out any trust with which he was charged.
Marcellus asks in a note, where an estate is restored to a soldier which he had
lost because he was absent in the service of the State, whether any one can
doubt that the right to legacies and trusts will not be impaired?
42. Alfenus, Digest, Book V.
He cannot be said correctly to be absent in the service of the State,
who has joined an embassy on account of his own private affairs.
43. Africanus, Questions, Book VII.
Where anyone stipulates for a certain sum every year, as long as he, or
the party who makes the promise, shall remain in Italy, and one or the other
happens to be absent in the service of the State; it is the duty of the
prætor to grant an equitable action. We hold that the same rule applies
where the stipulation is in the following words: "If a cer-
tain man should be at Rome for the next five years"; or "If he should
not be at Rome, do you agree to pay a hundred aurei?"
44. Paulus, On Sabinus, Book II.
He who is absent in the service of the State and is injured in any way
will not be granted restitution if he suffered the injury under circumstances
where he would have sustained loss, even if he had not been absent on public
45. Scævola, Rules, Book I.
All soldiers who cannot leave their standards without risk to
themselves, are considered to be absent in the service of the State.
46. Marcianus, Rules, Book II.
A person who is absent in the service of the State is entitled to
restitution against one who is also absent on public business, if he has just
cause for complaint on account of having sustained some loss.
CONCERNING ALIENATIONS MADE FOR THE PURPOSE OF CHANGING THE CONDITIONS
OF A TRIAL.
1. Gaius, On the Provincial Edict, Book IV.
The proconsul takes every precaution to prevent any person's legal
position from becoming worse through the act of another; and as he understands
that the result of a trial sometimes causes us a great deal more hardship when
we have a different adversary than we had at the beginning, he provided against
this by stating: "That if anyone, by transferring the property in question
should substitute another party in his place as an opponent, and he did this
purposely with fraudulent intent, he will be liable to an action in factum
to the extent of the interest which the other party had in not having
(1) Therefore, if a litigant opposes a man from another province, or one
who is more powerful, to us as an adversary, he will be held liable;
2. Ulpianus, On the Edict, Book XIII.
Or anyone who will probably annoy the adversary.
3. Gaius, On the Provincial Edict, Book IV.
The reason for this is that if I institute proceedings against some one
who belongs to another province, I am compelled to do so in his own province,
and we can do nothing on an equal footing where the other party is more
(1) Moreover, if the man whom we are suing manumits a slave who is
claimed in the action, our condition becomes less advantageous, because the
prætors favor freedom.
(2) Moreover, if you have erected some structure on a tract of land
where you may become liable to an interdict Quod vi aut clam; or, in an
action granted against a person who diverts rain-water from its natural course,
you alienate said piece of property, our condition is understood to be worse;
because if I institute proceedings against you, you will be compelled to remove
the structure at your own expense, but now I am forced to bring an action
against a different party from the one who performed the act, and will be
compelled to remove the structure at my own expense; for the reason that he who
is in possession of anything of this kind erected by another, is only liable
under these proceedings so far as to permit the structure to be removed.
(3) If I give you notice of a new structure, and you then alienate the
land, and the purchaser finishes the work; it is held that you will be liable
to this action, for the reason that I cannot bring suit against you based on a
notice of a new structure, because you have not built anything; nor can I do so
against the party to whom you have conveyed the property, because he has not
(4) From all which it is evident that as the proconsul promises to grant
complete restitution, the plaintiff in this action may by order of court obtain
damages to the extent of his interest in not having another adversary; as, for
instance, if he had incurred some expense, or had suffered some other
inconvenience on account of the substitution of another adversary.
(5) What then would happen, if the person against whom a prætorian
action can be brought is ready to defend it, just as if he was still in
possession of the property? In this instance it is very properly held that the
action based upon this Edict will be refused him.
4. Ulpianus, On the Edict, Book XIII.
The same Edict also applies where the property has been acquired through
usucaption by the party to whom it was transferred, so that no suit could be
brought to recover it from him.
(1) It can also happen that possession is terminated without bad faith,
but that this was done for the purpose of altering the conditions of the trial,
and there are numerous other cases of this kind. On the other hand, a party may
fraudulently relinquish possession, and he may not have acted for the purpose
of changing the conditions of the suit; and then he will not be liable under
the terms of this Edict, for he does not alienate property, who merely
The prætor, however, does not disapprove the act of a party who
was so desirous to give up property to prevent his being constantly engaged in
litigation on account of it; and this is, in fact, a very modest determination
of one who detests lawsuits, and is not to be blamed; but the prætor only
concerns himself with a party who, while desiring to retain the property,
transfers his part in the case to another, so that the latter, instead of
himself may give his adversary trouble.
(2) Pedius states in the Ninth Book, that this Edict has not only
reference to a transfer of ownership, but also a transfer of possession;
otherwise, he says that where the plaintiff brings a suit in rem,
and the defendant relinquishes possession, he will not be liable.
(3) Where, however, anyone through illness, old age, or necessary
business, transfers his right of action to another, this is not a case in which
he is liable under this Edict, as mention of fraud is made in the Edict; for,
otherwise, it would be forbidden to litigate through agents, as ownership is
generally transferred to them where proper cause exists for this to be
(4) This Edict also has reference to real servitudes, where their
alienation is fraudulently made.
(5) This action has for its object the amount of the plaintiff's
interest; and therefore, if the property did not belong to him, or if the slave
who was alienated should die without the fault of the party who alienated him,
the action will not lie, unless there was some additional interest of the
(6) This action is not a penal one, but it is for the purpose of
recovering property by order of court for which reason it is granted to an
heir, and also against an heir,
5. Paulus, On the Edict, Book XL Or anyone in similar
6. Ulpianus, On the Edict, Book XIII. Or after a year it is not
7. Gaius, On the Provincial Edict, Book IV.
Because it relates to the recovery of property it still appears to be
granted on account of an offence.
8. Paulus, On the Edict, Book XII,
A person is liable under this Edict, even where he produces the
property, if he does not, after notification by the judge, place the case in
its original condition.
(1) The prætor says: "Or an alienation made for the purpose of
changing the conditions of the trial"; that is to say, the conditions of a
future trial and not these of the present one.
(2) To "alienate" is also understood to sell the property of
(3) But where a person alienates anything either by appointing an heir,
or by making a bequest, the Edict will not apply.
(4) Where anyone alienates property, and takes it back again, he will
not be liable under this Edict.
(5) Where a purchaser compels his vendor to take back the property sold,
he is not considered to have alienated it for the purpose of changing the
conditions of the trial.
9. Paulus, On the Edict of the Curule Ædiles, Book I.
For the reason that when a slave is returned, everything has a
retroactive effect, and, therefore, the party who returns the property is not
held to have alienated it, in order to change the conditions of the
trial; unless he restores the slave for this very purpose, and otherwise
would not have restored him.
10. Ulpianus, On the Edict, Book XII.
For if, being in debt, I deliver the property for which you wished to
sue me, this Edict will not apply.
(1) Where the guardian of a ward, or the curator of an insane person
alienates property, a prætorian action will lie, because one cannot
presume that either the ward or the insane person can have the intention of
11. The Same, Opinions, Book V.
When a soldier applied to bring suit in his own name in order to obtain
an estate which he alleged had been presented to him; he was told that if the
gift had been made for the purpose of changing the conditions of the trial, the
action must be brought by the former owner, so that it might appear that he had
transferred the property to the soldier, rather than a lawsuit.
12. Marcianus, Institutes, Book XIV.
Where anyone alienates his share in a piece of property for the purpose
of avoiding a suit in partition, he is prohibited by the Lex Licinia
from bringing an action in partition himself, for example, in order that
some purchaser who is more powerful may obtain it by a lower bid; and he in
this way can recover it. He, however, who has disposed of his share, and wishes
afterwards to bring suit in partition, shall not be heard; but if the party who
purchased it desires to institute proceedings, he is forbidden to do so under
that Section of the Edict by which it is provided that no alienation shall be
made for the purpose of changing the conditions of a trial.
CONCERNING MATTERS REFERRED TO OTHERS FOR ARBITRATION AND THOSE WHO
ACCEPT THEM FOR THE PURPOSE OF MAKING AN AWARD.
1. Paulus, On the Edict, Book II.
Arbitration is conducted in the same manner as a trial in court, and is
intended to put an end to litigation.
2. Ulpianus, On the Edict, Book IV.
It is established that an exception cannot arise from arbitration, but
an action for a penalty imposed can.
3. The Same, On the Edict, Book XIII.
Labeo says that where an award is given under an arbitration, by which a
party is released from an action on guardianship by a minor under twenty-five
years of age, it should not be confirmed by the præ-
tor; nor will an action for the recovery of the penalty on account of it
(1) Although the prætor does not compel anyone to undertake an
arbitration (since this is voluntary and depends upon the exercise of the will,
and is outside his jurisdiction), nevertheless, where a party has once assumed
the duties of the office, the prætor thinks that the matter requires his
care and attention; not so much because it is his object that legal
controversies should be terminated, but in order that persons should not be
disappointed who have selected someone to decide between them who was
considered to be a reliable man. For, suppose that after the case had been
examined one or more times, and the private concerns of both parties had been
made public, and the secrets of the business had been disclosed, the arbiter
should refuse to give an award; either for the purpose of showing partiality,
or because he had been corrupted by bribery, or for some other reason; could
anyone deny that it was not perfectly right that the prætor should
intervene in order to compel the arbiter to discharge the duties of the office
which he had assumed?
(2) The prætor says: "A party who undertakes arbitration by which
submission is made to his award under a pecuniary penalty."
(3) Let us first consider the personality of the arbiters. The
tor can compel an arbiter, no matter what his rank may be, to perform
the duties of the office which he has undertaken, even though he be of consular
rank, unless he holds some magisterial position, or is invested with other
authority; as, for instance, that of consul, or prætor, since he then has
4. Paulus, On the Edict, Book XIII.
For magistrates cannot be subject to coercion where they possess higher
or equal authority; nor does it make any difference whether they accepted the
office of arbiter during the term of their magistracy, or previously. Inferior
officials, however, can be subjected to compulsion.
5. Ulpianus, On the Edict, Book XIII.
The son of a family can also be compelled to act.
6. Gaius, On the Provincial Edict, Book V.
Moreover, the son of a family can also be appointed arbiter in a matter
in which his father is interested; and it is held by many that he can also be a
7. Ulpianus, On the Edict, Book XIII.
Pedius says in the Ninth Book, and Pomponius in the Thirty-third Book,
that it is of little importance whether a party who was appointed arbiter is
free born, or a freedman of good reputation, or has been branded with infamy.
Labeo says that a slave cannot act as arbiter, and this opinion is correct.
(1) Therefore Julianus states that where a question for arbitration is
referred to Titius and a slave, Titius cannot be forced to give
an award, because he undertook the arbitration with another; although he
states that there is no arbitration by a slave. What then would be the result
if Titius should give an award? In this instance the penalty would not be
payable, because he did not render the award in compliance with the conditions
under which he assumed the office.
8. Paulus, On the Edict, Book XIII.
But where the terms of the arbitration were, "that the award of either
party alone should be valid", then force can be brought to bear against
9. Ulpianus, On the Edict, Book XIII.
But where a slave had been appointed arbiter and makes an award after he
has become free, I am of the opinion that if he does this after obtaining his
freedom, and the parties consent, that his act will be valid.
(1) Neither a ward, nor an insane person, nor one who is deaf or dumb,
can be appointed an arbiter; as Pomponius asserts in the Thirty-third Book.
(2) Where a party is a judge, he is forbidden by the Lex Julia to
act as arbiter in the same matter in which he is to decide as judge, or to
appoint himself; and if he makes an award, a suit for the penalty shall not be
(3) There are others who cannot be compelled to give an award; for
instance, where the corruption or the turpitude of the arbiter is evident.
(4) Julianus says that if the litigants defame the arbiter, the
prætor should by no means dismiss him, but only where proper cause is
shown. The same jurist says that if the parties treat the authority of the
arbiter with contempt, and apply to the court,
10. Paulus, On the Edict, Book XIII. Or to some other
11. Ulpianus, On the Edict, Book XIII.
And afterwards the litigants return to the original arbiter, the
prætor should not compel him to decide between those who have treated him
insultingly, and rejected him in order to have recourse to another.
(1) An arbiter cannot be compelled to give an award, unless arbitration
was agreed upon.
(2) Where the prætor says: "Under a pecuniary penalty"; we must
understand that a sum of money is not payable on both sides, but that there may
be other property promised by way of a penalty, where one of the parties does
not abide by the award; and this was the opinion of Pomponius. What, then, if
property was deposited with the arbiter under the condition that he should
deliver it to the party who gained the case, or should deliver it if one of the
parties did not comply with the award; will he be compelled to make an award? I
think he will be. The case would be the same where a certain amount is left in
his hands for this purpose. Hence, if one party has promised in the
stipulation to deliver property, and the other to pay money, the
submission to arbitration is complete, and the arbiter can be forced to
make an award.
(3) Sometimes, as Pomponius remarks, submission to arbitration may
properly be made by a mere agreement; as, for instance, where both parties are
debtors, and agree that if either of them does not comply with the award of the
arbiter, he shall not have the right to collect
what is owing to him.
(4) Moreover, Julianus states that an arbiter cannot be forced to give
an award, where one party makes a promise and the other does
(5) He is of the same opinion where the penalty was agreed upon subject
to a condition; as, for instance: "If a certain ship should return from Asia so
many thousand", for the arbiter cannot be compelled to make an award until the
condition has been fulfilled, lest it may be void on account of the failure of
the condition; and Pomponius also says the same thing in the Thirty-third Book
on the Edict.
12. Paulus, On the Edict, Book XIII.
In this case, perhaps, the only reason for applying to the prætor
will be where the time appointed for the hearing can be prolonged, for then it
may be done.
13. Ulpianus, On the Edict, Book XIII.
Pomponius says that if either party is released from the penalty agreed
upon, the arbiter should not be forced to give an award.
(1) He also states that if my demands alone are submitted to
arbitration, and I have stipulated for a penalty to be paid by you; it must be
considered whether or not this is a reference to arbitration. I do not see,
however, wherein he finds any difficulty; for, if the understanding of the
parties only relates to the claims of one of them, there is no reason in his
statement, as it is lawful for one thing to be arbitrated; but if he means that
the stipulation is only made on one side, what he says is reasonable. If,
however, the party who made the stipulation is the one bringing the action, the
submission to arbitration may be said to be more complete, for the reason that
the party who is sued is protected; as, for instance, by an exception based
upon contract, and if he does not comply with the award, he who brings the suit
can have recourse to the stipulation. I do not think, however, that this
opinion is correct; for it is not sufficient for the party to have an
exception, as the arbiter may be compelled to make an award.
(2) A person is held to have accepted the office of arbiter (as Pedius
says in the Ninth Book), when he undertook the duties of a judge, and promised
to settle the controversies of the parties by his award. But if, as he says,
the arbiter should only proceed so far as to ascertain whether the parties will
permit their controversy to be settled by his advice or authority, he is not
held to have assumed the duties of arbiter.
(3) An arbiter who has been appointed is not compelled to give an award
upon those days on which a judge is not required to render
a decision; unless the term fixed by the arbitration is about to expire,
and cannot be prolonged.
(4) Thus, if the arbiter is urged by the prætor to render his
award, it will be perfectly just that he should have time granted him for the
doing so, if he swears that the case is not yet sufficiently clear to him.
14. Pomponius, On Quintus Mucius, Book XI.
If the matter is submitted to arbitration without appointing a day for
it to be heard, it is absolutely necessary for the arbiter to fix one, of
course with the consent of the parties, and the case should then be decided;
because if he should fail to do this, he can be compelled to make his award at
15. Ulpianus, On the Edict, Book XIII.
Even though the prætor should unqualifiedly state in the Edict
that he will compel the arbiter to make an award; nevertheless, he should
sometimes pay attention to his reasons, and accept his excuses, where proper
cause is shown; as, for instance, where he is defamed by the litigants; or
where deadly hostility arises between him and them or one of them; or where age
or sickness, with which he was afterwards attacked, releases him from the
discharge of his duty; or if he is occupied with his own affairs, or there is
urgent necessity for his making a journey; or some public office requires his
attention; and this is the opinion of Labeo.
16. Paulus, On the Edict, Book XIII.
Or where the arbiter is subjected to any other inconvenience after he
has accepted the office. But in case of illness or other occurrences of this
kind, he may be compelled to defer consideration of the matter, where proper
cause is shown.
(1) An arbiter should be excused from acting where he is occupied in a
case in his own behalf, whether it be either public or private; at all events,
where the day of the hearing cannot be postponed; but if it can be, why should
not the prætor compel him to defer it as he has the right to do so, since
this can sometimes be accomplished without any inconvenience to the arbiter?
Where, however, both parties wish him to render an award, even though no bond
was given for postponement; still, he cannot do otherwise, if he has an action
of his own pending, unless he consents that the case may be submitted to him
anew. This, of course, is dependent upon the fact that the time is about to
17. Ulpianus, On the Edict, Book XIII.
Moreover, where one of the litigants has made an assignment of his
property, Julianus states in the Fourth Book of the Digest that the arbiter
cannot be compelled to give an award, since the party referred to can neither
sue nor be sued.
(1) Where the litigants return to the arbiter a long time afterwards,
Labeo states that he is not compelled to give an award.
(2) Where there are several arbiters who have assumed the office, one of
them alone cannot be compelled to make an award, but all must
do so, or none.
(3) For this reason Pomponius asks in the Thirty-third Book, if, where
an arbitration was agreed upon in such a way that whatever Titius decided Seius
was to award; which of the two would be subject to compulsion? I am of the
opinion that an arbitration of this kind, in which the arbiter has not perfect
liberty to render his decision is
(4) But where the terms of the arbitration are that the question shall
be decided by either Titius, or Seius; Pomponius says — and we agree with
him — that the arbitration is valid; but the arbiter who must be compelled
to make the award is the one whom the litigants
(5) Where the arbitration is referred to two persons, on the condition
that if they disagree they may call upon a third; I think that a reference of
this kind is not valid, for they may disagree as to the person applied to, but
if the condition is that Sempronius shall be joined as the third party, the
arbitration will be valid, since there can be no disagreement in calling upon
(6) Let us consider a special case, namely: where a question is
submitted to two arbiters, should the prætor compel them to give an
award; for, on account of the natural tendency of men to disagree the question
might be almost incapable of settlement. Where the number is odd, arbitration
for that reason is sustained, not for the reason that it is easy for all of the
parties to agree, but because, if they disagree, there is a majority upon whose
decision reliance can be placed. It is usual, however, for the controversy to
be submitted to two persons, and if they do not agree, the prætor should
compel these arbiters to select some third person whose authority may be
(7) Celsus states in the Second Book of the Digest, that where the
dispute is submitted to three arbiters, it is sufficient if two of them agree,
provided the third is present; but if he is absent, even though the remaining
two agree, the award will not be valid, because arbitration was submitted to
more than two, and the third by his presence might have induced them to accept
his own opinion:
18. Pomponius, Epistles and Various Passages, Book XVII. Just as
where three judges are appointed, and two of them render
a decision by agreement, during the absence of the third, it is void;
for the reason that a judgment is only valid where rendered by a majority, when
it is evident that all have rendered some decision.
19. Paulus, On the Edict, Book XIII.
Labeo says that it does not concern the prætor what kind of an
award the arbiter makes, provided he states what his opinion is. Therefore, if
the matter was referred to the arbiter to render some certain decision, this
would be no arbitration; nor could he be compelled to make an award; as
Julianus states in the Fourth Book of the Digest.
(1) We must consider that an arbiter renders a decision, when he does so
with the intention that the entire matter in controversy shall be settled. But
where arbitration with reference to several matters is involved, unless he
disposed of all that are in controversy, he will not be held to have made an
award, and he can still be forced by the prætor to act. •
(2) For this reason it should be considered whether an arbiter can
change his decision; and the question has even been raised where an arbiter
orders property to be delivered, and subsequently forbids this to be done,
whether what he ordered, or what he forbade should stand. Sabinus thinks that
he can change his decision. Cassius sustains the opinion of his master, and
says that Sabinus did not have in his mind a decision which put an end to the
arbitration, but only one made during the preparation of the case; for example,
where he ordered the litigants to appear on the kalends, and afterwards
on the ides; for he had a right to change the day. Thus, if he rendered
a decision against the defendant, or in his favor, then, as he would cease to
be arbiter, he could not change his decision;
20. Gaius, On the Provincial Edict, Book V.
Because one arbiter cannot amend his decision even if he committed an
error in rendering it.
21. Ulpianus, On the Edict, Book XIII.
But, if an arbiter who has been appointed for the settlement of several
controversies, which have no connection with one another, gives an award with
reference to one of them, but not as to the others, what then? Has he ceased to
be arbiter? Therefore, we must consider whether he has a right to change a
decision which he has already rendered with reference to the first one. It
makes a great deal of difference whether or not he was to decide all the
matters submitted to him for arbitration at the same time, for if he was to
decide with reference to all of them, he could change his decision, as he had
not yet rendered it; but where he was to decide them separately, there were, so
to speak, several things to be determined, and so far as that particular matter
in controversy was concerned, he has ceased to be arbiter.
(1) Where an arbiter gives the award that Titius does not appear to owe
Seius anything, although he does not forbid Seius to bring an action; still, if
the latter should do so, he would appear to oppose the award of the arbiter;
and both Ofilius and Trebatius are in accord upon this point.
(2) I think that an arbiter cannot appoint a special time for payment,
and Trebatius also appears to be of this opinion.
(3) Pomponius says that where an arbiter gives an ambiguous award, it is
invalid; for instance: "You must pay him what you owe him"; or, "You must
adhere to your division"; or, "You must accept as your share what you have paid
to your creditors".
(4) Moreover, where an arbiter forbids an action to be brought for a
penalty, in accordance with the terms of the arbitration; I find
it stated in the Thirty-third Book of Pomponius that this is void; and
he is right, because the conditions of arbitration have no reference to the
collection of the penalty.
(5) Papinianus states in the Third Book of Questions, that if the time
fixed for the arbitration has expired, the litigants may agree upon a new one,
with the same arbiter, but if the latter refuses to act in the second
arbitration, he cannot be forced to do so; provided he was not responsible for
the delay in performing his duty; as, if he was to blame for the delay, it
would be perfectly right that he should be compelled by the prætor to
again act as arbiter. This question can only arise where no arrangement was
made in the first arbitration to extend the time, but if such provision was
made, and he himself extended it, he will continue to act as arbiter.
(6) The term "complete arbitration" is used where settlement is made
with reference to the matters in controversy, for it relates to all disputes;
but where there happens to be a difference concerning only one thing, although
a complete arbitration may have been agreed upon, still, the rights of action
in other cases remain unimpaired; for the only matter involved in an
arbitration is that which it was agreed upon should be determined. It is,
however, the safer way where anyone wishes only some certain matter to be
settled by arbitration, to expressly mention the same when it is submitted.
(7) Where an arbiter orders some dishonorable act to be performed, the
litigants are not obliged to obey.
(8) Where the parties appear before the arbiter within the time which
was designated, and he orders them to appear after the time has elapsed, no
penalty can be exacted.
(9) Where either of the parties does not appear, for the reason that he
was prevented by illness, or by absence on public business, or by the duties of
some magisterial office, or for any other good reason; Proculus and Atilicinus
hold that the penalty can be collected; but where he was ready to appoint the
same arbiter for a new arbitration, an action will not be permitted against
him, or he can protect himself by an exception. This, however, is only true
where the arbiter was willing to accept the second arbitration; for Julianus
very properly stated in the Fourth Book of the Digest, that he could not be
forced to do so if he was unwilling, and in any event, the party is released
from the penalty.
(10) Where, for instance, the arbiter orders the parties to appear
before him in a province, when it was agreed that the reference should take
place at Rome; the question arises can he be disobeyed with impunity? The
opinion given by Julianus in the Fourth Book is the better one, namely, that
the place contained in the agreement to submit the matter in dispute is the one
intended; and therefore, that he may be disobeyed with impunity if he orders
the parties to appear elsewhere. What course then should be pursued if it does
not appear what place was agreed upon? The better opinion is that that place
was intended where the agreement for arbitration was entered into. But what
must be done if the arbiter orders them to appear in some place
adjoining the City? Pegasus holds that the order would be valid; but I
think that this is only true where the arbiter is a man of such authority that
he can perform his duties in retired places, and the litigants can readily go
to the place designated.
(11) But if the arbiter should order the parties to go to some
disreputable locality, as for instance, to a tavern, or a brothel, as Vivianus
says, he can doubtless be disobeyed with impunity; and this opinion Celsus also
approves in the Second Book of the Digest. With reference to this he very
properly raises the question, if the place is of such a character that one of
the litigants cannot honorably go there but the other can, and he who could go
without forfeiting his self respect did not do so, and the other went in spite
of his disgrace, can the penalty agreed upon at the time of the arbitration be
collected because the act was not performed? He very justly thinks that it
cannot be collected, for it would be absurd if the order should be valid with
reference to one party, and void with respect to the other.
(12) It should be considered within what time an action should be
brought on the stipulation, provided the party does not comply with the award
of the arbiter. Celsus states in the Second Book of the Digest that if no
certain time was specified, a reasonable time is understood, and that, when
this has elapsed, suit can forthwith be brought for the penalty; nevertheless,
he says if the party complies with the award before issue is joined in the
case, the action based on the stipulation cannot proceed:
22. Paulus, On the Edict, Book XIII.
Unless the plaintiff had some interest in the immediate payment of the
23. Ulpianus, On the Edict, Book XXIII.
Celsus says that if the arbiter orders payment to be made by the
kalends of September, and this should not be done, even though it was
tendered afterwards, still, the penalty of the arbitration having once become
due the right of action is not extinguished, since it is true that the money
was not paid before the kalends. Where, however, the party accepted
payment when it was offered, he cannot bring suit for the penalty, but will be
barred by an exception on the ground of fraud. The case is different where he
was only ordered to make payment.
(1) Celsus also states, if you order me to pay you and you are prevented
from receiving the money by illness, or for some other good reason, that
Proculus is of the opinion that the penalty cannot be exacted even if I do not
pay you until after the kalends, although you may be ready to receive
it. He also thinks, very justly, that there are two orders of the arbiter to be
considered, one to pay a sum of money, and the other to pay it before the
kalends; therefore, although the penalty cannot be exacted from you
because you did not pay the money before the kalends, as you were not to
blame, you will still be liable for the part which you did not pay.
(2) He also says that the words "Comply with the award", means nothing
else than for the party to do all in his power to obey the decision of the
(3) Celsus also says that if an arbiter orders me to pay you a sum of
money on a certain day, and you refuse to receive it, the defence can be made
that the penalty is not collectible by law:
24. Paulus, On the Edict, Book XIII.
But if he should afterwards be ready to receive it, I can not refuse to
pay it with impunity, because I did not pay it before.
25. Ulpianus, On the Edict, Book XIII.
Labeo states that where it was provided in the submission for
arbitration that the arbiter should give his award concerning all matters
involved in the case on the same day, and should have authority to extend the
time, and he did extend the time after certain matters were decided, while
others were not; the extension will be valid, but his award may be disobeyed
with impunity. Pomponius approves the opinion of Labeo, which also seems to me
to be correct, because the arbiter did not perform his duty in making his
(1) This clause also: "He may extend the time for arbitration", does not
give the arbiter the right to do anything else than to extend the time, and,
therefore, he cannot diminish or make any change in the terms of the original
agreement; hence he is always obliged to dispose of the other matters also, and
must give an award with respect to everything.
(2) Where the bond of a surety has been furnished in the first agreement
for arbitration, Labeo states it should also be offered in the second one.
Pomponius, however, doubts whether the same, or other sureties who are solvent
should be furnished; for he says what would be the result if the same ones
should refuse to act as sureties? I think, however, that if they should refuse
to act as sureties, then, others, as good as they, should be given:
26. Paulus, On the Edict, Book XIII.
So that it shall not be in the power of the sureties, who refuse to bind
themselves again to cause the penalty to be executed. The same rule applies if
they should die.
27. Ulpianus, On the Edict, Book XIII.
The arbiter can extend the time whether he is present, or whether he
does so by a messenger, or by a letter.
(1) Where mention of the heir or of any other parties interested in the
arbitration is not made, the arbitration is terminated by death. We do not
accept the opinion of Labeo, who thought that if the arbiter orders a sum of
money to be paid, and the party dies before paying it, the penalty could be
exacted, even though the heir was ready to tender it.
(2) The award of the arbiter which he makes with reference to the matter
in dispute should be complied with, whether it is just or un-
just; because the party who accepted the arbitration had only himself to
blame, as was stated in a Rescript by the Divine Pius, as follows: "The party
must submit to the award with equanimity, even though it may be by no means
(3) Where there are several arbiters and they have given different
awards, a party will not be obliged to abide by them, but if the majority agree
their award must stand; otherwise the penalty can be exacted. Hence, we find
the question raised by Julianus, where out of three arbiters one gives an award
for fifteen aurei, another for ten, and another for five, whose decision
is to stand? Julianus states that five must be paid, since all of them agreed
upon that amount.
(4) Where anyone of the litigants fails to appear, since he did all he
could to prevent the matter from being settled, the penalty may be exacted.
Thus, a decision rendered when all the litigants were not present will not be
valid, unless it was expressly stated in the agreement to submit the matter to
arbiters that, whether one or both of them were absent the decision could be
rendered, but he who was in default incurs the penalty, because he was
responsible for the arbitration not taking place.
(5) He is held to make his award in the presence of the parties when he
does so before those who are endowed with intelligence; but he is also not
considered to have done this where he made it in the presence of a party who is
insane, or demented. In like manner, a decision rendered in the presence of a
ward, unless his guardian is present, is not legally made. Julianus makes the
same statement with reference to all these matters in the Fourth Book of the
(6) Again, where either party being present, prevents the arbiter from
giving his award, the penalty can be collected.
(7) Where no penalty was mentioned in the proceedings for arbitration,
but the party simply promised to comply with the judgment, an action for
damages may be brought against him.
28. Paulus, On the Edict, Book XIII.
It makes no difference whether the sum agreed upon as penalty is certain
or uncertain; as, for example, where it was for, "As much as the property was
29. Ulpianus, On the Edict, Book XIII.
Where suit is brought against a person whom the arbiter forbade to be
sued, this is in violation of his award. What then should be done if suit was
brought against his surety, could the penalty be collected? I think that it
could, and Sabinus holds the same opinion; for suit is practically brought
against the principal. But where the arrangement was made with a surety, to
submit the matter to arbitration, and suit is brought against the principal,
the penalty cannot be collected; unless it was to the interest of the surety
that the action should not be brought.
30. Paulus, On the Edict, Book XIII.
When anyone brings a matter into court which it had been agreed to
submit to arbitration, some authorities say that the prætor cannot
interpose to compel the arbiter to give an award, because now no penalty
will be incurred, any more than if the arbitration had been dismissed. If,
however, this opinion should be adopted, the result will be that where a party
had agreed to arbitration, and changes his mind, he will be able to evade the
reference of the case. Therefore, he can be sued for the penalty, and
proceedings may be instituted in regular form before a judge.
31. Ulpianus, On the Edict, Book XIII.
When anything is done in contravention of a stipulation, suit can be
brought for this cause only where the act was committed without fraud on the
part of the person who made the agreement; for an action can be brought under
the stipulation only on the ground that no one can profit by his own deceit.
But if there is added to the agreement for arbitration, "If something is done
fraudulently in the matter"; he who was guilty of fraud can be sued on the
stipulation; and, therefore, if anyone corrupts an arbiter either with money,
or by improper solicitation, or bribes the advocate of the other party, or
anyone of those to whom he has entrusted his own case, he can be sued on the
clause relating to fraud, as well as where he, through artifice, gets the best
of his adversary. And, by all means, if he acts deceitfully in any way during
the suit, an action on the stipulation can be brought; therefore, if his
adversary desires to bring an action on the ground of fraud, he should not do
so, as he is entitled to one based on the stipulation.
Where, however, a clause of this kind is not included in the agreement
for arbitration, then, an action on the ground of fraud or an exception will
lie. This submission to arbitration is a complete one, because it mentions the
clause relating to fraud.
32. Paulus, On the Edict, Book XIII.
In matters submitted to arbitration we do not consider whether the
stipulated penalty is greater or less than the property involved.
(1) An arbiter is not compelled to make an award where the penalty has
(2) Where a woman makes an agreement for arbitration in behalf of a
third party, the proceeding for the collection of money will not be Valid on
account of her appearance for another.
(3) The conclusion of the matter is: that the Prætor cannot
interpose, either where there was no submission for arbitration in the
beginning, or if there was, it is uncertain whether it is one for which a
penalty may be exacted, or the penalty can no longer be recovered for the
reason that the right of arbitration has been extinguished either by lapse of
time, by death, by release, by a judicial decision, or by agreement.
(4) Where the arbiter is invested with a sacerdotal office, let us
consider whether he can be compelled to make an award; for indulgence should be
granted not only to the dignity of persons, but also to the majesty of God,
whose ministers should only devote themselves exclusively to sacred affairs.
Where, however, he assumed the office
subsequently he should, under these circumstances, by all means render a
(5) An arbiter should not be compelled to make an award after the matter
in dispute has been compromised, or the slave who was the subject of the
arbitration is dead; unless, in the last instance the parties still have some
interest in the proceedings.
(6) Julianus stated ambiguously that if, through mistake, recourse was
had to arbitration with reference to an offence involving infamy, or some
matter which was liable to criminal prosecution, as, for instance, adultery,
assassination, and other crimes of this kind; the prætor should forbid an
award to be made, and if it was made, should refuse to permit its
(7) Where submission of a question of arbitration involving freedom is
made, the arbiter cannot be compelled by law to render a decision; because the
favor due to freedom requires that matters relating to it should be decided by
judges of the highest rank. The same rule applies where the question involves
either freedom of birth, or enfranchisement, and where it is stated that
freedom should be conferred on account of a trust. The same must be said with
respect to an action having reference to a breach of public order.
(8) Where one of the parties to a reference for arbitration is a slave,
Octavenus says that the arbiter should not be compelled to render an award, and
if he does so, that an exception cannot be granted for the penalty in an action
De Peculio. But if the other party, being a freeman, makes an agreement
with him, let us consider whether an exception should be granted against the
freeman. The better opinion is that it should not be granted.
(9) Moreover, if anyone agrees to an arbitration at Rome, and, having
departed, returns there as the member of an embassy, the arbiter is not
compelled to give an award, any more than the party would be obliged to
prosecute the case if he had previously joined issue; nor does it matter
whether he was attached to an embassy in the first place, or not. But if he now
submits the question to arbitration, I think that the arbiter can be compelled
to make an award, because if the party voluntarily had joined issue in a suit
at law he could be forced to proceed.
Some authorities, however, are undecided with respect to this, but not
properly so; as, at all events, they would entertain no doubts if the matter
which the party consented to submit to arbitration while on an embassy was a
contract which he entered into while under such employment; for the reason that
he could be compelled in a matter of this kind to proceed with the trial. The
question in the first instance is worthy of consideration, namely: whether if
before the envoy agreed to arbitration, the arbiter could be compelled to
render a decision if the envoy himself applied for it. And this, according to
the first rule laid down, might seem to be unjust, because it was placed under
the control of the party himself. This will come under the same rule, however,
as if he wished to bring an action at law, which he had a right to do. An
arbitration of this kind should be compared to an ordinary suit
at law; so where the party is desirous for the arbiter to make an award,
he will not be heard unless he sets up a defence.
(10) Where a person who had agreed to arbitration with some one who is
dead, contests the succession to the estate, if the arbiter makes an award, the
estate will be prejudiced; and therefore, in the meantime, the arbiter is
prohibited from doing so.
(11) The time fixed for the arbitration may be extended, not by
agreement of the parties, but by order of the arbiter, when it is necessary to
extend it that liability for the penalty may not be incurred.
(12) If an arbiter attempts to conceal himself, the prætor should
cause him to be searched for, and if he does not appear for a long time, a fine
should be imposed upon him.
(13) Where an agreement was made to submit a question to several
arbiters, on condition that if any one of them should make an award the parties
must abide by it; notwithstanding the other arbiters may be absent, a single
arbiter who is present may be compelled to make the award. But where
arbitration is agreed upon under the condition that all shall make the award,
or that it must be sanctioned by a majority; each one cannot be compelled to
render a decision separately, because in a case of this kind the decision of
one arbiter will not give rise to liability for the penalty.
(14) Where an arbiter is evidently an enemy to one of the parties for
other reasons, and was called upon before witnesses not to give an award and
he, nevertheless, insisted on doing so, although no one compelled him; the
Emperor Antoninus, to whom application was made, replied to the complaint of
the party that he was entitled to an exception on the ground of malicious
The same Emperor, when his advice was asked by a judge before whom a
party had brought suit for a penalty, answered that, although an appeal could
not be taken, the suit for the penalty would be barred by an exception on the
ground of malicious fraud; therefore, an exception of this kind is a species of
appeal, as it affords an opportunity for a rehearing of the award of the
(15) In treating of the duties of an arbiter it must be remembered that
the entire subject depends upon the terms of the agreement for arbitration,
since the arbiter can lawfully perform no other act except what was provided
that he should perform; and, therefore, he cannot decide anything he pleases,
nor with reference to any matter that he pleases, but only what was set forth
in the agreement for arbitration, and in compliance with the terms of the
(16) Inquiry has been made as to making the award, and it has been
stated that any kind of an award will not be valid; although with respect to
certain matters a difference of opinion exists. I think, in fact, that the
penalty cannot be exacted if the arbiter states that the party in a question of
this kind should begin a new reference before a judge, or himself, or some
other arbiter. Julianus holds that he may be disobeyed with impunity, if he
orders the parties to appear before another arbiter; for if they do so, there
will be no end to the case; but
if he decided as follows, namely: that land should be delivered, or
security furnished, with the approval of Publius Mævius, the award should
Pedius, also, adopts this opinion to avoid the continuance of
arbitration, and to prevent it from being sometimes transferred to other
arbiters who are hostile to the parties; and it is necessary, for the arbiter
to render his award in such a way as to put an end to the controversy, for it
will not be terminated when arbitration is either postponed or transferred to
another arbiter. He also says that the award is partly dependent upon the kind
of security furnished, and the character of the sureties; and that this cannot
be delegated, unless it was agreed that the arbiter should determine by whose
arbitration security should be furnished.
(17) Moreover, if the arbiter orders someone to be associated with him,
and this was not included in the agreement for arbitration, it is not held to
be an award; for the award ought to have reference to the matter stated in the
agreement, but no arrangement of this kind was made.
(18) Where two principals have stipulated with one another, and wish
their agents to conduct the proceedings before the arbiter, he can order the
principals also to be present.
(19) Where mention is made of an heir in the agreement for arbitration,
the arbiter can order the heir also to be present.
(20) It is included in the duty of an arbiter to determine in what way
free possession shall be delivered. Can he also order a bond to be furnished
that the principal will ratify the acts of his agent? Sextus Pedius thinks that
this is not reasonable, for, if the principal does not ratify the act, he can
be sued on the stipulation.
(21) An arbiter can do nothing beyond what is stated in the agreement
for arbitration; and, therefore, it is necessary to add that he shall have the
right to extend the time fixed by the agreement; otherwise, his order may be
disobeyed with impunity.
33. Papinianus, Questions, Book I.
An arbiter who is selected by an agreement for arbitration with the
understanding that he may extend the time, can do so; but if the parties object
he cannot defer the proceedings.
34. Paulus, On the Edict, Book XIII.
Where there are two joint debtors, or creditors, and one of them submits
a question to arbitration, and the award forbids him to sue, or not to be sued,
it should be considered whether a penalty will be incurred if one party sues,
or is sued, by the other. The same question arises where there are two bankers
who are joint creditors, and perhaps we might place them on the footing of
sureties, if they are partners; otherwise, no action can be maintained against
you, nor can I bring suit, nor can suit be brought in my name, even if it is
brought against you.
(1) I am of the opinion that the arbitration is entirely at an end where
the penalty has once been incurred; nor can it be again incurred
unless the parties expressly agreed that liability for it should be
incurred as many times as occasion arose.
35. Gaius, On the Provincial Edict, Book V.
Where a ward makes an agreement for arbitration without the consent of
his guardian, the arbiter is not compelled to render a decision, because, if it
is rendered, the ward will not be liable for the penalty, unless he has
furnished a surety from whom the penalty can be collected by an action; and
this was also the opinion of Julianus.
36. Ulpianus, On the Edict, Book LXXVII.
When an arbiter makes an award under compulsion by the prætor,
upon a holiday, and suit is brought for the penalty on account of the
arbitration; it is established that an exception is not available, unless by
some law the holiday upon which the award was pronounced is excepted.
37. Celsus, Digest, Book II.
Although the arbiter may have forbidden one of the parties to bring suit
against the other, and, notwithstanding this, an heir brings an action, he will
be liable for the penalty; for recourse is had to arbiters, not for the purpose
of postponing litigation, but to absolutely terminate it.
38. Modestinus, Rules, Book VI.
When suit is brought for the penalty arising out of an arbitration, he
shall be required to pay it who incurred the liability for the same; nor does
it make any difference whether or not it was to the interest of the other party
for the award of the arbiter to be observed.
39. Javolenus, On Cassius, Book XL
It is not in all cases where the decision of the arbiter is not obeyed
that liability for the penalty arising from the arbitration is incurred, but
only in those which have reference to the payment of money, or the performance
of some service. Javolenus also states that an arbiter can punish the contumacy
of a litigant by ordering him to pay a sum of money to his adversary; but a
party must not be included among contumacious persons where he did not give the
names of his witnesses in accordance with the decision of the arbiter.
(1) If an arbiter orders the time fixed for arbitration to be extended,
where he is allowed to do this, the default of either party will not allow the
penalty to be collected by the other.
40. Pomponius, Various Extracts, Book XI.
An arbiter ordered the parties to appear on the Kalends of
January, but died before that day, and one of the parties failed to be present.
In this instance there is no question that the penalty was not incurred, for
Aristo says that he heard Cassius state that where an arbiter did not himself
appear, there was no ground for the payment of the penalty, and Servius also
says that if the stipulator is to blame for not receiving the money, no penalty
41. Callistratus, Monitory Edict, Book I.
As it is provided by the Lex Julia that a minor under twenty
years of age cannot be compelled to act as judge; likewise, no one is permitted
to select a minor under twenty years of age to serve as judge in an
arbitration; and therefore a penalty is not incurred under any circumstances
through an award made by him. Many authorities have stated that, where a party
is over twenty years of age, and under twenty-five, and he rashly undertakes to
hear a case of arbitration, in an instance of this kind relief should be
42. Papinianus, Opinions, Book II.
An arbiter ordered certain slaves to be restored within a specified
time, and, as they were not restored, he ordered the party to pay a penalty to
the Treasury, in compliance with the terms of the agreement for arbitration. No
right is acquired by the Treasury by reason of such an award, but there is,
nevertheless, liability for the penalty under the stipulation, because the
decision of the arbiter was not obeyed.
43. Scævola, Opinions, Book I.
Lucius Titius and Mævius Sempronius entered into an agreement to
submit all their disputes to arbitration; but, through mistake, some matters
were not included by Lucius Titius in his application, nor did the arbiter make
any award with reference to them. The question arose whether those things which
were omitted could be made the subject of a new application? The answer was
that this could be done, and that no penalty was incurred in consequence of the
arbitration; but if the party had committed the act maliciously, although
indeed, he could makes a new application, he would be liable to the
44. The Same, Digest, Book II.
A controversy arose between Castelliannus and Seius with
reference to boundaries, and an arbiter was chosen in order that the matter
might be settled by his award; and he rendered his decision in the presence of
the parties, and established the boundaries. The question arose whether, if the
award was not complied with on the part of Castellianus, liability for the
penalty growing out of the arbitration was incurred? I answered that the
penalty was incurred where the arbiter was not obeyed in a matter which he
decided in the presence of both parties.
45. Ulpianus, On Sabinus, Book XXVIII.
Where, in an agreement to arbitrate, it is stated that the award shall
be made by a certain person, this cannot be extended to others.
46. Paulus, On Sabinus, Book XII.
An arbiter can make an award with reference to matters, accounts, and
disputes, which in the beginning existed between the parties who submitted
their affairs to arbitration, but not with reference to matters which took
47. Julianus, Digest, Book IV.
Where an agreement to arbitrate was in the following terms: "That the
arbiter should make an award when both parties or their heirs were present";
and one of the litigants died, leaving a minor as his heir, it is held that the
award will not be valid, unless the consent of the guardian is granted.
(1) The same rule will apply where one of the parties becomes
48. Modestinus, Rules, Book IV.
For, in this instance, an arbiter is not compelled to render a
49. Julianus, Digest, Book IV.
And he may even be ordered not to render one, because nothing can be
legally done in the presence of an insane person. Where, however, the lunatic
has a curator, or one is appointed while the case is pending, the award can be
made in the presence of the curator.
(1) An arbiter can order the parties to appear either by a messenger, or
(2) Where mention is made of an heir only with reference to one of the
parties, the arbitration will be abrogated by the death of either of the
litigants; as would have been the case if no mention of the heir of either had
50. Alfenus, Digest, Book VII.
An arbiter was selected under an agreement for arbitration, and, not
having been able to make his award within the period mentioned in the
agreement, ordered the time of the hearing to be extended. One of the parties
was not willing to obey the order; hence an opinion was asked as to whether an
action could be brought against him for the penalty arising from the
arbitration? I answered that this could not be done, for the reason that
authority had not been granted to the arbiter to extend the time.
51. Marcianus, Rules, Book II.
Where anyone has been appointed an arbiter in a matter in which he
himself is interested, he cannot make an award, because he would order himself
to do something, or forbid himself to bring suit; for no one can command
himself to perform an act, or prohibit himself from doing it.
52. The Same, Rules, Book IV.
Where a party is ordered by an arbiter to pay a sum of money in
accordance with the terms of arbitration, and fails to do so, he must pay the
penalty in pursuance of the agreement, but if he afterwards makes payment he
will be released from the penalty.1
1 The arbiter, or judex, of the Roman Law, was
the prototype of the modern master in chancery. He had only jurisdiction of
matters of fact, and was appointed by the court with the consent of the
parties, who had the right to reject him if they
SAILORS, INNKEEPERS, AND THE PROPRIETORS OP STABLES, MUST RESTORE
PROPERTY ENTRUSTED TO THEM.
1. Ulpianus, On the Edict, Book XIV.
The prætor says: "When sailors, innkeepers, and the proprietors of
stables have received property for safe keeping, I will grant an action against
them if they do not restore it".
(1) This Edict is extremely useful, for the reason that it is very
frequently necessary to place confidence in persons of this kind, and to
entrust them with the care of property. No one should think that this Edict
imposes any hardship upon them, for they have the choice of refusing to receive
anyone; and, unless this rule was established, opportunity would be given for
them to cooperate with thieves against those whom they receive as guests;
since, even now, they do not abstain from fraudulent acts of this
(2) Therefore, let us consider who those are that are liable. The
prætor says "Sailors". We must understand a "sailor" to be the person who
has charge of the ship, although all are called sailors who are on board the
vessel for the purpose of navigating it, but the prætor only has in mind
the owner; for Pomponius says that the latter ought not to be liable for the
act of an oarsman, or sub-pilot, but only for what he does himself, or for the
act of the captain; although if he himself ordered anyone to commit something
to the care of a sailor, he would himself undoubtedly be liable.
found the selection of the magistrate unsatisfactory. The title of
"arbiter" was suggestive of greater authority — "Arbiter est qui
totius rei arbitrium habet et potestatem" — was generally applied to
one chosen to decide questions arising in actiones bonæ fidei;
that is to say those that were not subject to the rigid interpretation of
the rules of the Civil Law — such as leasing and hiring, purchase and
sale, guardianship, mandate, pledge, deposit, and many others in which the
principles of equity as interpreted by the prætorian tribunal might be
advantageously employed. The arbiter had the right to summon assessors
to assist him in the formation and promulgation of his decisions. Before the
reign of Augustus, no restrictions were placed upon the designation of
arbitri or judices, except that they should possess the
qualifications of age, integrity, popular respect, and legal knowledge
requisite for the determination of such matters as might be brought before
them. The arbiter was compelled to comply strictly with the written
instructions of the prætor, which were communicated to him either at the
time of his appointment, or subsequently before the case was heard. He was
expected to render his arbitrium, or award, in accordance with the
generally recognized principles of equity governing the conduct of good and
honorable citizens, and without having recourse to any legal technicalities
which might defeat the ends of justice. At Common Law, arbitration was the
extra-judicial settlement of a matter in controversy which had the full effect
of a decision in court, and by which the parties interested were forced to
abide, through the execution of mutual undertakings for that purpose. It was
either voluntary, or by order of a competent court. In feudal times, no title
involving real property could be transferred in consequence of a submission to
arbitration; as otherwise it might have been fraudulently disposed of in
derogation of the rights of the lord of the fee. Questions of arbitration are
now regulated in England by statute, as they are in this country. In England,
the rules governing the appointment of arbitrators and their duties for the
most part correspond with those of the Civil Law. An agreement to refer a
(3) There are also persons who occupy positions on board ships for the
purpose of caring for merchandise such as nanfulaceV, that is to say, marine guards and stewards.
Therefore, if any of these should receive anything, I think that an action
should be granted against the owner of the ship, because he who appointed
persons of this kind to office permits property to be placed in their charge;
even though the captain, or master does that which is called
ceirembolon that is to say, "taking the
property in his hands". But even if he does not do this, the ship-owner will
nevertheless be liable for what was received.
(4) No provision is made with reference to those who have charge of
rafts or boats, but Labeo says that the same rule applies to them; and this is
(5) We understand by the terms "innkeepers" and "stablekeepers", those
who conduct an inn or a stable, or their agents. Persons, however, who are
engaged in menial occupations, are not included; as, for instance,
door-keepers, cooks, and others like them.
(6) The prætor says, "Where they have received the property of
anyone for safe keeping"; that is to say, any article or any goods whatsoever.
Hence, it is stated in Vivianus, that this Edict also has reference to things
which do not come under the head of merchandise; as, for instance, clothing
which is worn on board ship, and other things such as persons daily make use
(7) Moreover, Pomponius says in the Thirty-fourth Book, that it makes a
little difference whether we bring in our own property or that
dispute, if not in writing, cannot be enforced. The arbitrator may
submit a legal point to the court for his opinion, and from this opinion no
appeal will lie. If one party to the arbitration sues the other, the latter is
entitled to a stay, after he has entered an appearance but before he does
anything else. The award must be in writing, and cannot materially be altered
unless it is returned by the judge for that purpose. An award may, by
application to the court, be enforced in the same way as a judgment. It must be
signed by the arbitrator and properly attested, and can be set aside if
sufficient cause be shown.
In Scotland, it is styled a "decreet arbitral", and may be set
aside on the ground of corruption or perjury. Where there are two or more
arbiters, and another is appointed to decide if they do not agree, he is called
an "oversman", corresponding to the English umpire. (Stephen, Commentaries on
the Laws of England, IV, I, 9, Paterson, A Compendium of English and Scotch
Law, VI, IV.)
In the United States, a reference to arbitration made while a suit
involving the same matter is pending disposes of the latter, and operates as a
bar to future proceedings. A submission may be revoked by either party, but
this must, of course, be done before the award is made. A court, generally
speaking, has no power to change an award or set it aside, where the
arbitrators do not exceed their jurisdiction, or are not guilty of serious
misconduct in the discharge of their functions.
The law of Louisiana recognizes two kinds of arbitrators; arbitrators
properly so called, and "amicable compounders". The first of these are required
to adhere strictly to the law; the second are vested with equitable
jurisdiction, and consequently can display great indulgence toward litigants
when circumstances demand it. Both classes are, however, subject to the same
rules in other respects. Arbitrators cannot compel witnesses to appear, or
administer an oath, but they can call in magistrates who are empowered to do
so. An appeal can be taken from an award, but the appellant, before being
heard, must pay the penalty prescribed, if any was agreed upon, which may be
refunded if the award is reversed. (Civil Code of Louisiana, Art. 3066-3098.)
of others, if we have an interest in having it kept safely, for the
property should be returned to us rather than to those to whom it belonged;
and, therefore, if I accept merchandise as a pledge for money loaned on a
maritime risk, the owner of the vessel will be liable to me rather than to the
debtor, if he had previously received the property from me. (8) Does he
"receive the property for safe-keeping", only where having been placed on board
the ship it was entrusted to him, or if it is not thus entrusted, is he still
considered to have received it for this purpose, if it was merely placed on
board the ship? I think that he always receives property for safe-keeping when
it is placed on board, and that he not only should be liable for the acts of
the sailors, but also for those of the passengers:
2. Gaius, On the Provincial Edict, Book V.
Just as an innkeeper is liable for the acts of travellers.
3. Ulpianus, On the Edict, Book XIV.
Pomponius says, in the Thirty-fourth Book, the same thing with reference
to the acts of passengers. He also asks that where the property has not yet
been placed on board a ship, but has been lost on land, it is at the risk of
the owner of the vessel who at first took charge of it.
(1) The prætor says: Unless they restore it, I will grant an
action against them. The action arising from this Edict is one in factum.
Let us consider, however, whether this is necessary, as the case is one in
which a party can proceed by a civil action; that is to say, where any
compensation is involved, an action based on leasing or hiring will lie. But
where the entire ship was hired, the party who did so can bring suit on that
ground, even for articles that are missing; but if the master contracted to
transport the goods, an action on the ground of hiring can be brought against
him; and if he received the goods gratis, Pomponius says that an action on
deposit will lie. He, therefore, is surprised that a prætorian action was
introduced, since civil actions are applicable; unless, as he states, it was
for the purpose of making it known that the prætor was desirous of
checking the dishonesty of persons of this kind, and because in cases of
leasing and hiring, a person is responsible for negligence, but in cases of
deposit, only for fraud; but, under this Edict, th