De calumniatoribus
(Concerning persons who bring vexatious actions.)
1 Ulpianus libro decimo ad edictum. In eum qui, ut calumniae causa negotium faceret vel non faceret, pecuniam accepisse dicetur, intra annum in quadruplum eius pecuniae, quam accepisse dicetur, post annum simpli in factum actio competit. 1Hoc autem iudicium non solum in pecuniariis causis, sed et ad publica crimina pertinere Pomponius scribit, maxime cum et lege repetundarum teneatur, qui ob negotium faciendum aut non faciendum per calumniam pecuniam accepit. 2Qui autem accepit pecuniam sive ante iudicium sive post iudicium acceptum, tenetur. 3Sed et constitutio imperatoris nostri, quae scripta est ad Cassium Sabinum, prohibuit iudici vel adversario in publicis vel privatis vel fiscalibus causis pecuniam dare, et ex hac causa litem perire iussit. nam tractari potest, si adversarius non per calumniam transigendi animo accepit, an constitutio cessat? et puto cessare sicuti hoc quoque iudicium: neque enim transactionibus est interdictum, sed sordidis concussionibus. 4Pecuniam autem accepisse dicemus etiam si aliquid pro pecunia accepimus.
1 Ulpianus, On the Edict, Book X. “Where anyone is said to have received money for the purpose of causing annoyance, or to abstain from doing so, a right of action in factum will lie against him for a year to recover fourfold the amount which he is said to have received; and after a year one will lie for the actual amount.” 1Pomponius states that this action is not only applicable to cases where money is involved, but also to public prosecutions, and especially as the party is liable under the Lex Repetundarum who receives money in consideration of doing something to cause annoyance or for refraining from doing so. 2Anyone who receives money before issue is joined in a case or who receives it afterwards, is equally liable. 3A Constitution of our Emperor directed to Cassius Sabinus, prohibits the giving of money to a judge or an adversary in public or private cases, or in those in which the Treasury is interested; and where this is done it orders the right of action to be lost. For it may be asked, if the adversary, not with vexatious intent but for the purpose of compromise, accepted the money; does the constitution apply? It is my opinion that it does not, since the right of action has ceased; for compromises are not forbidden but only base acts of extortion. 4Again, a party is also said to have received money where he has received something else instead of money.
2 Paulus libro decimo ad edictum. Quin etiam si quis obligatione liberatus sit, potest videri cepisse: idemque si gratuita pecunia utenda data sit, aut minoris locata venditave res sit. nec refert, ipse pecuniam acceperit an alii dari iusserit vel acceptum suo nomine ratum habuerit.
2 Paulus, On the Edict, Book X. Moreover, where anyone is released from an obligation this may be considered as receiving money; and also where money is loaned him to be used gratuitously, or property is sold or leased for less than its value. It makes no difference whether the party himself received the money, or ordered it to be paid to someone else, or ratified it after it had been accepted in his behalf by another.
3 Ulpianus libro decimo ad edictum. Et generaliter idem erit, si quid omnino compendii sensit propter hoc, sive ab adversario sive ab alio quocumque. 1Si igitur accepit ut negotium faceret, sive fecit sive non fecit, et qui accepit ne faceret etsi fecit, tenetur. 2Hoc edicto tenetur etiam is qui depectus est: depectus autem dicitur turpiter pactus. 3Illud erit notandum, quod qui dedit pecuniam, ut negotium quis pateretur, non habebit ipse repetitionem: turpiter enim fecit: sed ei dabitur petitio, propter quem datum est ut calumnia ei fiat. quare si quis et a te pecuniam accepit, ut mihi negotium faceret, et a me, ne mihi faceret, duobus iudiciis mihi tenebitur.
3 Ulpianus, On the Edict, Book X. In general, this rule also applies where a party obtains any benefit for such a consideration, whether he gets it from his adversary or from anyone else. 1Wherefore, if a party receives money for the purpose of causing some annoyance, he is liable whether he did so or not; and where he received it not to cause annoyance, if he does cause it, he is liable. 2He also is liable under this Edict who is depectus, which means one who has entered into a disgraceful contract. 3It should be observed that he who has paid money in order that some party might suffer annoyance, has himself no right of recovery, for he has acted dishonorably; but the right of action is granted to him on whose account the money was paid for the purpose of annoying him; for which reason if anyone receives money from you in consideration of causing me annoyance, and from me to prevent my being annoyed, he will be liable to me in two actions.
4 Gaius libro quarto ad edictum provinciale. Haec actio heredi quidem non competit, quia sufficere ei debet, quod eam pecuniam quam defunctus dedit repetere potest
4 Gaius, On the Provincial Edict, Book IV. An heir, however, is not entitled to this action, because it should be sufficient for him that he has a right of action to recover the money which was paid by the deceased:
5 Ulpianus libro decimo ad edictum. in heredem autem competit in id quod ad eum pervenit. nam est constitutum turpia lucra heredibus quoque extorqueri, licet crimina extinguantur: ut puta ob falsum vel iudici ob gratiosam sententiam datum et heredi extorquebitur et si quid aliud scelere quaesitum. 1Sed etiam praeter hanc actionem condictio competit, si sola turpitudo accipientis versetur: nam si et dantis, melior causa erit possidentis. quare si fuerit condictum, utrum tollitur haec actio, an vero in triplum danda sit? an exemplo furis et in quadruplum actionem damus et condictionem? sed puto sufficere alterutram actionem. ubi autem condictio competit, ibi non est necesse post annum dare in factum actionem.
5 Ulpianus, On the Edict, Book X. But this action is granted against an heir for whatever has come into his hands; as it has been established that this dishonorable profit can be recovered from heirs, although criminal actions are extinguished; as, for instance, where money is given for falsification, or to a judge for a favorable decree, and is recovered from the heir, as anything else may be recovered which has been obtained in an unlawful manner. 1Also, in addition to this action, one to recover the money also lies, where the only base conduct is that of the party who received it; for if this also applies to the giver then he who possessed it is in a better position. If a suit for the money should be brought, would this right of action be lost, or should a suit for threefold the amount be granted? In a case of a thief we grant an action for fourfold the amount, as well as one for the recovery of the property. I am of the opinion that either of the actions alone is sufficient, for where an action for the recovery of the money will lie, then it is not necessary to grant an action in factum after the lapse of a year.
6 Gaius libro quarto ad edictum provinciale. Annus autem in personam quidem eius, qui dedit pecuniam ne secum ageretur, ex eo tempore cedit, ex quo dedit, si modo potestas ei fieret experiundi. in illius vero personam, cum quo ut agatur alius pecuniam dedit, dubitari potest, utrum ex die datae pecuniae numerari debeat, an potius ex quo cognovit datam esse: quia qui nescit, is videtur experiundi potestatem non habere. et verius est ex eo annum numerari, ex quo cognovit.
6 Gaius, On the Provincial Edict, Book IV. The year when a person is paid money to prevent suit being brought against him begins at the time when the payment was made, if he then had power to bring suit to recover it. But in the case of a person with reference to whom another paid money to have suit brought against him, it may be doubted whether the year should be reckoned from the day when the money was paid, or from the day when the party knew that it had been paid; for where he does not know that there is reason for suit to be brought against him, he is held not to have the power of bringing one, and the better opinion is that the year should be reckoned from the time when he did know.
7 Paulus libro decimo ad edictum. Si quis ab alio acceperit pecuniam ne mihi negotium faciat, si quidem mandatu meo datum est, vel a procuratore meo omnium rerum, vel ab eo qui negotium meum gerere volebat et ratum habui: ego dedisse intellegor. si autem non mandatu meo alius licet misericordiae causa dederit ne fiat neque ratum habui, tunc et ipsum repetere et me in quadruplum agere posse. 1Si ut filio familias negotium fieret acceptum est, [ed. maior etiam] <ed. minor et> patri actio danda est. item si filius familias pecuniam acceperit, ut faceret negotium vel non faceret, in ipsum iudicium dabitur: et si alius non meo mandatu ei dederit ne fiat, tunc etiam ipsum repetere et me in quadruplum agere posse. 2Cum publicanus mancipia retineret dataque ei pecunia esset quae non deberetur, et ipse ex hac parte edicti in factum actione tenetur.
7 Paulus, On the Edict, Book X. Where anyone has received money from another in order to prevent me from being subjected to annoyance, then, if it was given through my direction, or by my agent who had charge of all my business, or by a party who voluntarily acted in my behalf, and whose act I ratified, I am considered to have paid the money myself. But if another party did not pay it on my order, even though he did it through consideration for me in order that the act should not be committed, and I did not ratify what he did; then the party who paid the money can recover it, and I have a right of action for fourfold the amount. 1If the money was paid for the purpose of having a vexatious suit brought against the son of a family, the father also is granted this action. In like manner, if the son of a family should accept money to induce him to bring a vexatious suit against anyone, or not to bring it; an action will be granted against his father. If another party paid him money not to bring the action without any direction from me, he can then recover it, and I will have a right to bring suit for quadruple the amount. 2Where a farmer of the revenue retains a person’s slaves, and money was paid to him which was not due, he, also, is liable in an action in factum by this section of the Edict.
8 Ulpianus libro quarto opinionum. Si ab eo, qui innocens fuit, sub specie criminis alicuius, quod in eo probatum non est, pecuniam acceptam is cuius de ea re notio est edoctus fuerit: id quod illicite extortum est secundum edicti formam, quod de his est, qui pecuniam ut negotium facerent aut non facerent accepisse dicerentur, restitui iubeat et ei, qui id commisit, pro modo delicti poenam irroget.
8 Ulpianus, Opinions, Book IV. When a competent judge is informed by an innocent man that he has paid money on account of a crime which was not proved against him; he must order what has been unlawfully extorted to be refunded, according to the terms of the Edict which treat of persons who are said to have received money either to cause annoyance, or to refrain from doing so; and he must inflict punishment in proportion to the crime upon the party who committed it.
9 Papinianus libro secundo de adulteriis. De servo qui accusatur, si postuletur, quaestio habetur: quo absoluto in duplum pretium accusator domino damnatur: sed et citra pretii aestimationem quaeritur de calumnia eius. separatum est etenim calumniae crimen a damno quod in servo propter quaestionem domino datum est.
9 Papinianus, On Adultery, Book II. Where a slave is accused he shall be put to torture, if this is demanded; and if he is acquitted, the accuser shall be condemned to pay his master double his value; and, in addition to double his value, an inquiry shall be made as to whether the prosecution was instituted for the purpose of annoyance, as the crime of illegal prosecution is separate from any loss which has been sustained by the master through the torture of the slave.