Quod metus causa gestum erit
(Where an act is performed on account of fear.)
1 Ulpianus libro undecimo ad edictum. Ait praetor: ‘Quod metus causa gestum erit, ratum non habebo’. olim ita edicebatur ‘quod vi metusve causa’: vis enim fiebat mentio propter necessitatem impositam contrariam voluntati: metus instantis vel futuri periculi causa mentis trepidatio. sed postea detracta est vis mentio ideo, quia quodcumque vi atroci fit, id metu quoque fieri videtur.
1 Ulpianus, On the Edict, Book XI. 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 libro primo sententiarum. Vis autem est maioris rei impetus, qui repelli non potest.
2 Paulus, On the Edict, Book I. Force is an attack of superior power which cannot be resisted.
3 Ulpianus libro undecimo ad edictum. Continet igitur haec clausula et vim et metum, et si quis vi compulsus aliquid fecit, per hoc edictum restituitur. 1Sed vim accipimus atrocem et eam, quae adversus bonos mores fiat, non eam quam magistratus recte intulit, scilicet iure licito et iure honoris quem sustinet. ceterum si per iniuriam quid fecit populi Romani magistratus vel provinciae praeses, Pomponius scribit hoc edictum locum habere: si forte, inquit, mortis aut verberum terrore pecuniam alicui extorserit.
3 Ulpianus, On the Edict, Book XI. 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 this Edict. 1But 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 scourging.
4 Paulus libro undecimo ad edictum. Ego puto etiam servitutis timorem similiumque admittendum.
4 Paulus, On the Edict, Book XI. I am of the opinion that the fear of slavery, or any other of the same kind should be included.
5 Ulpianus libro undecimo ad edictum. Metum accipiendum Labeo dicit non quemlibet timorem, sed maioris malitatis.
5 Ulpianus, On the Edict, Book XI. Labeo says that the term “fear” must be understood to mean not any apprehension whatever, but the dread of some extraordinary evil.
6 Gaius libro quarto ad edictum provinciale. Metum autem non vani hominis, sed qui merito et in homine constantissimo cadat, ad hoc edictum pertinere dicemus.
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 character.
7 Ulpianus libro undecimo ad edictum. Nec timorem infamiae hoc edicto contineri Pedius dicit libro septimo, neque alicuius vexationis timorem per hoc edictum restitui. proinde si quis meticulosus rem nullam frustra timuerit, per hoc edictum non restituitur, quoniam neque vi neque metus causa factum est. 1Proinde si quis in furto vel adulterio deprehensus vel in alio flagitio vel dedit aliquid vel se obligavit, Pomponius libro vicensimo octavo recte scribit posse eum ad hoc edictum pertinere: timuit enim vel mortem vel vincula. quamquam non omnem adulterum liceat occidere, vel furem, nisi se telo defendat: sed potuerunt vel non iure occidi, et ideo iustus fuerit metus. sed et si, ne prodatur ab eo qui deprehenderit, alienaverit, succurri ei per hoc edictum videtur, quoniam si proditus esset, potuerit ea pati quae diximus.
7 Ulpianus, On the Edict, Book XI. 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. 1Therefore, 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 libro undecimo ad edictum. Isti quidem et in legem Iuliam incidunt, quod pro comperto stupro acceperunt. praetor tamen etiam ut restituant intervenire debet: nam et gestum est malo more, et praetor non respicit, an adulter sit qui dedit, sed hoc solum, quod hic accepit metu mortis illato. 1Si is accipiat pecuniam, qui instrumenta status mei interversurus est nisi dem, non dubitatur quin maximo metu compellat, utique si iam in servitutem petor et illis instrumentis perditis liber pronuntiari non possum. 2Quod si dederit ne stuprum patiatur vir seu mulier, hoc edictum locum habet, cum viris bonis iste metus maior quam mortis esse debet. 3Haec, quae diximus ad edictum pertinere, nihil interest in se quis veritus sit an in liberis suis, cum pro affectu parentes magis in liberis terreantur.
8 Paulus, On the Edict, Book XI. 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. 1If 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. 2If 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. 3In 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 libro undecimo ad edictum. Metum autem praesentem accipere debemus, non suspicionem inferendi eius: et ita Pomponius libro vicensimo octavo scribit. ait enim metum illatum accipiendum, id est si illatus est timor ab aliquo. denique tractat, si fundum meum dereliquero audito, quod quis cum armis veniret, an huic edicto locus sit? et refert Labeonem existimare edicto locum non esse et unde vi interdictum cessare, quoniam non videor vi deiectus, qui deici non expectavi sed profugi. aliter atque si, posteaquam armati ingressi sunt, tunc discessi: huic enim edicto locum facere. idem ait, et si forte adhibita manu in meo solo per vim aedifices, et interdictum quod vi aut clam et hoc edictum locum habere, scilicet quoniam metu patior id te facere. sed et si per vim tibi possessionem tradidero, dicit Pomponius hoc edicto locum esse. 1Animadvertendum autem, quod praetor hoc edicto generaliter et in rem loquitur nec adicit a quo gestum: et ideo sive singularis sit persona, quae metum intulit, vel populus vel curia vel collegium vel corpus, huic edicto locus erit. sed licet vim factam a quocumque praetor conplectatur, eleganter tamen Pomponius ait, si quo magis te de vi hostium vel latronum vel populi tuerer vel liberarem, aliquid a te accepero vel te obligavero, non debere me hoc edicto teneri, nisi ipse hanc tibi vim summisi: ceterum si alienus sum a vi, teneri me non debere, ego enim operae potius meae mercedem accepisse videor. 2Idem Pomponius scribit quosdam bene putare etiam servi manumissionem vel aedificii depositionem, quam quis coactus fecit, ad restitutionem huius edicti porrigendam esse. 3Sed quod praetor ait ratum se non habiturum, quatenus accipiendum est videamus. et quidem aut imperfecta res est, licet metus intervenerit, ut puta stipulationem numeratio non est secuta, aut perfecta, si post stipulationem et numeratio facta est aut per metum accepto debitor liberatus est vel quid simile contigerit quod negotium perficeret. et Pomponius scribit in negotiis quidem perfectis et exceptionem interdum et actionem competere, in imperfectis autem solam exceptionem. sed ex facto scio, cum Campani metu cuidam illato extorsissent cautionem pollicitationis, rescriptum esse ab imperatore nostro posse eum a praetore in integrum restitutionem postulare, et praetorem me adsidente interlocutum esse, ut sive actione vellet adversus Campanos experiri, esse propositam, sive exceptione adversus petentes, non deesse exceptionem. ex qua constitutione colligitur, ut sive perfecta sive imperfecta res sit, et actio et exceptio detur. 4Volenti autem datur et in rem actio et in personam rescissa acceptilatione vel alia liberatione. 5Iulianus libro tertio digestorum putat eum, cui res metus causa tradita est, non solum reddere, verum et de dolo repromittere debere. 6Licet tamen in rem actionem dandam existimemus, quia res in bonis est eius, qui vim passus est, verum non sine ratione dicetur, si in quadruplum quis egerit, finiri in rem actionem vel contra. 7Ex hoc edicto restitutio talis facienda est, id est in integrum, officio iudicis, ut, si per vim res tradita est, retradatur et de dolo sicut dictum est repromittatur, ne forte deterior res sit facta. et si acceptilatione liberatio intervenit, restituenda erit in pristinum statum obligatio, usque adeo, ut Iulianus scribat libro quarto digestorum, si pecunia debita fuit, quae accepta per vim facta est, nisi vel solvatur vel restituta obligatione iudicium accipiatur, quadruplo eum condemnandum. sed et si per vim stipulanti promisero, stipulatio accepto facienda erit. sed et si usus fructus vel servitutes amissae sunt, restituendae erunt. 8Cum autem haec actio in rem sit scripta nec personam vim facientis coercerat, sed adversus omnes restitui velit quod metus causa factum est: non immerito Iulianus a Marcello notatus est scribens, si fideiussor vim intulit, ut accepto liberetur, in reum non esse restituendam actionem, sed fideiussorem, nisi adversus reum quoque actionem restituat, debere in quadruplum condemnari. sed est verius, quod Marcellus notat: etiam adversus reum competere hanc actionem, cum in rem sit scripta.
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. 1It 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. 2Pomponius 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. 3Now 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 transaction. 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. 4An 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. 5Julianus, 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. 6Although 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. 7The 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. 8As 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 Marcellus, 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 in rem.
10 Gaius libro quarto ad edictum provinciale. Illud verum est, si ex facto debitoris metum adhibentis fideiussores acceptilatione liberati sunt, etiam adversus fideiussores agi posse, ut se reponant in obligationem. 1Si metu a te coactus acceptam tibi stipulationem fecerim, arbitratu iudicis, apud quem ex hoc edicto agitur, non solum illud continetur, ut in tua persona redintegretur obligatio, sed ut fideiussores quoque vel eosdem vel alios non minus idoneos adhibeas: praeterea ut et pignora quae dederas in eandem causam restituas.
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. 1If 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 place.
11 Paulus libro quarto Iuliani digestorum notat. Si quis alius sine malitia fideiussoris ut fideiussori accepto fieret vim fecit, non tenebitur fideiussor, ut rei quoque obligationem restituat.
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 libro undecimo ad edictum. Sed et partus ancillarum et fetus pecorum et fructus restitui et omnem causam oportet: nec solum eos qui percepti sunt, verum si plus ego percipere potui et per metum impeditus sum, hoc quoque praestabit. 1Quaeri poterit, an etiam ei qui vim fecerat passo vim restitui praetor velit per hoc edictum ea quae alienavit. et Pomponius scribit libro vicensimo octavo non oportere ei praetorem opem ferre: nam cum liceat, inquit, vim vi repellere, quod fecit passus est. quare si metu te coegerit sibi promittere, mox ego eum coegero metu te accepto liberare, nihil esse quod ei restituatur. 2Iulianus ait eum, qui vim adhibuit debitori suo ut ei solveret, hoc edicto non teneri propter naturam metus causa actionis quae damnum exigit: quamvis negari non possit in Iuliam eum de vi incidisse et ius crediti amisisse.
12 Ulpianus, On the Edict, Book XI. 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 intimidation. 1It 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. 2Julianus 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 libro quinto de cognitionibus. Exstat enim decretum divi Marci in haec verba: ‘Optimum est, ut, si quas putas te habere petitiones, actionibus experiaris. cum Marcianus diceret: vim nullam feci, Caesar dixit: tu vim putas esse solum, si homines vulnerentur? vis est et tunc, quotiens quis id, quod deberi sibi putat, non per iudicem reposcit. quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo iudice temere possidere vel accepisse, isque sibi ius in eam rem dixisse: ius crediti non habebit’.
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 libro undecimo ad edictum. Item si, cum exceptione adversus te perpetua tutus essem, coegero te acceptum mihi facere, cessare hoc edictum, quia nihil tibi abest. 1Si quis non restituat, in quadruplum in eum iudicium pollicetur: quadruplabitur autem omne quodcumque restitui oportuit. satis clementer cum reo praetor egit, ut daret ei restituendi facultatem, si vult poenam evitare. post annum vero in simplum actionem pollicetur, sed non semper, sed causa cognita. 2In causae autem cognitione versatur, ut, si alia actio non sit, tunc haec detur: et sane cum per metum facta iniuria anno et quidem utili exoleverit, idonea esse causa debet, ut post annum actio haec dari debeat. alia autem actio esse sic potest: si is cui vis admissa est decesserit, heres eius habet hereditatis petitionem, quoniam pro possessore qui vim intulit possidet: propter quod heredi non erit metus causa actio, quamvis, si annus largiretur, etiam heres in quadruplum experiri possit. ideo autem successoribus datur, quoniam et rei habet persecutionem. 3In hac actione non quaeritur, utrum is qui convenitur an alius metum fecit: sufficit enim hoc docere metum sibi illatum vel vim, et ex hac re eum qui convenitur, etsi crimine caret, lucrum tamen sensisse. nam cum metus habeat in se ignorantiam, merito quis non adstringitur ut designet, quis ei metum vel vim adhibuit: et ideo ad hoc tantum actor adstringitur, ut doceat metum in causa fuisse, ut alicui acceptam pecuniam faceret vel rem traderet vel quid aliud faceret. nec cuiquam iniquum videtur ex alieno facto alium in quadruplum condemnari, quia non statim quadrupli est actio, sed si res non restituatur. 4Haec autem actio cum arbitraria sit, habet reus licentiam usque ad sententiam ab arbitro datam restitutionem, secundum quod supra diximus, rei facere: quod si non fecerit, iure meritoque quadrupli condemnationem patietur. 5Aliquando tamen et si metus adhibitus proponatur, arbitrium absolutionem adfert. quid enim si metum quidem Titius adhibuit me non conscio, res autem ad me pervenit, et haec in rebus humanis non est sine dolo malo meo: nonne iudicis officio absolvar? aut si servus in fuga est, aeque, si cavero iudicis officio me, si in meam potestatem pervenerit, restituturum, absolvi debebo. unde quidam putant bona fide emptorem ab eo qui vim intulit comparantem non teneri nec eum qui dono accepit vel cui res legata est. sed rectissime Viviano videtur etiam hos teneri, ne metus, quem passus sum, mihi captiosus sit. Pedius quoque libro octavo scribit arbitrium iudicis in restituenda re tale esse, ut eum quidem qui vim admisit iubeat restituere, etiamsi ad alium res pervenit, eum autem ad quem pervenit, etiamsi alius metum fecit: nam in alterius praemium verti alienum metum non oportet. 6Labeo ait, si quis per metum reus sit constitutus et fideiussorem volentem dederit, et ipse et fideiussor liberatur: si solus fideiussor metu accessit, non etiam reus, solus fideiussor liberabitur. 7Quadruplatur autem id quanti ea res erit, id est cum fructibus et omni causa. 8Si quis per vim sisti promittendo postea fideiussorem adhibeat, is quoque liberatur. 9Sed et si quis per vim stipulatus, cum acceptum non faceret, fuerit in quadruplum condemnatus, ex stipulatu eum agentem adversus exceptionem replicatione adiuvari Iulianus putat, cum in quadruplo et simplum sit reus consecutus. Labeo autem etiam post quadrupli actionem nihilo minus exceptione summovendum eum, qui vim intulit, dicebat: quod cum durum videbatur, ita temperandum est, ut tam tripli condemnatione plectatur, quam acceptilationem omnimodo facere compellatur. 10Quatenus autem diximus quadruplo simplum inesse, si hoc disponendum est, ut in condemnatione quadrupli res quidem omnimodo contineatur et eius restitutio fiat, poenae autem usque ad triplum stetur. 11Quid si homo sine dolo malo et culpa eius, qui vim intulit et condemnatus est, periit? in hoc casu a rei condemnatione ideo relaxabitur, si intra tempora iudicati actionis moriatur, quia tripli poena propter facinus satisfacere cogitur. pro eo autem, qui in fuga esse dicitur, cautio ab eo extorquenda est, quatenus et persequatur et omnimodo eum restituat: et nihilominus in rem vel ad exhibendum vel si qua alia ei competit actio ad eum recipiendum integra ei qui vim passus est servabitur, ita ut, si dominus eum quoquo modo receperit, is qui ex stipulatione convenitur exceptione tutus fiat. haec si post condemnationem: si autem ante sententiam homo sine dolo malo et culpa mortuus fuerit, tenebitur, et hoc fit his verbis edicti ‘neque ea res arbitrio iudicis restituetur’. ergo si in fuga sit servus sine dolo malo et culpa eius cum quo agetur, cavendum est per iudicem, ut eum servum persecutus reddat. sed et si non culpa ab eo quocum agitur aberit, si tamen peritura res non fuit, si metum non adhibuisset, tenebitur reus: sicut in interdicto unde vi vel quod vi aut clam observatur. itaque interdum hominis mortui pretium recipit, qui eum venditurus fuit, si vim passus non esset. 12Qui vim intulit, cum possessionem a me sit consecutus, fur non est: quamvis qui rapuit, fur improbior esse videatur, ut Iuliano placet. 13Eum qui metum fecit et de dolo teneri certum est, et ita Pomponius, et consumi alteram actionem per alteram exceptione in factum opposita. 14Iulianus ait quod interest quadruplari solum, et ideo eum, qui ex causa fideicommissi quadraginta debebat, si trecenta promiserit per vim et solverit, ducentorum sexaginta quadruplum consecuturum: in his enim cum effectu vim passus est. 15Secundum haec si plures metum adhibuerint et unus fuerit conventus, si quidem sponte rem ante sententiam restituerit, omnes liberati sunt: sed etsi id non fecerit, sed ex sententia quadruplum restituerit, verius est etiam sic peremi adversus ceteros metus causa actionem.
14 Ulpianus, On the Edict, Book XI. 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 nothing. 1The 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. 2In 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 elapsed. 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. 3In 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. 4Since 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. 5Sometimes, 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. 6Labeo 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. 7Fourfold the value includes the entire property in question, that is to say, the crops, and all the increase. 8Where anyone is compelled by force to promise to appear in court, but afterwards furnishes a surety, both of them will be released. 9Where 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. 10With 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. 11What 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 intimidation. 12Where 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. 13Where 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. 14Julianus 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. 15According 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 libro undecimo ad edictum. Aut in id dabitur adversus ceteros actio, quod minus ab illo exactum sit.
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 libro undecimo ad edictum. Quod diximus si plures metum admiserunt, idem dicendum erit et si ad alium res pervenit, alter metum adhibuit. 1Sed si servi metum adhibuerint, noxalis quidem actio ipsorum nomine erit, poterit autem quis dominum ad quem res pervenerit convenire: qui conventus sive rem sive secundum quod iam dictum est quadruplum praestiterit, proderit et servis. si vero noxali conventus maluerit noxae dedere, nihilo minus ipse poterit conveniri, si ad eum res pervenit. 2Haec actio heredi ceterisque successoribus datur, quoniam rei habet persecutionem. in heredem autem et ceteros in id, quod pervenit ad eos, datur non immerito: licet enim poena ad heredem non transeat, attamen quod turpiter vel scelere quaesitum est, ut est et rescriptum, ad compendium heredis non debet pertinere.
16 Ulpianus, On the Edict, Book XI. 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. 1Where 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 the property. 2This 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 libro primo quaestionum. Videamus ergo, si heres, ad quem aliquid pervenerit, consumpserit id quod pervenit, an desinat teneri, an vero sufficit semel pervenisse? et, si consumpto eo decesserit, utrum adversus heredem eius omnimodo competit actio, quoniam hereditariam suscepit obligationem, an non sit danda, quoniam ad secundum heredem nihil pervenit? et melius est omnimodo competere in heredem heredis actionem: sufficit enim semel pervenisse ad proximum heredem, et perpetua actio esse coepit: alioquin dicendum erit nec ipsum, qui consumpsit quod ad eum pervenit, teneri.
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 Iulianus libro sexagensimo quarto digestorum. Si ipsa res, quae ad alium pervenit, interiit, non esse locupletiorem dicemus: sin vero in pecuniam aliamve rem conversa sit, nihil amplius quaerendum est, quis exitus sit, sed omnimodo locuples factus videtur, licet postea deperdat. nam et imperator Titus Antoninus Claudio frontino de pretiis rerum hereditarium rescripsit ob id ipsum peti ab eo hereditatem posse, quia licet res quae in hereditate fuerant apud eum non sint, tamen pretium earum quo, locupletem eum vel saepius mutata specie faciendo, perinde obligat, ac si corpora ipsa in eadem specie mansissent.
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 libro quarto ad edictum provinciale. Quod autem in heredem eatenus pollicetur actionem proconsul, quatenus ad eum pervenerit, intellegendum est ad perpetuo dandam actionem pertinere.
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 libro undecimo ad edictum. Quantum autem ad heredem pervenerit, litis contestatae tempore spectabitur, si modo certum sit aliquid pervenisse. idem et si ipsius qui vim intulit sic in corpus patrimonii pervenit aliquid, ut certum sit ad heredem perventurum, id est si debitor liberatus est.
20 Ulpianus, On the Edict, Book XI. 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 libro undecimo ad edictum. Si mulier contra patronum suum ingrata facta sciens se ingratam, cum de suo statu periclitabatur, aliquid patrono dederit vel promiserit, ne in servitutem redigatur: cessat edictum, quia hunc sibi metum ipsa infert. 1Quod metus causa gestum erit, nullo tempore praetor ratum habebit. 2Qui possessionem non sui fundi tradidit, non quanti fundus, sed quanti possessio est, eius quadruplum vel simplum cum fructibus consequetur: aestimatur enim quod restitui oportet, id est quod abest: abest autem nuda possessio cum suis fructibus. quod et Pomponius. 3Si dos metu promissa sit, non puto nasci obligationem, quia est verissimum nec talem promissionem dotis ullam esse. 4Si metu coactus sim ab emptione locatione discedere, videndum est, an nihil sit acti et antiqua obligatio remaneat, an hoc simile sit acceptilationi, quia nulla ex bonae fidei obligatione possimus niti, cum finita sit dum amittitur: et magis est ut similis species acceptilationis sit, et ideo praetoria actio nascitur. 5Si metu coactus adii hereditatem, puto me heredem effici, quia quamvis si liberum esset noluissem, tamen coactus volui: sed per praetorem restituendus sum, ut abstinendi mihi potestas tribuatur. 6Si coactus hereditatem repudiem, duplici via praetor mihi succurrit aut utiles actiones quasi heredi dando aut actionem metus causa praestando, ut quam viam ego elegerim, haec mihi pateat.
21 Paulus, On the Edict, Book XI. 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. 1Where any act has been performed on account of fear, the Prætor will not confirm it on the ground of lapse of time. 2Where 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 Pomponius. 3Where 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. 4Where 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 lie. 5If, 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 me. 6If, 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 libro primo sententiarum. Qui in carcerem quem detrusit, ut aliquid ei extorqueret, quidquid ob hanc causam factum est, nullius momenti est.
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 importance.
23 Ulpianus libro [ed. maior quarto] <ed. minor quinto> opinionum. Non est verisimile compulsum in urbe inique indebitum solvisse eum, qui claram dignitatem se habere praetendebat, cum potuerit ius publicum invocare et adire aliquem potestate praeditum, qui utique vim eum pati prohibuisset: sed huiusmodi praesumptioni debet apertissimas probationes violentiae opponere. 1Si iusto metu perterritus cognitionem, ad quam ut vinctus iret, potens adversarius minabatur, id quod habere licebat compulsus vendidit, res suae aequitati per praesidem provinciae restituitur. 2Si faenerator inciviliter custodiendo athletam et a certaminibus prohibendo cavere compulerit ultra quantitatem debitae pecuniae, his probatis competens iudex rem suae aequitati restitui decernat. 3Si quis, quod adversario non debebat, delegante eo per vim, apparitione praesidis interveniente, sine notione iudicis, coactus est dare, iudex inciviliter extorta restitui ab eo, qui rei damnum praestiterit, iubeat. quod si debitis satisfecit simplici iussione et non cognitione habita, quamvis non extra ordinem exactionem fieri, sed civiliter oportuit, tamen quae solutioni debitarum ab eo quantitatium profecerunt, revocare incivile est.
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 presumption. 1Where 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. 2Where 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. 3Where 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.