De doli mali et metus exceptione
(Concerning the exception founded on fraud and fear.)
1 Paulus libro septuagensimo primo ad edictum. Quo lucidius intellegi possit haec exceptio, prius de causa videamus, quare proposita sit, deinde, quemadmodum dolo fiat, per quae intellegemus, quando obstet exceptio: deinde adversus quas personas locum habeat. novissime inspiciemus, intra quae tempora competit exceptio. 1Ideo autem hanc exceptionem praetor proposuit, ne cui dolus suus per occasionem iuris civilis contra naturalem aequitatem prosit. 2Sed an dolo quid factum sit, ex facto intellegitur. 3Et quidem dolo fit tam in contractibus quam in testamentis quam in legibus.
1 Paulus, On the Edict, Book VII. In order that this exception may be more clearly understood, let us first consider the reason why it was introduced, and afterwards ascertain how fraud can be committed. By this means we will learn when this exception operates as a bar, and also against what persons it can be employed. Finally, we shall examine within what time it must be pleaded. 1The Prætor introduced this exception in order that no one could, by means of the Civil Law, profit by his own fraud against the rules of natural equity. 2In order to ascertain whether a fraudulent act has been committed, the facts of the case must be taken into consideration. 3Fraud is committed in contracts, in wills, and in the execution, of the laws.
2 Ulpianus libro septuagensimo sexto ad edictum. Palam est autem hanc exceptionem ex eadem causa propositam, ex qua causa proposita est de dolo malo actio. 1Sequitur, ut videamus, in quibus causis locum habeat exceptio et quibus personis obiciatur. et quidem illud adnotandum est, quod specialiter exprimendum est, de cuius dolo quis queratur, non in rem ‘si in ea re nihil dolo malo factum est’, sed sic ‘si in ea re nihil dolo malo actoris factum est’. docere igitur debet is, qui obicit exceptionem, dolo malo actoris factum, nec sufficiet ei ostendere in re esse dolum: aut si alterius dicat dolo factum, eorum personas specialiter debebit enumerare, dummodo hae sint, quarum dolus noceat. 2Plane ex persona eius, qui exceptionem obicit, in rem opponitur exceptio: neque enim quaeritur, adversus quem commissus sit dolus, sed an in ea re dolo malo factum sit a parte actoris. 3Circa primam speciem, quibus ex causis exceptio haec locum habeat, haec sunt, quae tractari possunt. si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit: licet enim eo tempore, quo stipulabatur, nihil dolo malo admiserit, tamen dicendum est eum, cum litem contestatur, dolo facere, qui perseveret ex ea stipulatione petere: et si cum interponeretur, iustam causam habuit, tamen nunc nullam idoneam causam habere videtur. proinde et si crediturus pecuniam stipulatus est nec credidit et si certa fuit causa stipulationis, quae tamen aut non est secuta aut finita est, dicendum erit nocere exceptionem. 4Item quaeritur, si quis pure stipulatus sit certam quantitatem, quia hoc actum sit, sed post stipulationem interpositam pactus sit, ne interim pecunia usque ad certum diem petatur, an noceat exceptio doli. et quidem et de pacto convento excipi posse nequaquam ambigendum est: sed et si hac quis exceptione uti velit, nihilo minus poterit: dolo enim facere eum, qui contra pactum petat, negari non potest. 5Et generaliter sciendum est ex omnibus in factum exceptionibus doli oriri exceptionem, quia dolo facit, quicumque id, quod quaqua exceptione elidi potest, petit: nam et si inter initia nihil dolo malo facit, attamen nunc petendo facit dolose, nisi si talis sit ignorantia in eo, ut dolo careat. 6Non male dictum est, si creditor usuras in futurum acceperit, deinde pecuniam nihilo minus petat, antequam id tempus praetereat, cuius temporis usuras accepit, an doli exceptione repellatur. et potest dici dolo eum facere: accipiendo enim usuras distulisse videtur petitionem in id tempus, quod est post diem usurarum praestitarum, et tacite convenisse interim se non petiturum. 7Item quaeritur: si statuliberum mercatus quis fuerit iussum decem dare, cum hoc ignoraret, et duplam stipulatus fuerit, deinde decem acceperit evicto eo in libertatem agere ex duplae stipulatione potest, sed nisi decem, quae implendae condicionis causa acceperit, deduxerit, exceptione summovendus erit: et haec ita Iulianus quoque scribsit. si tamen ex re emptoris vel ex peculio, quod ad emptorem pertinebat, pecuniam dederit statuliber, potest dici exceptionem non nocere, quia dolo non faceret.
2 Ulpianus, On the Edict, Book LXXVI. It is clear that this exception was formulated for the same reason that the action on the ground of bad faith was introduced. 1In the next place, let us see in what cases there is ground for this exception, and against whom it may be pleaded. And, indeed, it must be noted, that he whose fraudulent act is complained of must be expressly mentioned, and that the formula in rem, “If any fraudulent act has been committed with reference to the matter,” should not be employed, but the following one, namely, “If no fraud has been committed by you as plaintiff.” Therefore, the party who pleads the exception must prove that the plaintiff has been guilty of fraud, and it will not be sufficient for him to show that fraud has merely been committed with reference to the case; or, if he alleges it has been committed by certain persons, he must specifically enumerate them; provided they are the parties responsible for the act by which he alleges that he has been injured. 2It is evident that the exception is employed in a proceeding in rem if we take into account the person who pleads it, for there is no doubt against whom the fraud was committed, but there is one as to whether or not the plaintiff committed it. 3The following matters may be discussed with reference to the First Section, where the causes giving rise to the exception are enumerated. If anyone stipulates with another without any consideration, and then institutes proceedings by virtue of this agreement, an exception on the ground of fraud can properly be pleaded against him; for although, at the time that the stipulation was entered into, he may not have been guilty of any fraudulent act, still it must be said that he committed fraud when he joined issue in the case, and persisted in asserting his claim under the said stipulation. And even if, at the time that the stipulation was made, he had a just cause of action, still it is held that one did not exist at the time of the joinder of issue. Hence, if anyone about to lend money enters into a stipulation, and the money is not lent, although there was a good consideration for the contract, still, as it was not executed, or was terminated, it must be said that the exception can be properly pleaded. 4The question is also asked, if anyone should stipulate absolutely for the payment of a certain sum of money, for the reason that this was the intention of the parties; but, after the stipulation was entered into, it was agreed that the money should not be demanded until a certain time, will an exception on the ground of fraud operate as a bar. And, indeed, there is no doubt whatever that an exception can be pleaded on the ground of an informal contract, as anyone who wishes to make use of this exception can do so; for it cannot be denied that he who makes a demand in violation of a contract which he entered into is guilty of fraud. 5Generally speaking, it should be noted that, in all cases where exceptions in factum are available, an exception on the ground of fraud can be pleaded in bar, because anyone is guilty of fraud who makes a demand which can be successfully opposed by any exception whatever; for if he did not commit fraud in the beginning, still, by making the claim now he is acting fraudulently, unless he was so ignorant of the facts as not to be guilty of bad faith. 6It has not improperly been asked, if a creditor accepts interest in advance on a loan, and persists in demanding payment of the principal before the time has passed for which he has collected the interest, whether he can be barred by an exception on the ground of fraud. It may be said that he is guilty of fraud, for by accepting the interest he is understood to have deferred collection of the debt until the time had elapsed for which interest was paid, and that he tacitly agreed not to demand payment in the meantime. 7The question also arises, if anyone should buy a slave who was to be free on condition of paying ten aurei, and the purchaser, being ignorant of this fact, stipulated that, in case of the eviction of the slave, he should be entitled to double his price, and then received the ten aurei from the slave, and as the latter had been evicted, and had obtained his freedom, whether the purchaser could bring an action for double the amount by virtue of the stipulation. He would be barred by an exception, unless he deducted the ten aurei which he received for the purpose of complying with the condition. This was also stated by Julianus. If, however, the slave had paid the money out of the property of the purchaser, or out of his peculium which belonged to the latter, it may be said that an exception could not properly be pleaded, because he was not guilty of fraud.
3 Paulus libro septuagensimo primo ad edictum. Item si ob id, quod, antequam dominium ad me transferatur, venditori dederit decem, agam ex empto, ut decem recipiam, ita puto competere mihi actionem, si paratus sim ex duplae stipulatione eum liberare.
3 Paulus, On the Edict, Book LXXI. But if, before the ownership of the slave was transferred to me, he should pay the ten aurei to the vendor, and I should bring an action on purchase in order to recover the ten aurei, I think that I would be entitled to this action, if I was ready to release him from the stipulation to pay double the amount of the price.
4 Ulpianus libro septuagensimo sexto ad edictum. Apud Celsum quaeritur, si, cum Titio mandassent creditores hereditarii, ut adiret hereditatem, unus non mandasset decipiendi eius causa, mandaturus alioquin, si non foret hic aditurus, deinde agat, an exceptione repellatur: et ait Celsus doli eum exceptione repellendum. 1Iulianus scribsit, si quis, cum aeger esset, centum aureos uxoris suae consobrino spopondisset, volens scilicet eam pecuniam ad mulierem pervenire, deinde convaluerit, an exceptione uti possit, si conveniatur. et refert Labeoni placuisse doli mali uti eum posse. 2Si in arbitrum compromisserimus, deinde cum non stetissem ob adversam valitudinem, poena commissa est, an uti possim doli exceptione? et ait Pomponius prodesse mihi doli exceptionem. 3Item quaeritur, si cum eo, a quo tibi sexaginta deberentur, compromisseris, deinde per imprudentiam poenam centum stipulatus fueris. Labeo putat convenire officio arbitri iubere tantum tibi dari, quantum re vera debeatur, et, si non fiat, non vetare, ne quid amplius petatur: sed etiamsi id omissum fuerit, peti posse quod debetur Labeo dicit, et si forte poena petatur, doli mali exceptionem profuturam. 4Si quis pupillo solverit sine tutoris auctoritate id quod debuit exque ea solutione locupletior factus sit pupillus, rectissime dicitur exceptionem petentibus nocere: nam et si mutuam acceperit pecuniam vel ex quo alio contractu locupletior factus sit, dandam esse exceptionem. idemque et in ceteris erit dicendum, quibus non recte solvitur: nam si facti sint locupletiores, exceptio locum habebit. 5Item Labeo scribit, si quis fugitivum esse sciens emerit servum et si stipulatus fuerit fugitivum non esse, deinde agat ex stipulatu, non esse eum exceptione repellendum, quoniam hoc convenit (quamvis ex empto actionem non haberet): sed, si non convenisset, exceptione repelletur. 6Quod si is, cui pecunia debeatur, cum debitore decidit et nomen eius vendidit Seio, cui debitor mandaverat, ut nomen emeret, deque ea re emptor stipulatus est, deinde creditor eam pecuniam retinet, quam per iudicem abstulit, an emptor ex stipulatu possit experiri? et Ofilius putat, si venditor nominis paratus non sit reddere, quantum ab emptore acceperit, non nocituram exceptionem doli mali: et puto sententiam Ofilii veram. 7Labeo ait, si de homine petitio secundum actorem fuerit iudicatum et iussu iudicis satisdatum sit hominem intra certum diem tradi, et, si traditus non fuisset, poenam stipulatus sit, petitorem, qui et hominem vindicat et poenam petit, exceptione esse repellendum: iniquum enim esse et hominem possidere et poenam exigere. 8Item quaeritur, si uniones tibi pignori dedero et convenerit, ut soluta pecunia redderentur, et hi uniones culpa tua perierint et pecuniam petas. exstat Nervae et Atilicini sententia dicentium ita esse excipiendum: ‘si inter me et te non convenit, ut soluta pecunia uniones mihi reddantur’: sed est verius exceptionem doli mali nocere debere. 9Si minor mihi infantem donaverit, deinde eum vindicet, exceptione doli mali repellendus est, nisi alimenta reddat et si quis alius sumptus probabilis in eum factus sit. 10Praeterea sciendum est, si quis quid ex testamento contra voluntatem petat, exceptione eum doli mali repelli solere: et ideo heres, qui non habet voluntatem, per exceptionem doli repellitur. 11Si quis ex uncia heres sit scriptus, ex qua ducenta consequi potuit, deinde propter hoc legatum, in quo centum erant, praetulit, ne molestiis hereditariis implicaretur: an, si legatum petat, exceptione doli mali summoveatur? et ait Iulianus non esse eum summovendum. quod si a substituto pretium accepit vel quod pretii loco haberi posset, ne adeat hereditatem, petens legatum dolo, inquit, facere intellegetur ac per hoc doli exceptione repelletur. 12Quaesitum est, si, cum fundi usum fructum haberem, eum fundum volente me vendideris, an vindicanti mihi usum fructum exceptio sit obicienda. et hoc iure utimur, ut exceptio doli noceat. 13Marcellus ait adversus doli exceptionem non dari replicationem doli. Labeo quoque in eadem opinione est: ait enim iniquum esse communem malitiam petitori quidem praemio esse, ei vero, cum quo ageretur, poenae esse, cum longe aequum sit ex eo, quod perfide gestum est, actorem nihil consequi. 14Contra senatus consulti quoque Macedoniani exceptionem de dolo dandam replicationem ambigendum non esse eamque nocere debere etiam constitutionibus et sententiis auctorum cavetur. 15Labeo et si ex stipulatu actio competat propter doli clausulam, tamen nocere doli exceptionem ait, si adversus ea inquit, factum erit: posse enim petitorem, antequam stipulatio committatur, nihil dolo malo fecisse et tunc facere cum petat: propter quod exceptionem esse necessariam. 16Adversus parentes patronosque neque doli exceptio neque alia quidem, quae patroni parentisve opinionem apud bonos mores suggillet, competere potest: in factum tamen erit excipiendum, ut, si forte pecunia non numerata dicatur, obiciatur exceptio pecuniae non numeratae. nihil autem interest, utrum patronus ex suo contractu an vero ex alieno conveniatur: semper enim reverentia ei exhibenda est tam vivo quam defuncto. si autem cum herede liberti patronus agat, puto excipere debere de dolo patroni heredem liberti. libertum autem de dolo patroni, etsi ab herede eius conveniatur, minime exceptionem obiecturum: namque convenit tam vivo quam mortuo patrono a liberto honorem exhiberi. in stipulatione plane doli clausula non erit detrahenda, quia ex doli clausula non de dolo actio intenditur, sed ex stipulatu. 17In hac exceptione et de dolo servi vel alterius personae iuri nostro subiectae excipere possumus et de eorum dolo, quibus adquiritur. sed de servorum et filiorum dolo, si quidem ex peculiari eorum negotio actio intendatur, in infinitum exceptio obicienda est: si autem non ex peculiari causa, tum de eo dumtaxat excipi oportet, qui admissus sit in ipso negotio quod geritur, non etiam si postea aliquis dolus intervenisset: neque enim esse aequum servi dolum amplius domino nocere, quam in quo opera eius esset usus. 18Quaesitum est, an de procuratoris dolo, qui ad agendum tantum datus est, excipi possit. et puto recte defendi, si quidem in rem suam procurator datus sit, etiam de praeterito eius dolo, hoc est si ante acceptum iudicium dolo quid fecerit, esse excipiendum, si vero non in rem suam, dolum praesentem in exceptionem conferendum. si autem is procurator sit, cui omnium rerum administratio concessa est, tunc de omni dolo eius excipi posse Neratius scribit. 19Mandavi Titio, ut a te stipularetur, deinde Titius Seio, et stipulatus a te Seius est et iudicium edidit: ait Labeo excipiendum esse tam de meo quam et Seii dolo. 20Item quaeritur, si debitor meus te circumveniebat teque mihi reum dederit egoque abs te stipulatus fuero, deinde petam, an doli mali exceptio obstet. et magis est, ut non tibi permittatur de dolo debitoris mei adversus me excipere, cum non ego te circumvenerim: adversus ipsum autem debitorem meum poteris experiri. 21Sed et si mulier post admissum dolum debitorem suum marito in dotem delegaverit, idem probandum erit de dolo mulieris non esse permittendum excipere, ne indotata fiat. 22Apud Iulianum quaesitum est, si heres soceri, a quo dos peteretur, exciperet de dolo mariti et mulieris, cui pecunia quaereretur, an obstatura esset exceptio ex persona mulieris. et ait Iulianus, si maritus ex promissione dotis ab herede soceri petat et heres excipiat de dolo filiae, cui ea pecunia adquireretur, exceptionem obstare: dos enim, quam maritus ab herede soceri petit, intellegitur, inquit, filiae adquiri, cum per hoc dotem sit habitura. illud non explicat Iulianus, an et de dolo mariti excipi possit: puto autem eum hoc sentire, ut etiam de dolo mariti noceat exceptio, licet videatur nulla dos filiae, ut ait, quaeri. 23Illa etiam quaestio ventilata est apud plerosque, an de dolo tutoris exceptio pupillo experienti nocere debeat. et ego puto utilius, etsi per eas personas pupillis favetur, tamen dicendum esse, sive quis emerit a tutore rem pupilli sive contractum sit cum eo in rem pupilli, sive dolo quid tutor fecerit et ex eo pupillus locupletior factus est, pupillo nocere debere, nec illud esse distinguendum, cautum sit ei an non, solvendo sit an non tutor, dummodo rem administret: unde enim divinat is, qui cum tutore contrahit? plane si mihi proponas collusisse aliquem cum tutore, factum suum ei nocebit. 24Si quis non tutor, sed pro tutore negotia gerat, an dolus ipsius noceat pupillo, videamus. et putem non nocere: nam si is, qui pro tutore negotia gerebat, rem vendiderit et usucapta sit, exceptionem non nocere pupillo rem suam persequenti, etiamsi ei cautum sit, quia huic rerum pupilli administratio concessa non fuit. 24aSecundum haec magis opinor de dolo tutoris exceptionem pupillo esse obiciendam. 25Quae in tutore diximus, eadem in curatore quoque furiosi dicenda erunt, sed [ed. maior et] in prodigi vel minoris viginti quinque annis. 26De dolo autem ipsius minoris viginti quinque annis exceptio utique locum habebit: nam et de pupilli dolo interdum esse excipiendum nequaquam ambigendum, est ex ea aetate, quae dolo non careat. denique Iulianus quoque saepissime scribsit doli pupillos, qui prope pubertatem sunt, capaces esse. quid enim, si debitor ex delegatu pupilli pecuniam creditori eius solvit? fingendus est, inquit, pubes esse, ne propter malitiae ignorantiam bis eandem pecuniam consequatur. idem servandum in furioso ait, si, cum existimaretur compos mentis esse, iusserit debitorem creditori solvere, vel si quod exegit, domi habeat. 27De auctoris dolo exceptio emptori non obicitur. si autem accessione auctoris utitur, aequissimum visum est ei, qui ex persona auctoris utitur accessione, pati dolum auctoris: et peraeque traditur rei quidem cohaerentem exceptionem etiam emptori nocere, eam autem, quae ex delicto personae oriatur, nocere non oportere. 28Si, cum legitima hereditas Gaii Seii ad te perveniret et ego essem heres institutus, persuaseris mihi per dolum malum, ne adeam hereditatem, et posteaquam ego repudiavi hereditatem, tu eam Sempronio cesseris pretio accepto isque a me petat hereditatem: exceptionem doli mali eius, qui ei cessit, non potest pati. 29Si quis autem ex causa legati vindicet aut is, cui ex causa donationis res praestita est, vindicet, an de dolo exceptionem patiatur ex causa eius, in cuius locum successerit? et magis putat Pomponius summovendum: et ego puto exceptione eos esse repellendos, cum lucrativam causam sint nancti: aliud est enim emere, aliud ex his causis succedere. 30Idem tractat Pomponius et in eum, qui pigneri accepit, si Serviana vel hypothecaria actione experiatur: nam et hunc putat Pomponius summovendum, quia res ad eum qui dolo fecit reversura est. 31Auctoris autem dolus, sicut diximus, emptori non obicitur. sed hoc in emptore solo servabimus: item in eo, qui permutaverit vel in solutum accepit: item in similibus, qui vicem emptorum continent. ceterum si noxae deditus quis sit, Pomponius putat passurum exceptionem, quam ille pateretur, qui noxae dedit. proinde ex quacumque alia causa, quae prope lucrativam habet adquisitionem, quaesisse quis videatur, patietur exceptionem doli ex persona eius, in cuius locum successit: sufficit enim, si is, qui pretium dedit vel vice pretii, cum sit bona fide emptor, ut non patiatur doli exceptionem ex persona auctoris, utique si ipse dolo caret. ceterum si ipse dolo non careat, pervenietur ad doli exceptionem et patietur de dolo suo exceptionem. 32Si a Titio fundum emeris qui Sempronii erat isque tibi traditus fuerit pretio soluto, deinde Titius Sempronio heres extiterit et eundem fundum Maevio vendiderit et tradiderit: Iulianus ait aequius esse praetorem te tueri, quia et, si ipse Titius fundum a te peteret, exceptione in factum comparata vel doli mali summoveretur et, si ipse eum possideret et Publiciana peteres, adversus excipientem ‘si non suus esset’ replicatione utereris, ac per hoc intellegeretur eum fundum rursum vendidisse, quem in bonis non haberet. 33Metus causa exceptionem Cassius non proposuerat contentus doli exceptione, quae est generalis: sed utilius visum est etiam de metu opponere exceptionem. etenim distat aliquid doli exceptione, quod exceptio doli personam complectitur eius, qui dolo fecit: enimvero metus causa exceptio in rem scripta est ‘si in ea re nihil metus causa factum est’, ut non inspiciamus, an is qui agit metus causa fecit aliquid, sed an omnino metus causa factum est in hac re a quocumque, non tantum ab eo qui agit. et quamvis de dolo auctoris exceptio non obiciatur, verumtamen hoc iure utimur, ut de metu non tantum ab auctore, verum a quocumque adhibito exceptio obici possit. 34Illud sciendum est hanc exceptionem de metu eum obicere debere, qui metum non a parente passus est, in cuius fuit potestate: ceterum parenti licere deteriorem condicionem liberorum in rebus peculiariis facere. sed si se abstinuerit hereditate paterna, succurrendum ei erit, ut alioquin succurritur.
4 Ulpianus, On the Edict, Book LXXVI. The question is asked by Celsus, if the creditors of an estate, with a single exception, should direct Titius to enter upon it, and this one did this for the purpose of deceiving him, but would also have directed him to accept if he had known that Titius would not have consented to do so, and he then brings an action, will he be barred by an exception? Celsus says that he will be barred. 1Julianus asks, if a man who is ill promises a hundred aurei to his wife’s cousin, with the understanding that the money shall come into the hands of his wife, and he afterwards recovers, whether he can plead an exception on the ground of bad faith when suit is brought against him. Julianus says that it was held by Labeo that he could interpose an exception on the ground of fraud. 2If we should consent to a compromise, and appoint an arbiter, and I do not appear at the appointed time, on account of bad health, and the penalty becomes due, can I avail myself of an exception on the ground of bad faith? Pomponius says that I will be entitled to the benefit of such an exception. 3It is also asked, what course must be pursued if you compromise with a debtor who owes you the sum of sixty aurei, and through mistake you stipulate for the penalty of a hundred? Labeo holds that it is the duty of the arbiter to order as much to be paid to you as is actually due, and if this is not done, there is no reason why the excess should not be collected. But he also says, that even if the arbiter failed to state the amount which should be collected, and the penalty should be demanded, an exception on the ground of fraud can be pleaded. 4If a debtor pays a ward what he owes him, without the authority of his guardian, and the ward becomes enriched to that extent by this payment, it is very properly held that if he attempts to collect the amount a second time, he will be barred by an exception. For if he was pecuniarily benefited by having loaned money, or by having obtained it by means of some other contract, an exception should be granted. The same rule must be said to apply to all other cases in which payment is illegally made, for if the parties are pecuniarily benefited there will be ground for an exception. 5Labeo also says that if anyone should purchase a slave knowing that he had the habit of running away, and stipulated with the vendor that this was not the case, and he afterwards brings an action based on the stipulation, he cannot be barred by an exception, as this was the agreement, although he will not be entitled to an action on purchase. If, however, such an agreement was not made, he will be barred by an exception. 6A certain man to whom money was due settled the account with his debtor, and sold his claim to Seius, whom the debtor had directed to purchase it, and the purchaser entered into a stipulation with reference to the transaction, and the creditor then retains the money which he had obtained by a judgment. Can the purchaser bring an action under the stipulation? Ofilius holds that if the vendor of the claim was not ready to pay over the entire amount which he received from the purchaser, an exception on the ground of fraud cannot be properly pleaded against him. I think that the opinion of Ofilius is correct. 7Labeo says that where suit has been brought for a slave, and judgment rendered in favor of the plaintiff, and security given by order of court for the slave to be delivered within a certain time, and a penalty has been stipulated for if he should not be delivered, the plaintiff will be barred by an exception if he claims both the slave and the penalty; for to retain possession of the slave and also to exact the penalty would be unjust. 8If I give you valuable pearls in pledge, and it is agreed between us that they shall be returned when the debt is paid, and the pearls are lost through your negligence, the question arises whether you can collect the money. An opinion of Nerva and Atilicinus is extant, who hold that I am entitled to an exception, as follows, “If no agreement was made between you and myself that the pearls should be returned to me if the money was paid.” The better opinion, however, is that an exception on the ground of fraud can be pleaded in bar. 9If a minor should give me a young slave, and afterwards bring an action to recover him, he can be barred by an exception on the ground of fraud, unless he repays the amount furnished for his support, and any other reasonable expenses incurred on account of said slave. 10It should, moreover, be noted that if anyone brings suit under a will, against the wishes of the deceased, he can be barred by an exception on the ground of fraud. Hence, an heir can be barred by an exception of this kind, if he acts contrary to the wishes of the deceased. 11Where an heir was appointed to the twelfth of an estate, which might be worth two hundred aurei, but preferred to receive a legacy instead, which was only worth a hundred, and did this to avoid being annoyed by the settlement of the estate, and brings an action to recover the legacy, can he be barred by an exception on the ground of fraud? Julianus says that he cannot. But if he received the amount, or what might be considered equivalent to it, from a substituted heir, in order to avoid accepting the estate, and then brings an action to recover the legacy, Julianus says that he is considered to be guilty of fraud, and can be barred by an exception on this ground. 12Where I have the usufruct of a tract of land, arid you sell me the land with my consent, the question arises whether I can be opposed by an exception if I bring suit to recover the usufruct? It is our practice that this exception, which is based on bad faith, operates as a bar. 13Marcellus says that a replication on the ground of bad faith should not be granted against an exception on the same ground. Labeo concurs in this opinion, for he says that, as both parties are guilty of bad faith, it would be unjust for an advantage to be obtained by the plaintiff and a penalty imposed upon the defendant, for it is far more equitable that the plaintiff should not reap any benefit from a matter in which he has acted deceitfully. 14There is no doubt that a replication on the ground of bad faith can be granted against the exception of the Macedonian Decree of the Senate, and it is also provided by the Imperial Constitutions and set forth in the opinions of various authorities that such a replication has the effect of a plea in bar. 15Labeo says that, although an action based on a stipulation will lie by virtue of the clause relating to fraud which it contains, still an exception on the ground of fraud may be properly pleaded, if, as he says, anything has been done contrary to the terms of the agreement; for it might be that the plaintiff, before the stipulation was entered into, did not commit any fraudulent act, but did so at the time that he asserted the claim on account of which an exception was necessary. 16Neither an exception on the ground of fraud, nor any other which can unfavorably affect the reputation of a patron or a relative in the ascending line, can be pleaded against them. Still an exception in factum can be pleaded, for instance, if it is alleged that the money forming the basis of the claim was not paid, an exception on this ground may be interposed. It, however, makes no difference whether a patron is sued on his own contract, or on one made by another, for respect must always be shown to him living or dead. If, however, a patron brings an action against the heir of his freedman, I think that the latter can interpose an exception based on the bad faith of the patron. The freedman himself, however, can, by no means, plead an exception based on the bad faith of his patron, even if he is sued by the heir of the latter, for it is proper that honor should be shown by a freedman to his patron not only while he is living, but also after his death. It is clear that a clause relating to fraudulent conduct should not be omitted from the stipulation, because an action on fraud arising from such a clause is not brought, but one is brought by virtue of the stipulation. 17We can make use of this exception both on account of the fraudulent conduct of a slave, or of any other person subject to our authority, as well as of those by whose fraudulent acts we acquire anything. So far as the fraudulent conduct of slaves and children is concerned, if any action is brought having reference to their peculium, this exception should be pleaded in every instance. If, however, the peculium is not involved, an exception on the ground of bad faith should only be interposed with reference to the matter in question, and not where some fraud was committed afterwards; for it would not be just for the fraudulent acts of the slave to injure his master more than where he made use of his services. 18The question arose whether an exception on the ground of bad faith can be pleaded in the case of an agent who has only been appointed to bring the suit. I think that it can be properly maintained that if the said agent was appointed for the purpose of acting in his own behalf (that is to say, if he should commit any fraudulent act before issue was joined), an exception on this ground can be interposed. If, however, he was not acting in his own behalf, an exception can be pleaded only with reference to the fraud committed since proceedings were begun. But when the agent is one to whom the administration of all the business of the principal has been entrusted, Neratius says that an exception can be pleaded on account of any fraudulent act which he may have committed. 19I directed Titius to enter into a stipulation for you, Titius afterwards directed Seius to do so, and Seius stipulated for you, and brought suit. Labeo says that you can effectually interpose an exception based on my fraudulent act as well as on that of Seius. 20It is also asked, if my debtor should swindle you, and appoint you in his place, and I having made a stipulation with you, bring an action to enforce it, will an exception on the ground of fraud operate as a bar? The better opinion is, that you will not be permitted to plead an exception against me on the ground of the bad faith of my debtor, as I did not swindle you, but you can bring an action on that ground against my debtor. 21If, however, a woman should delegate her debtor to her husband, for her dowry, after she had been guilty of fraud, the same rule should be adopted, and the debtor should not be permitted to plead an exception based on the fraudulent conduct of the woman, for fear that she might remain unendowed. 22In a case where the heir of a father-in-law is sued to recover a dowry, and pleads an exception based on the fraud of the husband and wife for whose benefit the money is claimed, the question was asked by Julianus whether the exception will operate as a bar, so far as the woman is personally concerned. Julianus says that if the husband sues the heir of his father-in-law for the dowry, and the latter pleads an exception on the ground of fraud committed by the daughter, by whom the money would be obtained, the exception will be effective as a bar; for he holds that the dowry which the husband demands from the heir of the father-in-law is understood to be acquired by the daughter who, by means of it, will obtain her dowry. He does not state whether the heir can also plead an exception based on the fraudulent conduct of the husband. I think, however, that he was also of the opinion that an exception based on the fraud of the husband would operate as a bar, although in this_ instance, as he says, it could not be held that a dowry was acquired by the daughter. 23The question whether an exception based on the fraud of a guardian can be effectually pleaded against a ward who brings an action has been discussed by several authorities. I think that even though the interest of wards is favored by such persons, it should still be held that, where anyone fraudulently purchases the property of a ward from his guardian, or makes a fraudulent contract with him concerning the property of his ward, or where the guardian is guilty of any other fraudulent conduct, and the ward is pecuniarily benefited thereby, the latter should be barred by an exception. Nor is it necessary to make any inquiry as to whether security has been given to the ward or not, or whether his guardian is solvent or insolvent, provided he is administering the affairs of the guardianship; for how can he who enters into a contract with a guardian divine these things? If you suggest that someone has entered into collusion with the guardian it is clear that he will be injured by his own act. 24If someone who was not the guardian, but acted as such, is guilty of fraud, let us see whether it will injure the ward. I do not think that it will do so, for when, a person who is transacting the business of a guardian sells any property belonging to the ward, and it is obtained by usucaption, the ward will not be prevented from following his own property by an exception, even if he was furnished security, because the administration of his affairs was not granted to this individual. 24aAccording to this, I think that an exception based on the fraud of the guardian can be pleaded against the ward. 25What we have stated with reference to a guardian can also be said to apply to the curator of an insane person, as well as to the case of a spendthrift, and a minor under the age of twenty-five years. 26An exception based on fraud committed by a minor of twenty-five years of age can also be pleaded, for sometimes such an exception can undoubtedly be interposed if the minor is of an age when he can legally be guilty of a fraudulent act. Julianus very frequently stated that minors who are near the age of puberty are capable of committing fraud. But what if the debtor of a ward pays a creditor of the latter, to whom he had been delegated? He says that it must be supposed that the ward has arrived at puberty, to avoid the debtor being liable to pay the money twice, under the pretext that the ward does not know what fraud is. The same rule should be observed in the case of an insane person, if, when he was presumed to be of sound mind, he should order his debtor to pay one of his creditors, or if he should have in his house the money for a debt which he has collected. 27An exception based on the fraud of the vendor cannot be pleaded against the purchaser. If, however, the latter should avail himself of the addition of the time that the property was in the possession of the vendor, it seems to be perfectly just that he should be responsible for the fraud of the vendor, as he profits by his possession in this way. And, likewise, it is held that an exception which has reference to the property will bar the purchaser, but one which is based upon an offence committed by the person will not do so. 28If the estate of Gaius Seius should come into your hands as the heir at law, and I should be appointed heir, and you fraudulently persuade me not to accept the estate, and I afterwards reject it, and you assign your rights to Sempronius after having been paid by him, and he brings suit against me to recover the estate, an exception on the ground of fraud committed by the person who assigned him his rights cannot be pleaded by me against Sempronius. 29If, however, anyone claims an estate by virtue of a legacy, or he to whom property was given by way of donation does so, can an exception on the ground of fraud committed by the party whom he succeeded be pleaded against him? Pomponius thinks that he would be barred by such an exception. I also think that those should be barred who are pecuniarily benefited by obtaining such rights, for it is one thing to purchase them, and another to succeed to them. 30Pomponius discusses the same question with reference to anyone who receives property in pledge, where the Servian or Hypothecary Action is brought, for he holds that he should be barred because otherwise the property would revert to the person who was guilty of fraud. 31The bad faith of the vendor, however, as we have already stated, cannot be pleaded against the purchaser. We observe this rule only with reference to purchasers, and to those who have exchanged property, or received it in payment, as well as to such as occupy the position of purchasers. If, however, a slave has been surrendered by way of reparation for damage, Pomponius thinks that the person who demands the slave, as well as the one who gave him up can have the exception pleaded against him. Hence, where anyone is pecuniarily benefited by acquiring property in any way whatever, an exception on the ground of fraud committed by the person to whose rights he succeeds can be pleaded against him. For it is sufficient if he who has paid the price, or something instead of it, and is a bona fide purchaser, should not suffer through the bad faith of the vendor, provided he himself is not guilty of fraud. If, however, he himself is not free from fraud, he will be liable to the exception on that ground, and must suffer for his own fraudulent act. 32If you purchase a tract of land from Titius, which belongs to Sempronius, and it is delivered to you when you pay the price, and Titius afterwards becomes the heir of Sempronius, and sells and delivers the same land to Mævius, Julianus says that the Prætor must protect you in your rights* because if Titius himself should sue you to recover the land, he will be barred by an exception in factum, on the ground of fraud. If Titius himself should be in possession of the land, and you should sue him by the Publician Action, and he should plead an exception against you on the ground that the property is his, you can avail yourself of a replication, as from this it is evident that he, a second time, sold land which did not belong to him. 33Cassius did not introduce an exception on the ground of fear, but was content with that based on fraud, which is one of general application. It, however, seems more proper to establish an exception on the ground of fear as a plea in bar; as this, in some respects, differs from one based on fraud, because the latter includes the person of the party who committed the fraud, for an exception on the ground of fraud is a proceeding in rem; as, for instance, “where no act has been committed through fear,” so that we do not examine whether the party who brings the action did anything to cause fear, but whether anything was done in the transaction by any person whomsoever, and not merely by the plaintiff, for the purpose of intimidating the defendant. And, although an exception on the ground of the fraud of the vendor cannot be pleaded against the purchaser, still, it is our practice to hold that an exception can be pleaded in bar, where fear has been caused not only by the vendor, but by anyone whomsoever. 34It should be noted that this exception on the ground of fear ought not to be pleaded where a son has been intimidated by his father, while under his control. The father, however, is permitted to diminish the amount of the peculium of the son, but if the latter should reject the paternal estate, relief should be granted him, as is ordinarily done.
5 Paulus libro septuagensimo primo ad edictum. Pure mihi debes decem: ea tibi sub condicione legavi. interim heres si petat, doli exceptione non est summovendus, cum possit etiam deficere condicio: itaque legatorum stipulationem interponere debebit. sed si non caveat heres, doli exceptione summovebitur: expedit enim legatario retinere summam, quam mitti in possessionem rerum hereditariarum. 1Si cui legata sit via et is lege Falcidia locum habente totam eam vindicet non oblata aestimatione quartae partis, summoveri eum doli exceptione Marcellus ait, quoniam suo commodo heres consulit. 2Si donavi alicui rem nec tradidero, et ille cui donavi non tradita possessione in eo loco aedificaverit me sciente, et cum aedificaverit, nanctus sim ego possessionem, et petat a me rem donatam, et ego excipiam, quod supra legitimum modum facta est: an de dolo replicandum est? dolo enim feci, qui passus sum eum aedificare et non reddo impensas. 3Actoris, qui exigendis pecuniis praepositus est, etiam posterior dolus domino nocet. 4Si servus veniit ab eo, cui hoc dominus permisit, et redhibitus sit domino: agenti venditori de pretio exceptio opponitur redhibitionis, licet iam is qui vendidit domino pretium solverit (etiam mercis non traditae exceptione summovetur et qui pecuniam domino iam solvit) et ideo is qui vendidit agit adversus dominum. eandem causam esse Pedius ait eius, qui negotium nostrum gerens vendidit. 5Si eum, qui volebat mihi donare supra legitimum modum, delegavero creditori meo, non poterit adversus petentem uti exceptione, quoniam creditor suum petit. in eadem causa est maritus: nec hic enim debet exceptione summoveri, qui suo nomine agit. numquid ergo nec de dolo mulieris excipiendum sit adversus maritum, qui dotem petit, non ducturus uxorem, nisi dotem accepisset? nisi iam divertit. itaque condictione tenetur debitor qui delegavit vel mulier, ut vel liberet debitorem vel, si solvit, ut pecunia ei reddatur. 6Non sicut de dolo actio certo tempore finitur, ita etiam exceptio eodem tempore danda est: nam haec perpetuo competit, cum actor quidem in sua potestate habeat, quando utatur suo iure, is autem cum quo agitur non habeat potestatem, quando conveniatur.
5 Paulus, On the Edict, Book XVII. You owe me ten aurei unconditionally. I bequeath you that sum under a condition. If, in the meantime, my heir should bring an action to collect the amount you owe the estate, he cannot be barred by an exception on the ground of bad faith, as the condition may fail to be fulfilled, therefore he should stipulate for the payment of the legacy. If, however, the heir Joes not give security, he will be barred by an exception on the ground of bad faith; for it is to the interest of the legatee to retain the amount in his hands rather than to be placed in possession of the property of the estate. 1If a right of way is bequeathed to anyone, and the Falcidian Law being applicable, he should bring an action to recover the entire right of way, without tendering the appraised value of the fourth part of the same, Marcellus says that he can be barred by an exception on the ground of bad faith, as the heir must provide for his own interest. 2Where I gave a tract of land to anyone but did not deliver it, and the person to whom I gave it without delivery of possession should build upon said land with my knowledge, and after he has done so I should obtain possession, and he should bring an action against me for what I have given him; and I should interpose the exception that the donation exceeds the limit prescribed by law, can a replication on the ground of bad faith be pleaded? This can be done, for I acted in bad faith when I permitted him to build, and did not reimburse him for his expenses. 3Where a slave has been appointed for the collection of money which is due, any act of bad faith subsequently committed by him will prejudice his master. 4If a slave is sold by someone who was permitted by his master to dispose of him, and he is then returned to his master, an exception based on his return can be pleaded against the vendor, if he brings suit to recover the price of the slave, even though he who sold him has paid the purchase money to his master. He also will be barred by an exception based on the non-delivery of merchandise who has already paid the money to the owner of the same, and therefore, he who sold the merchandise can bring an action against the owner. Pedius says that the rule is the same where anyone who transacts our affairs makes a sale. 5If I delegate to my creditor someone who intends to donate property to me over and above the amount prescribed by law, he cannot make use of an exception against the creditor, if the latter brings suit, because he only claims what he is entitled to. The same rule applies to a husband, for he should not be barred by an exception who acts in his own name. Therefore, can it not also be said that an exception on the ground of the fraud of a wife cannot be pleaded against her husband, when he sues for her dowry, as he would not have married the woman without a dowry, unless a separation had already taken place? Hence the donor, or a woman who has delegated, or released a debtor, is liable to a personal action brought by the latter, either to obtain his release, or, if he has paid what was due, in order that the money may be refunded to him. 6The case is not the same where an exception on the ground of fraud is granted, as it is where a right of action is extinguished within a certain time; for the exception is perpetual, as the plaintiff has the power to avail himself of his privilege whenever he desires to do so, but the defendant can only plead the exception after he has been sued.
6 Gaius libro trigensimo ad edictum provinciale. Si opera creditoris acciderit, ut debitor pecuniam, quam soluturus erat, perderet, exceptione doli mali creditor removebitur. idem est et si creditori eius numeratam pecuniam ratam creditor non habeat.
6 Gaius, On the Provincial Edict, Book XXX. If, through the agency of a creditor, his debtor should happen to lose the money which he was about to pay him, the creditor will be barred by an exception on the ground of fraud. The same rule will apply when the creditor does not ratify the payment of money by his debtor to his own creditor.
7 Ulpianus libro septuagensimo sexto ad edictum. Iulianus ait: si pecuniam, quam me tibi debere existimabam, iussu tuo spoponderim ei cui donare volebas, exceptione doli mali potero me tueri et praeterea condictio mihi adversus stipulatorem competit, ut me liberet. 1Idem Iulianus ait, si ei, quem creditorem tuum putabas, iussu tuo pecuniam, quam me tibi debere existimabam, promisero, petentem doli mali exceptione summoveri debere, et amplius agendo cum stipulatore consequar, ut mihi acceptam faciat stipulationem. et habet haec sententia Iuliani humanitatem, ut etiam adversus hunc utar exceptione et condictione, cui sum obligatus.
7 Ulpianus, On the Edict, Book LXXVI. Julianus says that if I think that I owe you money, and by your order I promise to pay it to someone to whom you wish to donate it, I can protect myself by an exception on the ground of bad faith; and, in addition to this, I will be entitled to an action against the stipulator to compel him to release me. 1Julianus also says that, if you think that a certain person is your creditor, and by your direction I promise to pay him a sum of money which I believe that I owe you, and he brings suit to recover it, he should be barred by an exception on the ground of fraud; and further, if I institute proceedings against the stipulator, I can compel him to release me from the agreement. This opinion of Julianus is equitable, so that I can make use of an exception, as well as bring a personal action against the person to whom I obligated myself.
8 Paulus libro sexto ad Plautium. Dolo facit, qui petit quod redditurus est. 1Sic, si heres damnatus sit non petere a debitore, potest uti exceptione doli mali debitor et agere ex testamento.
8 Paulus, On Plautius, Book VI. He is guilty of fraud who demands something which he should return. 1If an heir has been charged not to collect anything from a debtor of the estate, the latter can avail himself of an exception on the ground of fraud, and can also bring suit under the terms of the will.
9 Idem libro trigensimo secundo ad edictum. Si procurator rei pecunia accepta damnari se passus sit et cum domino iudicati agatur, tuebitur se doli mali exceptione. nec hoc, quod acceperit procurator, auferri ab eo potest: nam turpiter accepta pecunia iustius penes eum est qui deceptus sit quam qui decepit.
9 The Same, On the Edict, Book XXXII. If the agent for a defendant suffers judgment to be rendered against him, after the money has been paid, and proceedings to enforce the judgment have been instituted against his principal, the latter can protect himself by pleading an exception on the ground of fraud. Nor can he be compelled to give up what he entrusted to his agent, for it is more just to permit money which has been dishonorably obtained to remain in the hands of the person who was deceived than under the control of him who was responsible for the deceit.
10 Marcianus libro tertio regularum. Cum vir aut uxor in area sibi donata aliquid aedificasset, plerisque placet doli mali exceptione posita rem servari posse.
10 Marcianus, Rules, Book III. When either a husband or a wife builds upon land which one of them has given to the other, it is the opinion of several authorities that they can hold the property by means of an exception on the ground of fraud.
11 Neratius libro quarto membranarum. Si procurator agit, de dolo eius excipi non debet, quia aliena lis est isque rei extraneus, neque alienus dolus nocere alteri debet. si post litem contestatam dolo quid fecerit, an exceptio eo nomine in iudicium obicienda sit, dubitari potest, quia litis contestatione res procuratoris fit eamque suo iam quodammodo nomine exequitur. et placet de procuratoris dolo excipiendum esse. idem de tutore, qui pupilli nomine aget, dicendum est. 1In universum autem haec in ea re regula sequenda est, ut dolus omnimodo puniatur, etsi non ali cui, sed ipsi, qui eum admisit, damnosus futurus erit.
11 Neratius, Parchments, Book IV. Where an agent brings an action, an exception based on his bad faith should not be interposed against him, because the suit is that of another, and he is a stranger to it, and the bad faith of one person should not injure another. If he commits a fraudulent act after issue has been joined, it may be doubted whether an exception on this ground can be pleaded; because, by the trial of the case, it becomes that of the agent, and he conducts it, to some extent, in his own name. It has been decided that an exception can be pleaded on account of fraud committed by the agent. The same rule will apply to the case of a guardian who brings an action in the name of his ward. 1In general, however, the following rule should be observed in matters of this kind, that is to say, that fraud should always be punished, even if it will not injure anyone but the person who committed it.
12 Papinianus libro tertio quaestionum. Qui aequitate defensionis infringere actionem potest, doli exceptione tutus est.
12 Papinianus, Questions, Book III. Where the justice of the defence affords means for the dismissal of an action, the defendant can be protected by an exception on the ground of fraud.
13 Paulus libro quarto decimo quaestionum. Liberis exheredatis, qui nihil ex patris iudicio meruerunt, rupto testamento ius suum conservandum est, nec opponetur doli mali exceptio. quod non solum in persona eorum, sed in heredibus in persona liberorum quoque eorum optinendum est.
13 Paulus, Questions, Book XIV. When a will is broken, the rights of children who have been disinherited and who have received nothing from their father’s will should be preserved, and an exception on the ground of bad faith cannot be pleaded against them. This not only applies to them personally, but also to their heirs and descendants.
14 Idem libro tertio responsorum. Paulus respondit eum, qui in alieno solo aedificium extruxerit, non alias sumptus consequi posse, quam possideat et ab eo dominus soli rem vindicet, scilicet opposita doli mali exceptione.
14 The Same, Opinions, Book III. Paulus gave it as his opinion that where a man builds a house upon the land of another, he cannot recover the expenses he incurred unless he was in possession, and the owner brings an action against him to recover the land, in which case, he can oppose him by an exception on the ground of fraud.
15 Scaevola libro quinto responsorum. Fideiussor evictionis nomine condemnatus id praedium, quod evictum est, et omnia praestare paratus est, quae iure empti continentur: quaero, an agentem emptorem exceptione ex causa iudicati doli mali summovere potest. respondit exceptionem quidem opponi posse, iudicem autem aestimaturum, ut pro damnis emptori satisfiat.
15 Scævola, Opinions, Book V. A surety having had judgment rendered against him on account of eviction was ready to return the land from which the purchaser was evicted, and everything else which was included in the contract of sale. If the purchaser pleads the exception based on res judicata, I ask whether he can be barred by one on the ground of fraud. The answer was that the exception can be pleaded against him, but that the judge will see that he satisfied the purchaser for all the damage which the latter has sustained.
16 Hermogenianus libro sexto iuris epitomarum. Si debitor a furioso delegatus creditori eius solvat, quem compotem mentis esse existimabat, et ita cum eo agatur: exceptione doli in id, quod in rem furiosi processit, defenditur.
16 Hermogenianus, Epitomes of Law, Book VI. If a debtor delegated by an insane person whom he supposed to be of sound mind should pay the creditor of the latter, and for this reason suit should be brought against him, he can protect himself by an exception based on fraud, on the ground that the insane person profited by the transaction.
17 Scaevola libro vicensimo septimo digestorum. Pater pro filia dotem promiserat et pactus erat, ut ipse aleret filiam suam eiusque omnes: idem homo rusticanus genero scripsit quasi usuras praeteritas ex dotis promissione: quaesitum est, cum ipse filiam suam exhibuerit et maritus nullam impensam fecerit, an ex chirographo ex stipulatu agenti genero exceptio obstare debeat. respondit, si, ut proponatur, pater, cum exhiberet, per errorem promississet, locum fore doli mali exceptioni. 1Avus nepotibus ex filia legavit singulis centena et adiecit haec verba: ‘ignoscite, nam potueram vobis amplius relinquere, nisi me Fronto pater vester male accepisset, cui dederam mutua quindecim, quae ab eo recipere non potui: postremo hostes, qui mihi fere omnem substantiam abstulerunt’. quaesitum est, an, si avi heres ab his nepotibus patris sui heredibus petat quindecim, contra voluntatem defuncti facere videatur et doli mali exceptione summoveatur. respondit exceptionem obstaturam. 2Ex quadrante heres scriptus a coherede ex dodrante instituto emit portionem certa quantitate, ex qua aliquam summam in nominibus ex kalendario uti daret, stipulanti spopondit: defuncto venditore hereditatis falsum testamentum Septicius accusare coepit et hereditatem ab emptore petit et ne quid ex ea minueret, impetravit: quaesitum est, cognitione falsi pendente an heredes ex stipulatu petentes doli exceptione summoventur. respondit heredes venditoris, si ante eventum cognitionis pergant petere, exceptione doli mali posse summoveri. 3Marito et filio communi ex parte dimidia scriptis heredibus filiam suam ex priore matrimonio ita heredem instituit: ‘Maevia filia mea ex sex unciis heres mihi esto, si cum coheredibus tuis parem rationem feceris pro mea portione in diem mortis meae eius actus, qui pendet ex tutela tua, quam Titius pater meus, avus tuus administravit’. quaesitum est, an, quia sub condicione instituta filia esset, si omitteret hereditatem, uti salvam tutelae actionem haberet, legata sibi a matre data consequi possit. respondit secundum ea quae proponerentur eam, de qua quaereretur, contra voluntatem petere et ideo exceptionem doli obstaturam.
17 Scævola, Digest, Book XXVII. A father promised a dowry for his daughter, and entered into an agreement that he would support her and all her family. This foolish man made a note payable to his son-in-law in lieu of the interest due on the promise to give a dowry. As he had supported his daughter, and her husband had been at no expense on this account, the question arose whether an exception on the ground of bad faith could be pleaded in bar against the son-in-law, if he brought suit under the stipulation for the purpose of collecting the note? The answer was, that if her father had supported her, as was stated, and had made the promise by mistake, then an exception on the ground of bad faith could be interposed. 1A grandfather bequeathed a hundred sesterces to each one of his grandchildren by his daughter, and added the following words, “I ask you to pardon me, for I could have left you much more if your father Fronto had not treated me badly, for I lent him fifteen aurei-which I could not collect, and finally, the enemy deprived me of almost all my property.” If the heir of the grandfather should bring an action to collect the fifteen aurei from the said grandchildren, who were the heirs of their father, the question arose, would he be considered to have acted against the will of the deceased, and could he be barred by an exception on the ground of fraud? The answer was that the exception would operate as a bar. 2An heir who was appointed to the fourth of an estate purchased for a certain sum of money the share of his co-heir who had been appointed heir to three-fourths of it, executed promissory notes for the deferred payments, and bound himself by a stipulation. The vendor of the estate died; Septitius attacked the will as being forged, and having brought suit to recover the estate from the purchaser, obtained an order of court to prevent him from disposing of any part of it. The question arose whether the heirs who brought suit under the stipulation, while a case involving the genuineness of the will was pending, could be barred by an exception on the ground of fraud. The answer was that the heirs of the vendor could be barred by an exception on the ground of fraud if they persisted in demanding payment of the notes before the case relating to the will was decided. 3A woman, having appointed her husband and her son heirs to equal portions of her estate, also appointed a daughter whom she had had by a former marriage her heir, as follows: “Let my daughter, Mævia, be the heir to six-twelfths of my estate, if she accounts to her co-heirs for what I shall owe her at the time of my death, growing out of the accounts of her guardianship, which my father, Titius, her grandfather, administered.” As this daughter had been appointed under a condition, if she should reject the estate in order to preserve the right of action on guardianship, the question arose whether she could claim the legacy which had been bequeathed to her by her mother. The answer was that, in accordance with the facts stated, she made the claim in question contrary to the wishes of her mother, and therefore she would be barred by an exception on the ground of bad faith.