1Ulpianus, 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.

2Paulus, On the Edict, Book I. Force is an attack of superior power which cannot be resisted.

3Ulpianus, 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.

4Paulus, 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.

5Ulpianus, 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.

6Gaius, 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.

7Ulpianus, 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.

8Paulus, 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.

9Ulpianus, 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. 1Ad Dig. 4,2,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 59, Note 9.It should also be noted, that the Prætor in this Edict speaks in general terms and with reference to the facts, and he does not add by whom the act was committed; and, therefore, whether it is an individual, or a mob, or a municipality, or an association, or a corporation that causes the intimidation, the Edict will apply. But although the Prætor includes violence committed by anyone, Pomponius very properly says that if I accept something from you, or induce you to bind yourself to me in consideration of my defending you from the violence of enemies, robbers, or a mob, or in order to obtain your freedom, that I should not be liable under this Edict, unless I myself employed this force against you. If, however, I was not guilty of violence, I should not be held liable; for I ought rather to be deemed to have received compensation for my services. 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. 4Ad Dig. 4,2,9,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 118, Note 3.An action in rem, or one in personam, will be granted to a party who desires it, the discharge, or any other kind of release given by him having been rescinded. 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.

10Gaius, 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.

11Paulus, 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.

12Ulpianus, 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.

13Ad Dig. 4,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 1.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”.

14Ulpianus, 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.

15Paulus, 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.

16Ulpianus, 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.

17Paulus, 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.

18Julianus, 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.

19Gaius, 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.

20Ulpianus, 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.

21Paulus, 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.

22Paulus, 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.

23Ulpianus, 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.