1Ad Dig. 4,3,1ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus: Täuschung und Uebervortheilung des andern Contrahenten.Ulpianus, On the Edict, Book XI. In this Edict the Prætor gives relief against tricky and deceitful persons, who use artifice to the injury of others, to prevent the former from profiting by their malice, or the latter from being harmed by their simplicity. 1The following are the terms of the Edict: “Where anything is said to have been done with fraudulent intent and no other action is applicable in the matter, I will grant an action if there seems to be good ground for it.” 2Servius defines “fraudulent intent” to be a scheme for the purpose of deceiving another party, where one thing is pretended, and another is done. Labeo, however, states that it is possible for this to be accomplished, without pretence, for the overreaching of another; and it is possible for one thing to be done without deceit, and another pretended; just as persons act who protect either their own interests or those of others, by the employment of this kind of dissimilation. Thus, he gives a definition of fraudulent intent as being: “An artifice, deception, or machination, employed for the purpose of circumventing, duping, or cheating, another.” The definition of Labeo is the correct one. 3The Prætor was not content merely to mention dolus, but he added malus, as the ancient authorities were accustomed to say dolus bonus, and they understood this expression to mean adroitness, especially where anyone used a stratagem against an enemy, or a thief. 4The Prætor says: “And no other action is applicable in the matter.” Thus he reasonably promises this action where no other is available, because an action involving infamy should not rashly be ordered by him if a civil or prætorian one can be brought, just as Pedius states in the Eighth Book; but even where an interdict will lie by means of which a man can bring suit or an exception be pleaded, by which he may be protected, this Edict is not applicable. Pomponius says the same thing in the Twenty-eighth Book, and he adds that, even if a man may be protected by a stipulation, he cannot have an action founded on fraudulent intent; as, for instance, where a stipulation was made with reference to fraudulent intent. 5Pomponius also says that where no action can be brought against us, for instance, where the stipulation was so shamefully tainted with fraud that no court would allow an action founded upon it; I should not attempt to obtain an action based on fraudulent intent, since no judge would allow such an action to be brought against me. 6Pomponius also says Labeo holds that, even if anyone could obtain complete restitution, he ought not to have the benefit of this action; and if some other right of action is lost by lapse of time, still, this one ought not to be permitted; for he who postpones bringing suit has only himself to blame, unless the fraud was perpetrated for the special purpose of allowing time to elapse. 7Where anyone who has some civil or prætorian right of action inserts it into a stipulation, and then annuls it by a release, or by some other means; he cannot institute proceedings based upon fraud, because he has another right of action, unless he was maliciously deceived when he lost his right of action. 8For it is only where some other action can be brought against him whose deceit is the subject of investigation.

2Paulus, On the Edict, Book XI. Or where the matter which is the basis of inquiry against him can be secured in some other way.

3Ulpianus, On the Edict, Book XI. This Edict does not apply; and it also ceases to be available when a third party:

4Paulus, On the Edict, Book XI. Can be sued; or where the property can be secured for me through another.

5Ulpianus, On the Edict, Book XI. Therefore, if a ward has been circumvented by Titius, and his guardian acted in collusion with him, he is not entitled to an action against Titius, based upon fraud, since he has an action on guardianship, by which he can recover what his interest amounts to. If his guardian is insolvent it must undoubtedly be said that an action on the ground of fraud can be granted him:

6Gaius, On the Provincial Edict, Book IV. For a person cannot be held to be entitled to any action, when it would be useless on account of the insolvency of his adversary.

7Ulpianus, On the Edict, Book XI. Ad Dig. 4,3,7 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 78, Note 5.Pomponius very properly explains the words: “No other action is applicable,” to signify its being impossible for the matter in question to be preserved for the party interested in any other way. Nor does this seem to be opposed to the opinion which Julianus stated in the Fourth Book; namely, that where a minor under twenty-five years of age having been misled by the advice of a slave, sold him with his peculium, and the purchaser manumitted him; the minor was entitled to an action on the ground of fraud against the manumitted slave; for we must understand that the purchaser is free from fraud, and that he cannot be held liable on account of the purchase, or that the sale is void if the minor was induced to make it through fraudulent representations. The fact that the party is presumed to be a minor does not entitle him to complete restitution, since no complete restitution can be available against a manumitted slave. 1In accordance with this, where a man can provide for his own indemnity by means of a penal action, it should be stated that a suit on the ground of fraud will not lie. 2Pomponius says, however, that if the action is a popular one, one based on fraud does not apply. 3Labeo thinks that an action based on fraud should not be granted, not only where no other right of action exists, but even where it may be doubtful whether another is available, or not; and he adduces the following instance: Where a party owed me a slave on account of a sale, or a stipulation, and gives him poison, and delivers him to me, or where he owes me a tract of land, and, during the delivery, he imposes a servitude upon it; or demolishes buildings, or cuts down, or roots up trees; Labeo says that whether he gave me security against malice or not, an action based upon it should be granted against him; since, if he did give security, it is doubtful whether a right of action founded on the stipulation exists. The better opinion is, however, that if security was given against malice, an action based upon it will not lie, since an action on the stipulation is available; but where there is no security, then, in case an action on purchase is brought, one based upon fraud will not lie, because one based on purchase does; but where one on the stipulation is brought, an action on the ground of fraud will be necessary. 4Where the master of a slave, to the use of whom another party was entitled, kills him; both the action of the Lex Aquilia, and that for production will be available, if the master was in possession of the slave when he killed him; and therefore the action founded on fraud will not lie. 5Moreover, where an heir, before he enters upon the estate, kills a slave who has been bequeathed; as the latter was destroyed before he became the property of the legatee, the action of the Lex Aquilia does not apply, but the action based upon fraud, no matter what time he killed him, does not apply either, because a right of action based upon the will is available. 6Where an animal belonging to you does some damage to me through the malice of a third party, the question arises whether I am entitled to an action for malice against him? I agree with the opinion of Labeo, that where the owner of an animal is insolvent, an action based upon malice should be granted; although if there was a surrender of the animal by way of reparation, I do not think it should be granted, even for the excess. 7Labeo also asks the following question: “If you release my slave from his shackles in order that he may escape, should an action on the ground of malice be granted?” Quintus in a note on this states that if you did not commit the act through motives of pity, you can be held liable for theft, but where you were influenced by pity, an action in factum should be granted. 8A slave brings to his master a person who agrees to be responsible for the agreement of the slave relating to his freedom, on the condition that after he is free, the obligation is to be assigned to him; but after having been manumitted, the slave would not consent for the obligation to be assigned. Pomponius says that an action on the ground of malice will lie. But if the patron is to blame because the obligation was not assigned, it must be held that he will be barred by an exception of the guarantor, if the latter is sued. I am embarrassed by the point, how can an action on the ground of malice be allowed, when another is available? Unless, perhaps, some one might allege that, as the patron can be barred by an exception if he brings suit against the other party, it should be held that an action on the ground of malice should be granted; as one which can be barred by an exception is no action at all. But if the patron then is barred because he is unwilling to accept the manumitted slave instead of the guarantor, it is clear that the party who assumed the obligation instead of the slave should be granted an action on the ground of malice against the latter after he was manumitted; or if the guarantor is insolvent, the right of action should be given to the owner. 9If my agent permits my adversary to win his case through malice, so that the latter may be released from liability; it may be asked whether I am entitled to an action on the ground of malice against the party who won the case? I think that I am not entitled to one, where the party is ready to defend the action against this exception, if there is collusion; otherwise, an action on the ground of malice should be granted, provided I cannot bring suit against my agent for the reason that he is not solvent. 10Moreover, Pomponius says that the Prætor Cæcidianus did not grant an action on the ground of fraud against one who had alleged that a certain person to whom money was to be lent was solvent, which is the proper view of the case; for an action on the ground of fraud should not be granted unless bad faith was flagrant and evident.

8Ad Dig. 4,3,8ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur für Dolus.Gaius, On the Provincial Edict, Book IV. If, however, you knew that the person had lost his property, and, for the sake of gain, stated to me that he was solvent, and action on the ground of fraud would properly be granted against you; since you falsely recommended another with the intention of deceiving me.

9Ulpianus, On the Edict, Book XI. Ad Dig. 4,3,9 pr.ROHGE, Bd. 10 (1874), S. 336: Ein Dolus kann auch durch wissentlich unwahre Angaben über Eigenschaften des Kaufgegenstandes begangen werden, besondere betrügliche Veranstaltungen setzt er nicht voraus. Lobpreisungen decipiendi animo.Where anyone asserts that an estate is of very little value, and then purchases it from the heir, an action on the ground of fraud will not lie, as the one based on sale is sufficient. 1If, however, you persuaded me to reject the estate, under the pretext that it would not pay the creditors, or induced me to choose a certain slave because there was none better in the household; I say that an action on the ground of fraud should be granted, if you did this with malicious intent. 2Moreover, if a will was suppressed for a long time, in order to prevent it being declared inofficious, and after the death of a son it was produced; the heirs of the said son can bring suit on the ground of fraud, as well as under the Lex Cornelia, against the parties who suppressed it. 3Labeo states in the Thirty-seventh Book of the Posteriora, that if Titius claims your oil as his, and you deposit the said oil in the hands of Seius for him to sell, and keep the purchase money until the controversy as to which of you the oil belongs is settled, and Titius refuses to join issue; since you can neither bring an action against Seius, either on mandate, or as agent, because the condition of the deposit has not yet been fulfilled; you can sue Titius on the ground of fraud. Pomponius, however, says in the Twenty-seventh Book, that an action can be brought in general terms, on the ground of agency; or if the party is not solvent, it can be brought on the ground of fraud against Titius; which would seem to be the proper distinction. 4If at the suggestion of the judge you have surrendered your slave to me to indemnify me for damage which he committed, and in consequence thereof have been released from liability; you can be sued in an action based upon fraud, if it should appear that the said slave was pledged to another. 4aThis action based upon fraud is noxal, and therefore Labeo stated in the Thirtieth Book of the Prætor for Foreigners, that the action based on fraud committed with reference to a slave is sometimes De Peculio and sometimes noxal. For if the matter with reference to which fraud was committed is one for which an action De Peculio would be granted, then an action upon that ground would be allowed; but if it is one in which the action would be noxal, then it also must be one of the same character. 5The Prætor with reason inserts the words “proper cause must be shown”, for this action ought not to be granted indiscriminately; for instance, in the first place if the amount involved is insignificant,

10Paulus, On the Edict, Book XI. that is to say, not over two aurei,

11Ulpianus, On the Edict, Book XI. it should not be granted. 1The action is not granted to certain persons, for instance, to children or to freedmen against their parents or their patrons; since it implies infamy. Nor should it be granted to a person in humble circumstances against another who is superior in station; for example, to a plebeian against a person of consular rank and acknowledged position, or to a licentious person, or a spendthrift, or anyone who is otherwise contemptible, against a man of blameless life; and Labeo holds the same opinion. What then is to be done? It must be said with respect to such persons that an action in factum should be allowed; attention being paid to the phraseology, so that mention of good faith may be made:

12Paulus, On the Edict, Book XI. To prevent the parties from profiting by their own deceit.

13Ulpianus, On the Edict, Book XI. An action on the ground of fraud should be granted to the heirs of these persons, as well as against the heirs of the other parties. 1Labeo says that in the examination for cause, care must be taken that an action on the ground of fraud should not be granted against a ward, unless suit be brought against him as heir. I think that he can be sued on the ground of his own fraud, if he has almost reached the age of puberty, and especially if he became more wealthy by the act.

14Paulus, On the Edict, Book XI. What would be the result if he should gain the consent of the plaintiff’s agent for the dismissal of the suit against him; or if he should have obtained money from his guardian by false representations; or if he had committed some other similar fraud which did not require any great duplicity?

15Ulpianus, On the Edict, Book XI. I think that an action should also be granted against him, if he profited pecuniarily by the fraud of his guardian; just as an exception can be granted. 1Doubt exists, however, whether an action on the ground of fraud can be granted against a municipality? It is my opinion that it cannot be granted on the ground of its own fraud, for how can a municipality commit fraud? But I think that it should be granted where any profit accrues to it from the fraud of those who administer its affairs. An action on the ground of fraud will be granted against Decurions as individuals. 2Moreover, if any advantage is obtained by a principal through the fraud of his agent, an action will be granted against the former for the amount which came into his hands; for there is no question that the agent is liable for his own fraudulent conduct. 3In this action, it is necessary to point out who committed the fraudulent action, although it is not necessary to allege intimidation.

16Paulus, On the Edict, Book XI. The Prætor also requires that a statement should be made of what was fraudulently done, as the plaintiff is entitled to know in what respect he was cheated, so as not to express himself in a vague manner in an offence of such a serious character.

17Ulpianus, On the Edict, Book XI. Where several persons commit fraud, and one of them makes restitution, all will be released from liability; and if one of them pays an amount equal to the damage caused, I am of the opinion that the others are released. 1This action is granted against the heir and other successors to an estate, but only to the amount which they have obtained.

18Ad Dig. 4,3,18ROHGE, Bd. 25 (1880), Nr. 83, S. 351: Haftung der Gesellschaft für dolose Kreditempfehlung eines Gesellschafters.Paulus, On the Edict, Book XI. Again, restitution is included in this action according to the discretion of the judge; and unless restitution is made, judgment shall be rendered in proportion to the amount involved. Hence in this action, and in the one based on intimidation, a certain sum is not specified, in order that the defendant, when guilty of contumacy, may have judgment rendered against him for the amount which the plaintiff may swear to in court, although, in both actions, by the interposition of the judge, this may be restrained by the taxation of the amount. 1The granting of this action, however, is not always left to the discretion of the judge, where it is evident that restitution cannot be made, as, for instance, where a slave, after having been fraudulently delivered, dies; hence the party ought to immediately be compelled to pay a sum equal to the interest of the plaintiff in the property. 2Where the owner of a house, whose usufruct has been bequeathed, burns it; an action on the ground of fraud does not lie, as other actions arise from this act. 3Trebatius grants an action on the ground of fraud in a case where a party knowingly lent false weights, with which a vendor might weigh merchandise for a purchaser. If, however, he furnished weights which were too heavy, the vendor can recover the excess of the merchandise by a personal action; and if he furnished weights which were too light, the purchaser can bring an action on sale for the delivery of the remainder of the merchandise; unless it was sold on the condition that it should be weighed with those weights, the party who lent them with the intention to defraud having alleged that they were correct. 4Trebatius states that a suit on the ground of fraud should be granted against a person by whose deceit a right of action was lost through lapse of time; not in order that restitution might be made by the judge, but that the plaintiff might recover damages for the interest he had in the right of action not being extinguished; because if other measures were taken the law would be evaded. 5If someone kills a slave whom you have promised me, many authorities justly think that an action grounded upon fraud should be granted against him; because you are discharged so far as liability to me is concerned, and therefore an action on the Lex Aquilia would be refused you.

19Papinianus, Questions, Book LVII. Where a surety kills an animal which had been promised before the principal was in default in its delivery; Neratius Priscus and Julianus hold that an action on the ground of fraud ought to be brought against him; since the debtor having been discharged, he himself, in consequence, is released from liability.

20Paulus, On the Edict, Book XI. Your slave who owed you money, and who had no means of making payment, by your advice borrowed money from me, and paid you. Labeo says that an action on the ground of fraud should be granted against you, because I could not avail myself of an action De Peculio, as there was no private property; nor does there seem to have been anything expended for the benefit of the master, since he received it in payment of a debt. 1If you persuade me that no partnership existed between you and the person of whom I am the heir; and I, on this account, permit you to be discharged from liability in court; Julianus states that I am entitled to an action on the ground of fraud.

21Ulpianus, On the Edict, Book XI. If you took an oath through my agency, and you are discharged, and afterwards it is proved that you have committed perjury; Labeo says that an action on the ground of fraud should be granted against you; for Pomponius holds that the act is equivalent to a compromise, and Marcellus also entertains this opinion in the Eighth Book of the Digest, as attention should be paid to the religious character of an oath:

22Paulus, On the Edict, Book XI. For, in this Instance, the penalty for perjury is sufficient.

23Gaius, On the Provincial Edict, Book IV. If a legatee, to whom property was bequeathed in addition to what is prescribed by the Lex Falcidia, persuades the heir, who is still ignorant of the value of the estate, either by oath, or by some other deception, that the estate is amply sufficient to pay all the legacies, and by this means obtains the payment of his own legacy in full; an action on the ground of fraud will be granted.

24Ulpianus, On the Edict, Book XI. If it should happen, through the fraudulent act of a party who appears in behalf of a person attempting to gain his freedom; that a decree in favor of his freedom is rendered when his adversary is not present; an action on the ground of fraud should at once be granted against him, because a decision rendered in favor of freedom cannot be reconsidered.

25Paulus, On the Edict, Book XI. When I bring suit against you for a sum of money, and issue has been joined, and you persuade me falsely that you have paid the money to my slave, or my agent, and on this ground you have secured the dismissal of the case with my consent; we have asked whether an action on the ground of fraud should be granted against you, and it was held that an action of this kind could not be granted, for the reason that I could obtain relief in another way; for I could bring suit over again, and if an exception on the ground of a former judgment was interposed, I could lawfully make use of a reply.

26Gaius, On the Provincial Edict, Book IV. A proconsul promises to grant an action against an heir to the amount of what comes into his hands, that is to say, to the amount by which the estate is enriched by the transaction when it passes to him:

27Paulus, On the Edict, Book XI. Or which he would have received, if this had not been prevented by the fraud which he committed.

28Gaius, On the Provincial Edict, Book IV. Therefore, if a release fraudulently obtained by you has been given you for a debt, an action can, without doubt, be brought against your heir. But where property has been delivered to you in this way, and you die, if the property is in existence, proceedings can be instituted against your heir; and if it is not in existence, this cannot be done. An action, however, is granted against an heir without reference to time, for the reason that he must not profit by another’s loss. In accordance with this, an action in factum, without reference to time, should be granted against the party who was guilty of the fraud for the amount to which he became enriched.

29Ulpianus, On the Edict, Book XI. Sabinus is of the opinion that the heir is sued rather for the correction of an account, than for wrong-doing; and, in any event, the action does not imply infamy, and, therefore, the liability of the party should not be limited by lapse of time.

30The Same, On the Edict, Book XI. Proper cause need not be shown where proceedings are instituted against an heir.

31Proculus, Epistles, Book II. Where anyone induces my slave to abandon possession of my property, the possession of the same is not actually lost; but an action on the ground of fraud will lie against the party in question, if I have suffered any loss.

32Scævola, Digest, Book II. A son who had received a slave as a preferred legacy having been asked to manumit him after a certain time, provided he had, in the interval, rendered his account to the said heir and to his brothers who were his co-heirs, gave the slave his freedom by manumission before the time had elapsed, and before the account had been rendered. The question arose whether he was liable to his brothers as trustee to render them the account for their shares? I answered that since he had liberated his slave he was not liable to his brothers as trustee, but that if he hastened to manumit him to prevent him from rendering an account to his brothers, then an action could be brought against him on the ground of fraud.

33Ulpianus, Opinions, Book IV. A certain man was the possessor of an article which he wished to sell, and another brought suit to establish the right of property, and after having deprived him of the opportunity of selling the article to the purchaser, he abandoned the case. It was held that the party in possession was under the circumstances entitled to an action in factum for the purpose of indemnification.

34The Same, On Sabinus, Book XLII. If you permit me to remove stone from your land, or to dig chalk, or sand, and I have incurred expense in doing so, and you do not allow me to remove it, no other action will lie in my favor against you, except that on the ground of malicious contrivance.

35The Same, On the Edict, Book XXX. If anyone destroys a will left with him after the death of the testator, or mutilates it in any way, the person mentioned therein as heir will be entitled to an action against him on the ground of fraud. The same action should be granted to those to whom legacies have been bequeathed.

36Marcianus, Rules, Book II. Where two persons have been guilty of fraud, they cannot bring actions against one another on this ground.

37Ad Dig. 4,3,37ROHGE, Bd. 10 (1874), S. 336: Ein Dolus kann auch durch wissentlich unwahre Angaben über Eigenschaften des Kaufgegenstandes begangen werden, besondere betrügliche Veranstaltungen setzt er nicht voraus. Lobpreisungen decipiendi animo.Ulpianus, On Sabinus, Book XLIV. Where a vendor says something in praise of his merchandise, it should be considered that he has neither said nor promised anything; but where he has made such statements with a view to deceive a purchaser, it is justly held that no right of action arises on account of what he has said or promised, but that an action on the ground of fraud may be brought.

38The Same, Opinions, Book V. A certain debtor caused a letter to be sent to his creditor, which appeared to have been written by Titius, asking that he be discharged from liability; and the creditor, having been deceived by this letter, discharged the debtor by an Aquilian stipulation and a release. If the letter should afterwards be ascertained to be forged, or worthless, the creditor, if he is over twenty-five years of age, will be entitled to an action on the ground of fraud, and the minor shall obtain complete restitution.

39Gaius, On the Provincial Edict, Book XXVII. If you offer yourself to Titius with respect to something of which you are not in possession, in order that another may obtain the use of the same; and you give security that the judgment will be complied with, even though you may be released, you will still be liable for fraud; and this was the opinion of Sabinus.

40Furius Anthianus, On the Edict, Book XI. He who deceives anyone in order to induce him to enter upon an estate which is not sufficient to pay its creditors, shall be liable for fraud, unless he himself is the sole creditor; for then it will be sufficient to plead an exception on the ground of fraud against him.