Ulpianus, On the Edict, Book XI. The usefulness of this Title needs no commendation, for it speaks for itself. Under it the Prætor in many ways comes to the relief of parties who have made mistakes, or have been cheated, and who, through intimidation, cunning, youth, or absence, have been overreached.

Ulpianus, On the Edict, Book XI. The Prætor says: “I will not approve anything which has been done through fear.” It was formerly stated in the Edict: “What was done through force or fear.” Mention was made of force to indicate compulsion imposed against the will, and fear to show trepidation of mind on account of some present or future danger; but afterwards the mention of force was omitted, because whatever is caused by a vehement display of force is held also to have been caused by fear.

Ulpianus, On the Edict, Book XI. This clause therefore contains both force and fear; and where anyone is compelled by violence to perform some act, restitution is granted to him by this Edict. 1But force we understand to be extreme violence, and such as is committed against good morals, not that which a magistrate properly employs, namely, in accordance with law and with the right of the office which he occupies. Still, if a magistrate of the Roman people, or the Governor of a province, commits an illegal act, Pomponius says that this Edict will apply; as, for instance, if Re extorts money through the fear of death, or of scourging.

Ulpianus, On the Edict, Book XI. Labeo says that the term “fear” must be understood to mean not any apprehension whatever, but the dread of some extraordinary evil.

Ulpianus, On the Edict, Book XI. Pedius states in the Seventeenth Book, that neither the fear of infamy, nor that of being subjected to some annoyance, are included in this Edict, as affording ground for restitution under the same. Thus, if anyone who was constitutionally timid, should be apprehensive of something for which there was no foundation, he could not obtain restitution under this Edict, since no act had been performed either by force or intimidation. 1Therefore, if anyone who had been caught in the act of theft, or adultery, or any other crime, either paid something, or bound himself to do so; Pomponius very properly says in the Eighteenth Book, that this comes within the terms of the Edict, where the party was in fear of either death or imprisonment; although it is not lawful to kill an adulterer, or a thief, unless he defends himself with a weapon, but they can be killed illegally; and therefore the fear was well founded. But where a party gives up his property to prevent the person by whom he was caught from betraying him, he is held to be entitled to relief under this Edict; since, if he had been betrayed, he would have been subject to the penalties which we have mentioned.

Ulpianus, On the Edict, Book XI. We must understand the fear to be a present one, and not the mere suspicion that it may be exercised. This Pomponius states in the Twenty-eighth Book, for he says, “The fear must be understood to have been occasioned”, that is to say, apprehension must have been excited by someone. Thereupon, he raises this point, namely: “Would the Edict apply if I have abandoned my land, after having heard that someone was coming armed to forcibly eject me?” And he states that it is the opinion of Labeo that the Edict would not be applicable in this instance, nor would the interdict Unde vi be available; for I do not appear to have been ejected by force, as I did not wait for this to be done, but took to flight. It would be otherwise if I had departed after armed men had entered upon the land, for, in this case the Edict could be employed. He also states that if you forcibly erect a building upon my premises by means of an armed band, then the interdict Quod vi aut clam, as well as this Edict would apply, because in fact I suffer you to do this through intimidation. If, however, I deliver possession to you because of the employment of force; Pomponius says that there will be ground for this Edict. 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.

Ulpianus, On the Edict, Book XI. The offspring of female slaves, the young of cattle, the crops, and everything depending upon the same, must be restored; not only those which have been already obtained, but, in addition, I must be indemnified for those I would have been able to obtain, if I had not been prevented by intimidation. 1It might be asked, if the person who employed violence also had violence used against him, whether the Prætor would rule that under the Edict those things should be restored which he had alienated? Pomponius says in the Twenty-eighth Book, that the Prætor is not required to come to his relief; for he holds that since it is lawful to repel force by force, he suffered the same thing that he inflicted. Wherefore, if anyone compels you by intimidation to promise him anything, and afterwards I compel him through fear to discharge you by a release, nothing can be restored to him. 2Julianus says that where a creditor employs force against his debtor to obtain payment of his debt, he is not liable under this Edict, on account of the nature of the action based on intimidation, which requires that loss should be caused; although it cannot be denied that the party comes within the scope of the Lex Julia de vi, and has lost his right as a creditor.

Ulpianus, On the Edict, Book XI. Moreover, if I am protected against you by a perpetual exception, and compel you to give me a release, the Edict does not apply because you have lost nothing. 1The Prætor promises that where a party does not make restitution, an action can be brought against him for fourfold damages, which means quadruple the entire amount which should have been restored. The Prætor treats the debtor with sufficient indulgence by giving him the opportunity for restitution, if he wishes to escape the penalty. After a year has elapsed, however, he promises him only a simple action, but not always, and only where proper cause is shown. 2In the examination for cause, it is important that this action should be permitted only where another does not lie; and, in fact, since in a case of injury inflicted by intimidation, the right of action is lost in a year, by which is understood a year with the usual allowance; and there should be some suitable cause for this action to be granted after a year has elapsed. Another right of action can be obtained in the following manner, that is, where the person against whom the violence was directed has died, his heir is then entitled to an action for the estate, as the party who employed violence is in possession; for which reason the heir will not be entitled to an action on the ground of intimidation, although if a year had not expired, the heir could bring suit for fourfold damages. The suit is granted to successors because it includes the pursuit of the property. 3In this action, inquiry is not made whether the party who is sued employed intimidation, or whether someone else did so; for it is sufficient to establish the fact that either fear or force was used, and that the defendant, even though innocent of crime, nevertheless, profited by the transaction; for as fear includes ignorance, it is reasonable for a party not to be compelled to point out who employed intimidation or force against him; and therefore the plaintiff is only required to show that fear was used to compel him to give someone a release for money due, or to surrender property, or to perform some other act. For it does not seem unjust for one person to be condemned to pay fourfold damages on account of the act of another; because in the beginning the action is not brought for fourfold the amount involved, but where restitution of the property is not made. 4Since this action is one subject to arbitration, the defendant has the right to make restitution before the award has been made by the arbiter, as we have stated above; and if he does not do so, he justly and deservedly must have judgment rendered against him for fourfold damages. 5Sometimes, however, even where intimidation has been employed, the award of the arbiter discharges the defendant. For if Titius employed intimidation without my knowledge, and property obtained in this manner came into my possession, and, if, without any fraud on my part, it is no longer in existence, shall I be discharged by the mere act of the judge? Or, if the slave in question takes to flight, and the judge requires me to give security to restore him if he comes under my control, then I ought to be released. Wherefore, certain authorities are of the opinion that a purchaser who obtained property in good faith from the person who employed force, should not be held liable; nor should one who has received the property as a gift, or one to whom it has been bequeathed. It is very properly held by Vivianus, that these persons are liable, otherwise I should be placed at a disadvantage because I suffered intimidation. Pedius also stated in the Fourth Book, that the authority of the judge, in a case involving restitution, is such that he should order him who employed force to make restitution, even if the property has passed into the possession of a third party; or compel the latter to make restitution, even though another had employed intimidation; for intimidation employed by one person should not enure to the benefit of another. 6Labeo says that where anyone has been made a debtor through intimidation, and gave a surety who was willing, both the debtor and the surety will be released; but if the surety alone was intimidated, and not the principal debtor, only the surety will be released. 7Fourfold the value includes the entire property in question, that is to say, the crops, and all the increase. 8Where anyone is compelled by force to promise to appear in court, but afterwards furnishes a surety, both of them will be released. 9Where anyone has been compelled by force to enter into an agreement, and because he did not give a release has been condemned to pay fourfold damages; Julianus is of the opinion that he can reply, when he brings suit on the stipulation, and is opposed by an exception; as the simple value of the property obtained by the defendant was included in the fourfold damages. Labeo says, however, that even after the action for fourfold damages has been settled, the party who used violence would nevertheless be barred by an exception; but as this seems hard, it should be modified so as to render him liable for triple damages, and also so that in every instance he shall be compelled to give a release. 10With reference to what we have said concerning the simple value being included in the quadruple damages, this should be understood to mean that in the order granting quadruple damages, the property obtained by violence is of course included; and hence restitution of the same is made, so that the penalty is limited to triple damages. 11What if a slave should be lost without the malice or negligence of the person who employed force, and against whom judgment was rendered? In this instance, if the slave should die before suit is brought on the judgment, the rule will be relaxed in enforcing the judgment; because the party is compelled to give satisfaction for his offence by the penalty of triple damages. With reference to a slave who is said to have taken to flight, the defendant shall be compelled to give security that he will pursue him, and restore him; and nevertheless the party who has suffered the violence will fully preserve all his rights of action in rem, or for production, or any other which he possessed for the recovery of the slave; so that, if his master should in any way recover him, and the other should be sued on the stipulation he will be protected by an exception. All this takes place after judgment has been rendered, but if the slave should die before the judgment, without the malice or negligence of the defendant, the latter will nevertheless be liable. This results from the following words of the Edict: “If the property is not restored in consequence of the decision of the Court”. Hence, if the slave should take to flight without the malice or negligence of the party against whom the suit was brought, security must be furnished in court that he will follow up and return the slave; but where the property has not been lost through the negligence of the defendant, still, if it would not have been lost at all if intimidation had not been employed, the defendant will be liable, just as is the case in an interdict Unde vi, or Quod vi aut clam; for the reason that a man can sometimes recover the price of a dead slave whom he would have sold if he had not suffered intimidation. 12Where anyone uses force against me, as he obtains possession from me, he is not a thief; although Julianus is of the opinion that anyone who obtains property by force is a more unprincipled thief. 13Where a man employs intimidation, it is certain that he is also liable for malice; and Pomponius says the same; and either action is a bar to the other, where an exception in factum is pleaded. 14Julianus states that fourfold damages represents merely the interest of the plaintiff, and therefore if a man who owed forty aurei by reason of a trust, promises under compulsion to pay three hundred, and makes payment; he can recover four times two hundred and sixty aurei, for this was the amount with reference to which he suffered duress. 15According to this rule, if several persons employ duress, and only one of them is sued, and he voluntarily makes restitution before judgment; all the others are released. But if he does not do this, but pays fourfold the amount after judgment, the better opinion is, that the action based on intimidation is also terminated, so far as the others are concerned.

Ulpianus, On the Edict, Book XI. What we have stated in the case where several employ intimidation, should also apply where the property came into the hands of one, while another was responsible for the duress. 1Where slaves employ intimidation, a noxal action will lie with reference to them; but anyone can sue their master into whose possession the property passed; and if, after having been sued, he surrenders the property, or, as has already been stated, he pays fourfold damages, this will also benefit the slaves. If after having been sued in a noxal action he prefers to surrender the slave, he himself can also be sued, if he acquired possession of the property. 2This action is granted to the heir, and to other successors, since it includes the right to follow up the property. It is also granted against the heir and other successors, for the amount of what has come into their possession; and this is not unreasonable, for although the penalty does not pass to the heir, still (as is stated in the rescript), whatever has been obtained dishonorably should not enure to the benefit of the heir.

Ulpianus, On the Edict, Book XI. In order to ascertain the amount which has come into the hands of the heir, we must go back to the time when issue was joined; provided it is certain that anything did come into his hands. The same rule applies where something passes into the bulk of the estate of the party who employed force, in such a way that it is evident that it will come into the possession of the heir; that is to say, if the debtor is released from liability.

Ad 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.

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

Ulpianus, 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:

Ulpianus, 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.

Ulpianus, 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,

Ulpianus, 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:

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, 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:

Ulpianus, 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.

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

Ulpianus, On the Edict, Book XI. The Prætor proposed the following Edict in compliance with the principles of natural equity, by which he assumes protection of minors; for, as is known to every one, the judgment of persons of this age is weak and indecisive, exposed to many snares, and subject to many disadvantages, and therefore the Prætor promised them aid by this Edict and relief from deception. 1The Prætor says in the Edict: “When any transaction is said to have taken place with a minor under twenty-five years of age, I will examine what was done”. 2It appears that the Prætor promises assistance to minors under twenty-five years of age, for, after that time, manly vigor is held to have been established. 3For this reason, minors at present are subjected to the direction of curators until that age; nor should the administration of their own affairs be committed to them before that time, even though they may be capable of transacting them properly.

The Same, On the Edict, Book XI. Finally, the Divine Severus and our Emperor have interpreted the decrees of consuls and governors of this description as dictated by their own interest, for they themselves very rarely indulged minors in the administration of their own affairs, contrary to the established custom; and this is our practice to-day. 1Where anyone makes a contract with a minor, and the contract takes effect at some time after he has attained his majority, shall we consider the beginning or the end of the transaction? It is held, and has been established by a constitution that where a party confirms what he did while a minor, there is no ground for restitution. For this reason, Celsus, in the Eleventh Book of the Epistles, and in the Second of the Digest, treats this question in an able manner with reference to a case in which he was consulted by the Prætor Flavius Respectus. A minor under twenty-five years, and who, perhaps, was in his twenty-fourth year, had begun an action on guardianship against the heir of his guardian, and the result was that the said heir of the guardian was released before the trial was terminated; as the plaintiff had already attained his majority of twenty-five years and therefore complete restitution was applied for. Celsus, accordingly, advised Respectus that the former minor could not readily obtain complete restitution; but if it were proved to him that this had been brought about by the craft of his adversary in order that he should be discharged as soon as the minor attained his majority, restitution could then be granted: “for,” he said, “the minor only appeared to have been overreached on the last day of the trial, and the entire affair had evidently been planned so that the guardian might be discharged after the minor had attained his majority”. Nevertheless, he admits that where only slight suspicion exists that his adversary had been guilty of deception, he could not obtain complete restitution. 2I know, also, that once the following question arose. A minor under twenty-five years of age meddled with the estate of his father, and, having attained his majority, exacted payment from certain of his father’s debtors, and then demanded complete restitution in order to enable him to reject the estate. It was argued on the other side that after he became of age he had approved of what he had done while a minor; and it is our opinion that complete restitution should be granted for the reason that the commencement of the transaction should be considered. I am of the opinion that the same rule would apply if he had entered upon the estate of a stranger. 3It should also be taken into consideration with reference to the birth of a man twenty-five years of age, whether we should say that he is still a minor on his birthday before the hour at which he was born, so that if he has been deceived he may obtain restitution; and if he has not yet fully attained that age, it must be held that the time should be counted from one moment to another. Hence, if he was born in a bissextile year, Celsus thinks that it makes no difference whether he was born on the earlier or on the later day, but the two days are considered as one, and the latter is intercalated. 4Ad Dig. 4,4,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 15.In the next place, it must be considered whether relief should be given only to those who are their own masters, or also to those who are under the control of others; and the point which causes doubt is, that if anyone should say that the sons of a family are entitled to relief in matters relating to their peculium, the result would be that the benefit would accrue through them to those who are of age, that is to say, to their fathers, which was, at no time, intended by the Prætor; for the latter promised assistance to minors and not to those who had attained their majority. I, however, think that the option of those who hold that the son of a family, who is a minor under twenty-five years of age, is entitled to complete restitution only in matters in which he himself has an interest; for example, where he is bound by some contract. Thus, if he is bound by the command of his father, the latter can certainly be sued for the entire amount, and, so far as the son is concerned, (since he himself can be sued to the extent of his solvency whether he is still under the control of his father, or has been emancipated, or disinherited, and, indeed, while he is living under the control of his father, an action to enforce a judgment can be brought against him), he should apply for relief, if he himself is sued. But whether this relief will also benefit his father, as sometimes happens in the case of a surety, is a matter to be considered, and I do not think that it will. Therefore, if suit is brought against the son, he can apply for relief, though if a creditor sues his father, no relief can be obtained except where money is loaned; and also, in this instance, if he borrowed the money by the order of his father no relief can be given him. Hence, if he made a contract without the order of his father, and was overreached, and an action De Peculio is brought against the father the son cannot obtain restitution, but if the latter is sued he can obtain it; nor does any difficulty arise on account of the son having an interest in the peculium, for the interest of the father is greater than that of the son, although in some cases the peculium belongs to the son; for example, where the property of the father is seized by the Treasury on account of a debt; for, in this instance, according to the Constitution of Claudius, the peculium of the son is separated from it. 5For this reason, where the daughter of a family has been deceived with respect to her dowry, when she gave her consent to the stipulation of her father, entered into subsequently, that the dowry should be returned, or some one be found who would stipulate for it; I am of the opinion that she should be granted restitution, since the dowry is the personal property of the daughter herself. 6Where a minor under twenty-five years of age has given himself to be abrogated, and alleges that he was deceived in the arrogation; for example, that he, being a man of property, was arrogated by a party for the purpose of robbery; I hold that he should be heard if he applies for complete restitution. 7Where a legacy, or a trust is bequeathed to the son of a family, to be paid after the death of his father, and he is imposed upon; for instance, where he gave his consent to the agreement of his father that suit should not be brought for the legacy; it may be said that he is entitled to complete restitution, since he has an interest, by reason of his expectation of the legacy to which he is entitled after the death of his father. But where something is bequeathed to him, which relates to him personally, as for instance, a command in the army; it must be held that he is entitled to complete restitution, for it is his interest not to be deceived, since he does not acquire this for his father but is to have it himself. 8Where an heir is appointed on condition that he shall be emancipated by his father within a hundred days, he should notify his father at once; and if he did not do so when he was able, and his father would have emancipated him if he had known of it, it must be held that he is entitled to complete restitution, if his father is ready to emancipate him. 9Pomponius adds that in those instances in which the son of a family can obtain restitution in a matter in which his peculium, is concerned, his father can, as the heir of his son, claim complete restitution after his death. 10But where the son of a family has a castrense peculium, there is no question that in matters relating to the castrense peculium he will be entitled to complete restitution; just as if he had been deceived with respect to his own patrimony. 11A slave who has not reached the age of twenty-five years cannot, under any circumstances, obtain restitution, as it is the person of his master which is considered, and he must blame himself where he entrusted anything to a minor. Wherefore, if he makes any contract through a minor who has not reached the age of puberty, the same rule applies; as Marcellus states in the Second Book of the Digest. And if the free administration of his peculium should be granted to a slave who is a minor, his master, if he is of age, cannot obtain restitution on this account.

Ulpianus, On the Edict, Book XI. Where, however, the slave was one who had a right to immediate freedom under a trust, and was imposed upon, as he suffered through default, it can be stated that the Prætor will be obliged to grant him relief.

The Same, On the Edict, Book XI. The Prætor says: “Any transaction which is said to have taken place”. We understand the term “transaction” to mean one of any kind whatsoever, whether it is a contract, or whether it is not. 1Thus, if a minor purchases anything, if he sells anything, if he enters a partnership, or borrows money and is cheated, he will have relief. 2Also, if he has been paid money by a debtor of his father or by one of his own, and loses it, it must be held that he is entitled to relief; as the business was transacted with him. And, therefore, if a minor brings suit against the debtor, he should have curators present, in order that he may be paid, for otherwise a debtor cannot be compelled to pay him. At present, however, it is customary to deposit the money in a temple (as Pomponius states in the Twenty-eighth Book), so that the debtor may not be oppressed by the payment of excessive interest, or a minor creditor lose his money; or payment be made to the curators, if there are any. It is also allowed a debtor, by an Imperial Constitution, to compel a minor to have curators appointed for himself. But what if the Prætor should order the money to be paid to a minor without the intervention of curators, and it should be paid? It may be doubted whether he will be secure. I am of the opinion, however, that if he was compelled to pay after pointing out that the creditor was a minor, he would be free from responsibility; unless someone might hold that he ought to appeal on the ground that he had suffered an injury. I believe, however, that the Prætor would not hear a minor if he were to apply for complete restitution in a case of this kind. 3Relief is not only granted to a minor under these circumstances, but also where he intervenes in obligations contracted by others; for example, where he binds himself, or encumbers his property as a surety. Pomponius, however, appears to agree with those who make a distinction between a minor where an arbiter has appointed a party for the purpose of approving of sureties, and where his adversary has accepted him. It seems to me that, in all these instances, if the party is a minor, and proves that he has been circumvented, he will be entitled to relief. 4Relief is also granted in trials, whether the party who was overreached, brought suit, or was sued. 5Where, however, a minor has entered upon an estate, which is not sufficient to pay the creditors, he is given relief that he may be able to reject it; for in this instance also, he is deceived. The same rule applies in the case of the possession of property or any other succession. Not only the son who meddled with the estate of his father will obtain restitution, but likewise any other minor belonging to the family will also be entitled to it, as for instance, a slave who is appointed heir and granted his freedom; for it must be held that if he meddled with the affairs of the estate, he can be relieved on the ground of his age, so that he may have a separation of his own property. It is evident that if he obtains restitution after entering upon the estate, that he must deliver up any portion of the same which has been mingled with his own property, and has not been lost through the infirmity of his youth. 6At the present time, it is the practice for minors to be relieved where they have failed to obtain profit. 7Pomponius also stated in the Twenty-eighth Book, that where a person rejects a legacy without anyone being guilty of fraud, or is taken advantage of in making a choice of two legacies, having selected the one of inferior value; or where he promises to give a man one or the other of two things, and gives him the more valuable one, he is entitled to relief, and it should be granted him. 8The question arose with respect to the point which states that relief must be granted to minors, even where they do not obtain profit, as where the property of a minor was sold, and someone comes forward who is willing to pay more for it; whether complete restitution should be made, on account of the profit which he failed to obtain? The Prætors grant restitution every day under these circumstances, so that new bids may be offered. They do the same thing with regard to property which ought to be preserved for minors. This, however, should be done with great care, otherwise no one would attend the sales of the property of wards; not even if they were conducted in good faith; and it is a principle to be thoroughly approved, that, with respect to property exposed to accident, no relief should be granted a minor as against the purchaser, unless it is established that there was corruption, or evident partiality of the guardian or curator. 9Where a minor has been granted restitution, and interferes with the affairs of an estate, or enters upon one which he had rejected, he can again obtain restitution to enable him to reject it; and this has also been stated in rescripts and opinions. 10Ad Dig. 4,4,7,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 18.Papinianus, however, says in the Second Book of Opinions, that where a slave is substituted for a minor as a necessary heir, and the minor rejects the estate, the said slave will become the necessary heir, and, if the minor obtains restitution, he will nevertheless remain free; but if, before the minor enters upon the estate in the first place and afterwards rejects it, the slave who was substituted for him with a grant of freedom, cannot become the heir, or be free; and this is not entirely true. For if the estate is not solvent, and the heir rejects it, the Divine Pius, as well as our Emperor, stated in a Rescript that, in the case of a minor who is a stranger, there will be ground for the substitution of a necessary heir; and where he says that he will remain free, it signifies apparently that he will not also remain the heir, since the minor obtains restitution after having rejected the estate; so that since the minor does not become the heir, but has a right of equitable action, he will undoubtedly continue to be the heir who once appeared as such. 11Moreover, if the heir did not appeal within the prescribed time, relief will be given him in order that he may appeal; supposing that he desires to do so. 12Moreover, relief is granted him where judgment is taken against him by default. It has, however, been settled that men of every age are entitled to a new trial in case of default, if they can prove that they were absent for some good reason.

Ulpianus, On the Edict, Book XI. If, as the result of a judgment, the pledges of a minor are taken in execution, and sold; and he afterwards obtains restitution in opposition to the decree of the Governor, or of the Imperial Procurator, it must be considered whether the property which was sold should not be recovered; for it is certain that money paid on account of the judgment must be refunded to the minor, but it is more to the interest of the latter to recover the property; and I think, in some instances, it should be allowed, that is if the minor would otherwise sustain great loss. 1Ad Dig. 4,4,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 115, Note 6.Relief is also granted to a woman in the matter of her dowry, if, having been imposed upon, she gave more than her estate would warrant, or gave her entire patrimony. 2It must now be considered whether relief should be granted to minors only where they are imposed upon in contracts, or also where they are guilty of offences; for example, where a minor committed fraud with reference to property deposited, loaned, or subject to some other kind of contract, would he be entitled to relief if nothing came into his hands through the transaction? It is held that no relief should be granted to minors guilty of breaches of the law; and therefore, in this instance, no relief should be allowed, for where a minor commits a theft, or causes damage to property, he will not be entitled to relief. Where, however, after having committed the injury he could have confessed and thereby not be held liable in double damages, but preferred to deny what he had done; he should be granted restitution only that he may be treated as if he had confessed. Therefore, if he was able to make good the loss caused by his theft, rather than be sued for double or quadruple damages, relief will be granted him. 3Where a married woman, after being separated from her husband through her own fault, wishes to obtain relief, or her husband does so, I do not think that restitution should be granted, for this is not an ordinary offence, and if the minor has committed adultery relief cannot be granted him. 4Papinianus states that if a minor of from twenty to twenty-five years of age permits himself to be reduced to slavery—that is if he shares in the price paid for him—he is not entitled to restitution; and this is reasonable, for the case does not admit of restitution, as the party has changed his condition. 5Ad Dig. 4,4,9,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 115, Note 10.Where a minor is said to have incurred the penalty for nonpayment of taxes, he will be entitled to complete restitution; but it must be understood that no fraud existed on his part, otherwise restitution will not be allowed. 6It is also impossible for restitution to be granted by a Prætor against the freedom of his slave.

Ad Dig. 4,4,11ROHGE, Bd. 6 (1872), S. 356: In integrum restitutio Minderjähriger nach gemeinem Rechte insbesondere gegen wechselrechtliche Verpflichtungen. Selbstständige Vermögensvertretung.Ulpianus, On the Edict, Book XI. An action based on fraud, or an equitable action will lie for the amount to which the minor was interested in not having the slave manumitted; hence, whatever he could have had if he had not manumitted the slave must now be delivered to him. Again, with reference to those articles belonging to his master which the manumitted slave purloined; a right of action exists against him, for their production, or for theft, or for the recovery of what was stolen; because he appropriated them after he had been manumitted; otherwise, where the crime was committed while he was in slavery, his master will not be entitled to an action against him after he has obtained his freedom. This is contained in a Rescript of the Divine Severus. 1What if a minor under twenty-five years of age, and over twenty, should sell a slave under this law, in order that he might be manumitted? I refer to one over twenty, as Scævola also mentioned this age in the Fourteenth Book of Questions; and it is the better opinion that the rule set forth in the Constitution of the Divine Marcus addressed to Aufidius Victorinus, does not include this case, that is, the one of a minor over twenty years of age. For this reason it should be considered whether relief can be granted to a minor over twenty years of age, he should be heard if he makes application before the slave obtains his freedom, for if he does so afterwards, he cannot. It also may be asked whether, if the party who makes a purchase under this law is a minor, he is entitled to restitution? If the freedom of the slave has not yet been granted he will be entitled to relief, but if he makes application after the appointed day has arrived, then the will of the vendor, if he has attained his majority, liberates the slave. 2Inquiry was made with respect to the following statement of facts. Certain youths, who were not of age, had accepted as curator a man named Salvianus, and he, having administered his trust for a time, obtained a municipal office through the favor of the Emperor, and procured from the Prætor his release from the curatorship of the aforesaid minors during their absence. The minors then appeared before the Prætor and asked for complete restitution, because the curator had been discharged contrary to the constitution, for it is not customary for parties to relinquish their guardianship unless they are absent beyond sea on public business, or when they are employed in the personal service of the Emperor; as where this was granted in the case of Menander Arrius the Councilor. Salvianus however, had obtained his discharge, and the minors, having been, as it were, imposed upon, petitioned the Prætor for complete restitution. Arrius Severus, being in doubt, referred the question to the Emperor Severus, who, in answer to this consultation, stated in a Rescript to his successor, Benidius Quietus, that there was no reason for the intervention of the Prætor, because it was not stated that a contract had been made with a minor under twenty-five years of age; but it was the duty of the prince to interpose, and cause him who had been improperly excused by the Prætor to resume the administration of the trust. 3It must also be noted that relief cannot be granted to minors indiscriminately, but only where proper cause is shown, and they prove that they have been taken advantage of. 4Again, restitution will not be granted where a person who has been conducting his business properly applies for restitution on account of some loss which resulted, not through his own negligence, but through inevitable accident; but it is not the mere occurrence of loss which confers the right of restitution, but the want of reflection which encourages deceit; and this Pomponius stated in the Twenty-eighth Book. Wherefore, Marcellus says in a note on Julianus, that where a minor purchased a slave whom he needed, and the slave soon after died, he was not entitled to restitution; for he was not taken advantage of when he purchased property which was absolutely necessary for him to have, even though it was mortal. 5Where anyone becomes the heir of a wealthy man, and the estate is suddenly destroyed; for instance, where lands were ruined by an earthquake, or houses were consumed by fire, or slaves escaped, or died; Julianus speaks in such a way in the Forty-sixth Book as to imply that a minor is entitled to complete restitution, but Marcellus says in a note on Julianus that complete restitution will not be allowed, as the party was not deceived on account of the infirmity of youth, when he entered upon a valuable estate, and that what happened to him through accident, might also happen to the most careful head of a household; but in the following instance, restitution can be granted to a minor, that is to say, where he entered upon an estate to which much property belonged that was liable to destruction; for example, land occupied “by buildings, but heavily encumbered with debt, and he did not foresee that the slaves might die. or the buildings be destroyed, or did not sell the property exposed to so many accidents quickly enough. 6The question is also asked, where one minor petitions for restitution against another minor, shall he be heard? Pomponius simply states that restitution should not be granted him; but I think that the Prætor should investigate which one of them was imposed upon, and if they were both deceived, for instance, if one minor lent the other money and he lost it; then (according to Pomponius), he who borrowed the money and squandered or lost it, is in the better condition. 7It is clear that where a minor entered into a contract with the son of a family who was of age, then, as Julianus states in the Fourth Book of the Digest, and Marcellus in the Second Book of the Digest, he will be entitled to complete restitution; so that the rule relating to age receives more consideration than the Decree of the Senate.

Ulpianus, On the Edict, Book XI. In the investigation of cause, attention must be paid to the fact whether relief is to be granted to the minor alone, or also to those who have bound themselves in his behalf; as, for instance, sureties. Therefore, if I know that the party is a minor and have no faith in him, and you become surety for him, it is not just that the surety should be given relief, to my injury; hence the action on mandate should rather be refused the surety. In a word, it should be carefully weighed by the Prætor who is more entitled to relief, the creditor or the surety; for the minor who is taken at a disadvantage will be liable to neither. It will be more easy to state that no relief should be granted in the case of him who directed the creditor, for he was, so to speak, the adviser and persuader who was responsible for the contract with the minor. Hence the point may arise whether a minor ought to apply for complete restitution against the creditor, or against the surety? I think the safer way would be to apply for it against both; for proper cause having been shown, and the parties being present—or while absent if they are in default through contumacy—the question as to whether complete restitution should be granted ought to be carefully weighed. 1Ad Dig. 4,4,13,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 3.Sometimes the restitution granted to the minor is in rem; that is to say, it is against the possessor of his property, although no contract was made with him; as, for example, where you purchased property from a minor and sold it to another party, he can sometimes petition for restitution against the possessor to prevent losing his property, or being deprived of it; and in this instance the case is either heard by the Prætor, or the transfer is set aside and an action in rem is granted. Pomponius also states in the Twenty-eighth Book, that Labeo held where a minor under twenty-five years of age sold a tract of land and gave possession, and the purchaser disposed of it; then, if the second purchaser was informed of what has been done, restitution can be granted against him, but if he was ignorant of the facts, and the first purchaser is solvent, this will not be done; but where he is not solvent, it will be more just to grant relief to the minor, even against the purchaser who was uninformed, although he bought the property in good faith.

Ulpianus, On the Edict, Book XI. When the case is heard, it also should be taken into consideration whether there is not perhaps some other action available, except the one for complete restitution; for if the party is properly protected by the usual remedy and the ordinary law, extraordinary relief ought not to be granted him; as, for instance, where a contract has been made with a ward without the authority of his guardian, and he does not become more wealthy in consequence. 1Moreover, it is stated by Labeo that where a minor has been fraudulently induced to enter a partnership, or even where he does this with a view to making a donation, no partnership exists, even among minors; and hence the Prætor has no reason to intervene. Ofilius is of the same opinion, for the minor is sufficiently protected by operation of law. 2Pomponius also says in the Twenty-eighth Book, that when an heir was called upon to deliver certain articles to the daughter of his brother, upon the condition that if she were to die without issue, she should restore them to the heir, and the heir having died, she made provision for them to be restored to his heir; whereupon Aristo thought that she was entitled to complete restitution. Pomponius adds, however, that the bond given could be made the basis of a personal action for an uncertain amount of damages even in the case of a person who is of age, for the party is protected not only by the ordinary law, but also by the personal action. 3It is generally established that where a contract is not valid, the Prætor should not interfere if this is certain. 4Pomponius also states with reference to the price in a case of purchase and sale, that the contracting parties are permitted to take advantage of one another in accordance with natural law. 5It should now be considered who those are who can grant complete restitution. The Prefect of the City, together with the other magistrates, as far as permitted by their jurisdiction, can grant complete restitution in other cases, as well as in those against their own decisions.

Ulpianus, On the Edict, Book XI. An inferior magistrate cannot grant restitution in opposition to a decree of his superior. 1If, however, the Emperor has rendered the decision, he very seldom permits restitution, or allows a party to be introduced into his audience-room who alleges that he was imposed upon because of the infirmity of his youth; or says that matters which were favorable to him were not mentioned; or complains that he was betrayed by his advocate. Hence the Divine Severus and the Emperor Antoninus would not hear Glabrio Acilius, who petitioned for restitution against his brother without stating proper cause, after the case had been heard to its termination in their audience-chamber. 2The Divine Severus and Antoninus, when Percennius Severus petitioned for complete restitution, and two decisions had already been rendered, permitted them to be examined in their audience-chamber. 3The same Emperor stated in a Rescript to Licennius Fronto, that it was unusual for anyone, except the Emperor himself, to grant restitution after a decision had been rendered on an appeal by a magistrate appointed by the Emperor to preside in his place. 4But where a judge appointed by the Emperor hears the case, restitution cannot be made by anyone but the Emperor who appointed the judge. 5Complete restitution is granted not only to minors, but also to their successors, even though they themselves may be of age.

The Same, On the Edict, Book XI. Papinianus states in the Second Book of Opinions, that the time appointed for complete restitution should not be extended for the benefit of a party returning from exile, for the reason that he was absent, for he could have applied to the Prætor through an agent, and did not do so, or could have made application to the Governor in the place where he was. But where the same author says that he is not entitled to relief, on account of the punishment imposed upon him; his opinion is not correct, for what is there is common between a criminal offence and an excuse based upon the infirmity of youth? 1However, where anyone over twenty-five years of age, having joined issue within the time established by law for restitution, should afterwards abandon the case, the joinder of issue will be of no advantage to him in obtaining complete restitution; as has been very frequently set forth in rescripts.

Ad Dig. 4,4,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 641, Note 2.The Same, On the Edict, Book XI. Where complete restitution is demanded against the entry on an estate made by a minor, any expense which has been paid out for legacies, or for the value of slaves who have obtained their freedom by means of his entry, will not have to be refunded by the minor. In the same way, on the other hand, when a minor obtains restitution for the purpose of entering upon an estate, any business which has been transacted by his curator, for the disposition of property under the order of the Prætor authorizing the sale of the same according to the form established by law, must be ratified; as Severus and Antoninus stated in a rescript to Calpurnius Flaccus.

Ulpianus, On the Edict, Book XI. The question arises how a person may be liable who delivers brass instead of gold to a creditor by way of pledge? Sabinus states most properly in this instance, that if, where gold has been given, the party substitutes brass, he is liable for theft; but if, when the gold was given, he substituted brass, he is guilty of a base act, but is not a thief. I think, however, that in this case also, the action of pledge will lie, and Pomponius says the same. Moreover he can be judicially punished on the ground of swindling, as has been very frequently set forth in rescripts. 1Again if anyone knowingly and deliberately gives me property in pledge which belongs to another, or if he encumbers to me property already encumbered to another, and does not inform me of the fact, he can be punished for the same offence. It is evident that, if the property is of considerable value, and is pledged only for a small sum of money, it must be said that the offence of swindling does not exist, and also that the actions on pledge and on fraud will not lie, because the party who received the property as a second pledge was not taken advantage of in any way.

Ulpianus, On the Edict, Book XI. If I direct you to investigate the circumstances of an estate, and you purchase it from me, representing that it is of less value than it actually is; you will be liable to me in an action on mandate. This will also be the case if I direct you to ascertain the financial condition of a party to whom I am about to make a loan, and you falsely represent to me that he is solvent.

The Same, On the Edict, Book XI. Labeo writes that if you sell me a library on condition that the Campanian Decurions will sell me a site on which I can build it, and I am not to blame for not obtaining the latter, there is no doubt that an action De præscriptis verbis can be brought to force me to comply. I think that an action on sale can also be brought, just as if the condition had been fulfilled, since the purchaser is responsible for its not having been done.

Ulpianus, On the Edict, Book XI. If anyone should buy oil from me, and accept it after having employed false weights in order to deceive me, or the purchaser is taken advantage of by the vendor through the use of weights that are too light, Pomponius says that the vendor will be entitled to an action to compel the purchaser to pay the value of the excess; which is reasonable. Hence the buyer will also be entitled to an action on purchase for the purpose of obtaining satisfaction.

Ulpianus, On the Edict, Book XI. When a child has not interfered with the affairs of his father’s estate, whether he is of age or a minor, it is not necessary for him to make application to the Prætor, but it is sufficient if he has not concerned himself with the business of the estate. It was stated in a rescript in the Semestria to Vivius Soter and Victorinus: “It is not necessary to make complete restitution to wards, on account of a contract made by their grandfather, if their father intended that they should not accept his estate, where nothing has been done, nor any business transacted in behalf of the heir.”

Ulpianus, On the Edict, Book XI. In the case of usucaption, the time is not reckoned from moment to moment, but we compute the entire last day of the prescription.

The Same, On the Edict, Book XI. If I place you in possession of property in compliance with a judicial decree, Pomponius says that the interdict Unde vi will not apply, as he is not forcibly ejected who is compelled to place another in possession.

The Same, On the Edict, Book XI. A woman who gave a dowry to my compatriot, Glabrio-Isidor, made him promise this dowry to a child if she should die during marriage, which she did. It was decided that an action under the stipulation would not lie, as a person unable to speak could not stipulate.

Ad Dig. 46,1,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 477, Note 2.Ulpianus, On the Edict, Book XI. Marcellus says that if anyone should become surety for a ward who has incurred liability without the authority of his guardian, or for a spendthrift, or an insane person, the better opinion is, that he will not be entitled to relief, as an action on mandate will not lie in their favor.

Ulpianus, On the Edict, Book XI. Minors should not be admitted to the administration of public affairs, either in such employments as are not patrimonial, or in such as are magisterial, before reaching their twenty-fifth year; nor should they be made decurions, for, if they are, they cannot cast their votes in the assembly. After the beginning of their twenty-fifth year, however, it is held as having elapsed, for it has been decided as a matter of favor in cases of this kind, that we must consider what has been begun as completed; but the administration of no public office shall be entrusted to them, lest some damage may be committed against the government, or some injury caused to the minor himself.

Ulpianus, On the Edict, Book XI. Labeo, in the First Book On the Urban Prætor, defines the terms “to act,” “to transact,” and “to contract,” as follows. He says that the word act has a general application, and refers to anything which is done verbally, or with reference to the thing itself; for example, in stipulation or enumeration. A contract, however, has a broader meaning than that of an obligation, which the Greeks style an agreement, as, for instance, purchase, sale, hiring, leasing, partnership. The term “to transact” signifies to do something without words.

Ulpianus, On the Edict, Book XI. Nothing is so opposed to consent, which is the basis of bona fide contracts, as force and fear; and to approve anything of this kind is contrary to good morals. 1He is not taken advantage of who conforms to the public law. 2Those who make mistakes are not considered to consent.