Ulpianus, On the Edict, Book IV. Fraud is committed against the law when something is done which the law did not wish to be done, but did not absolutely prohibit; and the difference between fraud against the law and violation of the same is that between speech and opinion.

Ulpianus, On the Edict, Book IV. Where anyone wishes to bring an action, he must state the grounds for it; as it is most just that the party sued should know whether he ought to submit, or set up a defence, and if he makes up his mind to the latter course, that he may be sufficiently informed to conduct the proceedings by ascertaining the nature of the suit which is brought against him. 1To state the case is also to give the other party an opportunity to take a copy of the same, or of what is included in the complaint, either by presenting it to him, or by dictating it. Labeo says that he also makes a statement of his case who conducts his adversary to the register of the Prætor, and shows him what he is about to dictate, or by communicating to him the form which he intends to use. 2Notices of this kind should be drawn up without mention of the date, or the consul, lest some fraud may be contrived from the employment of the same, and a prior date be inserted in the instrument. The Prætor, however, excludes the date and the consul when the document was written, but not that on which payment was to have been made; for the day of payment is, as it were, the principal part of the stipulation. Accounts, however, must be stated with the date and the consul; as where money is paid and received this cannot otherwise be clear, unless the day and consul are set forth. 3All matters must be stated which anyone intends to bring before the court, but a party is not compelled to produce instruments which he does not expect to use. 4He is not considered to have given proper notice who does not include the entire stipulation. 5Relief shall be granted to those who, on account of their age, ignorance, sex, or for any other good reason, have failed to make proper statements.

Ulpianus, On the Edict, Book IV. The Prætor says: “Those who pursue the business of bankers must exhibit to a depositor the account in which he is interested, in addition to the day and the consul.” 1The principle of this Edict is perfectly just; for as bankers keep the accounts of individuals, it is but proper that any books or papers relating to business transactions in which I am interested, should be shown to me as being, to a certain extent, my own property. 2The son of a family is included in the terms of the Edict, so that he also is compelled to exhibit his accounts; and the question arises is the father likewise compelled to do so? Labeo states that he is not, unless his son conducts the business of a banker with his knowledge; but Sabinus has properly declared that this is not to be admitted, where he reports his profits to his father. 3Where a slave carries on a banking business (for he can do so), if, indeed, he acts with the consent of his master, the latter can be compelled to produce his accounts, and an action will lie against him, just as if he, himself, had carried on the business; but, if the slave acts without the knowledge of his master, it will be sufficient if his master swears that he is not in possession of his accounts. Where a slave carries on the business of a banker, with his own private means, the master is liable for the same, or for the amount invested; but where the master has the accounts, and does not produce them, he is liable for the entire amount. 4Even a party who has ceased to conduct a banking business can be compelled to produce his books and papers. 5A person is compelled to produce his accounts in the place where he has conducted his banking business, and this has been thoroughly established. When he keeps his books in one province, and conducts his business in another, I am of the opinion that he can be compelled to produce them in the place where he carries on his business; for he was to blame in the first place for removing his books elsewhere. If he conducts his business in one place, and he is required to produce his books in another, he is by no means obliged to do so, unless you wish him to furnish you with copies of the same, where legal nroceedings have been instituted, and, of course, at your expense.

Ulpianus, On the Edict, Book IV. Where a banker keeps his books at his residence, or in his warehouse, (as many of them do), he must either conduct you to the place where they are, or give you a copy of the accounts. 1The successors of a banker are also obliged to produce accounts. Where there are several heirs, and one of them has possession of the accounts, he alone can be compelled to produce them; but where all have possession of them, and one produces them, all can be compelled to do so. What then must be done if the one who produces them is obscure and entitled to but little consideration, so that doubt may justly arise concerning the good faith of their production? Therefore, in order that the accounts may be compared, the others should also produce theirs; or, indeed, sign those produced by one of them. The same rule will apply where there are several bankers who have been requested to produce their accounts; for where there are several guardians who are discharging a trust together, they must all produce their accounts, or sign that produced by one of them. 2Moreover, an oath is exacted from the adversary of the banker, “that he does not demand the production of his accounts for the purpose of annoyance”; in order that he may not require the production of accounts which are superfluous, or of which he already has possession, for the sake of annoying the banker. 3Labeo says that an account is a statement of all mutual payments, receipts, credits and debts of the parties; and that no account can begin with the mere payment of a debt. And where the party has received a pledge or a deposit, he cannot be required to disclose the fact, as these are beyond the scope of an account; the banker, however, must furnish a statement where a promise to pay has been made, for this belongs to his business as a banker. 4An action will lie under this Edict for the amount of the interest of the plaintiff. 5From this it is apparent that the Edict only applies to what concerns the party himself; but it is held that the account concerns me if you merely keep it under my direction; but if my agent directs this to be done, while I am absent, must it be produced by me, on the ground that it concerns me? The better opinion is that it must be produced. I have no doubt that my agent must produce the account which he keeps for me as it concerns him, and he must give security that I will ratify it, if no mandate were given him. 6Where a date appears at the beginning of a page under which the account of Titius is set down, and afterwards my own appears without date or consul; the same date and consul must be given to me also, as the day and consul entered at the beginning belong to the entire account. 7To exhibit an account is either to dictate it or make a statement of it in writing, or to produce an account book. 8The Prætor says: “I will order accounts to be produced to a banker, or to anyone who demands it a second time, only where proper cause is shown.” 9He forbids accounts to be produced to a banker for the reason that he himself can obtain information from the books and papers of his business; and it is absurd that he should ask that books be produced for his benefit, in a case where he himself is obliged to produce them. Whether an account must be produced for the heir of the banker is a matter for consideration, for if the banker’s books and papers have come into his possession, they should not be produced for him; but if not, this can be done where proper cause is shown, as, under such circumstances, the accounts must have been produced for the banker himself, where he proves that the accounts have been lost through shipwreck, the destruction of a house, fire, or any other similar accident; or where they are in a place which is at a great distance, as for instance, beyond sea. 10The Prætor does not require accounts to be produced for a party demanding it a second time, unless for good cause.

Ulpianus, On the Edict, Book IV. When a banker is required to produce his accounts, and, influenced by malice, he does not do so, he is punished; but he is only liable for negligence when it closely resembles malice. He is guilty of malice in producing his accounts who does so with fraudulent intent, or who produces them incomplete. 1He who becomes liable under the terms of this Edict is required to pay, by way of damages, a sum equal to the interest I had in having the accounts produced at the time this was ordered by the Prætor, and not the interest which I have at present; and, therefore, even if my interest has entirely ceased to exist, or has become less or greater, my right of action will neither be increased nor diminished.

Ulpianus, On the Edict, Book IV. This action is not permitted after the lapse of a year, nor against an heir, unless through some act of his own; but it is granted to an heir.

Ulpianus, On the Edict, Book IV. The justice of this Edict is natural, for what is so suitable to the good faith of mankind as to observe those things which parties have agreed upon? 1The term pactum is derived from pactio, and the word pax has also the same origin. 2An agreement is the consent of two or more persons to the same effect. 3The term “conventio” is a general one, and refers to everything to which persons who have transactions with one another give their consent for the purpose of making a contract, or settling a dispute; for as parties are said to come together who assemble from different places in one; so, also, the same word is applicable to those who, from different feelings of the mind, agree upon one thing; that is to say, arrive at one opinion. The term “conventio” is such a general one, as Pedius very properly says, that there is no contract and no obligation which does not include it, whether it is made by the delivery of the property, or verbally; for even a stipulation, which is verbally made, is void, where consent does not exist. 4The greater number of conventions have names that are peculiar to them, as, for instance, sale, hire, pledge, and stipulation.

Ulpianus, On the Edict, Book IV. There are three kinds of conventions, some of which relate to public matters, and some to private affairs. Those which are private are either based upon legislative enactments or upon the Law of Nations. A public convention is one by which peace is made when two military leaders agree upon certain things to that end.

Ulpianus, On the Edict, Book IV. Some conventions based on the Law of Nations give rise to actions, and others give rise to exceptions. 1Those which give rise to actions are not known by their own names, but pass under the special designation of contracts; as purchase, sale, hire, partnership, loan, deposit, and other similar terms. 2Ad Dig. 2,14,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 318, Note 6.Where the matter has not been placed under the head of some special contract, then, as Aristo very properly stated to Celsus, an obligation exists; as, for instance, I gave you something with the understanding that you would give me something else; or I gave you something with the understanding that you would perform some act, and this is sunallagma, that is to say, a mutual agreement, and a civil obligation will arise therefrom. Therefore I am of the opinion that Julianus was very justly criticized by Mauricianus for his decision in the following case: “I gave you Stichus with the understanding that you should manumit Pamphilus; you manumitted him, but Stichus was evicted by another party.” Julianus holds that an action in factum should be granted by the Prætor; but the former says that there is a civil action for an object which is uncertain, that is to say, one in prescribed terms, for there is a contract which Aristo calls sunallagma, and from this the action is derived. 3Where something is promised to prevent the commission of a crime, no obligation arises from such an agreement. 4Ad Dig. 2,14,7,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 318, Note 6.But, where there is no ground for an agreement, it has been established that no obligation can be created; therefore, a mere agreement does not create an obligation, but it does create an exception. 5Sometimes, however, it does give rise to a suit, as in bona fide actions; for we are accustomed to say that agreements which are entered into are included in bona fide actions; but this must only be understood in the sense that where agreements follow as parts of a contract, they are included so as to give the right of action to the plaintiff; but if they are added afterwards, they are not considered to belong to the contract, nor do they confer a right of action; otherwise, an action would arise from the agreement. For instance, if after a divorce, it is agreed that the dowry shall not be surrendered at the end of the time prescribed by law, but immediately; this will not be valid; otherwise there would be an action founded on an agreement. Marcellus states the same thing, and if during an action of guardianship, it is agreed that a higher rate of interest than that established by law shall be paid, this is of no effect, or there would be an action founded upon an agreement; as the agreements contained in the contract constitute its very essence; that is, they were made when the contract was entered into. I am aware that Papinianus said that if, after a sale, any agreement was entered into which was not a part of the contract, an action growing out of the sale could not be brought, on account of this same rule, namely: “No action can arise on a simple contract,” which may also be stated concerning all bona fide actions. The agreement, however, will have effect on the side of the defendant, for the reason that agreements which are afterwards interposed usually give rise to exceptions. 6To such an extent are subsequent agreements included in the same contract, that it is established that in purchases and other bona fide cases where the exception has not been followed up, the party can withdraw from the purchase. If this can be done as a whole, why cannot a part of it be changed by an agreement? This Pomponius stated in his Sixth Book on the Edict. Since this is the fact, an agreement will still have effect on the part of the plaintiff, so as to give him a right of action, where no further proceedings have been taken; and, on the same principle, if the whole contract can be set aside, why can it not be amended and appear, as it were, in a new form? This can be said to have been properly stated, and therefore I do not disapprove of what Pomponius says in his book of “Readings”, namely: that one can by an agreement partially abandon a purchase, so that a purchase of the part may be made a second time. Where, however, two heirs are left by the purchaser, and the vendor agreed with one of them to abandon the sale; Julianus says that the agreement is valid, and that the sale is in part annulled, since the other heir by entering into another contract would have been able to obtain an exception as against his co-heirs. Hence the opinion of Julianus and Pomponius are very properly established. 7The Prætor says: “I will require the observance of agreements which have not been entered into maliciously or contrary to the laws, plebiscites, Decrees of the Senate, or Edicts of the Emperors, where no fraud appears in any of them.” 8There are certain agreements which relate to real property, and others which relate to personal property. Those that relate to real property are those by which I agree, in general terms, not to bring suit; those which relate to personal property are those in which I agree not to sue a certain individual, for instance: “I will not sue Lucius Titius.” Whether an agreement is made with reference to property or to a person is to be ascertained not only from the language, but also from the intention of the contracting parties; since generally, (as Pedius says) the name of the person is inserted in the contract, not for the purpose of rendering it personal, but that it may be shown with whom the contract was made. 9The Prætor says that an agreement fraudulently executed shall not be observed. Fraud is perpetrated by means of craft and artifice; and, as Pedius says, a contract is fraudulently executed whenever something is done, under the pretence that something else is intended, for the purpose of cheating another. 10The Prætor adds nothing with reference to contracts entered into in order to defraud; but Labeo very properly says that if he did, it would be either unjust or superfluous; unjust if, for instance, the creditor having once given his debtor a bona fide release, should afterwards attempt to annul it; superfluous, if he was deceived when he granted the release, for fraud is included in deceit. 11Where a contract is fraudulently made in the beginning, or some fraudulent act is committed afterwards, there is ground for an exception, according to the words of the Edict: “And no fraud is committed”. 12With reference to what is usually inserted at the end of an agreement, namely: “Titius asked, Mævius promised”; these words are not only understood as forming part of the contract, but also as being part of the stipulation; and therefore an action on a stipulation arises from them, unless the contrary is expressly proved; for the reason that this was done, not with the intention of making a stipulation, but only of entering into an agreement. 13If I agree that an action shall not be brought on a judgment, or for burning a house, an agreement of this kind is valid. 14If I agree not to institute proceedings upon the “notice of a new structure”, some authorities are of the opinion that the agreement is not valid, because it, as it were, attacks the authority of the Prætor; but Labeo makes a distinction here, as, for instance, where the new structure may be injurious to private property the agreement can be entered into; but where it affects public property this cannot be done, which is a very proper distinction. Thus it is lawful to enter into an agreement with respect to all other matters to which the Edict of the Prætor relates, and which affect private property, but not to those where the injury of public property is concerned; for the law even permits a compromise to be made with reference to a theft. 15Where anyone agrees not to institute proceedings on account of a deposit, the contract is valid, according to Pomponius. Also where anyone agrees: “To assume all risk attending a deposit”; Pomponius states that the agreement is valid, and it cannot be set aside as contrary to law. 16Generally speaking, whenever an agreement is contrary to the Common Law, one is not obliged to observe it, nor can a legacy be made to depend upon this; nor where an oath has been made that the party will not sue, the agreement should not be observed, Marcellus states the same in the Second Book of the Digest; and where a stipulation has been entered into with reference to matters which it is not lawful to make the subject of a contract it is not to be observed, but entirely rescinded. 17When anyone before entering upon an estate makes an agreement with the creditors to pay them less than is due, then the contract will be valid. 18Where a slave makes an agreement before he obtains his freedom and inheritance, Vindius says that the contract is of no force, because he was appointed an heir under a condition. Marcellus, however, in the Eighth Book of the Digest, is of the opinion that if a direct heir, and a slave who is a necessary heir, both of whom have been absolutely appointed, make an agreement before meddling with the estate, they do so properly, which indeed is correct. He also thinks that a foreign heir, where he enters upon the estate under the direction of creditors, does so lawfully, and that he also has a right of action. But where anyone (as we have previously stated) enters into an agreement while in slavery, Marcellus denies that his contract is valid, since whatever act a person performs while in slavery does not usually profit him after he has obtained his freedom; which must be admitted with respect to an exception based upon a contract. But the question arises does an exception which is based upon fraud benefit him? Marcellus, although he was previously in doubt whether this was the case, in similar instances, however, admits it; as, for instance, where the son of a family, having been appointed heir, makes an agreement with creditors, but after he has been emancipated, enters upon the estate; he holds that he can make use of an exception on the ground of fraud. He is of the same opinion where a son, during the lifetime of his father, makes an agreement with the creditors of the latter; for in this instance an exception on the ground of fraud will be admitted. Finally, an exception on the ground of fraud must not be rejected even in the case of slaves. 19At present, however, an agreement of this kind can only be a disadvantage to creditors where they assemble, and by common consent state with what portion of their debts they will be satisfied. But, if they do not agree, the intervention of the Prætor will be necessary, who in his decision must follow the will of the majority.

Ulpianus, On the Edict, Book IV. The Rescript of the Divine Marcus provides that all the creditors shall assemble. But what if some of them are absent? Must those who are absent follow the example of those who are present? But if the agreement is valid as against those who are absent, an important question arises, namely, whether this agreement will bar absent privileged creditors? I repeat that, before the rule established by the Divine Marcus, the Divine Pius stated in a Rescript: “That the Treasury also, in those cases where hypothecation does not exist, as well as other privileged creditors, shall follow the example of the others.” All these rules must be observed with reference to those creditors who are without security. 1Where the stipulation of a penalty has been added to the contract, the question arises whether an exception on the ground of contract applies, or whether a suit should be brought on the stipulation? The opinion of Sabinus, which is the better one, is that he who made the stipulation can take either course, as he may choose; if, however, he makes use of the exception founded on the contract, it will be just to release the stipulation. 2We are for the most part accustomed to state: “that an exception founded upon fraud is an aid to an exception founded upon contract”; and then there are persons who cannot make use of an exception founded upon contract, but can use one founded upon fraud; which was the opinion of Julianus, and was endorsed by many others; for example, if my agent should make an agreement, I could have the benefit of an exception on the ground of fraud, which opinion is held by Trebatius, who thinks that as an agreement of my agent may injure me, it may also be to my advantage.

Ulpianus, On the Edict, Book IV. For it is established that it will be a source of injury to me, whether I ordered him to make a contract, or whether he was my general agent; as Puteolanus states in the First Book on Assessors, since it has been decided that he also can institute judicial proceedings.

Ulpianus, On the Edict, Book IV. Moreover, an agreement made by the head of a company is valid both for and against it.

Ulpianus, On the Edict, Book IV. Ad Dig. 2,14,16 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 331, Note 8.Where an agreement has been made with the purchaser of an estate, and the vendor of the same brings an action, an exception on the ground of fraud is a bar to his proceeding; for, according to a Rescript of the Divine Pius, equitable actions must be granted to the purchaser of an estate, and it is but just that a debtor of the estate should be able to make use of an exception on the ground of fraud, as against the vendor. 1Where an agreement has been made between the owner of the property sold and the purchaser of the same, for instance, that a slave who had been purchased should be restored to the person who sold him as owner; if he brings suit for the price he will be barred by an exception on the ground of fraud.

Ulpianus, On the Edict, Book IV. Unless it was the intention of the parties that no suit should be brought against the principal, but that it might be brought against the surety; in this instance the surety cannot avail himself of an exception.

Ulpianus, On the Edict, Book IV. That is to say, it was understood that no suit could be brought against the principal debtor. The same rule applies to co-sureties.

Ulpianus, On the Edict, Book IV. But if he lends his master’s money, Celsus says that what he agreed upon at the time of the loan is valid.

The Same, On the Edict, Book IV. After judgment has been rendered, even if no appeal is taken, still, where the fact that judgment has been rendered is denied, or it is possible for the party to be ignorant whether the judgment was rendered or not; then, as a trial may still take place, a compromise can be effected.

Ulpianus, On the Edict, Book IV. It is established that an exception cannot arise from arbitration, but an action for a penalty imposed can.

The Same, On the Edict, Book IV. A person is not presumed to conceal himself for the purpose of avoiding a suit, if, even while he was present, he could not be compelled to join issue.

Ulpianus, On the Edict, Book IV. Pomponius says that a husband cannot contract to give a guarantee only against fraud with reference to the dowry, which is provided for the benefit of married persons, although he can agree that he shall not be responsible for the claim of a debtor, who has promised him a dowry. Pomponius holds that he can agree that the dowry will be at the risk of the wife; and, on the other hand, stipulate that the dowry which is at the risk of the wife shall be at the risk of the husband.

Ulpianus, On the Edict, Book IV. He is held to occupy the position of plaintiff who makes use of an exception, for where a defendant has recourse to an exception he becomes a plaintiff.

The Same, On the Edict of the Prætor, Book IV. In the term “action” are included real, personal, direct, equitable, and prejudicial actions, as Pomponius says, and also prætorian stipulations, because they take the place of actions, as well as proceedings to provide against threatened injury, to insure the payment of legacies, and others of this kind. Interdicts are also embraced in the term “action.” 1Mixed actions are those in which both parties are plaintiffs; as, for example, such as are instituted for the settlement of boundaries, suits in partition, and for the division of property owned in common, and the interdicts Uti possidetis and Utrubi.