Coactus volui, tamen volui
Under these circumstances it is hardly surprising that people found themselves compelled, increasingly frequently, to give away movable and immovable property, to promise money, to waive claims, not to enter upon inheritances, etc.
Whatever, therefore, the reaction of the public authorities on a constitutional level in these confused and turbulent times,10 it was clear that the praetor had to step in to grant relief to those whose private transactions had been affected by fear or force. "Nihil consensui tarn contrarium est... quam vis atque metus"1'—nothing is as opposed to consent as force and fear: this is how Ulpian formulated, as far at least as bonae fidei transactions based on consensus were concerned, what was obviously equitable. But the ius civile did not provide a satisfactory solution to the problem. Coactus volui, tamen volui was the principle that we still find proclaimed by a late classical jurist such as Paulus:12 even though I have formed my will under coercion, I have nevertheless formed a (legally relevant) will. There was no general rule declaring transactions concluded under the influence of duress or coercion invalid. On thespaten Republik und der frühen Kaiserzeit", (1980) 97 ZSS 107 sqq.; cf. also the case underlying Cicero's speech pro Caecma (on which sec the detailed analysis by Frier, Roman Jurists, passim, e.g. pp. 24 sq.).
K Mommsen, Romisches Strafrecht (1899), pp. 705 sqq.; Bergc-r, p. 675; D.V. Simon, in: Kleiner Pauly, vol 4, col. 1379 sq. The term "repetundae" indicates things or money given to an official under extortion as a bribe which could therefore be claimed back (repetere).
9 This is what happened in the case of Verres, whose machinations Cicero exposed in a series of famous speeches. Verres withdrew to Massilia (Marseilles) where he lived most comfortably for the next 26 years off his proceeds and surrounded by the art treasures heaped up during the three years of his governorship in Sicily.
He was killed in A.D. 43 after Antonius and Octavianus had seized power in Rome. Cf. e.g. Μ. Deissmann-Merten, in: Kleiner Pauly, col. 1207 sqq.' It was entirely inadequate. On the control of violence by the executive, see Lintott, op. cit., note 1, pp. 89 sqq.; on legislation against violence, see Lintott, pp. 125 sqq.
",Ulp. D. 50, 17, 116 pr.
12 "Si metu coactus adii hereditatem, puto me hcredem effici, quia quamvis si liberum esset noluissem, tamen coactus volui": Paul. D. 4, 2, 21. 5; cf. also Cels. D. 23, 2, 22. On these texts, their possible philosophical background and their implications, see A.S. Hartkamp, Der Zwang im Privatrecht (1971), pp. 84 sqq., 124 sqq.
contrary: stipulations (and other formal transactions) were usually valid:
. si metu coactus... stipulanti Titio promisisti, quod non debueras promittere, palam est, iure civili te obligatum esse, et actio, qua intenditur dare te oportere, efficax est."13
3.
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