Duress (metus)

Civil law did not provide a satisfactory solution for private transactions effected by duress. The principle applied was that consent under coercion, fear, or force was still legally valid consent.

someone entered upon an inheritance under duress, he became heir because even though he would have refused if he had had free choice, nevertheless, when compelled, he had the intention to enter (tamen coactus, volui). Stipulations under duress were usually valid (Inst. 4.13.1).

In 79 or 78 bce, a praetor named Octavius introduced the first edict punishing the use of duress to compel the victim to conclude a transaction, to make a payment, or to assume an obligation. The person who acted under duress could bring an action to claim back what he had been compelled to hand over (the formula Octaviana or actio qud metus causa). According to Gaius, the duress relevant in this edict was not that experienced by a weak-minded man but that which would reasonably have an effect upon a strong-willed man (D. 4.2.6). Fear of death, enslavement, or imprisonment fell into the edictal category, but not the mere fear of being sued or being exposed to infamy (Ulpian, D. 4.2.7pr.).

The action quod metus causa was a penal action with some peculiarities. On the one hand, the defendant was liable for four times the value that had been extorted, which was a high penalty according to Roman standards. On the other hand, the action could be brought not only against the extortionist, but against any third party who had acquired the extorted thing, even in good faith. The reason for this extension of the action is that its main purpose was not punishment of the extortionist for criminal behavior but restoration of the extorted thing. Thus condemnation under the actio quod metus causa did not involve infamy and included a clause by means of which the defendant had the option of avoiding the payment of the condemnation - e.g., the fourfold value of a ring - by simply restoring the extorted item to the plaintiff. The argument Ulpian provided (D.

Suppose that Titius forced Caius to give his ring to Sempronia, Titius’s fiancee, and Sempronia, after breaking up with Titius, sold the ring to Marcus. Caius could bring the action quod metus causa against Marcus for four times the value of the ring. Since Marcus was a simple purchaser in good faith, he probably would restore the ring to its owner, Caius, instead of paying the high penalty. Furthermore, since Marcus was not an extortionist, he would not be condemned for infamy.

If the extortionist sued the person who had acted under duress, the praetor granted the defendant an exceptio metus. Like the action quod metus causa, this exception could be used not only against the extortionist but against any plaintiff in good faith who sought the fulfillment of any obligation made under duress. Suppose that Titius promised by a stipulation made under duress to give a thousand sesterces to Caius, the extortionist. If Caius brought an action for the stipulation against Titius for the payment of this amount,

The law of obligations: delicts 215 the praetor could grant an exceptio metus to the defendant because the transaction was made under duress. On the other hand, if Titius, under duress from Caius, promised by means of stipulation to pay one thousand sesterces to Sempronius, and the latter asked Titius for the amount, the praetor would also grant Titius the exceptio metus to avoid allowing anyone to benefit from the imposition of duress.