Fraud (dolus)

The definition of dolus by Labeo, adopted by Ulpian, is “any craft or deceit employed for the circumvention or entrapment of another person” (D. 4.3.1.2). In accordance with civil law, and only in the case of duress, the existence of fraud did not invalidate a legal transaction, probably because Roman citizens were expected to be clever enough not to be deceived.

In the first century BCE, however, the praetor introduced an exception in the edict to protect the defendant in an action aimed at enforcing a fraudulent transaction. Later, the praetor granted restitution in integrum (restoration to the original condition) to the defrauded party when the fraudulent transaction had been executed. Finally, the praetor introduced an action for fraud (actio de dolo), a residual remedy granted only when no other action was available after a praetorian inquiry (Ulpian, D. 4.3.1.1,). In transactions based on good faith (e.g., consensual contracts), for instance, the judge would take into account any fraudulent behavior. In these cases, an actor in good faith was protected against fraud by the same action derived from the transaction, so the actio de dolo was not required. The action for fraud could be granted, for instance, when the owner of a piece of land, before delivering possession, had imposed a servitude on it or destroyed some of its buildings (Labeo-Ulpian, D. 4.3.7.3); when the promisor of a slave under stipulation had poisoned him before delivery; or when the promisor handed over a slave who really did not belong to him (Paul, D. 19.5.5.2). The actio de dolo also could be granted when the heir who had to deliver a slave at his convenience to the legatee knowingly gave a thief, and the thief stole from the legatee (Africanus, D. 30.110).

The actio de dolo sought compensation for actual loss, and it had to be granted within a year from the date of the fraudulent transaction. The defendant could avoid payment of the penalty by restoring what he had obtained fraudulently (clausula arbitraria). In contrast to the action for duress, the action for fraud lay only against the fraudulent party. For this reason, the penalty for fraud also entailed infamy. In cases involving more than one defrauder, if one paid the compensation or restored the thing obtained fraudulently, all were freed (Ulpian, D. 4.3.17pr.). As with other penal actions, this action was actively but not passively transmis­sible, unless and insofar as an heir had been enriched by a fraudulent transaction (Ulpian, D. 4.3.17.1). Agreements excluding liability for fraud were void.

216 Roman law in action