Praetorian delicts

The praetorian delicts (not a Roman term) consisted of a variety of remedies of a delictual nature, introduced by the praetor to supplement the ius civile. Their description as 'praetorian' refers to remedies created by the praetors rather than merely extended by them (see Nicholas, Introduction, 222-3).

10.5.1 Corruption of slaves (servi corruptid)

(D.11.3., C.6.2.)

The praetor allowed an action for double damages against anyone who deliber­ately and fraudulently caused the deterioration ofaslave, whether mental, physical, or moral (see Frier, Casebook on Delict, 222-6). This action potentially overlapped with the remedies under the lex Aquilla, see Buckland, Textbook, 595 as well as Du Plessis, P. J., 'Damaging a Slave', in fudge and Jurist, 157-65. Where the plaintiff had a choice (he could not bring both), he would probably prefer to sue under the action for corrupting slaves since damages were always double, even if the wrong­doer had admitted liability, unlike the case with the lex Aquilia.

What type of conduct 'corrupted' a slave? Broadly, anything which made the slave less valuable to his master:

Ulpian, Edict, book 23: One also makes a slave worse if one persuades him to commit an injury or theft, to run away, to incite another man's slave, to mismanage his peculium, to become a lover, to play truant, to practice evil arts, to spend too much time at public entertainments, or to become seditious; or if, by argument or bribe, one persuades a slave-agent to tamper with or falsify his master's accounts, or to confuse accounts entrusted to him; (Ulpian, Edict, book IP] [2]: or if one makes a slave extravagant or defiant; or persuades him to be debauched.

What if the slave was 'bad' to start with, i.e. already corrupt? The action still lay, provided that the slave could be said to have been made worse by the defendant's conduct:

Ulpian, Edict, book 23: So whether one makes a good slave bad or a bad slave more so, one is held to have made him worse. (D.11.3.1.4.)

The defendant must have acted fraudulently, not just intentionally. It seems that in this delict 'fraudulently' meant acting with malice. The plaintiff could recover for the actual depreciation in the slave and for consequential loss. For example, if the slave stole as the result of being corrupted, his master (being liable for the theft) was entitled to take the theft into account when suing the corrupter:

Paul, Edict, book 19: Accordingly, it is agreed that if you persuade my slave to steal from Titius, you are not only liable for the amount of harm done to the slave but also for what I have to give to Titius. (D.11.3.14.6.)

The action for corrupting a slave lay in favour of the heirs of the plaintiff, but not against the heirs of the defendant. There was no time limit on the action, and it seems that the action survived the death of the slave, or his sale or manumission.

10.5.2 Duress (metus)

(D.4.2., D.44.4.)

Where someone incurred loss (or potential loss) by being forced to enter a trans­action or to commit some disadvantageous act, several remedies were available (see Frier, Casebook on Delict, 213-21). The victim could plead the duress as a defence (exceptio metus) against the enforcement of the transaction; or, if the transaction had been completed or the damaging act had occurred, he could seek restitutio to restore him to the position before the duress. That would normally entitle him to recover any property that had been transferred involuntarily, together with fruits, Moreover, the praetors allowed the victim a delictual action, the actio metus, for damages if the defendant failed to make restitution.

Ulpian, Edict, book 11: Julian says that a person who brings force to bear on his debtor in order to make the latter pay him is not liable under this edict on account of the nature of the action which requires loss on the ground of duress... (D.4.2.12.2.)

In the previous case, the debtor cannot bring the actio metus because he has not suffered any loss—he paid what he had to pay. However, creditors who exercised duress on their debtors could forfeit their claims under legislation introduced in the late Republic. As a general rule, however, no remedy was allowed for duress if it was justifiably exercised, e.g. where a magistrate threatened punishment in the proper execution of Ills duties.

What kind of threats amounted to duress?

Ulpian, Edict, book 11: Labeo says that duress is to be understood not as any alarm whatever but as fear of a serious evil. [Gaius, Provincial Edict, book 4] [6]: Moreover, we say that the duress relevant to this edict is not that experienced by a weak-minded man but that which reasonably has an effect upon a man of the most resolute character. (D.4.2.5-6.)

The test was objective—that of the man of 'most resolute character' (vir constantis- simus). 'Fear of serious evil' comprised threats of death or serious physical harm, enslavement, exposure to a capital charge, and of sexual assault. The threat need not necessarily be directed at the complainant: it was sufficient if it was directed against his children:

Paul, Edict, book 11:...

Threats to other close members of the family probably sufficed, although textual evidence for this is inconclusive. The threat of harm had to be imminent. Thus, if you abandoned your house on hearing armed men approaching, that was probably not duress; but it would be if you left after they had forced an entry—a 'most reso­lute' man would not flee at least until that moment.

An unusual feature of the action for duress was that it could be brought in some circumstances against an innocent party:

Ulpian, Edict, book 11: In this action, no inquiry is made as to whether it was the defendant who used duress or someone else. For it suffices that the plaintiff shows that duress or force was brought to bear on him and that the person sued on account of the affair has made a gain although he has committed no offense.... (D.4.2,14.3.)

In such cases the defendant was liable to the extent of his enrichment. He could, of course, escape the fourfold penalty by returning the profit before the proceedings. In accordance with the usual rule, the heirs of the plaintiff could sue but the heirs of the defendant could not be sued, except to the extent of any enrichment. And where there were joint wrongdoers, each was liable in full; however, if one of them satisfied the plaintiff's claims, the others were released—a departure from the normal rule.

Modern codes retain elements of the Roman rules of metus but with substantial variations. For example, in French and German law duress is a ground for rescind­ing a contract but not for fourfold damages. Under the Code Civil the test of duress is whether a 'personne raisonnable'—and not the vir constantissimus—would fear his person or property being exposed to considerable harm (the age, sex, and condi­tion of the person are taken into account): Article 1112.

10.5.3 Fraud (dolus)

(D.4.3., C.2.20.)

Let Ulpian introduce this delict for us:

Ulpian, Edict, book 11: By this edict the praetor affords relief against shifty and deceitful per­sons who by a certain cunning have harmed others, so as to prevent either their wickedness benefiting the former or their simplicity harming the latter. (D.4.3.1pr.)

This delict had an enormous potential range, as the Digest illustrates. For example, it included fraud perpetrated in business and commerce; falsely supporting some­one's claim to freedom; destroying a will after the death of the testator; and the following unacceptable behaviour:

Ulpian, Sabimis, book 42: Where you have allowed me to take stone from your land or dig for clay or sand and I have incurred expense on this account and then you do not allow me to remove anything, no action other than that for fraud will lie. (D.4.3.34.)

The remedies for fraud were similar to those for duress. The victim of fraud could plead an exceptio doli as a defence against a plaintiff seeking to enforce a fraudulent transaction. As plaintiff, the victim could seek restitutio, failing which he could bring the actio doli. The action lay for simple damages and had to be brought within a year. If found liable, the defendant was subject to infamia. (See MacCormack, G., 'Roman Jurisprudence and Interpretation: on Dolus as Ground of the Classical Actio de Dole', in Ricerche Gallo, 539-60. cf. Frier, Casebook on Delict, 202-12.)

The gravity of the charge of fraud, and its consequences, restricted the use of the actio doli. It was not allowed except in the case of serious and manifest deceit; and the plaintiff had to show that he had no other remedy.

Because of the gravity of the allegation, certain categories of individuals could not be sued under the actio doli:

Ulpian, Edict, book 11: Moreover, it will not be given to certain persons, for example children or freedmen against parents or patrons, since it involves infatnio. Nor ought it to be given to a man of low rank against someone of higher rank, for example, to a plebeian against a man of consular rank possessing acknowledged authority or to a man of licentious or spendthrift or other worthless habits against a man of more correct behavior.... (D.4.3.11.1.)

Here we have a vivid reminder of the type of paternalism sometimes found in Roman society. The 'worthy' man is being protected: his 'inferior' cannot sue him for fraud, because it is a rather nasty action. However, the plaintiff was not neces­sarily without a remedy in such a case. An actio in factum for damages might be given to him by the praetor, under which the defendant's reputation would survive largely intact since the formula of the action omitted any reference to fraud. Infamia did not result in such a case—a satisfactory result all round in Roman eyes.

The action for fraud could only be brought against the wrongdoer, no t against his heirs or any third parties; but the action survived for the benefit of the heirs of the plaintiff. Although joint wrongdoers were each fully liable, restitution or payment by one was deemed to release the others.

Certain types of fraud were the subject of special actions outside the scope of the actio doli (see Buckland, Textbook, 596-7). For example, if a debtor deliberately diminished his assets in order to disadvantage his creditors, an action was given to the creditors to nullify the debtor's acts. It could be brought against the debtor or anyone who had acquired from him with knowledge of the fraud, or even inno­cently (if the acquisition had been gratuitous). If a freedman disposed of his assets with the intention of reducing his patron's rights of inheritance, an action was allowed to the patron, ft could only be brought after the freedman's death, and was available against any donee, however innocent:

Ulpian, Edict, book 44: But every transaction carried out with a view to defrauding a patron is voidable. (D.38,5.1.3.)

Medieval lawyers drew a distinction between fundamental and incidental fraud, based on a controversial text (D.4.3.7pr.), The former was fraud which had induced a party to enter a transaction (which was thus invalidated). Incidental fraud, on the other hand, related to a specific element or term of the transaction. It did not invalidate the trans­action, but the innocent party would be entitled to some form of compensation. The distinction was incorporated into the French Civil Code (Articles 1116-17) and sur­vives in South African law, but not in the BGB. See Zimmermann, Obligations, 670 ff.

The term 'noxal liability' referred to the liability which attached itself to the paterfamilias for delicts committed by sons-in-power. It also extended to delicts committed by slaves. The paterfamilias or owner of the slave either had to pay com­pensation or surrender the perpetrator into debt bondage (see Inst.4.8); cf. Thomas, Textbook, 381-2 as well as Sirks, 'Delicts’, 265-6. This form of liability seemingly also extended to damage caused by animals, See Nicholas, Introduction, 224.

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