Praetorian Delicts

In addition to the delicts deriving from the ius civile, the praetor created a number of penal actions in respect of certain forms of misconduct for which the civil law made no provision.

The wrongdoings to which these actions applied are commonly referred to as praetorian delicts.^{^[993]} There were numerous such delicts, but we need only consider the two most important of them, namely duress or compulsion (metus) and fraud (dolus).

size=2 color=black face="Times New Roman">4.12.1.1 Metus

Metus came to the fore when a person was induced by threats of violence to enter into a legal act to his own detriment. If the legal act originated in the ius civile, the duress had no effect on it and the act remained perfectly valid in all respects. To rectify this unsatisfactory situation, the praetor intervened and a number of legal remedies were made available to persons subjected to duress, provided the force or threat of force used was of such nature that a reasonable person would have feared imminent danger to his person, property or family. Threats capable of supporting a claim of duress included physical injury, death, enslavement, an accusation on a capital charge, or an attack upon the chastity of the person threatened or a member of his family.^{^[994]}

From an early age in legal history, the person forced by duress to conclude a legal transaction arising from the ius civile was granted the exceptio metus (or exceptio quod metus causa) by the praetor as a defence against any person seeking to profit by the transaction in question.^{^[995]} However, if the transaction was based on bona fides, raising the exceptio metus was superfluous as good faith did not require performance of an obligation arising from a transaction concluded under duress.^{^[996]}

Where the legal act entered into under duress had already been executed and financial loss had been suffered as a result, the praetor made available to the aggrieved person a restitutio in integrum whereby the latter could request the restoration of the legal situation that existed prior to the conclusion of such act.

This meant that the relevant legal act was annulled and the payment or other performance already made had to be restored.^{^[997]}

A much stronger remedy was the actio quod metus causa (also referred to simply as actio metus causa), a penal action applicable whenever someone incurred financial loss as a result of duress and that pursued a payment of four times the value of such loss. With the introduction of this action towards the end of the republican age, metus was granted recognition as an independent delict. The action was instituted by the party who suffered loss against any person (even if he were bona fide) who profited from the act performed under duress and not necessarily against the wrongdoer. If, for instance, someone compelled another by duress to transfer property to a third party, the person incurring the loss could institute the action against the third party.^{^[998]} Furthermore, the action had to be instigated within a year after the legal act in question otherwise the prejudiced party's claim was only for simple damages.^{^[999]} It is interesting to note that when this action came to the fore the defendant was given the choice to avoid condemnation by restoring the property he had obtained through duress or, if such property was not restored, to be sentenced to pay four times the value of the plaintiff's loss.^{^[1000]}

4.12.1.2 Dolus

Dolus (or dolus malus) denoted any fraud, deceit or contrivance employed to induce a person to enter into a legal transaction to his own detriment.^{^[1001]} Just as in the case of duress, dolus did not invalidate a transaction that arose from the ius civile and the victim had no remedy against the defrauder, except perhaps on the ground that the fraud had induced an error on his part.

However, in the first century bc the praetor intervened and granted the exceptio doli to the person who had been conned into concluding a legal transaction as a defence against an action aimed at enforcing such transaction.^{^[1002]} As in the case of duress, raising this defence was not necessary where the legal transaction in question was based on bona fides. When the transaction had been executed and loss had already been suffered, the praetor granted restitutio in integrum to the defrauded party. This remedy was apparently assimilated at an early stage by the actio doli and dolus was elevated to the status of an independent delict.

The actio doli was a penal action applicable where a person incurred financial loss as a result of fraud and was directed at compensation for the actual loss suffered.^{^[1003]} This action differed from the actio quod metus causa in that it could be brought only against the actual defrauder and not against third parties, probably because it entailed infamia.^{^[1004]} On the other hand, as in the case of the action arising from duress, the actio doli had to be instituted within a year and the defendant could avoid condemnation by restoring what he had fraudulently obtained (if he could do so).^{^[1005]} Finally, it is important to note that the actio doli was a subsidiary action (actio subsidiaria) since it could be employed only if no other remedy of any kind was available.^{^[1006]} For example, a person who was induced by fraud to purchase an object could not use this action against the seller, because his action in respect of the sale (actio empti) would address the matter.

4.12.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Praetorian Delicts

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