The concept of dolus

(a) Aliud simulare, aliud agere

How potent and effective these remedies were depended, of course, to a large extent on the interpretation of the words dolus malus. As far as the

Ursprungsgeschichtc der exceptio doll und der actio de dolo malo", in: Eranion Maridakis.

^1UI Cf. in particular Ernst Levy, "Zur nachklassischen in integrum restitutio", (1951) 68 ZSS 410 sqq.; Andreas Wacke, "Kannte das Edikt einc in integrum restitutio propter dolum?", (1971) 88 ZSS 105 sqq.

¹⁰¹ Kupisch, op. cit., note 14, pp. 241 sqq.; cf. further Kaser, (1977) 94 ZSS 143 sqq.; Brutti, op. cit., note 99, pp. 352 sqq.; Arthur Hartkamp, "Die Drittwirkung der in integrum restitutio", in: Daube Noster (1974), pp. 133 sqq.

¹⁽¹² Cf. Lend, EP. p. 115.

¹⁽¹³ The same applied to the exceptio doli; cf. Ulp. D. 44, 4, 4, 33 ("... exceptio doli personam complectitur eius, qui dolo fecit").

¹⁽¹⁴ Cf. Ulp. D. 4, 3, 17 pr._: Paul. D. 4, 3, 18 pr.

^lcs Cf. e.g. Ulp. D. 4. 3. 1. 4; Ulp. D. 4. 3. 11. 1. Hence, for instance.. quibusdam personis non dabitur, ut puta liberis vel libertis adversus parentes patronosve".

¹⁰⁵ Ulp. D. 4, 3. 1, 1. On the clause "si dc his rebus alia actio non sit" cf. D. 4, 3, 1,4 sqq.; Bernardo Albanese, "La sussidianeta dell' actio de dolo", (1961) 28 Annali Palermo 173 sqq.; cf. also Alan Watson, "Actio de dolo and actiones in factum", (1961) 78 ZSS 392 sqq.; Klaus Slapnicar, "Uber die Aktivlegitimation zur actio legis Aquiliae und actio dc dolo im Drcipersonenverhaltnis", in: De iustitia et iure, Festgabe fiir Ulrich von Liibtow (1980), pp.

¹¹¹⁷ Kaser. (19771 94 ZSS 146.

actio de dolo was concerned, we find a gradual extension of its range of application. This becomes immediately apparent if we look at the two famous definitions of dolus malus contained in Ulp. D. 4, 3, 1, 2;

"Dolum malum Servius quidem ita definiit machinationem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur. Labeo autem posse et sine simulatione id agi, ut quis circumveniatur:... itaque ipse sic definiit dolum malum esse omnem calliditatem fallaciam machinationem ad circumveniendum fallendum decipiendum alterum adhibitam."

And Ulpian added as his own commentary: "Labeoni, defmitio vera est."¹⁰⁸ Originally, therefore, some simulation was required: a person was taken to have acted fraudulently if he had pretended one thing but actually intended another. This was the meaning attributed to dolus malus not only by Servius Sulpicius but also by Gaius Aquilius Gallus, the father of the actio de dolo: "... cum esset aliud simulatum, aliud actum."¹⁰⁹ Labeo/Ulpianus D. 4, 3, 9, 3 is a case that could have been decided along the lines of this definition.¹¹⁰ Between A and B a dispute has arisen as to whom some oil belongs. B deposits the oil with C. C is supposed to sell the oil but to keep the proceeds until the dispute has finally been decided by a court of law. A subsequently refuses to join issue. As a result of this, B is unable to claim the money from C since the condition under which the deposit had been made has not yet been fulfilled: B has not been declared owner of the oil. In this situation B is given the actio de dolo against A. A has frustrated B's claim by first pretending to defend the action but then refusing to join issue. B has been misled by A's expressed intention which did not correspond to his (i.e. A's) real intention.¹¹¹

(b) Lab. D. 4, 3, 1, 2

It was soon recognized, however, that the aliud simulare, aliud agere definition was too narrow in scope, since a person can intend to deceive another without misleading him by a pretence.

¹⁽¹⁸ Ulp, D. 4, 3. 1, 2 in fine. For a decailed analysis of the definitions contained in D. 4, 3. 1. 2 and 3, cf. Antonio Carcaterra, Dohis bonus/dolus mains- Eseyesi di D. 4,3, 1, 2-3 (1970).

^{1to remedy the situation. The basis for its application is not fraudulent behaviour ("machinatio ad dedpiendum alterum") in the narrow sense, but what is described by the Emperors as "fidem placiti rumpfere]": the mere fact that a person does not keep his word. Thus we see that the actio de dolo could conveniently be used to fill inequitable gaps within the Roman contractual system. In the same vein, Paul. D. 19, 5, 5, 3 had already stated: "Quod si faciam ut des et posteaquam feci, cessas dare, nulla erit civilis actio, et ideo de dolo dabitur."13}

(d) Bonafides and dolus

In actual practice, therefore, the concept of dolus was similarly broadly interpreted in connection with the actio de dolo as it was with reference to the exceptio doli. For here it is generally recognized that the insertion of an exceptio doli into the procedural formula provided thejudge with the same far-ranging discretion that he already had in bonae fidei iudicia, due to the ex bona fide clause contained in the intentio.¹²⁴ The exceptio was worded in the alternative: "si in ea re nihil dolo malo A¹ A¹ factum sit neque fiat",¹²⁵ and it was particularly the "neque fiat" clause that made it such a powerful instrument to bring about a just solution. "Factum est" referred to fraudulent behaviour before the institution of the action (against which the exceptio was now raised), particularly in the act of concluding the contract (dolus in contrahendo).¹²⁶ "Fiat", on the other hand, comprised all cases where the bringing of the action itself could be taken to constitute dolus. Thus, for instance, a person who claimed what he would have to return before long acted "dolo": "dolo facit, qui petit quod redditurus est.^1,127 But, as Geoffrey MacCormack has pointed out recently,¹²⁸ to pose the question in this form (does the bringing of the action itself constitute dolus?) invited an answer which located dolus not so much in personal misconduct, but rather in an inequity or injustice that would flow from the successful maintenance of the action.

(e) Dolus and dolus mains

If, then, the crucial dividing line appears to have been drawn between bona fides on the one hand and dolus on the other, we must keep in mind two further points. Dolus, in classical Roman law, always retained an element of moral disapproval.¹³⁴ A person charged with dolus had not necessarily employed deceit and trickery, but had infringed one of the standard principles by which to conduct an honest

⁰⁵ The so-called exceptio doli praeteriti or specialis. On dolus in contrahendo cf. the monograph by Karl Heidrich, Verschulden bei Vertragsabschluss (1924), and Peter Stein, Fault in the Formation of Contract (1958).

¹²⁷ Paul. D. 44. 4. 8 pr.; also Paul. D. 50. 17. 173. 3.

“ (19861 52 SDMI 263 sq.

¹⁷¹ Cass./UIp. D. 44. 4. 4. 33; Brutti. op. cit.. note 99. pp. 625 sqq. On the relationship between exceptio doli and exceptio pacti, sec Brutti, op.

“ Paul. D. 44. 4. 1. 1.

^a Cf. e.g. Paul. D. 17. 2. 3. 3 (referring to societasl.

^E As revealed, for instance, in lav. D. 19. 2. 21: "[B]ona fides exigit, ut id quod convenit fiat."

“ Ulp. D. 44. 4. 2 pr.; cf also Ulp. D. 4. 3. 7. 8 and Wacke. (19801 27 RIDA 371 sqq.

“ Kaser. RPr II. p. 349: Wacke. (19801 27 RIDA 384 sqq.; but cf. MacCormack. (19861 56 SDHI 284 sq. life: fidelity.^[3417] He had behaved in a manner in which a good Roman ought not to have behaved, and had thus departed from the premises and ethical precepts of the mores maiorum. After all, it must be remembered that the praetor spoke of "dolus malus", and even though the specific pejorative attribute was soon discarded, the term "dolus" was never taken to refer to what had once been designated dolus bonus.^[3418] Thus, for instance, fraud or trickery against an enemy or robber was not objectionable,^[3419] and even simulation (in the sense of Servius' old, more narrow definition) could be condoned where it had been resorted to in order to protect the simulating party's or somebody else's (legitimate) interests.^{[3420] 8} Another example is provided in Ulp. D. 4, 3, 7, 7:

"Idem Labeo quaerit, si compeditum servum meum ut fugeret solveris, an de dolo actio danda sit? et ait Quintus apud eum notans: si non misericordia ductus fecisti, furti teneris: si misericordia, in factum actionem dari debere."

If A releases B's slave from his fetters with the result that the slave can run away, he has caused damage to B. However, he is not liable under the actio de dolo if he has acted out of compassion, that is, if his action has been prompted by a morally commendable impulse.^{[3421] [3422]}

If) Dolus and sollertia

Even more important, practically, was a second factor limiting the range of application of the remedies against dolus. The standard of bona fides, as we have seen, ^!4° was determined in accordance with prevailing and average business decency, not from the refined but abstract point of view of moral philosophy. Thus, there was a broad grey area of "sollertia"^[3423] (cleverness, deftness, craftiness; MacCormack translates:^[3424] ingenuity) which fell short of constituting dolus (malus). In particular, invicem se circumscribere (or circumvenire) was not regarded as objectionable, but was expressly (and repeatedly) stated to be in accordance with the nature of trade and business.^[3425] Or, in the words of the glossator Bulgarus: "[L]icet contrahentibus se invicem decipere, non tamen decere." ⁴⁴

2.