The position under the ins commune
(a) The relief for metus and its limits
The Digest title 4, 2 provided the basis for all discussions about metus during the various ages of the ius commune; through the Roman- Dutch authorities it still exercises a dominant influence on modern South African law.[3389] For centuries, texts such as D.
4, 2, 2-7 were accepted as defining the limits of relief for metus. It was emphasized that only fear of a severe evil ("metus maioris malitatis'1 )[3390] [3391] [3392] was asufficient cause of action, and the Roman case law on the topic was faithfully preserved. Instances of "maior malitas" came to be remembered by a little verse ("excusat career, status, mors, verbera, stuprum"),58 and we find long discussions about metus infamiae, the main example of what continued to be considered "non satis gravis".59 Metus reverentialis, fear due to the natural respect owed to persons in authority (such as parents or husbands), was identified by the Accursian gloss as a general ground for setting aside a contract,[3393] but this extension of the concept of metus remained disputed.[3394] "Ita expeditum illud", said Voet, "metum reverentialem huic restitution! locum non facere";[3395] but he recognized an exception where fathers or husbands could be proved to have gone beyond the bounds of respectful fear and to have instilled a "terror exheredationis", or something equally obnoxious, in their wives or children. Eventually, however, this kind of casuistry was abandoned in favour of a more generalized approach. For, as was pointed out by Lauterbach,[3396] there could be vis in bonam partem and in malam partem, metus iustus and metus iniustus. Cutting, to a certain extent, across the established categories was therefore the more fundamental distinction whether the fear was inspired "contra bonos mores, adeoque injuste"[3397] or not.
This criterion, too, had been foreshadowed in the Digest; we find it mentioned both in Ulp. D. 4, 2, 3, 1 and in the famous regula iuris of D. 50, 17, 116. Pothier required that in order to provide the basis for a remedy, the fear had to be "injuste",[3398] and this criterion has also been read into the French code civil.[3399] Specific limits as to which form the pressure might take were no longer prescribed. In the same vein, the German BGB merely states that the transaction must have been induced "unlawfully" by duress.[3400] This has brought about a considerable degree of flexibility and has enabled courts and legal writers to use the remedies provided in art. 1112 code civil and § 123 BGB in order to tackle the problem of economic duress[3401] [3402]—a new and relatively subtle form of coercion which has come to the fore in the wake of the progressof economic individualism in the 19th century. Hand in hand with these developments went a relaxation of the standard for measuring the degree of pressure exercised on the contracting party.
By the time of Voet, the Roman vir constantissimus had been replaced by the more realistic homo constans,69 and from there it was not far to the "personne raisonnable" of the code civil.[3403] Apart from that, the standard was also individualized, for not everybody can be expected to display even an average degree of Constantia or reasonableness. The judge was therefore usually asked to take into consideration the age, the sex and the condition of the person threatened.[3404] The BGB ultimately abandoned any attempt to set up specific standards of hypothetical constancy in order to confirm the range of operative metus.
(b) Effect of metus on the contract
Whether contracts induced by metus were ipso iure void or merely voidable at the instance of the injured party remained disputed. The distinction between negotia bonae fidei and stricti iuris having become obsolete, it seemed appropriate to subject all contracts to one and the same regime.[3405] [3406] Most authors of the later ius commune, when faced with this decision, seem to have been convinced by Paulus' "coactus volui" argument:.. consentire eum, qui metu conterritus quid fecit, ratio sana docet: digit nempe ex duobus malis minimum.1,73 Vis compulsiva (as the mere threat of violence had by now come to be called), after all, left the person exposed to it with a choice, albeit the hardly enviable one of embracing what he considered to be the lesser of two evils. This was different in the case of vis absoluta.[3407] Where one party grabs the other's hand and makes him sign a document (not a very frequent incident outside of professorial textbooks) there is, of course, no freedom of choice: "Vis... absoluta... illius, qui earn patitur, excludit consensum."[3408] The same kind of argument was bound to appeal particularly to the will theorists of the 19th century: as long as two or more courses of action are open to the declarant, his declaration reflects a real will (and not only the semblance thereof).76 This was the dominant view from Savigny77 down to Windscheid/ Kipp, and hence the BGB, too, leaves it to "whoever has been induced to make a declaration of intention... unlawfully by duress" to rescind the declaration.78 Rescission here works in the same way as in the case of error, that is, ex tune.79 Pothier, too, refers to "rescision"'” and the code civil therefore does not regard contracts vitiated by violence as absolutely void either. The nullity is "relative", i.e. it may be invoked only by the victim of the threat.81 (c) Specific characteristics of the remedies for metus According to both modern French and modern German law,82 the contract may be rescinded (i.e. the nullity be invoked)—and consequently all performances made be reclaimed—even if the duress had been exercised not by the contractual partner but by a third party. The contractual partner need not even have known about the predicament of the victim of the threat. To this extent, it is still true to say that the remedy against duress is "in rem scripta".83 Throughout the days of the ius commune, this characteristic of the Roman actio quod metus causa and of the exceptio metus had been faithfully retained;84 modern South African writers have, however, questioned the wisdom of treating duress more strictly in this regard than the other vices of consent, particularly dolus (fraud).85 In no modern legal system does the extortioner, or anybody else who happens to have received anything on account of metus, face a fourfold penalty any longer if he refuses to render restitution. Cf. also, from a philosophical point of view, Thomas Hobbes in his Leviathan, as quoted by Atiyah, Rise and Fall. p. 43: "Feare and Liberty are consistent; as when man throweth his goods into the Sea for feare that the ship should sink, he doth it neverthelesse very willingly, and may refuse to doc it if he will: It is therefore the action, of one that was free; so a man sometimes pays his debt, only for jeare of Imprisonment, which because no body hindered him from detaining was the action of a man at liberty." "Hobbes realizes, of course", Atiyah carries on, "that there must be certain exceptional cases where the civil law in a political society will... be disinclined to enforce a [promise extracted by duress]. But even in such case he appears to have some notion, peculiar though it may seem to us, that the promise is somehow prima facie binding, and it is only by the grace of the positive laws of the State that the promisor is freed from his promise." System, vol. Ill, pp. 102 sqq. 78 § 123 BGB. ™§ 142 BGB. " Traite des obligations, n. 26. Cf. Nicholas! FLC, pp. 74 sqq. But see § 875 ABGB; for a comparative analysis cf. Zweigert/Kotz, pp. 128 sq. 83 Cf. "Motive", in: Mttqdan, vol. I, pp. 465 sq. 84 Cf. e.g. Voet, Commentarins ad Pandectas, Lib. IV, Tit. II, IV; Windscheid/Kipp, § 80, n. 5; Wessels, Contract, vol. I, n. 1202. 85 De Wet en Yeats, pp. 45 sq.; Joubert, Contract, p.,.1.10. C7oJitfa;-HA--Hahlo/Ellison Kahn, The Union of South Africa (1960), pp. 472 sq. CfrAsoAvigAy,, System* llf.-lIFf. 117, who described metus as the worse and more dangerous fonra oT "disHrtftihc fiUv and order. , 'J *CC-1CQ'V uu’u.T,! declared obsolete as far back as the 17th century: "Haec quadrupli poena nostris et Gallorum moribus exolevit.... In simplum actio... In the English common law, at least since the 19th century, duress used to be about as narrowly defined as metus in the earlier ius commune; a contract may be avoided, if there has been a threat of physical violence to, or unlawful constraint of, the person of one of the contracting parties.88 More particularly, duress of goods and economic duress are traditionally not taken into consideration.84 The narrow common-law definition induced the Courts of Equity to step in and grant relief in cases of "undue influence".9'1 In South Africa attempts have not been wanting to read the doctrine of "undue influence" into the Roman-Dutch authorities:91 not particularly convincing92 efforts (from a historical point of view) to justify or legitimize the contamination (as the "purists" would see it) of an essentially civilian jurisdiction by an English import.93 II.
More on the topic The position under the ins commune:
- The boni mores and the ins commune
- The distinctions of the ins commune
- Breach of contract under the ins commune
- The notion of impossibility under the ins commune
- Actio empti and aedilitian remedies in the ins commune
- Hume’s Position Considered for the First Time
- Hume’s Position Considered for the Fifth Time
- International political, military and economic position
- The regime of the ius commune: all or nothing
- Hume’s Position Considered for the Fourth Time