The remedies

(a) The actio quod metus causa

This brings us to the remedies provided by the praetor in order to give teeth to his verdict of "ratum non habebo". The actio quod metus causa, without doubt, was the most potent and attractive weapon in the

" Paul.

C 2, 19. 10 (Diocl. et Max.).

³ Ulp. D. 4. 2. 7 pr.

Legal transactions and factual acts; for examples of the latter cf. Pomp./Ulp. D. 4. 2. 9. 2; Paul. D. 4. 2. 21. 2; Kupisch. op. cit.. note 14. pp. 129 sqq.

*⁷ Cf. e.g. Fritz Schulz. "Die Lehre vom erzwungenen Rechtsgeschäft im antiken romischen Recht". (1922) 43 ZSS 220 and passim; Kaser. RPr I. p. 244; Hartkamp. op. cit.. note 12. pp. 52 sqq.

^Jl G.H. Maier. Pratorische Bereichemngsktagen (1932). pp. 96 sqq.

³ Kupisch. op. cit.. note 14. pp. 145 sqq.; Max Kaser. "Zur in integrum restitutio, besonders wegen metus und dolus". (1977) 94 ZSS 123 sq.

²⁰ Ulp. D. 4. 2. 9. 8.

³ Cf. infra, p. 655.

³² Cf. Ulp. D. 4. 2. 9. 8.

hands of a person who had acted under fear. It was characterized by a variety of interesting peculiarities. First of all, it was a penal action, for the defendant was liable for "quanti ea res erit, tantae pecuniae quadruplum":" fourfold the value which had been extorted.^{[3364] [3365]} Secondly, it was "in rem scripta",^[3366] that is, the defendant was not identified as the extortioner but only as the person who had acquired something on the basis of metus: "Si paret... N^m N^m fundum... [mancipio] accepisse...,"^[3367] This could be the person to whom the plaintiff had been forced to perform or also any other person into whose hands the object in question had ultimately come, for instance a bona fide purchaser.^[3368] Reason:..

All of this presents a puzzling mixture of mildness and rigidity. On the one hand, one usually dealt with extortioners, or at least with persons who were not above suspicion. Hence the poena quadrupli, quadruplum being the highest multiple for which an action was available in Roman law.^[3372] On the other hand, however, the defendant could also be free from any blame. Hence the formula arbitraria and the exclusion of infamia. That extortioners would also benefit from these concessions was to be accepted nolens volens; volens probably rather than nolens in view of the extortionary practices of many influential Roman office-

bearers in the provinces, who were to be treated considerately for reasons of political expediency.^{[3373] [3374] [3375]}

(h) In integrum restitutio?

Orthodox doctrine has it that the person who had lost out on account of metus was also granted an in integrum restitutio. Actio quod metus causa and in integrum restitutio are thus seen as two distinct remedies, the one a purely penal one, the other of a restitutionary nature.^[3376] This picture does not, however, conform to our sources. In the Digest we find a far-reaching amalgamation of in integrum restitutio and actio quod metus causa which is attributed, traditionally, to Justinian.^{[3377] [3378] The compilers, it is said, have modified the law by ruthlessly shortening and interpolating the classical texts; admittedly, therefore, "the short Digest title 4, 2 presents unusual difficulties".43 These difficulties, however, find their origin in those strenuous attempts to bring the sources into harmony with certain preconceived ideas.}

the action was the means of attaining the aim of restoration.^[3380] This explains, for instance, why the actio quod metus causa was incorpo­rated into the edictal title De in integrum restitutionibus and why the in integrum restitutio is often—also in other contexts—described as actio. The only major obstacle seems to lie in the fact that the actio quod metus causa lay for quadruplum and was an actio poenalis: not, it would appear, the appropriate attributes for a remedy supposed to serve the end of restoration. But we have already seen that the actio quod metus causa did not aim at penalizing the extortioner and that, furthermore, it was an actio arbitraria. Restoration was in fact its main objective, and the poena quadrupli was not (primarily) intended as a punishment for criminal behaviour but as an inducement for the debtor to return "quod metus causa accepferat]".^{[3381] [3382] Only on this basis was it possible, after all, to expose bona fide third parties to the actio quod metus causa:.. nee cuiquam iniquum videtur ex alieno facto alium in quadruplum condemnari, quia non statim quadrupli est actio, sed si res non restituatur.1,49}

(c) Exceptio

In many cases, of course, it was not necessary for a person who had acted under the influence of fear to sound the charge by instituting an action. If, for instance, he had promised something by way of stipulation, he could just as well wait until the stipulator attempted to enforce the contract. He could then counter this action by asking for an exceptio to be inserted into the programme of litigation. This exceptio was known as the exceptio metus and it instructed the judge, quite simply, to inquire "si in ea re nihil metus causa factum est".^[3383] With the actio quod metus causa the exceptio metus shared the important characteristic that it was "in rem scripta" with the effect, "ut non inspiciamus, an is qui agit metus causa fecit aliquid, sed an omnino metus causa factum est in hac re a quocumque, non tantum ab eo qui agit".^[3384] The person of the extortioner was not identified in the formula of the exceptio, and thus it could be raised against any plaintiff, whether he himself had caused the fear or whether, for instance, he was a bona

fide third party to whom the defendant had been coerced to make the 52

promise.

Naturally, it was not always easy to determine how actio and exceptio worked together in an individual case. Take the situation discussed in D. 4, 2, 14, 9.^{[3385] [3386] A had, through force, procured a promise in the form of a stipulation from B. B had sued him with the actio metus causa, which meant that A had had the option of restoring B to the former position; such restitutio in integrum would, in this instance, have entailed a formal release. A had, however, refused to give it and had consequently been condemned to pay the poena quadrupli. He now sued B on the stipulation, which, though brought about by metus, was after all still in existence. Was B able, under these circumstances, to bar A's claim with the exceptio metus? Yes, according to Labeo, who thus allowed actio and exceptio to be cumulated. Not so, said Julian, who was therefore prepared to grant A a replicatio to counter B's exceptio. Without such replicatio B would in effect have been able to obtain both penalty and restitution: a result which had quite clearly not been envisaged by the praetor.[3387]}

Finally, there was a variety of situations where the defendant did not need to invoke praetorian help in order to escape the consequences of a transaction entered into metus causa. Most importantly, the exceptio metus was inherent in the bonae fidei indicia;^[3388] it was part and parcel of the officium iudicis to refuse to entertain the plaintiffs claim under these circumstances. For all practical purposes that meant that the contract (of sale, lease etc.) was invalid.

2.