1. The remedies for dolus and metus compared

The three dots in our quotation of § 123 I BGB⁹⁴ stand for the words

Groenewegen, Cod. Lib. II, Tit. XX, 1. 4.

⁸⁷ Cf. e.g. Windscheid/Kipp. § 462.

8H

Cf.

⁸" But see Lloyds Bank Ltd. v. Buttdy [1975] QB 326 (CA) and Zweigert/Kotz, pp. 127 sq., as well as, more recently, Pao On p. Lan Yin Long [1980] AC 614 and Treitel, Contract, pp. 312 sqq.; Atiyah, Pragmatism and Theory in English Law (1987), pp. 15 sq. As to the exclusion of economic duress, Atiyah, Rise and Fall, p. 436, comments: "... the nineteenth-century rules were made in the context of a market-based law of contract. In the market economic pressures are commonplace, and a market-based law of contract cannot treat them as a vitiating ground."

⁹⁽¹ Treitel, Confrflci, pp. 314 sqq.

⁹ Cf. e.g. Mauerberger v. Mauerberger 1948 (4) SA 902 (C) at 909-13; Preller v.Jordaan 1956 (1) SA 483 (A) at 492H-493B; Wessels' Contract, vol. I, nn. 1208 sqq.; Lee, Introduction, p. 231.

^$ Van den Heever JA in Preller v.Jordaan 1956 (1) SA 483 (A) at 499H sqq.; De Wet en Yeats, pp. 47 sqq.

⁵⁸ Generally on undue influence in South African law, see L.F. van Huysteen, Onbehoorlike Bei'nvheding en Misbruik van Owstandighede in die Suid-Afrikaanse Verbintenisreg (1980), pp.

⁹¹ Cf. supra, p. 661.

"(by) fraud (or)" ("arglistige Täuschung"). The BGB thus provides the same remedy in cases of metus and dolus: the affected party may rescind the contract. There is, however, one significant difference which becomes apparent if one reads § 123 II BGB:^[3409] rescission on account of dolus is not "in rem scripta", at least not to the same degree as the remedy for metus. As a rule, the remedy for dolus is available only if the other party to the contract has been guilty of the fraudulent behaviour. If the conclusion of the contract has been induced by fraud on the part of a third party, the contract may be rescinded only if the "second" party (i.e. the one affected by the rescission: the contractual partner or whoever else might have acquired a right under the contract) had known or should at least have known of the fraud.^[3410] The modern law thus still reflects the fact that the remedies against metus and dolus have grown up side by side, but not without characteristic differences. In classical Roman law no action could be granted on the basis of negotia bonae fidei affected by fraud (dolus): obviously a defrauder cannot successfully maintain that the other party "dare facere oportet ex fide bona". Like the exceptio metus, the exceptio doli was therefore inherent in the bonae fidei indicia.^[3411] Other transactions, however, as in the case of metus, remained originally unaffected.^[3412] After all, the will to enter into the transaction was not lacking. Again, it was the praetor^[3413] who had to intervene in order to grant equitable relief Again, this relief could take the form either of an active or of a defensive remedy (the actio de dolo or the exceptio doli); again it has been controversial whether, apart from these two remedies, a separate in integrum restitutio was granted.¹⁰⁰ As in the case of metus, the most probable solution to this problem is that the actio de dolo was the normal procedural avenue for achieving the aim of restitution:¹⁰¹ for, like the actio quod metus causa, the actio de dolo contained the clausula arbitraria.¹⁰² Unlike the parallel remedy for duress, however, the actio de dolo was not "in rem scripta" but was available only against the perpetrator of the fraud.¹⁰³ Furthermore, it did not provide for a poena quadrupli: if the defrauder refused to render restitution, he was exposed merely to a condemnatio in simplum.¹⁰⁴ On the other hand, this condemnatio involved infamia.¹⁰⁵ Finally, the actio de dolo was subsidiary, that is, it could be brought only if no other remedy was available; for the words of the praetorian edict ran like this: "Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et iusta causa esse videbitur, iudicium dabo."¹⁰⁶ Again, one has the impression that one is dealing with a compromise solution; the praetor wanted to suppress objectionable behaviour but at the same time did not want to hit out too hard, since a variety of high-ranking Roman officials were bound to be affected.¹⁰⁷

2.