Transactions in fraudem legis
(a) In fraudem legis agere
Codex 1, 14, 5, Theodosius' Lex non dubium, had dealt with and, as far as the ius commune was concerned, conclusively settled, another problem connected with statutory prohibitions.
"Non dubium est", the Emperor had asserted, "in legem committere eum qui verba legis amplexus contra legis nititur voluntatem: nee poenas insertas legibus evitabit, qui se contra iuris sententiam scaeva praerogativa verborum fraudulenter excusat."[3547] The type of behaviour described in this paragraph was known as agere in fraudem legis: conclusion of a transaction which, whilst respecting the words of a specific statute, was designed[3548] to thwart its purpose. The Digest contains the following elegant definition taken from a work of Paulus: "Contra legem facit, qui id facit quod lex prohibet, in fraudem vero, qui salvis verbis legis sententiam eius circumvenit";[3549] and Ulpian put it equally succinctly when he stated that fraud in respect of the statute is practised when something is done which the statute does not wish anybody to do, yet which it has failed expressly to prohibit.[3550] According to C. 1, 14, 5, such fraus legi facta was taken to be a violation of the statute and therefore led to invalidity.[3551] This had not always been the case, though. Pre-classical jurisprudence was characterized, as we have repeatedly stressed,[3552] [3553] by a strictly formalistic approach. Republican law-makers tried to provide, with cautious, unabstract and clumsy punctiliousness, for all kinds of eventualities:175, where they wanted their law to apply to slaves or children of both sexes they had to be explicit ("servus serva"; "filius filia"), the lex Aquilia described the action of the wrongdoer in no less than three different verbs ("mere, frangere, rumpere"),[3554] the prohibition against burying the dead with golden presents or ornaments (expressed in the words "neve aurum addito") would have covered gold fillings in the teeth, had a specific exception not been provided for.[3555](b) Republican jurisprudence
The last example shows how closely legal drafting and techniques of interpretation are interrelated.
To some degree both cause and consequence of this meticulous and formalistic attention to detail was a considerable rigidity in the interpretation of statutes: the literal meaning of the words used was the one and only decisive criterion. The average Republican lawyer was often criticized for his somewhat uninspiring narrowness; Cicero described him scathingly as "leguleius quidam cautus et acutus, praeco actionum, cantor formularum, auceps syllabarum".'[3556] Obviously, this kind of inflexibility lent itself to abuse and encouraged ingenious businessmen to find ways and means of achieving their ends without violating the letter of the law.'[3557] The number of devices used to get around the usury laws must have been legion: "Multisque plebis citis obviam itum fraudibus, quae, totiens repressae, miras per artes rursum oriebantur" comments Tacitus, half admiringly.[3558] The leges Furia, Voconia and Falcidia,[3559] the lex Cincia,[3560] 6 the leges sumptuariae:[3561] no statute was impervious to attempts to circumvent it.[3562] Even Marcus Porcius Cato (Censorius), that paragon of Republican uprightness, acted in fraudem legis when he conducted his maritime trade via a middleman by the name of Quinctius (one of his liberti),[3563] since the lex Claudia de nave senatorum[3564] had excluded Senators from this form of business activity. All these acts, although contrary to the spirit of the law, did not directly violate it and were therefore not affected by its sanctio. Only the legislator himself was able to address the problem by amending the statute that was circumvented.[3565] [3566] [3567] Sometimes he tried to prevent such circumvention by including a general prohibition of fraus legi facta in the wording of the lex. In a similar vein the praetor promised:"Pacta conventa, quae neque dolo malo, neque adversus leges plebis scita senatus consulta decreta edicta principum, neque quo fraus cui eorum j\at.
facta erunt, servabo."142(c) Scire leges non est verba earum tenere...
All this changed only gradually during the late Republic and the Principate. Under the influence of Hellenistic philosophy and rhetoric a more liberal approach to interpretation gained ground—with regard to statutes as much as in relation to wills and contracts.1" In the wake of the rhetorical antithesis between verba and voluntas, or scriptum and sententia, the intention of the statute, its purpose and its spirit became an acceptable criterion within the process of construction. One realized that it was not possible (or even desirable)[3568] for every detail to be specifically dealt with in leges or in any other form of legislation;[3569] [3570] hence:
. cum in aliqua causa sententia eorum manifcsta est, is qui iurisdictioni praeest ad similia procedere atque ita ius dicere debet."IW1
The new attitude was summed up particularly crisply by Celsus: "Scire leges non hoc est verba earum tenere, sed vim ac potestatem":[3571] knowing laws (and, we may add, interpreting them) is not a matter of sticking to their words, but of grasping their force and tendency.[3572] [3573] As a result of this purposive (or teleological)149 approach, agere in fraudem legis came to be equated with agere contra legem: transactions which were contrary to the spirit of the law were just as much a violation of it as those that contravened its words. Thus, for instance, the senatus consultum Macedonianum was applied to a loan of corn or wine which the son in power was supposed to sell in order to be able to use the proceeds,[3574] even though the words of the law merely referred to "mutua pecunia".[3575] Likewise, the exceptio senatus consult! Vellaeani could be invoked if the parties had attempted to evade its provisions by way of a persona interposita: a man standing surety in the place and on behalf of the woman, who was prohibited by the senatus consultum from "pro alhs rea fieri1'.[3576] The latter example, incidentally, shows us that the transaction in fraudem legis was not necessarily invalid. It was subject to the sanction of the statutory prohibition and was therefore treated in the same way as if the parties had agreed to what the law forbade directly and expressis verbis. Only when all statutory prohibitions had become leges perfectae[3577] did agere in fraudem legis necessarily entail invalidity too. Today, again, it is the sanction of the law meant to be evaded that determines the fate of the transaction in fraudem legis (" Umgehungsgeschaft"); its applicability is widely regarded merely as a matter of the proper (purposive) construction of that law.[3578] IV.
More on the topic Transactions in fraudem legis:
- The legis actio procedure
- Range of transactions
- Will-orientation, mistake and the formal transactions
- SPECIAL TYPES OF SURETYSHIP TRANSACTIONS
- The Legis Actio Procedure
- The Legis Actio Procedure
- Chapter 7 Financial Transactions by Women in Puteoli
- The legis actiones Sacramento, per iudicis postulationem and per condictionem
- COMBINED TRANSACTIONS: HIRE-PURCHASE IN ROMAN LAW
- 3.2 Early procedure: the legis actiones
- The legis actiones per manus iniectionem and per pignoris capionem
- The actio legis Aquiliae and analogous remedies