III. BOOK naturale est quam eo genere quidque dissolvi quo colligatum est; and therefore it followed that verborum obligatio verbis tolleretur. Acceptilatio is defined by Modestinus as liberatio per mutuam interrogationem2. This however could only apply to verbal contracts, and the form of it was this: Form of. Quod ego tibi promisi habesne acceptum? The creditor replied, Habeo acceptum. But Gallus Aquillius invented a form which made it applicable to other contracts. This was done by first reducing the contract to a verbal obligation, and then dissolving it by acceptilatio. Suppose Sempronius owed Titius 100 aurei on a note of Form of hand, then Titius asked, Quidquid te mihi ex chiroAquillius. grapho dare oportet, tantam pecuniam tu mihi dare spondes? To which Sempronius answered, Spondeo. Here a written obligation was shifted into a verbal one, which was capable of being dissolved by a verbal receipt; accordingly Sempronius then addresses Titius in this form: Quid tibi jam me daturum spospondi, id habesne a me acceptum? To which Titius replied, Habeo acceptum; and the obligation was at an end. Gallus A procurator could not give a discharge by acceptilatio, except by the special order of his principal. Part of an obligation might be thus discharged if it were divisible". The last mode of dissolving a contract to be noticed is that of mutual consent. This could only take place re integra. As if Titius have agreed to sell his farm to Seius, and before the money be paid by Seius, and the possession of the farm be given by Titius, they agree to cancel the bargain, there is an end of the contract, otherwise any further agreement would constitute a fresh contract. 1 D. L. 17. 35. 3 Id. 3. 5 D. XLVI. 4. 3. 2 D. XLVI. 4. I. 4 I. III. 30. I. 6 D. XLVI. 4. 9. and 10. 7 I. III. 30. 4. " CHAPTER XI. Restitutio in Integrum. XI. RESTITUTIO in Integrum was also a mode of CHAP. dissolving obligations, though not noticed by Dr Hallifax, except incidentally under the head of "actions." grum. Ulpian says, Hoc titulo plurifariam Prætor Restitutio hominibus vel lapsis vel circumscriptis subvenit: in Inte Sive metu, sive calliditate, sive ætate, sive absentia inciderunt in captionem; and Paulus adds, sive per status mutationem, aut justum errorem'. The signification of the term in integrum resti- Definition. tutio, is the placing the complainant in the same position as he was before the transaction complained of, and by which he has been wrongfully damaged; and in its general acceptation it includes every relief granted to a person seeking through equity indemnity against the provisions of strict law, where such involves a hardship in some particular case. The applicant must prove damage of a serious nature arising out of the transaction in questions. If the plaintiff be able to repair the damage by the ordinary course of law he cannot resort to the restitutio in integrum. The restitutio is also inoperative against such cases as are in themselves null; but if any one were placed in such a position as not to be able to avail himself of the plea of nullity, the restitutio would be granted him. The edicts of the Prætor in reference to the in integrum restitutio stand in the Digest in the following order: BOOK III. In what cases granted. How obtained. Quod metus causa. I. 1. Quod metus causa', &c., where the plaintiff has been compelled by fear to do that which he would otherwise have refused. 2. Quæ dolo malo", &c., where he has been overreached by fraud. 3. Quod cum minores, &c., where a minor has been swindled, or his estate mismanaged. 4. Quod cum capite minutis, granting redress where, by the capitis diminutio, no one could sue, or be sued. 5. And, lastly, Ex quibus causis majores3, &c. involving those cases where parties have been unable to claim their rights in due time from unavoidable absence, or upon any ground which may be considered just or sufficient by the Prætor. This last included a general clause; Item si qua alia mihi justa causa esse videbitur in integrum restituam. We will now briefly examine each case. Restitution must be prayed before the Prætor in a formal suit; and the judex was thereupon empowered to restore, by virtue of his office, where the transaction was completed, and the defendant had got possession. It might also be obtained by plea, where pleaded to an action brought to enforce a contract, e.g. a stipulation extorted by fear. I. The actio quod metus causa includes every thing induced by force as well as fear. The force complained of must except all acts done under authority; and it must be such as would compel a man of strong mind and resolution to the unwilling performance of the act thereby sought to be cancelled. It must be metus non vani hominis, sed qui merito et in hominem constantissimum cadat; though this must necessarily depend to a certain degree on the person, and the circum 1 D. IV. 2. I. 3 D. IV. 4. I. I. 5 D. IV. 6. I. I. 6 D. IV. 2. 9. 3. 2 D. IV. 3. I. I. XI. stances of the case. Metus was principally avail- CHAP. able as a plea in answer to an action brought to compel the performance of an extorted agreement; but where in the transaction the complainant parted with the possession of his property, an action lay for the full restitution of the object sought to be recovered, together with all accessions in the interim. malo. 2. The dolus on which a claim to restitution Quod dolo could be grounded involved every calliditas, or machinatio ad circumveniendum, fallendum, decipiendum alterum adhibita; but the Prætor would grant no relief under the Edict if the plaintiff had redress by an actio civilis, or honoraria. The words of the Edict are, si de his rebus alia actio non exit1. Third parties, as the creditors of a bankrupt, could demand the restitutio, where property had been fraudulently made away with, by actio Pauliana; but the action would not lie unless the creditors were missi in possessionem bonorum3, i. e. the debtor had been duly declared bankrupt, otherwise the creditors had the same remedy for annulling a transaction tainted with fraud that the debtor himself would have had1. 3. Quod cum minore quam viginti annis natus Quod cum gestum esse dicetur, uti quæque res erit animadver- minore. tams. The restitution here promised by the Prætor applied to every one who had injured the minor. Gestum, says Ulpian, must be taken as the case may be, whether it be a contract, or any other transaction. The restitutio lay also for a filius familias in respect to his peculium castrense". The minor could claim his property in the hands of a third party, if any loss he had experienced could not otherwise be repaired: e. g. a minor sold his farm, and conveyed it to the pur 1 D. IV. 3. I. 4. 3 D. XLII. 8. 10. 16. 2 D. XLII. 8. I. 4 Id. 17. I. 7 Id. 3. 10. 6 Id. 7. BOOK chaser, who afterwards sold it to a third party: if III. the second purchaser were aware of the facts of the case he must make good any loss. If he were ignorant, and the first purchaser were solvent, the second was not liable; but if the first were insolvent, the second must at all events make restitution. Where the minor had not parted with the possession of his property consequent upon a contract not authorized by his tutor or curator, the whole proceeding was a nullity. The heir of the minor was equally entitled to the benefit of the Edict. Quod cum capite di 4. When a person had undergone the minima minutis. capitis diminutio, he could neither sue nor be sued; but the Prætor, to meet the equity of the case, declared qui quæve, posteaquam quid cum his actum contractumve sit, capite diminuti diminuta esse dicentur: in eos easve perinde quasi id factum non sit, judicium dabo3. Whatever contracts therefore the parties had entered into while sui juris, of these the Prætor would after the capitis diminutio compel the performance. Arrogation, or the conventio in manum of a woman, would be cases in point. Ex quibus causis ma 5. Without reference to minority, or any of jores, &c. the above-mentioned grounds, the Prætor gave relief to all who had been damaged by unavoidable absence or error*. Absence occasioned by fear, mortis vel cruciatus, or reipublicæ causa, or being in publica custodia", or in servitude, as a liber homo bona fide serviens, or as a prisoner of war3, entitled the applicant to relief for consequential damage or loss; but the Prætor did not promise relief on account of every damage from absence; What ab it was confined to such only as might accrue to prewithin the sent or future property on the ground that the sence came Edict. |