by J.D. Ian Barton & Dr. Salvatore Ivan Italiano;
© (2018) Lawinwordsblog.com
A person can be forced to accept a meeting of minds by means of coercion and unjust action directed towards his own person or towards his relative. We are in the presence of vis impulsive, or corpori illata or even vis absoulta, when the illusion of a meeting of minds is effected by means of a material act, used by a third party, directed at the mind of the person deceived.
We are in the presence of vis compulsiva or animo illata or, using modern terminology, moral violence, when a given person intimidates another with threats of negative consequences against himself, his reputation or against his relations thereby forcing the recipient of the threats to manifest a meeting of minds that was not originally intended.
In this instance, the Romans named such violence as vis (the threatened violence) and metus (the impact of the violence [vis] upon the spirit of the victim): these two terms express the cause and effect of such action. The sources of Roman law denote these two terms in combination when designating moral violence.
Hence, with the vis impulsiva the forcible act is materially and tangibly executed while, in contrast, for the purposes of the vis compulsive the forcible act is no more than a threat.
Protection against the dolus malus
A necessary premise about the term Rechtsgeschäft: what the common law sees as a contract the BGB would describe as a contractual relationship of obligation (vertragliches Schuldverhältnis). Alternatively, a German lawyer would speak of a legal transaction (Rechtsgeschäft) that consists of two corresponding declarations of intent or declarations of ‘will’ (Willenserkklärung): offer and acceptance. This means that German Law distinguishes between three basic concepts: contractual relationship of obligation, legal transaction and declaration of intent (1).
The restituito in integrum, of which the praetor made extensive use in the event of violence (vis), served to restate the previous conditions of the parties’ Rechtsgeschäft, as if the event had never occurred.
The refusal of an interested party to take the required legal action to bring about the consequences of Rechtsgeschäft vitiated by means of violence (vis). In this way, the interested party would be unable to bring about the intended legal results on account of the refusal of the victim to execute his Rechtsgeschäft.
The exceptio metus, whereby a victim of violence (vis) being sued by the person wanting his Rechtsgeschäft to have legal validity, could receive a release from the plaintiff’s entitlements in accordance with the litis contestatio.
The actio metus. This was a remedy introduced during the republican era and intended not for the annulment of the vitiated Rechtsgeschäft but rather as an action against the perpetrator of the violence (vis) in issue or whoever had enjoyed the benefits derived from the vitiated Rechtsgeschäft. It was the precursor to compensatory relief in favour of the victim. For any Rechtsgeschäft taken in good faith before judgment, the person taking account of any possible action of metus was the judge, in the sense that the judge himself could exclude the parties’ good faith. In order that such Rechtsgeschäft, if vitiated by the effects of metus, had no legal effect, the defendant was released from any entitlement and its related consequence that could have been claimed by the plaintiff.
Pacta conventa: they had no legal recognition by the praetor during the classical period when vitiated by metus and in presence of dolus. Accordingly, in the classical sources of ius it is found that a claim of the inefficacy of those pacta failed under duress.
Exceptio doli: this was the principal judicial instrument for invalidating those Rechtsgeschäft which gave rise to acts of bad faith. For example, the victim of fraud could have been compelled to satisfy those obligations engendered by the vitiated Rechtsgeschäft. In this case, the order was supported and validated by the iure civili itself.
However, it was by virtue of the exceptio doli (challenging the very judicial action used by the extorting plaintiff) that the defendant having ascertained the deceit in action, would have been discharged. The effects of the valid Rechtsgeschäft iure civili would have been nullified iure praetorio by means of exceptio doli. We underline the fact that the exception was a negative condition of the decision: the judge could have held the defendant liable only if the circumstances deduced by exception had proved false; conversely the defendant was to be discharged.
[…] As for this definition of duress, in the related modern Italian law we could read as follow: l’indebito condizionamento consiste nello sfruttamento di una posizione di potere per esercitare una pressione, anche senza ricorso alla forza fisica o la minaccia di tale ricorso, in modo tale da […]
(1) The German Law of Contract – A Comparative Treatise. Second edition by Sir Basil Markesinis; Hannes Unberath, Angus Johnston – Hart Publishing; Oxford and Portland, Oregon. (2006).
It is an established fact that written English is both a showcase of quality and style and the means whereby any given message is transmitted to your global international audience. Lawinwords is your partner in the creation and distribution of erudite, articulate and persuasive articles written in the English language. Contact us for advice and further information. Click on here.