Law of delicts Flashcards
(115 cards)
1
Q
How can you distinguish between crime and delict?
A
Crime is the province of public law while delict is the province of private law. Until the end of the last century of the Republic the law of delicts discharged the function of criminal law- led to there being two sanctions for offences. Regarded as both a crime and a delict as criminal law developed.
2
Q
How is delict differentiated from tort law?
A
The delictal sanctions are always punitive, but in tort law they are compensatory
3
Q
DIscuss the penal character of the law of delicts
A
Initially the redress for delicts was private vengeance. Thus, in the case of wrongful conduct causing harm the wrongdoer was put at the mercy of his victim. However, this could be avoided even by the time of the XII tables if the wrongdoer agreed to pay compensation. There could be retaliation unless they came to an agreement. Essentially, it was only in default of payment that the victim could execute revenge on the wrongdoer.
4
Q
Why was this development with the XII tables significant?
A
It showed that monetary redress was the primary source of compensation for a wrong. Sometimes monetary redress was prescribed, other times left to the discretions of the iudex. However, there was a decline in the value of money which forced the praetor to intervene, leading to the praetorian delicts.
5
Q
What was the nature of delictal actions?
A
Delictal actions were penal while other actions were reipersecutory. Whereas reipersecutory simply results in the payment of compensation, delictal results in more than just the payment of compensation- it aims to punish- it is punitive and vindictive.
6
Q
Was liability for the delict transmissible?
A
Liability ended with the death of the wrongdoer. However, if the victim died an action could still be brought- it was actively transmissible
7
Q
Involvement of multiple persons in the delict
A
As the nature of the delictal actions was punitive, if multiple people were involved in the wrongdoing each was liable to the victim in full as if they had acted alone.
8
Q
How are the delicts classified in the Institutes?
A
Furtuum (theft)
Rapina (robbery/ theft with violence)
Damnum Iniuria Datum (loss wrongfully caused)
Iniuria (insult)
9
Q
How effective is this classification of delicts in the Institutes?
A
It is over-inclusive in the sense that rapina is simply a sub-category of furtum. However, it is under-inclusive in the sense that it fails to include dolus and metus.
10
Q
What was the nature of the remedies available?
A
Purely penal
Purely reipersecutory- a reipersecutory action is one for the recovery of property
They could be a mix of both (actiones mixtae)
11
Q
What were actiones mixtae?
A
They could be penal in the sense that the sum awarded was a penalty. Understood to also be compensatory.
12
Q
What was the school dispute about the classification of furtum? Sabinian interpretation
A
The Sabinians classified furtuum into
manifest theft (furtum manifestum)
non-manifest theft (furtum non-manifestum)
Discovering a thing after a search (furtum conceptum)
Arising from a stolen thing being brought elsewhere (furtum oblatum)
13
Q
Proculian classification of furtum
A
Manifest theft
Non-manifest theft
Furtum conceptum and furtum oblatum are considered to be actions relating to theft than kinds of theft itself. This interpretation is favoured by Gaius.
14
Q
Why was the law of theft problematic?
A
There were certain archaic features that were allowed to survive and had no point in the highly sophisticated system of Roman law. One such example of this is the distinction between furtum manifest and non-manifestum and the fact that the formal search was allowed to survive. Furtum was also difficult to define - it was too wide as to defy definition- considered to be unsatisfactory to penalise an act which could not be effectively defined.
15
Q
Why were such archaic features allowed to survive?
A
law of theft had little practical importance especially with the development of criminal law. Firstly, a thief is likely to be insolvent and thus it was satisfactory to leave it up to the criminal law system. Furtum was mostly important when considering usucapio.
16
Q
What is manifest theft?
A
Gaius sets out four possibilities for manifest theft:
1) The thief must be taken in the act
2) The thief it taken in the place where the act was committed
3) Theft is manifest until the thief has carried the stolen property to the place he intends to hide it
4) Thief is holding the thing in his hands
Option 2 was the most popular interpretation according to Gaius.
17
Q
What is Justinian’s interpretation of manifest theft?
A
Justinian takes a different approach and suggests that a theft is manifest if the thief is apprehended on the same day and has not yet taken the stolen property to its intended hiding place.
18
Q
What is non-manifest theft?
A
Everything which is not manifest theft
19
Q
What was the punishment for manifest theft in accordance to the Twelve Tables?
A
According to the XII tables a thief caught in manifest theft would be scourged and then adjudged to the victim (Gaius states that it is unclear whether he became a slave). A slave would be executed. This punishment was met with disapproval
20
Q
How did the praetor change the punishment for manifest theft?
A
Introduced a action for fourfold the value of the thing
21
Q
What was the punishment for non-manifest theft? (It remained the same throughout)
A
Punishment for non-manifest theft was double the value of the thing
22
Q
What was furtum conceptum?
A
When the thing had been searched for and found in the presence of witnesses, in a person’s possession.
23
Q
What was the penalty for furtum conceptum?
A
If the thing was found there was an actio furti manifesti for fourfold the value of the res
24
Q
Formal search and informal search
A
Initially there was a formal search and an informal search. If the person declined a informal search, he would be subjected to a formal search which would be completed naked, girt with a linteum and holding a plate. There was no greater penalty if the thing was found in a formal search
25
What happened to the formal search?
The formal search was defunct by the time of Gaius. There was instead a fourfold penalty for the refusal to allow someone to search- this was introduced by the praetor . If the stolen property is found during a search the thief is deemed to be manifest- Gaius says that it was not making the theif manifest but simply requiring him to pay as if he was.
26
What is furtum oblatum?
When the stolen thing has been planted, the person whose possession the thing is found has the actio furti oblati
27
What is the actio furti oblati?
This was a remedy for the innocent person on whose property the thing was found during a search. The penalty was threefold
28
What is considered furtum? How did the definition of furtum develop and expand?
Initially, furtum required the actual carrying off of the thing. In the later Republic the definition of furtum was expanded to include any intention to deprive an individual of his property- in circumstances other than those covered by the Lex Aquilia. in the later republic new remedies arose such as the actio doli
29
How was the definition of furtum restricted?
Concretatio test adopted to restrict the concept of furtum. Thus, anyone including the owner of the thing could commit furtum of it.
30
The mental element of furtum
Theft has to be intentional. J.4.1.7: 'theft is only committed if if was done against the will of the owner and that if he knew, he would not allow it'
31
What is the significance of this requirement of the mental element?
As there has to be an intention for theft to be committed, A person under the age of puberty can only be liable if he is approaching the age of puberty and consequently understands that what he is doing is wrong. G.3.208
32
What exactly must be intended for theft to occur?
G.3.202 with the case of the red rag to the herd of cows. This was done out of wantonness and there was no intention to deprive so there was no theft.
'Where a person put a herd of cattle to flight by means of a red cloth. If, however, this were done merely for the sake of amusement, and not for the purpose of committing a theft, we will examine whether an equitable action should be granted, as by the Lex Aquilia, which was enacted with reference to damages, even negligence may be punished'
33
How wide is theft?
G.2.50- 'he who has sold and delivered another's thing commits theft, and the same holds good if he have delivered the thing on any other ground'. This is problematic particularly when it is combined with usucapio.
34
Why is the definition of theft problematic for usucapio?
It requires someone to show that the thing has never been stolen rather than the other way round. With such a wide definition of theft this is practically impossible
35
Is there a remedy for attempted theft?
Attempted theft is considered to be manifest theft
36
What is contractual theft?
| There could be theft of a thing even when possession of the thing was willingly given by the owner
(G.3.197) It was decided, however, that those who use property for another purpose than that for which they received it, commit theft, provided they know that they do this contrary to the will of the owner, and that he, if he knew of it, would not allow it; but if they believe that he would permit them to do so, this should not be considered theft. And the distinction is perfectly proper, as theft is not committed without unlawful intent.
(G.3.198) If anyone thinks that he is handling an article contrary to the will of the owner, but the owner is in fact willing for him to do so this is said not to be theft; and hence the question arose and was discussed, whether if Titius should solicit my slave to steal certain property belonging to me, and deliver it to him; and the slave should notify me, and I, desiring to detect Titius in the crime, should permit my slave to take the property to him, whether Titius would be liable to me in the action of theft, or in the one for corrupting a slave, or whether he would be liable in neither. The answer is that he would be liable in neither action, for he would not be liable in the action of theft, for the reason that he did not handle the property contrary to my will; and he would not be liable in the action for corrupting the slave, for the reason that the slave was not rendered any worse.
37
What is required for concretatio?
Intent of wrongdoing
lack of consent from the victim
The thing had to be a res mobiles for concretatio to occur- there could be no theft of land
38
How is concretatio defined?
The institutes states that it is the 'the fraudulent handling of a thing, of its use or possession of it'. The fact that mere meddling with the thing was enough was perhaps an attempt to cover attempted theft.
39
What is the view to profit argument?
Does the individual need to want to profit from it. What about the cases of conspiracy of theft? Does profit have to be direct
40
What is ope et consilio?
Ope et consilio means by aid and counsel.
41
Is physical touching (concretatio) required?
"If I deliberately act wrongfully with respect to you and as a result of my wrongful conduct X is enabled to steal from you, I am treated as an accomplice. The animus furandi is imputed to me and X's contrectatio makes me liable."
Thus, there must be wrongful handling but not all wrongdoers must handle. One who has aided concretatio is as liable as if he had contrected it himself
Yet, none of the texts give conclusive evidence that there can be theft without touching.
42
What is the case of the persuaded slave?
If someone encourages a slave to run away so that another may get hold of him is guilty of theft
43
What is Buckland's interpretation of the concretatio argument?
Buckland suggests that concretatio is more like taking control. The notion that there must be a physical handling of the thing is too narrow as there are circumstances in which theft can occur irrespective of a physical handling of the res. One such example is the case where I drive your hens into my hen house without touching them. Therefore, it is beneficial to refer to concretatio as a simple meddling with the thing rather than something that requires physical contact.
44
What is the remedy for theft?
The actio furti
45
What is a summary of the actio furti?
```
Purely penal
Perpetual
Passively intransmissible
Not for the value of the thing but for multiple of it
Available against multiple wrongdoers
```
46
Who could bring the actio furti?
Not only the owner could bring the actio furti. Anyone with an interest in the safety of the object could sue
47
Who as a positive interest?
Those who have a present (legitimate) right to use and enjoy the res
- Dominus
- Bona fide possessor
- Pledge creditor
- Usufructuary
- Emphyteuta
- Precarium tenens
48
Who has a negative interest in the thing?
Those who would be liable if the thing is stolen.
- Custodia - a guarantee, expressly undertaken or implied into certain kinds of (mostly
contractual) obligations to keep an object safe from certain typical harms
- Conductor rei or operis
- Commodatarius
- Mandatarius
- Had the actio furti to the exclusion of the owner (because the owner is already protected)
• The purpose of this was to prevent a double action being brought against the thief - It was intended to be punitive, but not too punitive
- An action by a person with a positive interest did not exclude an action by the owner
49
What was Justinian's interpretation of those with negative interests suing?
Justinian changed the rule.
Either the dominus could so- meaning that the commodotarius was no longer liable. Or, the dominus could hold the commodatarius to account In his contract- in which case the commodatarius should sue.
50
What is Rapina?
Taking a thing by violence.
51
What was the action in Rapina?
actio vi bonorum raptorum- it was a mixed action so it was both penal and reipersecutory. Therefore, a reipersecutory action could not be brought in addition.
52
What was the penalty for rapina?
There was a fourfold penalty within a year, and then the simple value of the thing after that period had elapsed.
It also involved infamia. There was no justification for rapina.
53
What is noxal liability?
If a slave or a son in potestae committed a delict the master or father of the wrongdoer was also liable for the penalty. The father or master could buy off the injured person by paying a penalty.
54
How could the penalty be avoided?
The master or father could make noxal surrender of the wrongdoer to the injured person.
55
Basics of noxal liability
Noxal liability followed the wrongdoer. If a slave was sold the noxal liability laid against the new owner. If the slave was freed he was liable under an ordinary action. If the slave died the master could surrender the slave's dead body
56
Noxal surrender and animals
If an animal did damage the owner is required to either pay compensation or noxally surrender the animal. This was problematic given that once wild animals escape they have no owner.
57
What if a slave commits a delict against several persons?
The dominus is liable to all of them. By surrendering the slave to whoever is the first to sue the slave could be passed down the line of potential plaintiffs.
58
What is the lex aquilia/ what are the origins of the lex aquilia?
The lex Aquilia (strictly, a plebiscite) was possibly enacted in 286 BC, or at some other point in the 3rd century BC. It was concerned with damage done from damnum iniuria datum, "damage unlawfully inflicted", a kind of a delict (or tort).
The lex Aquilia was a Roman law which provided compensation to the owners of property injured by someone's fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and destruction of property. The lex Aquilia was probably enacted in 286BC
This chapter discusses lex Aquilia, the most important statutory enactment on Roman private law subsequent to the XII Tables. It repealed and superseded all earlier laws dealing with unlawful damage.
59
What was contained in chapter 2 of the lex aquilia?
There was significant contention as to the positioning of this chapter- it was considered to be an amendment to a previous lex. It fell out of disuse by Justinian's time. It concerned issues relating to the adstipulator (person who acted to recover a debt in lieu of the stipulator himself) releasing persons from their debt contrary to the stipulation- could be liable for double the amount
60
What was the first chapter of the lex aquilia?
'If a person has wrongfully killed a slave, a quadruped (cattle) or another's property, he is to be condemned to pay the owner the highest market value of the slave or animal during the previous year'
61
What were the requirements to invoke chapter 1 of the Lex Aquilia?
The killing must have been directly
There must be damage (damnum)
The loss must be caused iniuria (wrongful)
62
Why did the first chapter explicitly state that compensation was for the value of the slave or animal in the previous year?
According to Zimmermman this was because at the time of the death the slave or animal would have dramatically decreased in value as a result of the wound. It also protects the owner against fluctuating market prices- ensures that the owner is duly compensated regardless of the actual value of the thing.
63
Was the lex aquilia a penal action?
There is some argument that it is a penal action because it refers to market prices the year before (which would be significantly more than the value of the thing at the time of the death). However, in Roman law penalties tended to be for multiple the value of the thing.
64
What was the definition of iniuria?
Originally meant without legal justification- meant that the actor was liable unless he could show some justification- classical jurists suggested that this meant that there must be some element of dolus or culpa.
This is the only delict that can be committed without intention
65
How did iniuria develop?
According to Zimmermman at first it was only associated with conduct that was committed intentionally 'slay, burn, break, rupture'. This is in line with the non-iure aspect of iniuria- if there was a justification such as self-defence then there would be no liability.
* Shift to exclusion from liability of defendants who acted iure as well as cassus and vis maior
* Iniuria eventually ceases to be framed negatively, and the positive requirements of dolus and culpa are recognised
66
What was the meaning of dolus?
Fraudulent or wrongful intentions.
67
What is the meaning of culpa?
Culpa means fault. It is difficult to distinguish from causation. Paul defines it as a 'failure to foresee what a careful man would have foreseen'
68
What was Justinian's definition of culpa?
Justinian expanded the definition of culpa. Seems to recognise a defence of contributory negligence. Recognition of commissions liability for culpa if there was a preliminary act.
Recognition of liability arising from want of skill- case of doctor
69
What is contained in chapter three of the lex aquilia?
Ulpain defines chapter 2: 'If anyone damages the property of another except by killing slaves or cattle, whatever the
value of the property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be compelled to pay the amount to the owner of the same.”
Essentially, any damage apart from killing slaves or animals was liable under chapter 3. The penalty was for the value of the thing in the nearest thirty days.
70
What was the original purpose of chapter 3 of the lex aquilia?
Initially only applied to animate objects that were not included in chapter 1. Eventually expanded to also include inanimate objects
71
What is the interpretation of the statement in the 'nearest thirty days'?
Sabinian school- suggested that as a similar phrase was used in chapter 1 it referred to the preceding thirty days. This interpretation of value is rather problematic as even if there was only minimal damage the aggressor would have to pay the full value of the thing, as if it had been destroyed- seems rather illogical.
72
What was Daube's interpretation?
Daube suggests that a penalty for the preceding thirty days is illogical and thus offers that it means the prospective thirty days. These thirty days were necessary to see the manifestation of the wound- allowed an effective assessment of the value. Assessment of value based on the difference between the starting value and the end of the 30 day period.
Compensation for the loss rather than the full value of the thing.
73
Justinian
Justinian also recognises the requirements of dolus and culpa as in chapter 1.
74
Justinian and the actio in factum
Recognised an actio in factum if there is no damage done by the body, nor to the body
75
Why was the lex aquilia extended to include the actio in factum?
The statute was in its terms rather narrow. For instance, the first chapter only applied where the killing had taken place directly (corpori corpore: on the body of the victim by the body of the perpetrator). It gave a remedy only to a citizen. It gave a remedy only to the strict legal owner (dominus) not to people with lesser rights of ownership. However, if an act was not directly caused or the damage inflicted a loss on someone other than the owner, an in factum action could be brought against the person who inflicted damage.
"As, for example, if a person has been impelled by compassion to loose the fetters of another's slave, so as to enable him to escape." (J.4.3.16)
76
What was the historical development of the damnum iniuria datum? Early extensions
Originally required that the act be done by the bare hands of the wrongdoer (occidere). It was found that 'destroy' must include other forms of direct physical damage.
It was extended to any damage done by the body of the wrongdoer to the body of the victim (corpora et corpore)
77
What were other early extensions to the lex aquilia?
Extension of the 'highest value' to include pairs of things and profit which the owner was prevented from making.
78
What were the praetorian remedies given?
The praetorian remedies were also given to preregines.
There was the actio utilis given to the paterfamilias for injury to those in his power
There were also actions given to those with a right in rem (usufructuary, bona fide possessor, pledgee). However, a detector cannot sue
79
What was the greatest praetorian contribution?
Grant of the actio utilis where the damage had been caused indirectly. This meant that the lex Aquilia had to be distinguished from indirect action.
80
Casusistic juristic contribution
Case of the pruner- if the slave was passing where there was no path this breaks the chain of causation and the pruner is not liable.
The barber sets up his chair in a stupid place- break in the chain of causation
The slave's action in walking across the javelin throwing ground constitutes in a break in the chain of causation.
The physicians assuming duty may have been seen as a break in the chain of causation
These cases are contributory faults/ assumption of risk- the slave was at fault for crossing where there was no path.
81
The want of skill
If something adverse happens because of D's lack of skill D could be liable. In this case, there was also a liability for omissions- the physician, having assumed a duty, must carry it out , or he is liable for fault.
82
What were the actions available on the lex aqulilia?
The actio directa
Actio utilis
Actio in factum
83
What was the definition of the actio directa?
Action founded in the text of the lex. Where by the body to the body (corpore et corpore)
84
What was the definition of the actio utilis?
Gaius: 'where not by the body'
Justinian: 'where not by the body but to the body'
85
What is the definition of the actio in factum?
Where not by the body, nor to the body. The actio utilis and the actio in factum were used almost interchangeably
86
The actio utilis
'the action resulting on the statute only lay if a person caused the damage by his own bodily act'- must be corpore corpori
This was not available where the aggrieved person was not the dominus
It was mostly a delictal rather than a penal action.
87
What type of action was the actio utilis?
decretal action.
Exists to cover cases of indirect causation. Can be available to non-owners
It covered omissions cases
88
Actio in factum (decretal cases)
Used to escape the narrow terms of the lex aquilia- otherwise the wording of the action was similar to the actio utilis. Required the essential facts of the given case to be specifically stated.
89
The actions for the damnum inuria datum under Justinian
If the damage is done corpore then the actio directa lies
If there is no direct contact then the actio utilis lies
If there is no damage done to the property itself, the actio in factum lies (e.g. case of the compassionate slave)- perhaps this refers to pure economic loss.
90
How did iniuria develop?
Prior to the praetorian intervention roman law recognised fixed penalties entirely based on physical assaults. The existence of a fixed penalty suggests little consideration for an attack on a man's personality.
91
Why was there a reform to actions based on damages rather than a fixed penalty?
Because of the devaluation of money. This involves the story of the person who went around slapping prominent people and a slave paid them 15 asses. This led to a reform for actions based on damage rather than on fixed penalty. This led to the fixed remedies to fall into disuse.
92
What is iniuria translated into?
Translated as 'outrage'.
Its delictal meaning is narrower than the damnum iniuria datum
It includes any contumelioius disregard of another's rights or personality- reducing a person's reputation
93
What does iniuria include?
Physical assaults
Oral or written insults and abuse
Any affront to another's dignity or reputation
Disregard for public or private rights of a person
Affront to a woman's modesty (if the woman was still in potestas than the husband and father could sue as it affected them)
94
What constitutes contumelia? (edict, closest thing to conduct)
Convicium- public insult
Following a respectable woman
Bringing infamia upon the plaintiff
95
What is contra bonus mores?
means against public morals
This concerns the objectively insulting character of the conduct.
Some conduct is objectively insulting, while other conduct is insulting as it is in public
96
When was contra bonus mores not actionable?
If the conduct was justified. This includes cases of:
- self defence
- acting under lawful authority
- raising a clamour against a person in disgrace
- making indecent proposals to a prostitute
97
Does there need to be an intention for iniuria?
The mental element must be dolus malus. Thus, carelessly inflected harm is not sufficient- this is culpa but not iniuria. There could therefore be no accidental harm in iniuria
'If when I wish to punch my slave, I involuntary hit you instead, I will not be liable to the action for insult'
98
Does it need to be objectively or subjectively insulting?
Objectively insulting is enough
However, there are cases where subjective interpretation must be considered.
“A shoemaker struck with a last at the neck of a boy (a freeborn youngster) who was learning under him, because he had done badly what he had been teaching him with the result that the boy’s eye was knocked out. On such facts, says Julian, the action for iniuria does not lie because he struck him not with intent to insult, but in order to correct and teach him...”
- Clearly, in this case, the subjective intention is of significance
- But more clearly in this case, the shoemaker has gone beyond his authority
99
Who can claim iniuria?
It can be persons other than the persons insulted
| It could also be multiple persons- e.g. family members
100
Case of an affront to a woman's modesty
An insult to a married woman can lead to actions from the woman's husband, paterfamilias (bringing an action in his name and her name)
Insulting behaviour to the deceased at a funeral generates action is by the deceased’s heirs in their own names
Important to note that an insult to a paterfamilias is not an insult to his children.
101
Can there be iniuria against slaves?
Prima facie it appears that there can be no iniuria against slaves.
However, if the purpose is to insult the master then the master had the actio iniuriam in his own name
Gaius suggests that generally grave insults to a slave are insults to the master
102
In which cases can there by iniuria against slaves?
If the slave was beaten or tortured- must be atrox and must occur without justification and against the owner's consent.
103
What was the action for iniuria?
The actio iniuria was for outraged feelings rather than economic loss.
104
What were the standard features of the actio inirua?
Multiple wrongdoers are culminatively liable
Passively intransmissible
Noxal liability
105
What were some unique features of iniuria?
It only lays for a year
Not available to the heirs of an injured person
Did not lie unless there was anger at the outset
Penalty measured according to the position of the parties and the extent of the grossness of the outrage (solace rather than economic gain)
It was no defence that the defendant did not know the plaintiff or mistook him for someone else
If the statement is true then that was a complete defence
106
What was atrox iniuria?
Aggravated iniuria
| The praetor decided on a case by case basis whether or not a case was atrox
107
What were the different types of atrox iniuria?
Atrox ex re- extreme nature of the act
Atrox ex persona- person insulted due special respect
Atrox ex loco- where it was very public
108
What was the compensation for ordinary iniuria?
The plaintiff named a sum and the court could cut it down. However, in atrox iniuria the praetor fixed the sum and the court could not intervene.
109
How did Justinian extend atrox iniuria?
“sometimes, it is the part of the body injured that makes the outrage grave, as, if anyone has been struck in the eye.”
110
What other remedies were available for iniuria?
There was the lex Cornelia de iniuriis- this provided for a criminal remedy for those iniurae originally dealt with in the XII tables
The plaintiff had a choice between proceeding criminally or using the delict form
111
What were the praetorian delicts?
Dolus
| Metus
112
What was dolus?
Fraud
The action (actio doli) was for restitution or damages
Only brought if no other actions were available- because it was broad
113
What were the restrictions on the actio doli?
Not allowed except in the cases of serious deceit (would not be available in deceit arising out of a contract if a contractual remedy existed)
Could not be brought by children against their fathers
Could not be brought by men of lower rank to men of higher rank- this was because of infamia involved
114
What was the definition of metus?
Metus means duress. Thus, if a man was pressured or threatened to act in a certain way to his own detriment, an action for fourfold his loss could be claimed. It is important to note that there must be a loss.
It only laid for a year. Laid against an innocent third party/anyone who received benefit from the transaction
The defendant could escape liability by making a restitution.
It could be used as a defence (exceptio metus) against the enforcement of the contract. Alternatively, you could seek restitution
115
What was the test for metus?
The test for metus was objective- would a resolute man feel threatened?
The threat does not need to be directed towards the plaintiff- it could be directed towards his children
The threat must also be imminent.
