CASE 234: Protecting Women in Financial Matters
D. 12.6.40 pr. (Marcianus libro tertio Regularum)
Qui exceptionem perpetuam habet, solutum per errorem repetere potest: sed hoc non est perpetuum.
nam si quidem eius causa exceptio datur cum quo agitur, solutum repetere potest, ut accidit in senatus consulto de intercessionibus: ubi vero in odium eius cui debetur exceptio datur, perperam solutum non repetitur, veluti si filius familias contra Macedonianum mutuam pecuniam acceperit et pater familias factus solverit, non repetit.(Marcian in the third book of his Rules of Law)
Whoever has a permanent defense (exceptio) can reclaim what was paid by mistake. But this is not always true. For if the defense is provided to benefit the (potential) defendant, it is possible to reclaim what is paid, as occurs with the senatusconsultum (Vellaeanum) on intercessions.
But when the defense is provided as a sanction against the person to whom it (the debt) is owed, the mistaken payment is not (able to be) reclaimed. For example, if, contrary to the (SC) Macedonianum, a son-in-power receives money on loan and (then), on becoming a paterfamilias, pays (this debt), he does not reclaim it.
1. Defenses. In a Roman trial, a defense (exceptio) is a legal mechanism that a defendant can use to render a plaintiffs claim ineffective; see Gaius, Inst. 4.115-125. The SC Vellaeanum provided a woman with such a defense when, contrary to the provisions of the statute, she had interceded on behalf of another person. If the creditor subsequently sued her, she could interpose the defense and thereby defeat the creditor. Her defense is “permanent,” meaning that it does not expire with the passage of time. Further, even if a woman neglects to use it at the trial and is condemned to pay the creditor, she can still use the senatusconsultum to resist execution of the trial judgment. The SC Macedonianum provided a similar defense at trial when a third party loaned money to a son-in-power (see the Discussion on Case 119).
2. Reasons Have Consequences. Suppose that a woman interceded contrary to the statute, and she then paid the creditor; can she recover the payment? This Case says that she can, but that a son-in-power cannot if he received a loan and then repaid it upon becoming sui iuris. On what legal distinction is this difference in outcomes based? How does this distinction reflect the various explanations for the statute in Case 233?