Deceit and Coercion
These two delicts have in common the fact that they are often applied in the context of property and contract disputes. A property transfer, for example, may be alleged to have been induced by deceit or coercion, or an attempt to enforce a contract may be resisted on the same basis.
These aspects of deceit and coercion are dealt with elsewhere.[2630] However, they were also free-standing delicts, and are considered here in that context. They both involve a person being led to do something to his or her disadvantage by the actings of another.(1) Deceit (Dolus)
Ulpian gives us our introduction to deceit (dolus, often translated as ‘fraud'):
By this edict, the praetor gives help against shifty and deceitful persons who have harmed others by a certain cunning, so that the wickedness of the former is not beneficial to them and the simplicity of the latter harmful. The words of the edict are then these: ‘Where something is alleged to have been done by wicked deceit [dolo malo], and if there is no other remedy for it and there appears to be a reasonable basis, I will give an action.'[2631]
Assuming, as Ulpian reports, the victim of the deceit had no other remedy, the action for deceit (actio de dolo) would be allowed. An attempt to enforce an agreement induced by deceit could be met with the defence of deceit (exceptio doll)[2632]'1
Deceit can be defined generally as ‘any cunning, trickery or manipulation carried out in order to circumvent, mislead or deceive another'.[2633] The texts have numerous examples, such as: a person arguing a case in court on behalf of a client deliberately allowing the other party to win;[2634] persuading a person to decline an inheritance on the (false) basis that it is bankrupt;[2635] concealing a will so that it cannot be challenged;[2636] a debtor sending a forged letter to the creditor, purporting to be from a friend of the creditor, requesting that the creditor release the debtor;[2637] and a person falsely defending a case by pretending to possess property whose recovery is sought, so that the true possessor can complete acquisition by usucapio[2638] Deceit was thus a delict that was very broad in scope. There was, however, a major restriction on its availability:
it will not be given against certain persons, for example children or freedmen against parents or patrons, as it relates to infamia.
Nor ought it to be given to someone of humble rank against someone of higher rank, for example to a plebeian against a man of consular rank with acknowledged authority, or to a man who is extravagant or a spendthrift or otherwise worthless, against a man of more correct lifestyle.[2639]As we see, the key point is that liability in an action for deceit carried with it infamia.[2640] It was not thought proper that a person of lower status should be able to inflict that consequence on a person of higher status. If the victim was of lower status, he or she would have to be content with an actio in factum, which would give a remedy but which would not inflict infamia.
(2) Coercion (Metus)
Ulpian tells us: ‘The praetor says: “I will not hold to be valid that which is done through coercion.”'[2641] The victim of coercion could bring the action for coercion (actio quod metus causa) within a year, for fourfold damages. If brought outwith that year, only simple damages were due, and even then only if the pursuer had good cause for bringing it after such a delay. An attempt to enforce an agreement extorted by coercion could be met with the defence of coercion (exceptio metus). Unlike deceit, liability for coercion did not result in infamia.
Coercion occurred when a person was induced to act to his or her disadvantage by force, threats or intimidation. The defender's acts only counted as coercive if they were ‘severe' and ‘contrary to good morals',[2642] and had to be such as would sway ‘the most resolute character' rather than a ‘weak-minded man'.[2643] How severe a threat would have this result would be highly fact-dependent, and so would be determined on a case by case basis.[2644] However, the ‘contrary to good morals' requirement meant, for example, a lawful act of a magistrate would not found an action for coercion.[2645] Similarly, fear of a just punishment was not coercion.[2646]
F.