The Digest of Justinian, Volume 1

BOOK FOUR RESTITUTIONES IN INTEGRUM

BOOK FOUR RESTITUTIONES IN INTEGRUM 1 ULPIAN, Edict, book 11: The benefit of this title does not require to be stressed, since it is self evident. For under this head, the praetor helps men on many occasions who have made a mistake or been cheated, whether they have incurred loss through duress or cunning or their youth or absence 2 PAUL,Opinions, book 1: or through change of status or justifiable mistake. 3 MODESTINUS, Encyclopaedia, book 8: All restitutiones are promised by the praetor on cause being shown. This is, of course, so that he may examine the justice of the grounds alleged and determine whether they are in truth those on account of which he helps individuals. 4 CALLISTRATUS, Monitory Edict, book I : I know that it has been the practice of some magistrates not to hear a person who asks for restitutio in integmm in respect of a very trivial matter or sum, if this would prejudice a claim in respect of a more substantial matter or sum. 5 PAUL,Edict, book 7: No one is held to be barred from property where the praetor promises him restitutio in integmm. 6 ULPIAN,Edict, book 13: It has very often been settled that the successors not only of a minor but also of those who have been absent on state business and likewise of all who could themselves obtain restitutio in ilztegrum can obtain such restitutio. Therefore , one can obtain restitutio in integmm whether one is an heir or a person to whom an inheritance has been restored or the successor of a son-in-power who was a soldier. Accordingly, if a minor, whether male or female, is reduced again to slavery, restitutio in integmm will be granted to the master, though within the prescribed period of time. Again, should a minor in this position happen to be put to a disadvantage over an inheritance upon which he entered, Julian, in the seventeenth book of his Digest, writes that his master can have the power of repudiation not only in virtue of the privilege accorded by youth but even where youth does not furnish an excuse. The reason is that patrons used the privilege given by the laws not in order to acquire an inheritance but to punish freedmen. 7 MARCELLUS, Digest, book 3: The divine Antoninus issued a rescript to the praetor Marcius Avitus, in order to help someone who had lost his property when absent, in these terms: "Although normal usage is not readily to be changed, nevertheless, where clear equity demands it, relief is to be given. And so, if a person summoned to appear in court has not appeared and on account of this the decision has been given in the normal way, but immediately afterward he appears in court while you are still sitting, he can be considered to have failed to appear not through his own fault but because he did not properly hear the summons of the court officer, and therefore restitutio can be BOOK FOURIACTS DONE UNDER DURESS 113 given. 1. Nor is help of this kind confined to these examples. For those who have been deceived without fault on their part, especially if their opponent has behaved fraudulently, ought to receive help, since an action generally lies in respect of fraud and a good praetor should rather, as reason and equity demand, grant restitutio with respect to a lawsuit than grant an action involving infamia. Recourse to the latter is to be had only when there can be no place for any other remedy. 8 MACER,Appeals, book 2: There is this point of difference between those under twenty-five and those who are absent on state business. Minores, even when defended by their tutors or curators, will nevertheless obtain restitutio in integrum against the state, of course, on cause being shown. But one who is absent on state business and also others who are held to be in the same legal condition, if they have been defended by their procurators, are generally given relief by restitutio in integrum only to the extent that they are allowed to appeal. ACTS DONE UNDER DURESS 1 ULPIAN,Edict, book 11: The praetor says: "I will not hold valid what has been done under duress." At one time the words of the edict were: "what has been done through force or under duress." For mention was made of force because of the compulsion brought to oppress the will, whereas duress expressed the...