4. THE DEFENSE OF FRAUD AND THAT OF DURESS
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BOOK FORTY-FOURIDEFENSE O F FRAUD THE DEFENSE OF FRAUD AND THAT OF DURESS 1 PAUL,Edict, book 71: In order that this defense can be more clearly understood, let us first examine the reason why it has been established, and, then, in what manner fraud is committed, and by that we shall understand when the defense avails; thereafter, the persons against whom it has application. And, lastly, we shall investigate the periods within which the defense is competent. 1. The praetor established this defense to the end that a person's fraud should not benefit him through the medium of the civil law but contrary to natural equity. 2. However, whether an act has been done with fraud is gathered from the act. 3. And, indeed, fraud is committed as much in respect of contracts, as in respect of wills and laws. 2 ULPIAN,Edict, book 76: It is, moreover, plain that this defense was established for the same reason as that for which the action for fraud was established. 1. It follows that we should examine the cases in which the defense has application, and the persons against whom it may be raised. And, indeed, it must be noted that it is required specifically to state the person of whose fraud someone is complaining, thus not in rem "if in that matter nothing was done by fraud," but thus "if in that matter nothing was done by the fraud of the plaintiff." The person who raises the defense, therefore, ought to specify the act of fraud on the part of the plaintiff, and it will not be sufficient for him to show that there was fraud in the transaction; or if he alleges an act of fraud by another, he will have to enumerate their names specifically, provided they are the persons whose fraud prejudice him. 2. Clearly, the defense is pleaded in rem as regards the person who raises the defense; for the question is not against whom fraud was committed, but whether in that matter an act was done with fraud on the part of the plaintiff. 3. With regard to the first point, as to the cases in which this defense has application, the following are the matters which can be discussed. If someone without good cause stipulated somethingfrom another and then sues him in terms of that stipulation, the defense of fraud will surely bar him; for even though he has committed no fraud at the time that he stipulated, nevertheless, it must be said that he was acting fraudulently at the time of joinder of issue, if he perseveres in claiming in terms of that stipulation, and also if he had a good cause when the stipulation was made, but seems to have no proper cause now. Consequently, even if a person intending to give a loan stipulated for the money and then did not give the loan, then, although there was a definite cause for the stipulation but it has either not eventuated or been completed, it will have to be said that the defense will avail. 4. The question also arises whether the defense of fraud avails if someone has unconditionally stipulated for a definite sum because this was so arranged, but after the stipulation was completed he entered into a pact that the money is not to be claimed for the time being until a specified day. And, indeed, there must be no doubt that the defense of agreed pact can in any event be brought, but also if he wishes to make use of the present defense, nonetheless, he will be able to do so; for it cannot be denied that one who claims contrary to what was agreed is acting with fraud. 5. And generally it must be known that in the case of all defenses infactum the defense of fraud arises, because whosoever claims that which can be defeated by any defense whatsoever is acting with fraud; for even if nothing was done with fraud at the start, nevertheless , by claiming now he is acting fraudulently, unless there was such ignorance on his part that he may be free of fraud. 6. It has rightly been asked whether, if a creditor has accepted interest for a future period and nonetheless claims the capital sum afterward before the period for which he had received interest passes by, he may be barred by the exception of fraud. And it can be said that he is acting fraudulently; for by...


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