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p987 Restitutio in Integrum

Article by George Long, M.A., Fellow of Trinity College
on pp987‑988 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

RESTITU′TIO IN INTEGRUM, in the sense in which the term will here be used, signifies the rescinding of a contract or legal transaction so as to place the parties to it in the same position with respect to one another which they occupied before the contract was made or the transaction took place. The Restitutio here spoken of is founded on the Edict. If the contract or transaction is such as not to be valid according to the Jus Civile, this Restitutio is not needed; and it only applies to cases of contracts and transactions, which are not in their nature or form invalid. In order to entitle a person to the Restitutio, he must have sustained some injury capable of being estimated, in consequence of the contract or transaction, and not through any fault of his own; except in the case of one who is minor XXV annorum, who was protected by the Restitutio against the consequences of his own carelessness. The injury also must be one for which the injured person has no other remedy.

The Restitutio may either be effected on the complaint of the injured party, which would generally be made after the completion of the transaction, or when he is sued by the other party in respect of the transaction and defends himself by an Exceptio. The complaint as a general rule must be made within four years of the time of the injury being discovered, and of the party being capable of bringing his action; in the case of Minores the four years were reckoned from the time of their attaining their majority. In the case of an Exceptio there was no limitation of time (Cod. 2 tit. 53 s7). According to the old law the complaint must be made within one year.

The application for a Restitutio could only be made to one who had Jurisdictio, either original or delegated, which flowed from the possession of the Imperium; and it might, according to the circumstances, be decreed by the Magistratus extra ordinem, or the matter might be referred to a Judex. When a Restitutio was decreed, each party restored to the other what he had received from him with all its accessions and fruits, except so far as the fruits on one side might be set off against the interest of money to be returned on the other side. All proper costs and expenses incurred in respect of the thing to be restored were allowed. If the object of the Restitutio was a right, the injured party was restored to his right; or if he had incurred a duty, he was released from the duty.

The action for Restitutio might be maintained by the person injured, by his heredes, cessionarii, and sureties; but as a general rule it could only be maintained against the person with whom the contract had been made, and not against a third person who was in possession of the thing which was sought to be recovered, except when the actio for restitutio was an actio in rem scripta, or the injured party had an actio in rem, or when the right which he had lost was a right in rem.

The grounds of Restitutio were either those expressed in the Edict, or any good and sufficient cause: "item si qua alia mihi justa causa esse videbitur in integrum restituam, quod ejus per Leges, Plebiscita, Senatusconsulta, Edicta, Decreta Principum licebit" (Dig.4 tit. 6 s1).

The following are the chief cases in which a Restitutio might be decreed.

The case of Vis et Metus. If a man did an act that was injurious to himself, through vis or metus, the act was not for that reason invalid, nor was it considered that his assent was wanting (Dig.4 tit. 2 s21 § 5): but it was contra bonos mores to allow such an act to have legal effect. When a man had acted under the influence of force, or reasonable fear caused by the acts of another party, he had an actio quod metus causa for restitution again the party who was the wrongdoer, and also against the innocent person who was in possession of any thing which had thus been got from him, and also against the heredes of the wrongdoer if they were enriched by being his heredes (quantum ad eos pervenit). If he was sued in respect of the transaction, he could defend himself by an exceptio quod metus causa. The actio Quod Metus was given by the Praetor L. Octavius, a contemporary of Cicero (compare Cic. in Verr. III.65, and Dig.4 tit. 2 s1).

The case of Dolus. When a man was fraudulently induced to become a party to a transaction, which was legal in all respects, saving the fraud, he had his actio de dolo malo against the guilty person and his heredes, so far as they were made richer by the fraud, for the restoration of the thing of which he had been defrauded, and if that was not possible, for compensation. Against a third party who was in bona fide possession of the thing, he had no action. If he was sued in respect of the transaction, he could defend himself by the exceptio doli mali (compare Dig.4 3).

The case of Minores XXV annorum. A Minor could by himself do no legal act for which the p988assent of a Tutor or Curator was required, and therefore if he did such act by himself, no Restitutio was necessary. If the Tutor had given his Auctoritas, or the Curator his assent, the transaction was legally binding, but yet the Minor could claim Restitutio if he had sustained injury by the transaction. Gaius (IV.57) gives an example, when he says that if too large an amount was inserted in the Condemnatio of the Formula, the matter is set right by the Praetor, or in other words "reus in integrum restituitur," but if too little was inserted in the formula, the Praetor would not make any alteration; "for," he adds, "the Praetor more readily relieves a defendant than a plaintiff; but we except the case of Minores XXV annorum, for the Praetor relieves persons of this class in all cases wherein they have committed error (in omnibus rebus lapsis)."

There were however cases in which Minores could obtain no Restitutio; for instance, when a Minor with fraudulent design gave himself out to be Major; when he confirmed the transaction after coming of age; and in other cases. The benefit of this Restitutio belonged to the heredes of the Minor, and generally also to sureties. The demand could only be made, as a general rule, against the person with whom the Minor had the transaction and his heredes. The Minor had four years after attaining his majority, in which he could sue. The older law allowed only one year. If the time had not elapsed when he died, his heres had the benefit of the remaining time, which was reckoned from the time adeundi hereditatem; and if the heres was a Minor, from the time of his attaining his majority. [Curator]

The case of Absentia: which comprehends not merely absence in the ordinary sense of the word, but absence owing to madness or imprisonment, and the like causes (Dig.4 tit. 6 s28). If a man had sustained injury by his own absentia, he was generally intitled to restitutio, if the absentia was unavoidable: if it was not unavoidable, he was intitled to Restitutio, either if he could have no redress from his Procurator, or was not blamable for not having appointed one. If a man found that he might sustain damage on account of the absence of his adversary, he might avoid that by entering a protestation in due form.

The case of Error, Mistake, comprehends such error as cannot be imputed as blame; and in such case, a man could always have restitutio when another was enriched by his loss. The erroris causae probatio somewhat resembles this case (Gaius, I.67‑75).

The case of Capitis diminutio through adrogatio or in manum conventio, which was legally followed by the extinction of all the obligationes of the person adrogated or in manu. The Praetor restored to the creditors of such persons their former rights (Gaius, III.83, IV.38).

The case of alienatio judicii mutandi causa facta is hardly a case of restitutio, though sometimes considered such. It occurs when a man alienates a thing for the purpose of injuring a claimant by substituting for himself another against whom the claimant cannot so easily prosecute his right. In the case of a thing which the Possessor had thus alienated, the Praetor gave an actio in factum against the alienor to the full value of the thing. If a man assigned a claim or right with the view of injuring his adversary by giving him a harder claimant to deal with, the adversary could meet the assignee, when he sued, with an exceptio judicii mutandi causa.

The case of alienatio in fraudem creditorum facta (Dig.42 8). When a man was insolvent (non solvendo), and alienated his property for the purpose of injuring his creditors, the Praetor's Edict gave the creditors a remedy. If for instance a debt was paid post bona possessa, it was absolutely void, for the effect of the Bonorum Possessio in the case of insolvency was to put all the creditors on the same footing. If any alienation was made before the Bonorum Possessio, it was valid in some cases. A debtor might reject any thing which was for his advantage, for the Praetor's edict related only to the diminution of his property, and not to its increase. If the act was such as to diminish his property (fraudationis causa) the creditors, as a general rule, were intitled to have the act undone. A creditor who exacted his just debt, was intitled to retain it. The actio by which the creditors destroyed the effect of an illegal alienation was called Pauliana, which was brought by the Curator bonorum in the name of the creditors, for the restoration of the thing which had been improperly aliened, and all its fruits. The creditors were also intitled to an Interdictum fraudatorium in order to get possession of the thing that had been improperly aliened (Dig. 36 tit. 1 s67).

In the Imperial times, Restitutio was also applied to the remission of a punishment (Tac. Ann. XIV.12; Plin. Ep. X.64, 65; Dig. 48 tit. 19 s27) which could only be done by the Imperial grace.

(Dig.4 1‑7; Dig.44 4; Paulus, S.R. I. tit. 7‑9; Cod. 2 tit. 20‑55; Cod. Theod. 2 tit. 15, 16; Mühlenbruch, Doct. Pandect.; Mackeldey, Lehrbuch, &c. 12th ed.; Rein, Das Römische Privatrecht; Rudorff, Zeitschrift für Geschicht. Rechtsw. XII.131, Ueber die Octavianische Formel; Puchta, Inst. II. § 209).


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