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IUSIURANDUM IN LITEM IN THE BONAE
FIDE IUDICIA
by
n. 1; Chiazzese, op. cit., p. 191) D. 12,3,5,4 has a classical basis and is taken in
conjunction with D. 12,3,6. The action there is a condictio certae rei arising from
a stipulation for a slave Stichus who has died. Thus, on the facts of the case,
performance is impossible and what is wanted from the iusiurandum can only be
a true estimate of the plaintiff's loss. And D. 12,3,6 which in its present context is
closely linked with D. 12,3,5,4 has simply, alias, si stipulatu vel ex testamento
agatur, non solet in litem iurari.
23) E.g., Levy, op. cit. pp. 67f and 68 n. 2; Betti, Studi sulla litis aestimatio I
(Pavia, 1915), p. 57 n. 86; Chiazzese, op. cit. pp. 3 f; Medicus, Id quod interest
(Cologne, Graz, 1962), pp. 183f; contra, to a limited extent, Provera, op. cit.
pp. 51ff. If I am not mistaken, the main conclusions of this present article were
also at one time held by Betti: La litis aestimatio in rapporto al tempo nelle varie
specie di azioni e di giudizt (programma del corso di diritto romano tenuto nell'
UniversitA di Camerino, 1918-1919), p. 17. But the nature of that work forbade
the giving of arguments, and he now appears to have reverted to his position
of 1915: Istituzioni di diritto romano I, 2nd edt. (Padua, 1947), p. 297 n. 69 at
p. 298.
24) Therefore, contrary to Betti, the measuring of damages by iusiurandum
in litem is not a limitation on the powers of the iudex: and cf. D. 12,3,5,1 and 2.
178 ALAN WATSON [4]
and the defendant refuses to deliver - and only then, one may
assume, will the iudex allow iusiurandumin litem. Or the idea may
be that by iusiurandum in litem the plaintiff might overvalue his
claim and so get more than his interest and that this is contrary
to the concept of good faith. But we must remember that the
defendant will be able to escape this condemnatio by delivering
the res etc. Again, some texts make it clear that on occasion the
condemnatioin quidquid. . . darefacere oportet exfide bona would
give the plaintiff less than his loss 25), so similarly at times - if
only where the defendant was fraudulent - the defendant might
be condemned in more than the plaintiff's loss. Above all, we
must not forget that in some cases this condemnation allowed a
plaintiff to sue successfully where he had suffered no loss. For
instance, mandata aliena gratia are always treated as completely
valid - unlike stipulationes alteri - and they are distinguished
from mandata mea et aliena gratia. If the actio mandati always
required an interest in the plaintiff one would not have expected
to be told without qualification that mandata aliena gratia are
valid nor might one have expected them to be distinguished from
mandata mea et aliena 26). Equally significant is D. 19,1,13,30
(Ulpian 32 ad ed.):
28) There is not the slightest indication in the text that Tubero was concerned
with a special clause in the contract of sale to make the seller liable for any damage
done by the colonus.
29) This second part of the text is also of interest in another way. The actio ex
empto is brought, we are told, to compel the seller to sue the colonus and hand over
to the buyer whatever he recovered. Of course, the seller could not suffer condem-
nation to do such a thing, pecuniary condemnations alone being allowed. Never-
theless, the action must have been brought with the intention that the seller be
compelled to sue and no doubt this was achieved by facing him with a choice
either of suffering pecuniary condemnation or of giving a cautio that he would
sue the colonus and hand over the proceeds to the buyer. To achieve the latter the
alternative must have been made less attractive (since he could otherwise suffer
condemnation and then himself sue the colonus and keep what he recovered)
and iusiurandum in litem may well have been the means to this end. Cf Watson The
Law of Obligations in the Later Roman Republic (Oxford, 1965) pp. 51ff.
180 ALAN WATSON [6]
30) The actio de recepto has not been mentioned before and it is not intended
to go into it. It is probable both that the formula had a restitutory clause and that
iusiurandum in litem was permitted but the evidence for neither the one nor the
other is very clear: cf Lenel op. cit. p. 135 and n. 1; Levy op. cit. p. 27.
31) Cf Krtiger Geschichte der Quellen und Litteratur des rdmischen Rechts,
2nd edit. (Munich, 1912) p. 141.
32) Thus, the list of bonae fidei iudicia in G. 4,62 is not complete.
33) Cf infra p. llf.
IUSIJRANDUM IN LITEM
Sed in his omnibus ob dolum solum in litem iuratur, non etiam ob culpam:
haec enim iudex aestimat.
41) Cf Medicus op. cit. p. 183f and the references he gives: contra, but without
strong arguments, Provera op. cit. p. 51ff; Amirante BIDR 61 (1959) p. 115 n. 3
at p. 116.
42) Cf references given by Medicus, loc. cit.
43) Medicus op. cit. p. 184.
44) Lenel Palingenesia1 607; contra, Provera, op. cit. p. 52.
ALAN WATSON
45) See Mayer-Maly op. cit. p. 219 n. 20. Of course, the lease would not con-
tinue if the lessor were opposed to its continuance but if he were silent for a time
the lessee no doubt would be protected and the lease would be regarded as conti-
nuing for a year.
46) Unless isiurandum in litem was compulsory in the actiofurti and there is
no evidence for that.
[11] IUSIURANDUM IN LITEM 185
object of the action was to secure that the plaintiff recovered his
own property, The same applies to the vindicatio.
Sixthly, there is the argument mentioned above that the texts
on depositum and commodatum refer to the actio in factum and
not to the actio in ius. To take depositum first. There are two
texts - both from Ulpian 30 ad edictum - D. 12,3,3 and 16,3,1,
26. There is no indication in the substance of either as to whether
it is concerned with the actio in factum or the actio in ius. Levy,
concerned with D. 16,3,1,26, says it is the former 47) and Kaser
says it probably is 48). But Lenel, concerned with the structure of
Ulpian's book 30 ad edictum, thought at one time that, of D.
16,3,1, §§ 1-19 were concerned with the formula in factum,
§§ 20-26 probably with the formula in ius 49). Later he changed
his mind rather, holding that §§ 1-19 still dealt with the formula
in factum, §§ 20-26 with the officium iudicis but that it could not
be determined which formula lay at the root of the discussion,
§§ 27 to the end and h.t. 3 with a free discussion of deposit
not dependant upon any formula 50). Lenel rightly links D. 12,3,3
with D. 16,3,1,26 so that it is not independent evidence. On
Lenel's later view, however, if one cannot see to whichformula
the texts on officium iudicis refer the explanation probably is that
they are of a general nature; if so, iusiurandum in litem would be
permitted in both the actio in ius and the actio in factum. But the
proper verdict from the internal evidence of the texts and their
context must be non liquet. There is one text on commodatum,
D. 13,6,3,2 (Ulpian 28 ad ed.):
In hac actione sicut in ceteris bonae fidei iudiciis sirniliter in litem iurabitur;
et rei iudicandae tempus, quanti res sit, observatur, quamvis in stricti
lits constestatae tempus spectetur.
This text was concerned with the actio in factum 51) as quanti
The text is not quite in perfect order and it has been suggested
that quondam has been inserted by the compilers to make the text
refer to the curator 56). Presumably, then, puberem was originally
impuberem. However, this may be, the text seems to be concerned
with the actio tutelae and it says that if the heirs of a tutor do not
produce the instrumenta and this is the result of dolus on their
part the plaintiff may give the iusiurandum in litem. One cannot,
however, assume that the Emperors are innovating. The language
is very matter of fact and completely appropriate to a statement
of the existing law. The rescript, moreover, is concerned with a
tutela of the addressee and there is no reason to assume that he
is anything other than a private citizen especially since high offi-
cials were excused from tutelae. Further, the iusiurandum is to
compel production of instrumenta. But one should not equate
instrumenta with inventarium. Instrumenta covers all of the docu-
ments relevant to the case. There seems to be no text in which
instrumenta can definitely be said to be used as a synonym for
inventarium. On the other hand, there are a number where the
word is obviously used with the wider meaning - sometimes al-
most in distinction to the inventory - for instance, in D. 26,7,5,6
(Ulpian 35 ad ed.) ... si nondum rationesredditae nec ad causam
instrumentapertinentia,and C. 5,53,4... tutor enim inventarium
ceteraque instrumenta si non proferat ...
Again the action at the base of the rescript is for the production
of accounts and other relevant documents. Once more, there is
no question of innovation here 58).
C. 5,53,5:
59) Cf Kaser PrivatrechtI cit. p. 310 and the texts and references he gives, n. 30.
60) As the example of Scots law, supra p. [71, would suggest.
190 ALAN WATSON [16]
61) To the Index lip. add Provera, op. cit. p. 62 and the authors he cites, n. 94.
62) Cf Index Itp. and Supplementum.
IUSIURANDUM IN LTEM
The point of the text is this. The heir of a tutor, says Ulpian,
can be summoned in an actio tutelae, but can his own fraud be
brought into issue in this action? And he says there is an opinion
of Servius that if the heir does act he will be liable suo nomine
in an actio tutelae because, since the iusiurandumin litem is avail-
able against the heir for his own dolus, it appears that in the actio
tutelae he is liable for his own dolus. The text must be regarded
as a whole. The argument used to justify the decision is of supreme
importance because it does not in fact justify it. The distinction
(and the text shows there must be one) between the heir's liability
for dolus, suo nomine, and the availability of the iusiurandum in
litem is that the latter is given by the plaintiff to compel the heir
to produce accounts and other documents left by the tutor and
which the heir has deliberately not produced. In other words the
iusiurandum in litem is for failure to do something which he,
in his capacity as heir, is responsible for doing; whereas Servius
and Ulpian are making the heir liable for his own positive acts
which as the text shows need not necessarily have anything to do
with his quality as heir. The argument is either stupid or very
clever - in the latter case a deliberate sophisticated attempt to
63) For suggested interpolations, see Index Itp. and Lauria Studi Riccobono III
p. 300 n. 72.
ALAN WATSON [18]
64) De eo qui pro tutore negotia gessit, Annali Bar 15 (1958) p. 65ff at p. 96
n. 121.
65) Nothing indicates that anything has been cut out between the decision and
the argument. The present writer regrets that he had not access to two other works
by De Robertis, La responsabilitd del tutore nel diritto giustinianeo (Ban, 1954);
and La protutela in diritto romano (Ban, 1956).
66) Op. cit. p. 61.
67) Les actions civiles (Paris, 1954) p. 9.
IUSIURANDUM IN LITEM