duress, Where a contract is procured by threats of some evil to Metus or be inflicted on the person whose consent it is desired to and its obtain (Duress), the consent is deemed to be voluntary, effects. or at any rate an actual consent1: but the conduct of the party using such threats being contrary to the bona fides. which we have seen to be an essential condition of the consensual contracts, the other has rights similar to but more extensive than those which arise from fraud. The conditions of those rights are twofold. In the first place, the threat must have been of something unlawful and something sufficiently serious, and the chance of its being actually inflicted must have been sufficiently near, to have influenced a person of courage and resolution: for instance, threats against one's life, one's chastity, or one's personal liberty or security: threats to destroy valuable property, and so forth: 2 metum autem non vani hominis, sed qui merito et in and it is immaterial whether the person threatened is the 1 Dig. 4. 2. 21. 4 & 5: 23. 2. 22. 2 Arg. Dig. 47. 10. 13. I: iuris enim executio non habet iniuriam. 3 Dig. 4. 2. 6: cf. ib. 2-4: 4. 6. 3: Cod. 2. 20. 4 & 7. Il y a violence lorsqu'elle est de nature à faire impression sur une personne raisonnable, et qu'elle peut lui inspirer la crainte d'exposer sa personne ou sa fortune à un mal considérable et présent. On a égard, en cette matière, à l'âge, au sexe et à la condition des personnes: Code Civil, Art. 1112. The authorities mention only children (Dig. 4. 2. 8. 3), but no doubt as an example only. La violence est une cause de nullité du contrat, non seulement lorsqu'elle a été exercée sur la partie contractante, mais encore lorsqu'elle l'a été sur son époux ou sur son épouse, sur ses descendans ou ses ascendans: Code Civil, Art. 1113. Metus has a wider than Dolus. the contract which he seeks to repudiate; in other words, one cannot avoid a contract which one may have made as an ulterior consequence of threats used for a different purpose1. Assuming that these conditions are satisfied, the person whose consent to a contract of sale has been thus wrongfully obtained has the following remedies:(1) he can bring the ordinary action on the contract for its rescission and for damages, or if sued upon it, he can defeat the action by the exceptio metus: or, if he prefers it, he can let the contract stand, and content himself with an action for damages only 2: (2) he can apply to the courts for an in integrum restitutio on the ground of the duress, the effect of which is to undo the contract with all its consequences, and to replace him in statu quo ante as regards third persons as well as the other contracting party (3) in some cases he will obtain heavier damages than by an action on the contract by bringing the actio quod metus causa against the person who had used the threats, and this is sometimes the more appropriate remedy, especially in cases where one is induced to contract with one person by duress practised by another: but being in substance an action ex delicto it does not require further mention in this connection. 3 : It will thus be seen that duress confers more extensive operation rights than fraud. The latter is said to operate in personam only, the former in rem. That is to say, where one has been induced to make a contract by threats of the kind described, one can avoid its consequences even as against innocent third parties who have acquired rights through or under it; and even where the compulsion, though used with the direct object of inducing one to make the contract, is exercised by a person who is not a party to it at all, and without the knowledge of the 2 Cod. 4. 44. 1 & 8: 2. 20. 12. 1 Dig. 4. 2. 9. 1. 3 Cod. 2. 20. 3: Dig. 4. 2. 9. 4-6. person who is, one can nevertheless avoid it by an actio quod metus causa against the latter, and claim restitution of any benefit which he has obtained by its means 1. It is perhaps hardly necessary to say that if a person who had been induced to make a contract by duress. ratified it, either expressly or by implication, on becoming released from the influence, the right of rescission was lost 2. If the threats by which a man is induced to make a contract are not of the serious character indicated above, he cannot avail himself of these remedies. If sued, however, he can usually defeat the action by exceptio doli: he can recover the purchase money or property transferred under the agreement by condictio ex iniusta causa: and he can get compensation for such other damages as he has suffered by an actio doli 3. 1 Dig. 4. 2. 14. 3: 44. 4. 4. 33: Cod. 2. 20. 3 & 5. La violence exercée contre celui, qui a contracté l'obligation, est une cause de nullité, encore qu'elle ait été exercée par un tiers autre que celui au profit duquel la convention a été faite : Code Civil, Art. 111I. 2 Cod. 2. 20. 2 & 4. Un contrat ne peut plus être attaqué pour cause de violence, si, depuis que la violence a cessé, ce contrat a été approuvé, soit expressement, soit tacitement, soit en laissant passer le temps de la restitution fixé par la loi : Code Civil, Art. 1115. 3 Dig. 12. 5. 6 & 7: 4. 2. 14. 3. It must not be inferred from what has been said above that there are no cases in which a man can be compelled to sell particular property. Sometimes this is done in pursuance of obligatory directions, as where a testator imposes on his heir a trust to sell the inheritance, or some particular portion of it or thing belonging to it, to a third party, or to buy something which he does not want from a beneficiary under the will (e.g. Dig. 30. 49. 8 & 9: ib. 66: Pothier, 510). So too in time of famine people might be compelled to sell grain of which they had no personal need at a fair price (Cod. 10. 27. 2: Pothier, 511), and other compulsory sales for public purposes, such as roads, are mentioned in the authorities (Pothier, 1. c.). The rescript of Antoninus Pius, compelling inhuman masters to sell their slaves on advantageous terms, is familiar to readers of the Institutes (Gaius, i. 53: Inst. i. 8. 2). Other illustrations will be found in Dig. 11. 7. 12. pr.: 20. 5. 2: cf. Bechmann, Kauf, ii. §§ 187-195. F CHAPTER VII. The price must be fixed in money. RULES AS TO THE PRICE. The price must be fixed in money. Consideration consisting partly in money, partly in some other thing. The price must be fixed: no doctrine of a 'reasonable price.' Agreement that the price shall be fixed by an arbitrator or expert. Variation of the price. Fixing of the price where a number of things are bought together. The price must be intended as a bona fide equivalent for the goods. Fairness or adequacy of the price. THE first requirement of the price is one to which reference has already been made, viz. that it must consist in money (pecunia numerata): the reason of the rule being stated by Paulus 1, that otherwise it would be impossible to tell which of the parties was vendor and which was purchaser. If what is agreed to be given for the goods is some other thing than money, the transaction is exchange, and is governed by some rules fundamentally different from those of sale. The question whether the price must be fixed in current coin-coin, that is to say, which is legal tender or whether it might not also be in the coinage of some other country, or in coins which have ceased to be current, is not dealt with in the authorities, no doubt because foreign money was rare, if not quite unknown, in the time of the classical jurists. It is not, however, 1 Dig. 18. I. I. I: Inst. iii. 23. 2. 2 Cod. 4. 64. 7: see p. 5 supr. So too in English law 'the price must be money, paid or promised, accordingly as the agreement may be for a cash or a credit sale: but if any other consideration than money be given, it is not a sale. If goods be given in exchange for goods, it is a barter': Benjamin, p. 2. 3 Bechmann, Kauf, ii. § 152, is of opinion that on the principles of tion con necessary to the contract that the purchaser should satisfy the vendor in coined money, if it be otherwise provided, for the difficulty of determining which was vendor and which purchaser was met by the agreement that one was to give money, and therefore they might, without in any way altering the nature of the contract, agree afterwards to substitute for the payment of the purchase money the giving of some other thing1: and there seems no reason in the nature of things why they should not agree upon this at the outset, though no authority can be found for this suggestion 2. Nor is it strictly necessary that the con- Considerasideration should consist entirely in money: the purchaser sisting may promise, in addition to the price of an estate, to take partly in a lease of other land from the vendor 3, or to give him a partly in lease of the land which he has bought, or to repair a thing. house for him. But although it must be granted that so long as any part of the consideration agreed upon is money there is enough to differentiate the transaction from exchange, and to determine the rôles of the parties respectively as vendor and purchaser, it is not at all clear that it will on that account always be held to be a sale, and owing to the scantiness of the authorities on the point the views of the commentators are somewhat arbitrary and conflicting. According to one view, the answer depends (in the absence of express declaration by the parties) upon the relative the modern Civil Law the price might be fixed in a currency which admits of reduction to that which is legal tender, such as that of a foreign country with a regular known rate of exchange, but that payment must be in coins which are legal tender. 1 Cod. 4. 44. 9: 8. 45. 4: Pothier, 30. money, some other 2 E.g. if A and B agree to exchange two articles, as to the money price of which they are also quite in accordance, and the two prices exactly correspond, one might not unreasonably say that there are two sales made with the intention that the purchase money of each is to be set off against the other. 4 ↑ Dig. 19. 1. 21. 4. 3 Dig. 18. 1. 79. |