Paul. Vis est maioris rei impetus, qui repelli non potest.-1. 2 eod.1 Cic. Tusc. iv. 7, 14: Est metus opinio impendentis mali quod intolerabile esse videatur.2 Ulp. Metum accipiendum Labeo dicit non quemlibet timorem, sed maioris mali.—l. 5, D. h. t.3 Imp. Dioclet. Nec tamen quilibet metus ad rescindenda ea, quae consensu terminata sunt, sufficit, sed talem metum probari oportet, qui salutis periculum vel corporis cruciatum contineat. -C. 2, 4, 13.* Gai. Metum autem non vani hominis, sed qui merito et in homine constantissimo cadat, ad hoc Edictum pertinere dicemus.-1. 6, h. t. BOOK I. Chapter 1. Ulp. Metum praesentem accipere debemus, non suspicionem inferendi eius; . . . Pomponius ait, metum illatum accipiendum, i.e. si illatus est timor ab aliquo."-1. 9 pr. eod." a Cf. § 91. Paul. Si metu coactus adii hereditatem, puto ... dation; ' violence, that is, was mentioned with reference to the imposition of necessity against the will; . . . but afterwards the mention of violence was withdrawn, because whatever happens by violent force may also be regarded as happening through intimidation. 1 Vis is the violence of something stronger, which cannot be withstood. 2 Metus is the thought of immediate evil which seems to be unbearable. 3 Labeo says that metus must be taken to be, not any intimi dation without distinction, but that of a greater evil. But not every possible metus is enough to set aside matters which have been concluded by agreement, but such metus must be proved as embraces danger to life or torture to the body. 5 Now it is not the fear of a timid man, but what may reasonably befall even the most self-contained man, that we shall have to speak of as connected with this Edict. ... We must understand a fear that has already arisen, not the suspicion that it will be awakened. . . . Pomponius says, we must understand the fear to be such as has already been occasioned, i.e., if it has been caused by some person. me heredem effici: quia, quamvis si liberum esset, noluissem, tamen coactus volui.-1. 21, § 5 eod.' Ulp. Nihil consensui tam contrarium est, quam vis atque metus; quem comprobare, contra bonos mores est.-D. 50, 17, 116 pr.2 ... 2. By Fraud, ' dolus,'a' fraus,' i.e., intentional creation of, or even cherishing, a mistake as to a fact, so as to bring about a declaration of will which is occasioned by this alone. Somewhat wider is the general idea of 'dolus,' as being crafty, dishonest conduct impairing the 'fides' or confidence required by positive law. The result is here the same as with Coercion.c Ulp.: Dolum malum Servius quidem ita definit machinationem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur. Labeo autem, posse et sine simulatione id agi, ut quis circumveniatur; posse et sine dolo malo aliud agi, aliud simulari, sicuti faciunt, qui per eiusmodi dissimulationem deserviant et tuentur vel sua vel aliena: itaque sic definiit, dolum malum esse omnem calliditatem, fallaciam, machinationem ad circumveniendum, fallendum, decipiendum alterum adhibitam. Labeonis definitio vera est.-1. 1, § 2, D. de dolo. 4, 3.3 1 If I have entered upon an inheritance under the pressure of intimidation, I am of opinion that I am constituted heir, because although if I had been free I should have refused, nevertheless I consented under coercion. ... Nothing is so incompatible with consent . . . as vis and metus: to sanction such would be contrary to sound morals. 3 Fraud was indeed thus defined by Servius: 'a certain inveiglement so as to deceive another, when one thing is pretended and another is done.' But by Lab.: 'that it is possible also without pretence to deceive a man; that it is possible also without fraud for one thing to be done, another feigned, as they do who by such a concealment of truth maintain and protect either their own or others' property:' accordingly, he thus defines it: 'dolus malus is all sharp practice, deceit, device employed to overreach, deceive, delude another.' Labeo's is the right definition. Id. Pomponius ait, in pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire.-D. 4, 4, 16, 4.' On the other hand, bare Mistake as the cause of a declaration of will, or mistake in the motive, as a rule does not affect the juristic result." BOOK I. Chapter I. a Falsa causa non nocet,' see Paul. Id quoque quod ob causam datur, puta Brown, 8. vv. quod negotia mea adiuta ab eo putavi, licet non sit factum, quia donare volui, quamvis falso mihi persuaserim, repeti non posse.-D. 12, 6, 65, 2.2 Moreover, Mistake and Ignorance have to be considered in many other relations, especially as presupposing the protection of the Law against the disadvantageous results of certain omissions and of the commencement of certain legal relations, and conse- ' E.g., §§ 80, quently, the distinction becomes important between mistake as to a maxim of Law and mistake as to Fact (ignorantia s. error iuris, facti). 135, 171. • See Lindley, App. p. xxi. ; 272; Pollock, 'Principles of ch. viii.; Brown, S. VV. Id. Regula est iuris quidem ignorantiam Markby, ss. 260cuique nocere, facti vero ignorantiam non nocere. ... Minoribus xxv. annis ius ignorare per- Contract. missum est, quod et in feminis in quibusdam causis dicitur. Sed facti ignorantia ita demum cuique non nocet, si non ei summa negligentia obiciatur; quid enim, si omnes in civitate sciant, quod ille solus ignoret ?-1. 9 pr. § 2, D. de iur. ign. 22, 6.3 1 Pomp. says that in purchase and sale it is naturally allowed the contracting parties to overreach themselves in respect of price. 2 That also which is given for some reason, as because I have believed my business was promoted by the man, although it has not been so, cannot be recalled, because I have willed to give it, although I have had a false impression. ... 3 The rule is that ignorance of Law prejudices a person, but ignorance of Fact does not. . . . Ignorance of the Law by those that are under twenty-five years of age is tolerated; which is said also of women in certain cases. But ignorance of Fact BOOK I. Chapter 1. Papin. Iuris ignorantia non prodest adquirere volentibus, suum vero petentibus non nocet.-1. 7 eod.1 The declaration of the will can in general take any possible form; so that there are informal' legal transactions; and it may be either express or tacit. An 'express' declaration consists in an intimation that gives immediate and exclusive expression to the will in question, by word or by act; a 'tacit' in an act or a forbearance which by itself has an independent meaning, but nevertheless affords a certain conclusion as to the will-which is an inferred act or one of 'facta concludentia.' Mere silence does not amount to con a Cf. §§ 27, 46, sent.a 52, 123, and also $$ 97, 103. Paul. Sed etiam tacite consensu convenire intelligitur. Et ideo si debitori meo reddiderim cautionem, videtur inter nos convenisse, ne peterem.-D. 2, 14, 2.2 Id. Qui tacet, non utique fatetur; sed tamen verum est eum non negare.-D. 50, 17, 142.3 For some legal transactions the Law requires the observance of a certain form or solemnity, as in testamentary dispositions. In the older Roman Law the form-gerere, dicere (verborum, litterarum, figura)— was in all transactions an essential element of the Cf. §§ 7, 115. declaration of will itself. A declaration which demonstrably does not answer merely does not prejudice a person, unless the highest degree of negligence be imputed to him; for how is it if all in the city know what he alone does not know ? 1 Ignorance of Law is of no advantage to those wishing to acquire, but it does not prejudice those who claim what is their own. 2 But by an agreement is even understood a silent assent. And therefore it would appear if I have returned the security to my debtor, that we have agreed I should not sue. 3 A man by his silence makes no absolute admission; but nevertheless it is certain he does not repudiate. to the will has in Law just as little signification as a will that is not declared at all. The non-agreement of the will with the declaration can be― (1.) Unintentional, whether the party making the declaration express himself incorrectly-which gives rise to interpretation of the will—or is mistaken as to the substance of his own declaration, as by confusion of persons or objects; or if in contracts each party truly intend something different, where, however, the contract is in fact void by reason of the want of consensus due to the mistake." Paul. Qui aliud dicit quam vult, neque id dicit quod vox significat, quia non vult, neque id quod vult, quia id non loquitur.-D. 34, 5, 3.* 1 Ulp. Quotiens volens alium heredem scribere, . Pomp. In omnibus negotiis contrahendis, si error aliquis intervenit, ut aliud sentiat puta qui emit aut qui conducit, aliud qui cum his contrahit, nihil valet, quod acti sit.—1. 57, D. de O. et A. 44, 7.* 1 He who speaks otherwise than he means says neither what the words express, because he does not mean them, nor what he means, because he does not express it. BOOK I. Chapter I. a Cf. § 120. 2 Whenever he has instituted another as heir than his inten- A testator. tion was to do, from mistake as to the person, the opinion is that neither the one whose name is written is heir, because this was not the testator's intention, nor he that was intended, since his name is not that written. And if a person have made a mistake in a thing, for example, whilst he would leave a lance, he bequeaths a garment, neither of these will be binding. 3 They that are mistaken do not appear to consent. In contracting any matter, if a mistake arise so that, for |