petitio. quamvis enim usque adhuc incertum erat, sive inter bonae fidei iudicia connumeranda sit sive non, nostra tamen

(1) Where the action is stricti iuris, the judge is bound by the strict and literal words of the disposition; where it is bonae fidei he may go behind them to discover the real intention of the parties. Hence, in the latter case, he may take cognisance of pacta adiecta, formless subsidiary conventions of the parties, if substantially a part of the disposition upon which the action is brought, Dig. 2. 14. 7. 5. In stricti iuris iudicia this was not possible under the older law, Dig. ib. 7, though later some exceptions were recognized, Dig. 12. 1. 40, Cod. 4. 32. 12; ib. 23. So too in a bonae fidei action the judge may rule local or other usages to be implied terms in a contract, Dig. 21. 1. 31. 20; 3. 5. 7.

(2) A bonae fide action lies on grounds on which one stricti iuris would not, e.g. dolus and metus: i.e. a party who has been induced by fraud or intimidation to make a disposition may impeach its validity by the ordinary action thereon, if that action is of the former, but not if is of the latter character.

(3) Where a defendant is liable for 'omnis causa,' the value of the latter is in a bonae fidei action ascertained as from the date of mora; in one which is stricti iuris (except possibly where it is condictio incerti) only from litis contestatio, Dig. 22. 1. 38. 7 and 8.

(4) Under the formulary procedure the judge who tried a stricti iuris action could listen to no exceptio which had not been expressly set forth in the formula; in bonae fidei actions no defences which could be included under the very comprehensive idea of dolus need be advanced so early in the proceedings; see Excursus X inf. But under Justinian the maxim'doli exceptio bonae fidei iudiciis inest' (which occurs in Dig. 23. 3. 21: 30. 84. 5: 18. 5. 3) has no processual significance: the stage at which such defences had to be advanced is determined by other considerations, as is shown on Tit. 13. pr. inf.

(5) In stricti iuris actions iusiurandum or iuramentum in litem was, as a rule, inadmissible, but was regularly applied in such actions bonae fidei as demanded restitution or production of property if the defendant refused or through his own fault was unable to produce or restore.

(6) In stricti iuris actions the damages were assessed (litis aestimatio) as at the moment of litis contestatio: in bonae fidei actions at condemnatio, Dig. 13. 6. 3. 2.

(7) If a place was fixed for the performance of a contract the remedy upon which was stricti iuris, it could originally be brought at that place only; a bonae fidei action under similar circumstances lay at any place where the defendant was amenable to the jurisdiction; see on Bk. iii. 15. 5 supr.

To Justinian's list of bonae fidei actions must be added (for the older law) the actio fiduciae (Gaius iv. 62); and the action on innominate contracts generally, not merely on aestimatum and permutatio, was of this character.

constitutio aperte eam esse bonae fidei disposuit. Fuerat 29 antea et rei uxoriae actio ex bonae fidei iudiciis: sed cum pleniorem esse ex stipulatu actionem invenientes omne ius, quod res uxoria ante habebat, cum multis divisionibus in ex stipulatu actionem, quae de dotibus exigendis proponitur, transtulimus, merito rei uxoriae actione sublata ex stipulatu, quae pro ea introducta est, naturam bonae fidei iudicii tantum in exactione dotis meruit, ut bonae fidei sit. sed et tacitam ei dedimus hypothecam : praeferri autem aliis creditoribus in hypothecis tunc censuimus, cum ipsa mulier de dote sua experiatur, cuius solius providentia hoc induximus. In bonae 30 fidei autem iudiciis libera potestas permitti videtur iudici ex bono et aequo aestimandi, quantum actori restitui debeat. in quo et illud continetur, ut, si quid invicem actorem praestare oporteat, eo compensato in reliquum is cum quo actum est condemnari debeat. sed et in strictis iudiciis ex rescripto divi Marci opposita doli mali exceptione compensatio inducebatur.

The SC. Juventianum passed under Hadrian first gave hereditatis petitio a mixed character (Dig. 5. 3. 20. 6) by enabling the heir to recover from other persons all advantage which they had derived from res hereditariae which they no longer possessed (e.g. which they had sold); they came, in fact, to be regarded somewhat in the light of the heir's negotiorum gestores, and, therefore, were bound as such to surrender to him all profit which they had made by interfering in business which was not their own. It would seem that, in prosecuting such claims, the action, being in effect in personam, was conducted on bonae fidei principles, so that the question arose, which Justinian determined by Cod. 3. 31. 12. 3, whether it was not itself bonae fidei.

§ 29. The actio rei uxoriae (for the scope of which see p. 123 supr.) is not so often said to be bonae fidei as to belong to a cognate class of actions in bonum et acquum conceptae' Dig. 4. 5. 8; 24. 3. 66. 7, among which were also the actio iniuriarum aestimatoria, Dig. 47. 10. 11. 1; the actio de effusis, Dig. 9. 3. 1. pr., and the aedilician action mentioned in Tit. 9. 1 inf.; in these the discretion of the judge was freer even than in bonae fidei actions proper. By substituting the actio ex stipulatu de dotibus exigendis (which naturally was stricti iuris) for the actio rei uxoriae Justinian fictitiously represented the restoration of the dos as having been promised by stipulation with a clausula doli, whereby it acquired the bonae fidei character which he here expressly gives it. The superiority of the actio ex stipulatu had consisted in its being transmissible to heirs and in some other points noticed in Cod. 5. 13. 3–10. For the wife's right of hypotheca see p. 123 supr.

§ 30. Compensatio (set-off) est debiti et crediti inter se contributio,'

sed nostra constitutio eas compensationes, quae iure aperto nituntur, latius introduxit, ut actiones ipso iure minuant sive in rem sive personales sive alias quascumque, excepta sola depositi actione, cui aliquid compensationis nomine opponi satis impium esse credidimus, ne sub praetextu compensa

Dig. 16. 2. 1. The full application of the principle was only of slow development in Roman law. Gaius tells us (iv. 64) that bankers in suing their debtors were compelled to make allowance for what they themselves owed the latter, and to bring their action only for the balance; and that the actions of bonorum emptores (p. 375 supr.) against debtors of the purchased bankrupt estate were governed by the same rule, though the 'deductio' in the latter case had a wider operation than the 'compensatio' in the former (ib. 65-68). In bonae fidei iudicia the judge was bound, as acting ex fide bona, to take account of sets-off arising ex eadem causa, from the same transaction (ib. 61); and though Justinian says here that set-off was not allowed in stricti iuris actions till the rescript of M. Aurelius, and then only on the condition of the defendant's getting an exceptio doli inserted in the formula, it would seem that this had been done before in some actions of this class by special favour (Dig. 16. 2. 4 and 5), and that the emperor's enactment only made the matter a general rule. Apparently too from this time onward claims arising ex dispari causa could be set off in actions of either kind by the employment of the same exceptio doli. The distinction between compensatio effected officio iudicis, and that resulting from the use of the exceptio seems (though the point is much disputed) to have lasted on in the new process after the disappearance of the formula, until it was abolished by Justinian's enactment here referred to (Cod. 4. 31. 14. pr. and 1), so that in his time set-off of any kind, whether arising ex eadem or ex dispari causa, could be advanced with effect at any stage of the action up to judgment, and consequently the words 'ex eadem causa' in § 34 inf. are held to have been imported into the Institutes from Gaius iv. 61 by an oversight. Whether by this enactment Justinian first allowed compensatio in real actions ('sive in rem sive in personam') is also uncertain; traces of its earlier application in such cases are found by some writers in Dig. 5. 2. 21. 2; 5. 3. 31. 2; 6. I. 48.

It was essential that the claims set off against one another should relate to par materia or genus: 'in compensationem hoc solum vocatur, quod eiusdem generis et naturae est, veluti pecunia cum pecunia compensatur, triticum cum tritico, vinum cum vino' Gaius iv. 66, '. . . . si constat, pecuniam invicem deberi' Cod. 4. 31. 4; but it is hardly certain how far it was required that the set-off should be liquidated, i. e. clearly proved or proveable. The chief authority on this point is Cod. 4. 31. 14. I 'ita tamen compensationes obici iubemus, si causa, ex qua compensetur, liquida sit, et non multis ambagibus innodata, sed possit iudici facilem exitum sui praestare. Satis enim miserabile est, post multa forte

tionis depositarum rerum quis exactione defraudetur. Prae- 31 terea quasdam actiones arbitrarias id est ex arbitrio iudicis pendentes appellamus, in quibus nisi arbitrio iudicis is cum quo agitur actori satisfaciat, veluti rem restituat vel exhibeat vel solvat vel ex noxali causa servum dedat, condemnari debeat. sed istae actiones tam in rem quam in personam inveniuntur. in rem veluti Publiciana, Serviana de rebus coloni, quasi Ser

vanaque certamina, cum res iam fuerit approbata, tunc ex altera parte, quae iam paene convicta est, opponi compensationem iam certo et indubitato debito, et moratoriis ambagibus spem condemnationis excludi.' Though the expression 'aperto iure' in the text above might seem to imply that the counter claim must have been proved and established in an independent action, it seems better to understand this passage to mean that the proof and aestimatio of the counter claim must not be so intricate as to practically reverse the respective rôles of the parties, and as it were to turn the defendant into a plaintiff.

Great difficulty is occasioned by the expression 'actiones ipso iure minuant' in the text, and by the attribution even in juristic writings (e.g. Dig. 16. 2. 4 ; ib. 10. pr.; ib. 21) to compensatio of an operation 'ipso iure.' The standing opposition, in modes by which obligations were invalidated, between invalidation ipso iure and invalidation ope exceptionis (p. 448 supr.) has led some commentators to interpret these passages by representing set-off as by itself (or 'sine facto hominis') absolutely extinguishing the plaintiff's claim, so far as it goes; but if this were so, such a tacit or automatic reduction of that claim would take place in all cases where the defendant had a set-off, whether the latter wished it or not; a hypothesis which is sufficiently disproved by Dig. 27. 4. I. 4 'praeterea si tutelae iudicio quis convenietur, reputare potest id, quod in rem pupilli impendit, sic erit arbitrii eius, utrum compensare, an petere velit sumtus,' and Dig. 16. 2. 7. 1 'si rationem compensationis iudex non habuerit, salva manet petitio.' The real meaning of the expression seems to be that, though the defendant, if he wishes to set-off against the plaintiff, must plead his claim, yet, immediately he has pleaded and proved it, its operation relates back to the moment at which the two claims first coexisted: 'si constat, pecuniam invicem deberi, ipso iure pro soluto compensationem haberi oportet ex eo tempore, ex quo ab utraque debetur, utique quoad concurrentes quantitates, eiusque solius, quod amplius apud alterum est, usurae debentur, si modo earum petitio subsistit' Cod. 4. 31. 4; from that moment no interest can be claimed, except on the balance, Cod. ib., Dig. 16. 2. 11; and if the defendant forgets to set-off, he can recover what he has paid in excess by condictio indebiti, Dig. ib. 10. 1; 12. 6. 30. So far in fact as the two debts coextended, each was extinguished: 'dedisse intellegendus est etiam is, qui compensavit' Dig. 49. 14. 46. 5.

§ 31. For the origin and nature of actiones arbitrariae in the formulary

Nn

viana, quae etiam hypothecaria vocatur: in personam veluti quibus de eo agitur, quod aut metus causa aut dolo malo factum est, item qua id, quod certo loco promissum est, petitur. ad exhibendum quoque actio ex arbitrio iudicis pendet. in his enim actionibus et ceteris similibus permittitur iudici ex bono et aequo secundum cuiusque rei de qua actum est naturam aestimare, quemadmodum actori satisfieri oporteat.

period see Excursus X inf. Under Justinian they may best be described as actions in which delivery or production of specific property, or specific performance of an agreement, would be decreed, the defendant being condemned in full damages only where execution of this decree was impossible. Where the object of the action was restitution, it was enforced by the strong arm of the law; 'qui restituere iussus iudici non paret, contendens non posse se restituere, si quidem habeat rem, manu militari officio iudicis ab eo possessio transfertur, et fructuum duntaxat omnisque causae nomine condemnatio fit: si vero non potest restituere, si quidem dolo fecit, quominus possit, is quantum adversariis in litem sine ulla taxatione in infinitum iuraverit, damnandus est: si vero nec potest restituere, nec dolo fecit quominus possit, non pluris, quam quanti res est, id est, quanti adversarii interfuit, condemnandus est. Haec sententia generalis est, et ad omnia, sive interdicta, sive actiones, et sive in rem sive in personam sint, ex quibus ex arbitratu iudicis quid restituitur, locum habet.' It is not improbable indeed that this direct intervention of the state to compel performance of the act demanded occurred whenever such performance was possible (e.g. 'exhibere cogendus est' Dig. 10 4. 8). Interdicts which were restitutoria and exhibitoria, and the actions depositi, commodati, locati, and rei uxoriae, when their object was restitution, belonged to this class of remedy, besides the instances given in the text; their leading characteristic (apart from the decree of specific restitution, production, or performance) being that, if the defendant is unable through his own fault to do what is demanded of him, the damages to be paid are fixed by the plaintiff on oath (iusiurandum in litem).

Justinian's mention of actions demanding payment of money (solutio) as arbitrariae seems to relate only to the actio de eo quod certo loco, etc., for which see on Bk. iii. 15. 5 supr. For noxal actions see Tit. 8 inf.

The actio ad exhibendum (for which cf. Tit. 17. 3 inf.) was of a preliminary nature, enabling a plaintiff who could not pursue his right without the production of an object to enforce such production upon any one who was able to make it: 'exhibere est facere in publico potestatem, ut ei, qui agat, experiundi sit copia' Dig. 10. 4. 2, 'sciendum est adversus possessorem hac actione agendum non solum eum, qui civiliter, sed et eum, qui naturaliter incumbat possessioni' ib. 3. 15. The right to which the action was subsidiary might be in personam, as where a plaintiff wishes to bring a noxal action, but is not sure of the precise slave