The Digest of Justinian

[ULPIAN, On the Edict, book 11]

​We ought to understand fear as present, not the suspicion of its being brought to bear; and so Pomponius writes in his twenty-eighth book. For he says that the fear brought to bear is to be understood, that is, if fear has been brought to bear by someone. Finally, he discusses: if I should abandon my land upon hearing that someone was coming with arms, does this edict have place? And he reports that Labeo thinks the edict has no place, and that the interdict for recovery of possession by force (unde vi) also ceases, since I do not seem to have been ejected by force, as I did not wait to be ejected but fled. It is otherwise than if, after armed men entered, I then departed; for in that case he says the edict has place. He says the same also if by chance, with a band of men brought in, you build on my soil by force: both the interdict concerning what is done by force or stealth (quod vi aut clam) and this edict have place, obviously because out of fear I allow you to do this. But even if I deliver possession to you by force, Pomponius says this edict has place.

​Furthermore, it must be noted that the praetor speaks in this edict generally and in rem, and does not add by whom it was done; and therefore, whether it is an individual person who brought to bear the fear, or a people, or a senate, or a guild, or an association, or a corporation, this edict will have place. But although the praetor embraces force applied by anyone whomsoever, Pomponius nevertheless elegantly says: if, in order to protect or free you all the more from the force of enemies, bandits, or a mob, I should accept something from you or bind you to an obligation, I ought not to be held under this edict, unless I myself directed this force against you; but if I am unconnected with the force, I ought not to be held, for I seem rather to have accepted a reward for my service.

​The same Pomponius writes that some rightly think that even the manumission of a slave or the demolition of a building, which someone performed under compulsion, should be extended to the restitution of this edict.

​But let us see to what extent we should understand what the praetor says, that he will not hold it valid. And indeed, a matter is either incomplete, although fear has intervened—as, for example, if the payment of money did not follow a stipulation—or complete, if after the stipulation payment was also made, or the debtor was released by an acceptilation through fear, or something similar happened which completed the business. And Pomponius writes that in complete transactions both an exception and an action are sometimes available, but in incomplete ones only an exception. But I know from a factual case, when the Campanians, by bringing to bear fear on someone, had extorted a bond of promise, it was written in a rescript by our Emperor that he could petition the praetor for restitution in integrum, and the praetor, with me sitting as assessor, gave an interlocutory decree that if he wished to sue the Campanians by an action, it was available, or if he wished to defend by an exception against those suing him, the exception was not lacking. From this constitution it is gathered that whether the matter is complete or incomplete, both an action and an exception are granted.

​Furthermore, to one who wishes, there is given both an action in rem and one in personam, after the acceptilation or other release has been rescinded.

​Julian, in the third book of his Digests, thinks that he to whom a thing was delivered by reason of fear ought not only to return it, but also to give security against fraud (de dolo).

​However, although we think that an action in rem should be granted because the thing remains in the property of him who suffered the force, it will not be said without reason that if anyone sues for fourfold, the action in rem is terminated, or vice versa.

​Under this edict, such restitution must be made—that is, in integrum—by the office of the judge, so that if a thing was delivered by force, it is delivered back, and security is given against fraud as has been said, lest by chance the thing has been made worse. And if a release by acceptilation has intervened, the obligation must be restored to its pristine state, to such an extent that Julian writes in the fourth book of his Digests: if money was owed, and the release of it was made through force, unless it is either paid or, with the obligation restored, the trial is accepted, he must be condemned in fourfold. But also if under force I promise to someone stipulating, the stipulation must be released by acceptilation. Moreover, if a usufruct or servitudes have been lost, they must be restored.

​Since, however, this action is written in rem and does not coerce the person of the one applying force, but wills that whatever was done by reason of fear be restored against all persons: Julian is not without merit noted by Marcellus when writing that if a surety brought to bear force in order to be released by acceptilation, the action must not be restored against the principal debtor, but the surety, unless he also restores the action against the principal debtor, must be condemned in fourfold. But it is truer, as Marcellus notes, that this action is available even against the principal debtor, since it is written in rem.