[ULPIANUS libro septuagensimo sexto ad edictum. ] §44.4.2.prPalam est autem hanc exceptionem ex eadem causa propositam, ex qua causa proposita est de dolo malo actio.
[ULPIANUS, from the seventy-sixth book on the Edict.] Moreover, it is clear that this exception was proposed for the same reason for which the action on fraud was proposed.
§44.4.2.1Sequitur, ut uideamus, in quibus causis locum habeat exceptio et quibus personis obiciatur.
It follows that we should see in which cases the exception has place and against which persons it is objected.
et quidem illud adnotandum est, quod specialiter exprimendum est, de cuius dolo quis queratur, non in rem 'si in ea re nihil dolo malo factum est', sed sic 'si in ea re nihil dolo malo actoris factum est'.
And indeed, this must be noted, which must be specifically expressed, namely, whose malice one complains of, not objectively, 'si in ea re nihil dolo malo factum est', but thus, 'si in ea re nihil dolo malo actoris factum est'.
docere igitur debet is, qui obicit exceptionem, dolo malo actoris factum, nec sufficiet ei ostendere in re esse dolum: aut si alterius dicat dolo factum, eorum personas specialiter debebit enumerare, dummodo hae sint, quarum dolus noceat.
Therefore, he who objects the exception must prove that it was done by the malice of the plaintiff, and it will not be sufficient for him to show that there is malice in the matter; or, if he says it was done by the malice of another, he will have to enumerate their persons specifically, provided that these are persons whose malice is harmful.
§44.4.2.2Plane ex persona eius, qui exceptionem obicit, in rem opponitur exceptio: neque enim quaeritur, aduersus quem commissus sit dolus, sed an in ea re dolo malo factum sit a parte actoris.
Clearly, from the person of him who objects the exception, the exception is opposed objectively; for it is not asked against whom the malice was committed, but whether in that matter it was done by malice on the part of the plaintiff.
§44.4.2.3Circa primam speciem, quibus ex causis exceptio haec locum habeat, haec sunt, quae tractari possunt.
Concerning the first type, namely, for what causes this exception has place, these are the things that can be discussed.
si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit: licet enim eo tempore, quo stipulabatur, nihil dolo malo admiserit, tamen dicendum est eum, cum litem contestatur, dolo facere, qui perseueret ex ea stipulatione petere: et si cum interponeretur, iustam causam habuit, tamen nunc nullam idoneam causam habere uidetur.
If anyone has stipulated from someone without cause, and then sues on that stipulation, the exception of fraud will certainly harm him; for although at that time when he was stipulating he committed nothing with malice, nevertheless it must be said that he, who persists in demanding on the basis of that stipulation, acts with malice when he joins issue; and even if, when it was entered into, it had a just cause, nevertheless now it seems to have no suitable cause.
proinde et si crediturus pecuniam stipulatus est nec credidit et si certa fuit causa stipulationis, quae tamen aut non est secuta aut finita est, dicendum erit nocere exceptionem.
Accordingly, also if he stipulated intending to lend money and did not lend it, or if there was a certain cause for the stipulation, which, however, either did not follow or has ended, it must be said that the exception harms him.
§44.4.2.4Item quaeritur, si quis pure stipulatus sit certam quantitatem, quia hoc actum sit, sed post stipulationem interpositam pactus sit, ne interim pecunia usque ad certum diem petatur, an noceat exceptio doli.
Likewise, it is asked, if anyone has unconditionally stipulated a certain sum because this was agreed, but after the stipulation was entered into, has made a pact that in the meantime the money should not be demanded until a certain day, whether the exception of fraud harms him.
et quidem et de pacto conuento excipi posse nequaquam ambigendum est: sed et si hac quis exceptione uti uelit, nihilo minus poterit: dolo enim facere eum, qui contra pactum petat, negari non potest.
And indeed, that it can be pleaded by the exception of an agreed pact is by no means to be doubted; but even if anyone wishes to use this exception [of fraud], he will nonetheless be able to do so; for it cannot be denied that he who demands against the pact acts with malice.
§44.4.2.5Et generaliter sciendum est ex omnibus in factum exceptionibus doli oriri exceptionem, quia dolo facit, quicumque id, quod quaqua exceptione elidi potest, petit: nam et si inter initia nihil dolo malo facit, attamen nunc petendo facit dolose, nisi si talis sit ignorantia in eo, ut dolo careat.
And generally, it must be known that the exception of fraud arises from all exceptions on the facts, because whoever demands that which can be defeated by any exception acts with malice; for even if at the beginning he does nothing with malice, yet now by demanding he acts fraudulently, unless there is such ignorance in him that he lacks malice.
§44.4.2.6Non male dictum est, si creditor usuras in futurum acceperit, deinde pecuniam nihilo minus petat, antequam id tempus praetereat, cuius temporis usuras accepit, an doli exceptione repellatur.
It has been not badly said, if a creditor has received interest for the future, and then nevertheless demands the money before that time passes for which he received the interest, whether he is repelled by the exception of fraud.
et potest dici dolo eum facere: accipiendo enim usuras distulisse uidetur petitionem in id tempus, quod est post diem usurarum praestitarum, et tacite conuenisse interim se non petiturum.
And it can be said that he acts with malice; for by receiving the interest he seems to have deferred the demand to that time which is after the day of the interest paid, and to have tacitly agreed that in the meantime he would not demand.
§44.4.2.7Item quaeritur: si statuliberum mercatus quis fuerit iussum decem dare, cum hoc ignoraret, et duplam stipulatus fuerit, deinde decem acceperit euicto eo in libertatem agere ex duplae stipulatione potest, sed nisi decem, quae implendae condicionis causa acceperit, deduxerit, exceptione summouendus erit: et haec ita Iulianus quoque scribsit.
Likewise it is asked: if someone has bought a slave to be freed under a condition, who was ordered to give ten, while being ignorant of this, and stipulated for double the price, and then received the ten, and, after the slave was evicted into freedom, he can sue on the double stipulation, but unless he deducts the ten which he received for the sake of fulfilling the condition, he must be removed by the exception; and Julianus also wrote thus.
si tamen ex re emptoris uel ex peculio, quod ad emptorem pertinebat, pecuniam dederit statuliber, potest dici exceptionem non nocere, quia dolo non faceret.
If, however, the slave to be freed gave the money from the property of the buyer or from the peculium which belonged to the buyer, it can be said that the exception does not harm him, because he would not be acting with malice.