RESTITU´TIO
RESTITU´TIO,
IN I´NTEGRUM
signifies the rescinding of an act by the magistratus in order to prevent
the legal consequences which ordinarily attach to such act from taking
effect, the parties affected by it being restored to the same position which
they occupied before it took place. Such restitution is founded on the edict
and given by the magistratus on grounds of equity in cases of contractual
and other relations, which are not in their nature or form invalid; for if
they are such as not to be valid according to the Jus Civile, this
restitutio is not needed. The
in integrum
restitutio is an extraordinary remedy (
extraordinarium auxilium), available in cases of conflict
between strict law and equity (
jus strictum,
aequitas), which are determined by the magistratus in accordance
with the principles of the latter through his imperium as distinguished from
his
JURISDICTIO
In order to entitle a person to the restitutio, he must have sustained some
injury in consequence of the contract or act in question, and not through
accident or any fault of his own; except in the case of one who is
minor xxv
annorum, who
was protected by the restitutio against the consequences of his own
carelessness. The injury also must, as a rule, be one for which the injured
party has no other remedy. Further it was necessary that there should be
some ground of restitution (
justa causa）
recognised by the equity of the magistratus, though not by strict law. The
grounds of restitutio were those expressed in the praetor's edict, in the
case of restitutio against a positive act, such as entering into a contract,
or any which appeared to the praetor good and sufficient, in the case of
restitutio as a remedy against the consequences of omissions: “item si
qua alia mihi justa causa esse videbitur in integrum restituam quod ejus
per Leges, Plebiscita, Senatusconsulta, Edicta, Decreta Principum
licebit” (
Dig. 4,
6,
1).
The following are the chief grounds on account of which a restitutio might be
decreed:--
Vis et metus (
Dig. 4,
2; Cod. 2, 20). If a man were
induced to enter into a legal transaction or act through duress, the
proceeding was not for that reason invalid, since his assent was not
considered to be wanting (
Dig. 4,
2,
21.5), and his motives for assenting
were in strict law immaterial; but it was
contra bonos
mores to allow such an act to have legal effect, and so it
having been done under the influence of force or reasonable fear (
“metum non vani hominis, sed qui merito et in hominem
constantissimum cadat” ) an
in integrum
restitutio was allowed. An alternative and generally
preferable remedy to this mode of restitution was after a time established
by the praetor in the
actio quod metus causa,
by which restitution or a fourfold penalty could be obtained against the
party who was the wrongdoer, and also against an innocent person who was in
possession of anything which had been got from him, and also against the
heredes of the wrongdoer in so far as they were enriched by the wrong
(
quantum ad eos pervenit). If a person was
sued in respect of a transaction which he had entered into under duress, he
was allowed to defend himself by an
exceptio quod metus
causa. The
actio quod metus was
first given by the Praetor L. Octavius, a contemporary of Cicero (formula
Octaviana,
Cic. in Verr.
3.65).
The case of
dolus (Paul. 1, 8;
Dig. 4,
3; Cod. 2, 21). When a man was
induced to enter into a legal transaction by the fraud of the other
contracting party, he was bound according to
jus
strictum, but was entitled to an
in
integrum restitutio. Redress could also be obtained by means
of the
actio de dolo malo or
doli against the guilty person and his heredes, so far as
they were made richer by the fraud, for restitution or damages. Against a
third party who was in bonâ--fide possession of the thing obtained
by dolus, he had no action. If he was sued in respect of the transaction, he
could defend himself by the
exceptio doli mali.
As the
actio doli entailed infamia, it could
only be brought in case the injured party had no other actie, and even the
extraordinary remedy of
in integrum restitutio
would frequently be given by the praetor in preference to it. The
actio doli was
[p. 2.544]instituted
by C. Aquilius Gallus in 688 A.U.C., when he was
praetor (
Cic. de Off. 3.1.
4, 60;
de Natura Deor. 3.30, 74).
The case of
minores xxv
annorum (Paul. 1, 9;
Dig. 4,
4; Cod. 2, 22). A person above the age of puberty
could bind himself by a legal act, but the Lex Plaetoria imposed a penalty
on account of the overreaching and circumventing persons below the age of
twenty-five, and subsequently the praetor promised in his edict to give
in integrum restitutio to such persons,
when the circumstances of the case seemed to him to require this remedy. In
order to obtain restitutio it was not necessary for the minor to show that
he had been defrauded; it was sufficient that an improper advantage had been
taken of his inexperience. A minor was not prevented from claiming an
integrum restitutio by the fact that his curator had assented to the
transaction in question. A legal transaction which a pupillus had entered
into, to which the auctoritas of his tutor had been given, could also be
rescinded in this way on sufficient ground being shown. If the auctoritas of
the tutor had not been given, and the act of the pupillus was one which
required it, no restitutio was necessary, since the act would not be legally
binding.
There were cases in which minores could claim no restitutio: for instance,
when a minor with fraudulent design gave himself out to be
major vigintique annis; or when he confirmed the
transaction, and in other cases. The benefit of this restitutio belonged to
the heredes of the minor. The claim to it could only be made, as a general
rule, against the person who had circumvented the minor and his heredes. The
time for making it was limited. The praetor also gave restitutio to
municipal corporations on account of the injurious acts of their
representatives (
Dig. 49,
1,
29;--Cod. 2, 54, 4; 1, 50, 1; 11, 29,
3).
The case of
capitis deminutio through
arrogatio [
ADOPTIO] or
in manum conventio [
MATRIMONIUM], which
according to the Jus Civile was followed by the extinction of all the debts
of the person arrogated or brought into the power of her husband. On account
of the injustice to creditors thus occasioned the praetor restored them to
their former rights, giving them
actiones fictitiae
or
in factum (Gaius, 3.83; 4.38).
The case of
absentia (
Dig.
4,
6; Cod. 2, 54). Owing to the shortness of
the time of acquiring property by usucapion, and to the fact that the right
of bringing many praetorian actions was limited to a year, it must
frequently have happened that rights were lost owing to a person's absence
or to some other cause, which entitled to relief. In such cases the praetor
gave
in integrum restitutio, if sufficient
cause was shown. Absence of the plaintiff on account of metus or on state
service (
reipublicae causa), or his imprisonment
(
in vinculis), or his capture by the enemy
(
in hostium potestate), and also absence of
the defendant, are the chief causes mentioned in the edict; but there are
others referred to, as loss of action owing to delay in appeal from one
magistratus to another, or by refusal of an action within the time
prescribed, and also causes not specified in the edict, which seed to the
praetor sufficient. If the absence or delay of the plaintiff was avoidable,
or if his action could have been maintained by a procurator on his behalf,
and he was blamable for not having appointed one, he could not claim
restitutio.
The doubtful case of
alienatio judicii mutandi causa
facta (
Dig. 4,
7;
Cod. 2, 55), which occurs when a man alienates a thing for the purpose of
injuring a claimant by substituting for himself another against whom the
plaintiff cannot so easily prosecute his right. Though the alienor has here
only made use of his legal right, the praetor perhaps at one time granted
restitutio, if the exercise of such right operates unfairly on the
plaintiff; though this may be questioned (Windscheid,
Pandekten 1.116, n. 2), he certainly gave an
actio in factum for damages in such case. The rule
that a vindicatio would lie against a person who had fraudulently parted
with possession of the thing claimed, on the fiction that he was still in
possession, had a similar object with this actio. If a man assigned a claim
or right with the view of injuring his adversary by giving him a harder
claimant to deal with, the adversary could meet the assignee, when he sued,
with an
exceptio judicii mutandi causa.
The case of alienation by an insolvent (
non
solvendo) to the injury of creditors (Inst. 4.6, 6), though some
writers would bring this case under the head of
restitutio on the ground of fraud (Schröter,
l.c. 131-142; Vangerow, 1.177). The praetor gave an
action called Pauliana against alienees, by which the creditors destroyed
the effect of an illegal alienation. The creditors were also entitled to an
Interdictum Fraudatorium in order to get possession of the thing that had
been fraudulently aliened (
Dig. 36,
1,
67;
42,
8).
The case of error or mistake. A person who had bound himself by a legal act
might sometimes obtain restitutio in respect of it on the ground of mistake.
Restitutio was principally given on account of mistakes in procedure. Gaius
(4.57; cf.
Suet. Cl. 14) gives an example,
when he says that if too large an amount was inserted in the condemnatio of
the formula, the matter is set right by the praetor, or, in other words,
“reus in integrum restituitur” ; but if too little was
inserted, the praetor would not make any alteration; “for,” he
adds, “the praetor more readily relieves a defendant than a
plaintiff.”
It is thought by some writers that restitutio was sometimes given in order to
avoid the effect of the SC. Velleianum, but there is not sufficient evidence
for this view. (Vangerow, 1.177.)
The application for a restitutio could only be made to a magistratus with
imperium, who held an inquiry into the case (
causa
cognitio), and decided the matter by his decree (
decretum sententia). Thus the proceeding did not
belong to his ordinary jurisdiction (
cognitio
ordinaria), but to his
extraordinaria
cognitio, by which he decided certain cases himself without a
judicium. Restitutio could be sought by the person injured, and by his
singular or universal successors, and it could be maintained against anyone
who had immediately benefited by the act which had injured the plaintiff,
and against his heres or universal successor. It could only be maintained
against a third person to whom the right had been assigned, if he had notice
of the ground for restitutio at the time when he acquired his
[p. 2.545]interest, and in certain other cases where great
injury would result to the plaintiff if he were not allowed this remedy.
When a restitutio was decreed, each party restored to the other what he had
received from him, with all its accessions and mesne profits, except in so
far as the mesne profits on one side might be set off against the interest
of money to be returned on the other side. If the object of the restitutio
was a right, the injured party was restored to his right; or if he had
incurred a duty, he was released from the duty. When restitutio consisted in
the recovery of a right, a judicium might be granted at the same time as the
decree, which is called
judicium rescissorium or
actio restitutoria, but the decree itself
was always the act of the magistratus. The application for restitutio must
as a general rule be made within four years (
quadriennium
continuum) of the time of the injury being discovered, and of
the party being capable of bringing his action; in the case of minores, the
four years were reckoned from the time of their attaining their majority.
According to the law of the classical jurists, the application had to be
made within an annus utilis.
In the imperial times the term
restitutio was
also applied to the remission of a punishment (
Tac. Ann. 14.12;
Plin. Ep.
10.64,
65;
Dig.
48,
19,
27), which
could only be done by imperial grace. (Paul. 1, 7, 8, 9; Cod. Gregor. 2.1-4;
Dig. 4,
1; Cod. 2,
20-55; Burchardi,
Die Lehre von der Wiedereinsetzung,
&c.; Schröter,
Ueber Wesen und Umfang der In
Integrum Restitutio in
Zeitschr. für Civ. und
Pr. 1883, 6.3; Schneider,
Die allgemeiner
subsidiären Klagen, &c.; Savigny,
System, 7. § § 317-343; Vangerow,
Pandekten, 1, § § 175-188; Windscheid,
Pandekten, 1.114, &c.)
[
G.L] [
E.A.W]
