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15. But if Aquilius's definition is correct, pretence and concealment should be done away with in
all departments of our daily life. Then an honest
man will not be guilty of either pretence or concealment in order to buy or to sell to better advantage.
Besides, your “criminal fraud” had previously been1
prohibited by the statutes: the penalty in the matter
of trusteeships, for example, is fixed by the Twelve
Tables; for the defrauding of minors, by the Plaetorian law. The same prohibition is effective, without statutory enactment, in equity cases, in which
it is added that the decision shall be “as good
faith requires.”2 In all other cases in equity,
moreover, the following phrases are most noteworthy: in a case calling for arbitration in the matter
of a wife's dowry: what is “the fairer is the better”;
in a suit for the restoration of a trust: “honest
dealing, as between honest parties.” Pray, then,
can there be any element of fraud in what is adjusted
for the “better and fairer”? Or can anything
fraudulent or unprincipled be done, when “honest
dealing between honest parties” is stipulated? But
“criminal fraud,” as Aquilius says, consists in false
pretence. We must, therefore, keep misrepresentation 3 entirely out of business transactions: the seller
will not engage a bogus bidder to run prices up nor
the buyer one to bid low against himself to keep
them down; and each, if they come to naming a
price, will state once for all what he will give or take.
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