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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]

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