Dolo agit

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Dolo agit is the abbreviation of the Latin legal phrase Dolo agit, qui petit, quod statim redditurus est (meaning: someone who asks for something that he has to give back immediately) acts fraudulently.

The meaning of the dolo-agit rule

The sentence says that no one can successfully sue for a performance that he would have to return immediately after receipt, because the debtor is entitled to a corresponding counterclaim.

Two case studies to illustrate this:

  • E is heir of the deceased X. In his will, X ordered that his friend F should receive a certain valuable Persian carpet from the inheritance as a bequest . The carpet has been on loan F of X in possession . After the inheritance, E wants to end the loan relationship and have the carpet back. F can raise the objection dolo agit against his action based on the loan agreement or the ownership of the carpet, which has passed to him as a result of the inheritance . Therefore, he does not have to first return the carpet to E in order to then enforce his right to return on the basis of the legacy in a second process.
  • Debtor S has taken out a loan from obligee G. To secure the loan, S orders a security land charge on one of his properties at G's request . At the same time, S and G agree in a security agreement that G must transfer the land charge back to S as soon as the statement has been repaid. Unlike a mortgage , a land charge is not accessory, but abstract and exists independently of the underlying claim.
S later repays the loan. If G nevertheless tries to pursue foreclosure on the land charge , S can raise the dolo agit objection against him .

Origin of the Dolo-agit rule in Roman law

The sentence comes in its original, slightly different formulation dolo facit, qui petit quod redditurus est from the Roman lawyer Iulius Paulus , who lived at the end of the second and beginning of the third century AD. Paul's utterance was included twice in the Digest , a collection of fragments from the works of the classical jurists initiated by the late ancient Emperor Justinian .

With the formulation dolo facit (he acts fraudulently) Paul expresses that the exceptio doli (defense of malice) can be countered to the creditor who demands something that he should immediately reimburse : According to Roman law, the defendant could defend himself in the process defend against a claim successfully if he asserted that the plaintiff was acting fraudulently. This objection of malice could either be based on the fact that the plaintiff had already behaved fraudulently (i.e. fraudulently or unfairly) in the run-up to the process, in particular when justifying the claim being sued, or on the fact that his current behavior, i.e. precisely the collection of the Complain about being fraudulent. A case of the latter type, i.e. dolus praesens or current malice, is when the action is aimed at obtaining a performance that the obligee would have to return to the debtor immediately upon receipt.

In Paul's case, the statement is related to the discussion of an inheritance case that is similar to the case study presented at the beginning. In the digests, however, the sentence has been removed from its original context and placed in the digest title D. 50, 17, in which numerous generally applicable legal rules are gathered.

The Dolo-agit rule in today's German law

The Dolo-agit rule is not expressly regulated in the BGB. In today's German law, however, it exists as a special expression of the prohibition of the inadmissible exercise of the law, which was developed by case law and legal theory and is anchored in § 242 BGB. Sometimes it is also referred to as an objection of malice .

As before, it says that a lawsuit constitutes an inadmissible exercise of the law and must not be successful if the plaintiff had to return the claimed performance to the defendant immediately because the defendant is entitled to a counterclaim.

See also

Individual evidence

  1. ↑ Sören A. Croll: Legal consequences of the payment of the land charge, in: Jura Online, accessed on May 19, 2020.
  2. ↑ It can be found under D. 44, 4, 8pr. as well as under D. 50,17, 173, 3.
  3. ↑ a b c Hans Brox , Wolf-Dietrich Walker : General part of the BGB , 42nd edition, Munich 2018, p. 303 f.