The Exceptio doli ( deceit ; dolus = damage ) describes the most important procedural objection of everyday Roman court life in Roman private law . The subject matter was the defendant's submission of malice (also: deception of malice ).
The exceptio is traced back to the late Republican lawyer C. Aquilius Gallus , who developed it in the context of the actio de dolo (action for fraudulent damage) . In the early phase of the legal institution , a prerequisite was that a deliberate act of deception ( aliud simulatum, aliud actum ) was carried out that supported something that was actually not wanted. Because of this deception, the negotiating partner entered into a commitment . In the later period, all cases of unfaithful harm ( negotia turpia ) were subsumed under the offense , which led to a significant expansion of the scope of the objection.
A distinction was made between two fields of application for raising objections to abusive behavior: On the one hand, the exceptio doli could be used to assert that the plaintiff had acted fraudulently when the legal relationship arose ( exceptio doli praeteritis or specialis ). On the other hand, it was applicable when the suit as a claim representing itself a fraudulent (bad faith) action ( exceptio doli Praesentis or generalis ). The objection, which was only asserted in the process, served to breach formal law, because the legal relationship itself was not attacked. In the view of the defendant, it was only the legal assertion that constituted a breach of good faith ( bona fides ).
Another sub-case of the exceptio doli is the exceptio non numeratae pecuniae (defense of failure to pay out).
Action at a distance
The defense of malice in the German tort law according to BGB still today represents a case of the inadmissible exercise of rights, in particular due to immoral willful damage within the meaning of BGB. It continues to have significance within the framework of BGB and in the principle of good faith and faith in BGB ( venire contra factum proprium ).
- Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 , pp. 174-176.
- Herbert Hausmaninger , Walter Selb : Roman private law (= Böhlau study books. Fundamentals of studies. ). Böhlau, Wien et al. 1981, ISBN 3-205-07171-9 , p. 287.
- this, different party-related , rhetorical topoi in Gai. , D 50, 17, 55: nullus videtur dolo facere, qui suo iure utitur - translated: whoever exercises his right does not act fraudulently ; on the other hand, in Gai. D 1, 53: ... male enim nostro iure uti non debemus - translated: we are not allowed to exercise our rights in a bad way .
- Palandt : Bürgerliches Gesetzbuch (= Beck's short comments. ). 55th, revised edition. CH Beck, Munich 1996, ISBN 3-406-40045-0 , § 138 Rn. 16; Section 242 marginal no. 83; § 826 BGB, No. 18, 22; § 853 BGB.