Bank of Lisbon and South Africa Ltd v De Ornelas and Another

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Jansen JA, Joubert JA, Hefer JA and Grosskopf JA
• Judgment Date: 30 March 1988
• Citation: 1988 (3) SA 580 (A)
• Hearing Date: 09 March 1987
• Court: Appellate Division

Joubert JA:

This appeal is concerned with the applicability of the G exceptio doli generalis to written contracts. In our law uncertainty surrounds its very existence as well as the scope of its application. It is therefore necessary to investigate its origin, development, scope and applicability.

Let us commence our investigation with Roman law. Under the ius civile as a ius strictum liability for fraud was unknown. Nor could liability H under negotia stricti iuris be resisted on the ground of fraud. These shortcomings of the ius civile were ameliorated and remedied by the praetorian law (ius honorarium). In 66 BC Gallus Aquilius, Cicero's colleague in the praetorship, provided in his edictum praetoris for two praetorian remedies, viz the actio doli mali and the exceptio doli mali but in the Corpus Juris Civilis they are usually referred to as the I actio doli and the exceptio doli. In D 4.3.1.2 Ulpian, one of the most eminent of Roman jurists who was unfortunately murdered in AD 228, for purposes of the actio doli adopted Labeo's definition of dolus malus. Our interest centres on the exceptio doli which became the most important of all exceptions in Roman law. Since its inception the exceptio doli was available in the sphere of contracts (in the Roman J sense of contractus) to be pleaded by a defendant in defence to a

Joubert JA

A claim based on a negotium stricti iuris such as stipulation (stipulatio) or loan (mutuum). Because the stipulatio was the chief contract of Roman law with widespread use by cives Romani throughout the Roman world it stands to reason that the use of the exceptio doli acquired great importance in mitigating the harshness and inflexibility of the ius civile as a ius strictum.

B How did a defendant raise the exceptio doli as a defence? The answer is to be sought in the Roman law of civil procedure. In 149 BC the Lex Aebutia, followed by two leges Juliae, legitimated the practice of using the formulary procedure (per formulas agere) which largely superseded the formal per legis actionem procedure. In AD 294 the formulary C procedure in turn made way for the extraordinary procedure (extraordinaria cognitio). It is very noticeable how closely the lifespan of the formulary procedure coincided with the period of classical Roman law (150 BC to AD 250). To understand the application of the exceptio doli, as expounded in the texts of Roman jurists from the classical period which have been included in the Corpus Juris Civilis, I shall very briefly investigate the nature of the formula as a pleading D with the exceptio as one of its clauses.

The formulary procedure comprised two important stages after the plaintiff sued the defendant to appear before the praetor (in ius vacatio) for the purpose of obtaining a written formula. The first stage took place before the praetor (in iure) with the object of determining the issues between the parties which were to be embodied in a very E rudimentary manner in the formula. The praetor's share in 'settling' the formula is fully described by Moyle Imperatoris Justiniani Institutionum Libri Quattuor 5th ed at 643. A formula could consist of various clauses such as: demonstratio (Gaius IV 40), intentio (Gaius IV 41), adjudicatio (Gaius IV 42), exceptio (Gaius IV 119) and condemnatio (Gaius IV 43). In the intentio the plaintiff circumscribed his claim by stating the right F or the facts on which he relied in hypothetical form: 'Si paret....' The plaintiff was referred to as Aulus Agerius and the defendant as Numerius Negidius. As to the vital function of the intentio consult Buckland A Text Book of Roman Law from Augustus to Justinian 2nd ed at 651 - 2. If the defendant wanted to rely on a defence other than a bare denial of the plaintiff's claim it was his duty to disclose the nature G of his defence by way of an exceptio.

'The exceptio did not deny the intentio, but raised a counter-hypothesis, "unless something else is true". It was negative in form, introduced by nisi, si non, si nihil or the like, and thus directed the iudex not to condemn if the exceptio was proved. In the exceptio the defendant was in loco actoris and the burden of proof was H on him.'

(Buckland (op cit at 655).) See also Thomas The Institutes of Justinian (1975) at 316:

'An exceptio was unnecessary if the defendant intended a direct denial of the claim; it was utilised when he admitted the existence of the claim but wished to adduce further points which would preclude enforcement of the claim. In the parlance of English pleading, an I exceptio was needed when the defendant wished to confess and avoid.'

The plaintiff could meet the exceptio by the insertion in the formula of a replicatio based on countervailing facts (Gaius IV 126). The condemnatio was the final clause of the formula, instructing the iudex to condemn the defendant if the conditions therefor were satisfied, and J if not, to absolve

Joubert JA

A him. The exceptio was placed between the intentio and the condemnatio. The entire formula, including the exceptio, required the praetor's approval. The next step was the appointment of a iudex. This done, the praetor reduced the formula to writing. On completion of the formula the proceedings in iure before the praetor terminated. Litis contestatio was B reached.

The second stage of the formulary procedure then took place before the iudex (in iudicio) who at the conclusion of the hearing was to pronounce his judgment in accordance with the condemnatio of the formula. His judgment would be a iudicium strictum or a iudicium bonae fidei depending on whether the action was stricti iuris or bonae fidei. C Suffice it to say that in a iudicium stricti iuris the power of the iudex was limited by the strict and literal meaning of the words employed in the stipulatio or mutuum in question. He was also confined to the formula of the parties. He could not consider anything that was not included in the formula. The defendant's duty was to ensure that his collateral defences were expressly stated in the exceptio clause of the D formula, otherwise they could not be considered by the iudex.

To revert to the exceptio doli which a defendant could plead in iure as a defence to a claim based on a negotium stricti iuris. According to Gaius IV 119 the wording of the exceptio doli for purposes of the formulary procedure was: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat. (If in that matter nothing has been done or is being E done by fraud on the part of Aulus Agerius, ie the plaintiff.) A twofold construction was placed by the Roman jurists on this formulation of the exceptio doli viz:

1.

Exceptio doli specialis sive praeteriti based on initial fraud present at the time when the negotium stricti iuris was concluded. The nature of the fraud required was the same as for an actio doli. This construction was founded on the force of the perfect tense: F factum sit. Compare D 44.4.2.1. See Sohm Institutes of Roman Law 3rd ed (translated by Ledlie) at 279; Van Oven Leerboek van Romeinsch Privaatrecht 2nd ed at 209, 322.

2.

Exceptio doli generalis sive praesentis founded on dolus occurring at the moment of litis contestatio. Dolus was a mere fiction since G there was no real fraud on the part of the plaintiff in bringing his action. At the most it could be said that there was mala fides nunc petendo on his part. This construction stressed the force of the present tense: fiat. Compare Sohm (op cit at 280); Van Oven (op cit at 210).

H The terms exceptio doli specialis sive praeteriti and exceptio doli generalis sive praesentis were unknown to the Roman jurists who used the expression exceptio doli indiscriminately in either sense. These terms were coined by the medieval jurists. See for instance the great medieval Commentator Bartolus (1314 - 1357) ad D 44.4.4.13.

I According to the formulary procedure the exceptio doli generalis was in substance a briefly-worded plea which, without specifying the factual basis of the defence, enabled the defendant in iudicio to rely on facts upon proof of which the plaintiff's claim would be ousted. The facts proved in iudicio by the defendant could, for instance, relate to a pactum de non petendo entered into between the parties after the conclusion of the negotium stricti iuris on which the plaintiff relied J as the basis of his claim. The true basis

Joubert JA

A of the defence was not the plaintiff's dolus generalis but rather the existence of the pactum de non petendo which gave rise to either the exceptio doli generalis or the exceptio pacti conventi as appears from D 44.4.2.4 (Ulpian):

'Item quaeritur, si quis pure stipulatus sit certam quantitatem, quia hoc actum sit, sed post stipulationem interpositam pactus sit, ne interim pecunia usque ad certum diem petatur, an noceat exceptio doli, B et quidem et de pacto convento excipi posse nequaquam ambigendum est : sed et si hac quis exceptione uti velit, nihilo minus poterit: dolo enim facere eum, qui contra pactum petant, negari non potest.'

(Watson's translation:

'The question also arises whether the defense of fraud avails if someone has unconditionally stipulated for a definite sum because this was so arranged, but after the stipulation was completed he entered into C a pact that the money is not to be claimed for the time being until a specified day. And, indeed, there must be no doubt that the defense of agreed pact can in any event be brought, but also if he wishes to make use of the present defense, nonetheless, he will be able to do so; for it cannot be denied that one who claims contrary to what was agreed is acting with fraud.') [*]

D The object of the exceptio doli generalis was equitable, viz to ameliorate the harshness of a plaintiff's claim based on a negotium stricti iuris such as a stipulatio or a mutuum. D 44.4.1.1 (Paul) : Ideo autem...