The Digest of Justinian, 12.2 on Voluntary, Compulsory, and Judicial Oaths

The Digest of Justinian, 12.2 on Voluntary, Compulsory, and Judicial Oaths

Compiled c. 530-535 CE. Jurists cited from 2^nd & 3^rd Century CE.

Source: Watson, Alan. The Digest of Justinian, Volume 1, p. 364-372. - Revised ed., University of Pennsylvania Press, 1998.

 

12.2 Voluntary, Compulsory, and Judicial Oaths

1 GAIUS, Provincial Edict, book 5: Conscientious oath-taking is relied on as an important means of shortening litigation. Disputes are settled in this way by virtue of agreement between litigants or on the authority of the judge.

2 PAUL, Edict, book 18: The taking of an oath is a species of settlement and has greater authority than res judicata.

3 ULPIAN, Edict, book 22: The praetor says: "If the person sued swears in the form as tendered." "The person sued" we understand to be the defendant himself. The words "in the form tendered" are not an empty addition; for if a defendant swears when nobody has tendered an oath to him, the praetor will not protect that oath, which is just a private matter of his own. If this were otherwise everyone of easy conscience would rush to untendered oath-taking as a means of shuffling off the troubles of litigation. 1. On the other hand, it does not matter what kind of action is brought against him whether in personam or in rem or in factum or for a penalty or other than for a penalty or in connection with an interdict; in all these, if he swears, his oath will work to his advantage. 2. The praetor will even protect oaths sworn about a person's status. So, for instance, if on my tender you swear you are not in my power, that oath will be protected. 3. Hence, Marcellus writes that it is even possible to take an oath and one which will be given effect-on the question whether a woman is or is not pregnant. In the context of a question about custody, where, for example, she is willing to go into custody as being pregnant and someone contradicts her, he actually holds that the oath must be upheld either if she swears she is pregnant or if the contrary is sworn against her. For, if she swears, she will go into custody without fear, and if the oath is taken against her, she will not go at all even if genuinely pregnant. The advantage of the oath to the woman who swears is, says Marcellus, to prevent her being sued under the edict against going vexatiously into pregnancy-custody and to keep her from violence while in custody. Marcellus also considers the question whether the effect of the oath can go so far as, after the birth of the child, to make it impossible to ask whether it was begotten by the deceased or is not the person's it is said to be. He holds that the true facts must be discovered on the ground that an oath can neither benefit nor harm a stranger to it. The mother's oath cannot therefore benefit the child, who likewise cannot be prejudiced if, on the mother's tender, an oath is sworn that she is not pregnant by the deceased. 4. An oath ought to be sworn just as it is tendered. In the other case, as where I tender you an oath by a god and you swear on your own head,

4 PAUL, Edict, book 18: or on that of your sons,

5 ULPIAN, Edict, book 22: the oath is not to be held good. Yet if I tell you to swear by your salvation and you so swear, that will be valid. It is fitting to use any wholly lawful oath which a man may wish to have sworn to him; and an oath so made will be protected by the praetor. 1. A rescript of the deified Emperor Pius held that an oath sworn according to idiosyncratic superstition was valid. 2. Once an oath has been given, the only question is as to the swearing, the question whether anything is due is remitted, as sufficiently answered by the oath itself. 3. However, if one tenders an unlawful oath, as, for instance, by a publicly forbidden belief, is it to be thought of as if no oath has been sworn? I think that is the better view. 4. If an oath is neither sworn nor released, the matter ought to be considered as never reduced to oath-taking. Indeed, if the party is later prepared to swear, the oath will do him no good because not sworn according to the tender.

6 PAUL, Edict, book 19: An oath is released when the party making the tender is satisfied by the other's willingness to undertake the oath and lets him off when he is ready to swear. However, if he does not undertake to swear, then even if he is ready to swear later and the plaintiff will no longer tender, the oath will not be held to have been released. For release supposes a burden actually assumed.

7 ULPIAN, Edict, book 22: The praetor says: "In respect of a matter concerning which an oath has been tendered, I will not give an action either against the person to whom the tender is made or against a person whom that matter concerns." The words "in respect of a matter" must be understood according as the whole or only part of the affair is submitted to oath; for it is in respect of what is so submitted that he promises not to give an action whether against the oath-taker or against those who succeed to the place of the person to whom the oath was tendered,

8 PAUL, Edict, book 18: even if they succeed to the subject matter itself.

9 ULPIAN, Edict, book 22: For after an oath has been taken, actions are denied, or else if there is dispute, that is, if a question is raised whether any oath was given, there is room for a defense. 1. Once an oath has been given or released, the defendant acquires a defense for himself and others, but the plaintiff gets an action in which this sole question is asked: Did he swear, or being prepared to swear was he released from swearing that the debt was owed to him? 2. The better view is that condemnation after oath in a trial involving infamy itself leads to infamy. 3. If a person who is under an obligation to me in a time-limited action tenders me an oath that he owes the debt and I swear the oath, time will not release him, because after joinder of issue the obligation is perpetuated against him. 4. If a minor under twenty-five tenders an oath and says that he was overreached in that very matter, the defense of oath ought, as Pomponius holds, to be met by a replication. However, I do not think that that replication ought always to be given; frequently, the praetor himself should look into the question of overreaching and should arrange restitution accordingly. For the mere fact of minority certainly does not establish that the minor was misled. Furthermore, that defense or inquisition must not exceed the prescribed time after the twenty-fifth year. 5. If someone tenders an oath to a debtor in fraud of his creditors, the defense of oath must be met by a replication of fraud on creditors. Moreover, if the perpetrator of fraud tenders an oath to a creditor, who then swears a debt of ten is due, and soon afterward when his goods have been sold up himself wants to go to law, the action ought to be denied or met by the defense of creditors defrauded. 6. Julian writes that an oath tendered by an opponent to a defender or procurator accrues to and provides a defense for the principal. The same, therefore, must be said where I have appointed a procurator to sue. For if the defendant tenders him an oath that the debt is owed, that generates an action for me. This is the correct opinion. 7. If, after oath tendered by the possessor, a plaintiff swears a thing is his, an action will be granted to him but solely against the party who tendered the oath and those who later step into his shoes. However, if he seeks to use the earlier election for oath against a stranger, it will do him no good,

10 PAUL, Edict, book 18: since no harm must come to a stranger from what is done between parties.

11 ULPIAN, Edict, book 22: However, if the oath is tendered to the possessor, who swears the thing does not belong to the plaintiff, he can use the defense of oath, so long as he retains possession, against action by the plaintiff who tendered the oath. Once he loses possession, on the other hand, he will have no action, not even if the then possessor is the person who tendered him the oath. The reason is that he has not sworn the thing is his, only that it is not the other's. 1. Accordingly, if as possessor he did swear on the plaintiff's tender that the thing was his, the logical conclusion will be that out of possession he must be given an actio in factum if the oath-tenderer obtains possession. Once I have sworn a thing to be mine, fruits taken from it must also be restored to me. Further, it is agreed that after oath tendered, babies born and the offspring of animals are to be handed over. 2. Again, if I swear that the usufruct in a certain thing is mine or ought to be conveyed to me, all actions will lie for me just so far as they would if the usufruct were really mine; and they will cease to lie upon the events in which they would then be withdrawn. Even if someone swears he has or ought to have a usufruct in things in which because they are consumed by use there cannot be a usufruct, I think the force of the oath must be respected. Hence, I think that also in that case his oath is to be held to have been rightly taken and that on the basis of the oath he can, once the cautio has been offered, claim a usufruct. 3. Suppose there is a dispute between me and you about an inheritance, and I swear it belongs to me. I ought to obtain what I would get if judgment in the matter of the inheritance went in my favor. And not only must you restore to me those things which you then possess but also the oath will operate in relation to things which subsequently come into your possession, exactly as would normal proof. An actio utilis, therefore, will lie for me. But if I am in possession under this same inheritance and when I have taken the oath against you, you lodge a claim against me for it, I ought to use the defense of oath. Obviously, if someone else initiates a claim for the inheritance from me, there is no doubt that the oath will do me no good. And that is what Julian writes too.

12 JULIAN, Digest, book 9: The same considerations apply if I want to claim things belonging to an inheritance which are in someone else's possession. For even if I had claimed the inheritance from you and had established it mine by normal proof, I would nevertheless be compelled to make the same proof again in an action brought against another.

13 ULPIAN, Edict, book 22: Suppose two patrons and a freedman who, on the tender of one, swears that he is not the freedman of that one. Does bonorum possessio lie for the other in respect of the whole or only of half the patron's due share? On this he holds that if the one to whom the oath was taken was a patron, the second can claim bonorum possessio only of his own share and cannot derive advantage from the fact that the freedman swore against the first. Yet before a judge great respect is to be paid to the honor and authority of patrons, whence he might have established that he was sole patron by the oath of the freedman that the other was not patron at all. 1. Julian holds that one who swears land is his after prescription through long passage of time must also have an actio utilis. 2. Julian also writes that one who has sworn that he has not committed theft is understood to have sworn away the whole matter; and the reason, he says, why he is not liable either to the action for theft or even to the condictio is that condictio only binds a thief. Surely, then one who swears that he has not committed theft may use a defense against a condictio brought against him on just that ground? However, if the plaintiff in the condictio maintains that he is bringing the action against the heir of the thief he ought not to be rebuffed; and the condictio ought to be granted to him against the thief's heir. The judge must then intervene to prevent any attempt to establish that the defendant is a thief. 3. Suppose someone swears that I sold him something for one hundred. He can bring the action on sale to enforce the rest of the obligations, that is to say, for delivery of the thing and for warranty against eviction. But can he be sued for the price? If the oath extended even to this, that the price was paid, no action for the price survives. If that was not sworn, the conclusion is that he is liable to pay it. 4. We shall hold the same of one who swears he entered a partnership; for he can be sued by the action on partnership. 5. Marcellus also writes that if one swears that land has been charged as a pledge for ten, he shall not be able to use the action on pignus until he has repaid ten and that it ought perhaps to be added that he can also be sued for ten on the basis of his own oath, which proves the matter quite well enough. Quintus Saturninus agreed with that. In support, he cites the case of the man who swore that his ex-wife had given him something by way of dowry. He says the wife was then entitled to an actio utilis. And I would not deny that that is not entirely unfair. 6. If in a money matter some one swears on the spirit of the emperor that a debt is not due from him or is due to him and proves forsworn or swears he will pay within a certain time and does not pay, it is held by rescript of our emperor and his father that he must be sent for flogging under a motto, "Take not oaths in vain."

14 PAUL, Edict, book 3: Wherever oaths are taken about a thing neither a parent nor a patron is released from swearing. There is swearing about a thing when, for instance, an oath is demanded in relation to money lent when the plaintiff swears the debt is due or the defendant swears it is not. The same applies when an oath is demanded in relation to a constitutum of money.

15 PAUL, Edict, book 6: In the case of very important people and those disabled by their health, someone ought to be sent to them at home for the purpose of oath-taking.

16 ULPIAN, Edict, book 10: A patron who marries his own freedgirl is not compellable to take an oath in a trial of goods taken away. But if he himself tenders an oath to his freedwoman she ought not to take the oath about vexatious suits.

17 PAUL, Edict, book 18: An oath which is tendered outside legal proceedings by virtue of an agreement cannot be returned. 1. A pupiilus must have his tutor's authority for tendering oaths. If his tender is made without the tutor's authority, he will encounter a defense but will be unable to use a replication, because he lacks the right to manage his own affairs. 2. An oath tendered by a tutor in the exercise of guardianship or by the curator of a lunatic or wastrel is to be considered good, since they are able to pass property in goods and receive payment, and when they sue, the matter is validly brought into issue. 3. Tenders by a procurator are also to be considered valid if he either manages the entire estate or is commissioned to that very task or is a procurator in his own interest.

18 ULPIAN, Edict, book 26: Julian writes in the tenth book of his Digest that in other circumstances oath-tender by a procurator is not to be admitted, lest the defendant, having once sworn, be exposed to action by the principal. Nor will it do him much good to take a cautio for ratification; for if the principal sues, he will still have to show that his oath was clean under the defense which he inserts; and if he takes action on this stipulation for ratification, he will himself be compelled to show himself not forsworn.

19 ULPIAN, Edict, book 26: If, under a mandate to sue, a procurator tenders an oath, he goes outside the scope of his mandate.

20 PAUL, Edict, book 18: Oath-tender and oath-taking by a slave is to be respected as valid so long as he has authority to manage his peculium.

21 GAIUS, Provincial Edict, book 5: For payments can validly be made to him, and he has the power to novate obligations.

22 PAUL, Edict, book 18: If a slave tenders an oath to a plaintiff, some say an action on peculium should also be granted against the master. The same of sons-in-power.

23 ULPIAN, Edict, book 26: If a slave swears that no debt is due from his master, the defense is to be conceded to the master and the other party can answer to himself for tendering an oath to a slave.

24 PAUL, Edict, book 28: All the more will a father be able to take advantage of the bond of his son with whom indeed litigation can be joined. But tenders by those in power cannot work to the detriment of their superiors.

25 ULPIAN, Edict, book 26: Furthermore, if my slave, on tender or countertender to him, swears that something belongs to or is due to his master, I think an action is to be granted to me or else a defense of pact by reason of the sacred bond and agreement.

26 PAUL, Edict, book 18: When someone is said to have taken an oath, it does not matter what age or sex he is; for everything must be done to safeguard oaths against those who were happy enough to make the tender. Yet a pupillus is never held to be forsworn, because not understood knowingly to deceive. 1. Where a father swore that a debt was not due from his son, Cassius gave the opinion that the defense of oath was to be given to both father and son. If the father swore there was nothing in the peculium, action could be brought against the son, but the father could also be sued for account to be taken of peculium subsequently acquired. 2. The nature of an oath should be understood as setting it in the same category as delegation and novation; for it rests on agreement. Yet it does also have a resemblance to a judicial determination.

27 GAIUS, Provincial Edict, book 5: An oath even has the function of discharge.

28 PAUL, Edict, book 18: Where two people are bound by a stipulation, oath-tender by one will adversely affect the other. 1. An oath sworn by a principal accrues to the advantage of a verbal guarantor. And Cassius and Julian hold that one taken from the guarantor benefits the principal. For in that an oath can function as discharge, it is in that role that it must be seen in this case, so long as the reason for recourse to it is to do with the contract itself and the subject matter, not with the status of the oathtaker. 2. One promises to produce my debtor in court. Then, on my tender, he swears he never made any such promise for production of that person. That oath ought not to do my debtor any good. Suppose, though, that he swears he owes me no performance. A distinction must then be drawn and correctly carried through in a replication according as he swore because after making the promise he produced the debtor or because he paid the debt. The same distinction obtains in the case of a verbal guarantor of a debt. 3. Where there are two promisors of the same sum of money, the benefit of the oath must accrue to the other. 4. The defense of oath should meet not only the action on account of which the oath was demanded, if that be brought, but also any other, provided the same question is taken on to trial, as, for instance, if an oath is exacted because of a claim of mandate, unauthorized management, partnership, and so on and afterward a condictio for a fixed claim is brought on the same grounds; for these actions are consumed one by the other. 5. If someone swears that he has not commited robbery, he cannot be helped by that oath in an action for theft; for theft is different in that it can be committed by stealth. 6. Suppose a tenant farmer is sued by action on hire for cutting down trees. If he swears he did not cut them down, he can use the defense of oath against a claim under the Twelve Tables for trees cut down, under the lex Aquilia for wrongful loss or by the interdict against force and stealth. 7. If in divorce a woman swears she has not removed any property, she is not to be given the benefit of the defense if sued in rem, and if she maintains the thing in question is hers, there is need of another oath. Contrariwise, if she swears the thing is hers, she ought to be given the defense in an action for property removed. This is so thoroughly to be observed that even if it is by another action that the same question is raised, the defense of oath still applies. 8. Suppose therefore that one swears that he has not suffered judicial condemnation. If, in respect of the matter adjudged, he is sued by the action upon stipulation to satisfy judgment, he will nevertheless have the defense. On the other hand, if when sued upon the stipulation to satisfy judgment he swears he is not obliged to pay, the defense will actually not impede an action for a judgment-debt, because it can happen that the stipulation still remains dormant even although judgment has been entered. It would be different if the terms of his oath were that he had not been condemned. 9. Again, Pomponius holds that one who swears something has been stolen from him does not thereby immediately acquire the condictio. 10. Further, although under this part [of the edict] an oath generates both claims and defenses, yet if it happens that upon a plaintiff's tender out of court, a defendant swears no debt is due and then, on the defendant's tender, the plaintiff swears the debt is due or vice versa, the later oath-taking will be held the stronger. Moreover, no prejudice will be worked by the forsworn oath of the other because the question will not be whether he ought to pay but whether the plaintiff did swear.

29 TRYPHONINUS, Disputations, book 6: But if, on your tender, I take an oath that you did not swear that a debt was due to you, the actio utilis which asks the question whether you swore the debt due to you is to be met with the defense of oath, which here extinguishes the very question put by the action.

30 PAUL, Edict, book 18: Pedius holds that if one swears that something is owed to him under an action which doubles on denial, it is the single claim not the double, which he acquires. It is quite enough that the plaintiff is relieved of the necessity of making his proof, given that the claim for double survives intact if this part of the edict is passed over. Also, it can be said that the business if this action is not the principal subject matter but the protection of the plaintiffs oath. 1. If I swear that you are under a duty to give me Stichus and he is no longer alive, the defendant is not liable to pay even his value, except where the claim is grounded on theft or on account of delay in which cases the value of the slave must be paid even after his death. 2. If a woman swears she is owed a dowry of ten, the whole of that sum must be paid to her. But if she swears she gave ten as a dowry, the one issue not in question is whether she gave them; for, it being assumed that she did give them, there has to be found for her the sum which she ought to be given back. 3. In actions maintainable by members of the public, an oath taken by one will only serve against others if exacted in good faith. For if someone initiates a public action, it is only if there is no collusion that the right of further action is extinguished. 4. If, on a patron's tender, a freedman swears that he is not a freedman, the oath is to be held good with the effect that claims should not be allowed either to day works or to bonorum possessio against the will. 5. If I swear a usufruct is due to me, it should only be conveyed if I give the cautio for use by the standard of a reasonable man and for restitution at the end of the term.

31 GAIUS, Provincial Edict, book 30: We must observe that on occasion, even after an oath has been exacted, imperial constitutiones allow a cause of action to be resuscitated, where someone says he has found new documents on which alone he is going to rely. However, these constitutiones are confined to the case in which someone has been absolved by a judge (for it is a frequent practice of judges in doubtful cases to pronounce, after an oath has been exacted, in favor of the party swearing). If in other circumstances the parties themselves settle their affair by an oath, then the same course is not allowed to be revived.

32 MODESTINUS, Distinctions, book [I]: A pupillus cannot let someone off an oath.

33 ULPIAN, Sabinus, book 28: Even though an oath on one's own salvation seems to be an oath by god (for such an oath is taken in reliance on the divine presence), it is nevertheless void unless expressly tendered in those terms. Hence, it is necessary to swear again from the beginning in proper form.

34 ULPIAN, Edict, book 26: Oaths can operate in relation to money matters and all goods, and tender can even be made in respect of services, and the other party cannot say that that is unfair because it is open to him to make a countertender. What happens, though, if the reason why a party says he is discharged is that he thinks Stichus, whom he promised, has died? He will not find safety in countertender. That is why Marcellus thinks and rightly that in such a case he ought either to be excused the oath or be given time to ascertain the facts and so to swear. 1. The defender of a municipality or of any other body has power to tender oaths if his mandate runs to that. 2. Oaths are not tendered to a pupillus. 3. A procurator is not compellable to swear. No more a defender. Thus, Julian writes in the tenth book of his Digest that in the case of a defender being not compellable to swear, it suffices for a full defense if he is prepared to accept joinder of issue. 4. One who tenders an oath ought first to swear against vexatiousness, if he is asked to. After that the oath he proposes will be sworn for him. Patrons and parents are no less excused this oath against vexatiousness. 5. If the parties have doubts about the form of the oath, its drafting falls to the supervision of the judge. 6. The praetor says: "In the case of one from whom an oath is sought, I will compel him either to swear or to perform." Hence, the defendant must choose between oath and performance. If he does not swear, the praetor will compel him to perform. 7. In fact, he has another option too; for he can, if he prefers, make countertender of the oath. If then the one who made the demand does not adopt the terms of his oath himself, the praetor will not allow his issue to go to trial. This is very fairly done; for one ought not to cavil at the form of an oath tendered by oneself. Moreover, the oath against vexatiousness cannot be put to one who makes a countertender; for it is not tolerable for a plaintiff to expect oaths concerning the vexatiousness of terms tendered by himself. 8. It is not always sensible for the countertender to be made in every respect in the same terms as the tender, as where, for instance, complications arise from difference of subject matter or parties which necessitate modification. If this kind of thing happens, therefore, it belongs to the discretion of the judge to settle the framing of this type of oath. 9. This is what happens when an issue is put to oath: If the defendant swears, the judge absolves him; if he countertenders, the judge will hear him and, if the plaintiff swears, will condemn the defendant; if the defendant will not swear, if he performs, the judge absolves him, if he does not perform, the judge condemns him; if after countertender the plaintiff does not swear, the judge absolves the defendant.

35 PAUL, Edict, book 28: If the tutor of a pupillus tenders an oath when all other modes of proof fail him, he must be heard to the extent that an action will be denied to the pupillus. 1. A wastrel who tenders an oath is not to be heard, and the same applies to him in other similar cases. For whether this oath is equiparated to an agreed pact, to performance, or to trial, it is not to be put to the test on the tender of anyone who has not the necessary capacity. 2. Persons not compellable to accept trial at Rome, as, for instance, provincial legates, can also not be compelled to swear.

36 ULPIAN, Edict, book 27: Suppose a plaintiff tenders an oath solely about a constitutum of money, and the defendant swears. The defendant has a defense against suit brought on the constitutum. On the other hand, if he is sued for the principal, that is, upon the pre-existing obligation, he will have no defense, unless oath and tender were about that too.

37 ULPIAN, Edict, book 33: Where an oath is not excused, but the person tendering offers no oath against vexatiousness, the consequence is that action must be denied him. For one who proceeds to oath-tender without first taking the oath against vexatiousness has only himself to blame if he finds himself treated as one who has let the other off.

38 PAUL, Edict, book 37: It is an indication of manifest wickedness and an admission to refuse to swear or to countertender.

39 JULIAN, Digest, book 10: Suppose someone makes a pact with his debtor not to claim money from him if he swears he has not climbed the Capitol or has or has not done something or other, and the debtor swears. The defense of oath must be given, and in case of payment, there must be recovery. For it is quite lawful to have an agreement, some aspect of which is rested upon oath.

40 JULIAN, Digest, book 13: An oath exacted from a debtor has the effect of freeing a pledge, for it is to be likened to a formal discharge. It certainly generates a perpetual defense. Thus, a creditor suing for a penalty must also be defeated, and anything paid can be recovered. Indeed, recourse to oath concludes conflict on every aspect of a matter.

41 POMPONIUS, Rules, sole book: Labeo gave the opinion that someone could be let off an oath even in his absence and without his knowledge. It can also be done by letter.

42 POMPONIUS, Letters, book 18: A creditor was pursuing a claim for money lent against a pupillus. On his tender, the pupillus swore no debt was due. Now the creditor comes against his guarantor for the same money. Is he to be silenced by the defense of oath? Write and tell me what you think. Julian's explanation of this matter is clear enough. For if the creditor and the pupillus were arguing about the fundamental question whether any loan of money had been received and the agreement was that if the pupil took the oath every aspect of the dispute should be given up, then, the oath being sworn, the natural obligation is extinguished, and any payment is recoverable. On the other hand, if the creditor's contention was that he made the loan and the pupil's only answer was that his tutor had not been brought in, recourse to an oath of that kind will not lead to the praetor's protecting the guarantor. However, if it cannot be clearly shown what was intended and it remains doubtful, as often happens, whether the dispute between creditor and pupillus was as to fact or law, we must assume that it was intended between them that if he swore no debt was due then every aspect of the dispute would be given up. 1. If a verbal guarantor swears he owes nothing, the principal promisor gets a defense of oath to make him safe. However, if he swears as one who never gave any guarantee at all, that oath ought not to accrue to the advantage of the principal promisor. 2. If, on a plaintiff's tender, the defender of the other party, himself absent or present, swears his principal owes nothing, then the defense of oath ought to be given to the latter on whose account the swearing was to be done. The same applies where the defender of a guarantor takes an oath with the effect, that is, of giving a defense to the principal debtor. 3. Again, if the principal debtor swears, the guarantor will be safe, since it is also the case that each can take the advantage of the other's defense of res judicata.