Praetor does not protect cowards: About the dual character of duress in the Roman and modern domestic law

Abstract

It has not been written much about duress on the national level, which, in our legal system is the institution of private and public law, as defined by the Law of Obligations and the Criminal Code of the Republic of Serbia. The subject of this paper is an attempt to highlight and analyze one of the controversial legal institutions normatively, relying on a philological analysis of texts, historical legal, comparative and socio-political. In addition, the basic intention of the author is twofold. First, the tendency is to present in detail the origin and development of this legal institution in the Roman law, with the necessary emphasis on the socio-political circumstances that led to it. In the following analysis, the author tackles the issue of consensus, as a fundamental element for the development of contracts and relationships between inside and declared will, criticizing the dominant position in the Roman studies that in classical Roman law prevailed the principle coactus voluit tamen voluit. At the same time, special attention is paid to the conditions under which the injured party may use protection instruments. In this context, he insists on objectified role of fear as one of the most important conditions for the existence of duress and offers arguments supporting the thesis that the Roman law already established the principle of a reasonable fear that the modern law consistently adopted. The author tries to point out the relationship of mechanisms of protection against duress in the Roman law, noting the argument that the restitution and statement of claim did not function separately, but that the statement of claim had restitution role. Second, in the normative analysis of the legal duress institution in contemporary domestic law, the author tries to draw a line between the solution of the Roman jurisprudence and national legislators, pointing out the numerous and visible examples of this reception. At the same time the dual character is highlighted of duress, in the Roman law as shortcomings of will and private praetorian tort, and in domestic as public law and private law institution. It is in essence another contribution to the author's tendency to observe the Roman law as alive, dynamic and current system that in the modern efforts of harmonization of the EU legal system may be used worthily.