4.1.252 to 4.1.256

(176) The party sued, however, has the right to choose whether he will bring the action of vexatious litigation, or exact an oath from his adversary that he has not brought suit for the purpose of causing annoyance. (177) The counter action, however, is only applicable in certain cases; for instance, where suit is brought for injury, and where one is brought against a woman on the ground that having been placed in possession on account of her unborn child, she transferred it fraudulently to some other party; or where anyone brings an action alleging that he has been placed in possession by the Prætor and is refused admission by another. In the case of an action of injury it is granted for the tenth part of the amount in dispute; in the two others for the fifth. (178) But, the most severe restraint is that produced by the counter action. For no one is condemned in the action of vexatious litigation to pay the tenth part of the amount in dispute, unless he knew that he had no right to bring suit, and did so only for the purpose of annoying his adversary and relies for success rather upon the error or injustice of the judge, than on account of the merits of his cause; for vexatious litigation, like the crime of theft, depends upon intention. In the contrary action, however, the plaintiff will, under all circumstances, be condemned if he should not prevail in the former action, although he had good reason to believe that he had a right to bring suit. (179) Still, in all those cases in which the contrary action can be brought, the action for vexatious litigation will also lie; but it is only permitted to have recourse to one or the other of these proceedings. For which reason if an oath should be exacted that the action has not been brought for the purpose of annoyance, just as the action for vexatious litigation will not lie, so the contrary action should not be granted.