4.1.159 to 4.1.163

The authorities of the other school agree in this point with reference to bona fide actions; because in cases of this kind no restraint is placed upon the judge; and their opinion is the same with reference to real actions, for the reason that there is an express provision of this kind stated in the terms of the formula, so that if the defendant should restore the property he shall be discharged from liability. This, of course, applies where the action was brought under the formula making the claim, in which the party is sued in such a way that the property is dispute is demanded, and the words above referred to are repeated in the beginning of the condemnation; for sometimes . . . . [1] personal actions of this kind are brought in which it is not permitted . . . . [1] (115) In the next place let us examine exceptions. [2] (116) Exceptions have been introduced for the purpose of defending those against whom actions have been brought; for it often happens that a party is liable by the Civil Law, when it would be unjust for a judgment to be rendered against him. For example, if I stipulate for a sum of money from you on account of my having advanced it to you, when I never did so; as it is certain that I can bring an action against you for the money and you would be obliged to pay it as you are liable under the stipulation, but because it would be unjust for judgment to be rendered against you on this account, it is settled that you can defend yourself by the exception on the ground of fraud. Likewise, if I make an informal agreement with you not to bring suit for a debt which you owe me; I can nevertheless, bring an action against you for the amount, and you will be obliged to pay me because the obligation is not extinguished by a mere agreement, but if I should sue you, it is established that you can bar me by an exception on the ground of an agreement entered into.