4.1.179 to 4.1.182

(126) It sometimes happens that an exception which, at first sight, appears to be just, will cause injury to the plaintiff, and when this is the case an addition is required to the pleadings for the purpose of affording protection to the plaintiff, which addition is called a Replicatio ,because by means of it the force of the exception is weakened and destroyed. If, for example, I made an informal agreement with you not to sue you for money which you owe me, and afterwards we entered into a contrary agreement, that is to say, that I might be permitted to sue you, and then if I do sue you, you plead the exception against me that judgment should only be rendered against you where no agreement had been made that I should not bring suit for the money, this exception on the ground of an informal agreement prejudices my claim, as the first agreement still retains its force, even though we made a contrary one subsequently; but because it is unjust for me to be barred by an exception, a replication based on the subsequent agreement is granted me as follows: "If no agreement was entered into afterwards that I might be permitted to bring an action to recover the money." (126a) Likewise, if a banker brings suit for the price of property sold at auction, the exception may be pleaded against him that judgment is only to be rendered against the purchaser where the property which he bought had been delivered; and this is apparently a just exception. If, however, the condition was imposed at the auction that the property should not be delivered to the purchaser until he had paid the price of the same, the broker can make use of the following rep- lication: "Or if it was previously stated at the sale that the property would not be delivered to the purchaser before he paid the purchase money." (127) Sometimes, however, it happens that a replication which, at first sight, appears to be equitable, unjustly inflicts an injury on the defendant; and when this takes place, an addition to the pleadings is required for the purpose of protecting the defendant, which is styled Duplicatio .