In all other cases in equity, moreover, the following phrases are most noteworthy: in a case calling for arbitration in the matter of a wife’s dowry: what is “the fairer is the better”; in a suit for the restoration of a trust: “honest dealing, as between honest parties.” Pray, then, can there be any element of fraud in what is adjusted for the “better and fairer”? Or can anything fraudulent or unprincipled be done, when “honest dealing between honest parties” is stipulated? But “criminal fraud,” as Aquilius says, consists in false pretence. We must, therefore, keep misrepresentation entirely out of business transactions: the seller will not engage a bogus bidder to run prices up nor the buyer one to bid low against himself to keep them down; and each, if they come to naming a price, will state once for all what he will give or take. Why, when Quintus Scaevola, the son of Publius Scaevola, asked that the price of a farm that he desired to purchase be definitely named and the vendor named it, he replied that he considered it worth more, and paid him 100,000 sesterces over and above what he asked. No one could say that this was not the act of an honest man; but people do say that it was not the act of a worldly-wise man, any more than if he had sold for a smaller amount than he could have commanded. Here, then, is that mischievous idea—the world accounting some men upright, others wise; and it is this fact that gives Ennius occasion to say:
“In vain is the wise man wise, who cannot benefit himself.”
And Ennius is quite right, if only he and I were agreed upon the meaning of “benefit.”
Now I observe that Hecaton of Rhodes, a pupil of Panaetius, says in his books on “Moral Duty” dedicated to Quintus Tubero that “it is a wise man’s duty to take care of his private interests, at the same time doing nothing contrary to the civil customs, laws, and institutions. But that depends on our purpose in seeking prosperity; for we do not aim to be rich for ourselves alone but for our children, relatives, friends, and, above all, for our country. For the private fortunes of individuals are the wealth of the state.” Hecaton could not for a moment approve of Scaevola’s act, which I cited a moment ago; for he openly avows that he will abstain from doing for his own profit only what the law expressly forbids. Such a man deserves no great praise nor gratitude.
Be that as it may, if both pretence and concealment constitute “criminal fraud,” there are very few transactions into which “criminal fraud” does not enter; or, if he only is a good man who helps all he can, and harms no one, it will certainly be no easy matter for us to find the good man as thus defined.
To conclude, then, it is never expedient to do wrong, because wrong is always immoral; and it is always expedient to be good, because goodness is always moral.
XVI. In the laws pertaining to the sale of real property it is stipulated in our civil code that when a transfer of any real estate is made, all its defects shall be declared as far as they are known to the vendor. According to the laws of the Twelve Tables it used to be sufficient that such faults as had been expressly declared should be made good and that for any flaws which the vendor expressly denied, when questioned, he should be assessed double damages. A like penalty for failure to make such declaration also has now been secured by our jurisconsults: they have decided that any defect in a piece of real estate, if known to the vendor but not expressly stated, must be made good by him. For example, the augurs were proposing to take observations from the citadel and they ordered Tiberius Claudius Centumalus, who owned a house upon the Caelian Hill, to pull down such parts of the building as obstructed the augurs’ view by reason of their height. Claudius at once advertised his block for sale, and Publius Calpurnius Lanarius bought it. The same notice was served also upon him. And so, when Calpurnius had pulled down those parts of the building and discovered that Claudius had advertised it for sale only after the augurs had ordered them to be pulled down, he summoned the former owner before a court of equity to decide “what indemnity the owner was under obligation ‘in good faith’ to pay and deliver to him.” The verdict was pronounced by Marcus Cato, the father of our Cato (for as other men receive a distinguishing name from their fathers, so he who bestowed upon the world so bright a luminary must have his distinguishing name from his son); he, as I was saying, was presiding judge and pronounced the verdict that “since the augurs’ mandate was known to the vendor at the time of making the transfer and since he had not made it known, he was bound to make good the purchaser’s loss.”
With this verdict he established the principle that it was essential to good faith that any defect known to the vendor must be made known to the purchaser. If his decision was right, our grain-dealer and the vendor of the unsanitary house did not do right to suppress the facts in those cases. But the civil code cannot be made to include all cases where facts are thus suppressed; but those cases which it does include are summarily dealt with. Marcus Marius Gratidianus, a kinsman of ours, sold back to Gaius Sergius Orata the house which he himself had bought a few years before from that same Orata. It was subject to an encumbrance, but Marius had said nothing about this fact in stating the terms of sale. The case was carried to the courts. Crassus was counsel for Orata; Antonius was retained by Gratidianus. Crassus pleaded the letter of the law that “the vendor was bound to make good the defect, for he had not declared it, although he was aware of it “; Antonius laid stress upon the equity of the case, leading that, “inasmuch as the defect in question had not been unknown to Sergius (for it was the same house that he had sold to Marius), no declaration of it was needed, and in purchasing it back he had not been imposed upon, for he knew to what legal liability his purchase was subject.
What is the purpose of these illustrations? To let you see that our forefathers did not countenance sharp practice.
XVII. Now the law disposes of sharp practices in one way, philosophers in another: the law deals with them as far as it can lay its strong arm upon them; philosophers, as far as they can be apprehended by reason and conscience. Now reason demands that nothing be done with unfairness, with false pretence, or with misrepresentation. Is it not deception, then, to set snares, even if one does not mean to start the game or to drive it into them? Why, wild creatures often fall into snares undriven and unpursued. Could one in the same way advertise a house for sale, post up a notice “To be sold,” like a snare, and have somebody run into it unsuspecting?
Owing to the low ebb of public sentiment, such a method of procedure, I find, is neither by custom accounted morally wrong nor forbidden either by statute or by civil law; nevertheless it is forbidden by the moral law. For there is a bond of fellowship—although I have often made this statement, I must still repeat it again and again—which has the very widest application, uniting all men together and each to each. This bond of union is closer between those who belong to the same nation, and more intimate still between those who are citizens of the same city-state. It is for this reason that our forefathers chose to understand one thing by the universal law and another by the civil law. The civil law is not necessarily also the universal law; but the universal law ought to be also the civil law. But we possess no substantial, life-like image of true Law and genuine Justice; a mere outline sketch is all that we enjoy. I only wish that we were true even to this; for, even as it is, it is drawn from the excellent models which Nature and Truth afford. For how weighty are the words: “That I be not deceived and defrauded through you and my confidence in you”! How precious are these “As between honest people there ought to be honest dealing, and no deception”! But who are “honest people,” and what is “honest dealing”—these are serious questions.
It was Quintus Scaevola, the pontifex maximus, who used to attach the greatest importance to all questions of arbitration to which the formula was appended “as good faith requires”; and he held that the expression “good faith” had a very extensive application, for it was employed in trusteeships and partnerships, in trusts and commissions, in buying and selling, in hiring and letting—in a word, in all the transactions on which the social relations of daily life depend; in these, he said, it required a judge of great ability to decide the extent of each individual’s obligation to the other, especially when the counter-claims were admissible in most cases.
Away, then, with sharp practice and trickery, which desires, of course, to pass for wisdom, but is far from it and totally unlike it. For the function of wisdom is to discriminate between good and evil; whereas, inasmuch as all things morally wrong are evil, trickery prefers the evil to the good.
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