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7. Rescission of Contracts: Was Roman Law more Consistent than English Law?

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Chapter Summary

The actio de dolo was a penal action introduced in the praetorian edict to come to the relief of a debtor who had performed although the contract had been procured by fraud. In the Common law courts rescission was something which the innocent party chose to do, and the court merely gave effect to this choice. Rescission at Law also meant that the defendant availing himself of that opportunity was provided with a defence at Law to a claim to enforce the contract, whether it was a deed or a parole agreement. Fraudulent misrepresentations could lead to rescission at Law as well, but innocent misrepresentations could not. Relief for duress was limited in its scope at Law. In both Roman and English law tort actions led the way to restitution, supplemented by restitution ordered and shaped by the Court of Chancery or the praetor.

Keywords: Court of Chancery; English law; fraud; rescission; Roman law



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