Abstract
In a lawsuit, the legal dimension of the conflict is often coupled with a social dimension. Financial resources and the network of relationships that enabled support from a patronus or important advocati could influence the outcome. However, taking these differences into account seems to contradict the idea of equal treatment for all parties involved in a lawsuit. And yet, in the formulas - the instructions given to the judge by the praetor to decide the dispute - the terms used strip the concrete case of all non-legal and accessory elements. The relationship of obligation is abstracted from the facts surrounding it, so that the judge does not lose himself in the nuances that distinguish one case from another.
In the edict that brings these formulas together, the praetor promises to help the victim of fraudulent maneuvers, described as " dol ", by allowing them to take action against the instigator. In such cases, the judge may order the perpetrator to pay a fine equivalent to the damage suffered by the victim. However, the defendant may also avoid the sentence by compensating the victim, i.e. by restoring the situation to that which existed prior to the fraud (Ulpian, Book XI On edict, D. 4.3.2.1; D. 4.3.1.1). This alternative solution was proposed in order to escape the consequences of the original action : infamy, a legal disqualification involving exclusion from magistracy and all forms of participation in trials. The infamous thus lost all social role and place within a network of influence. In the wording of the edict, the praetor was already being cautious : he warned that he would only concede this action if there was just cause, and this condition implied a prior examination. Ulpian, commenting on the title on fraud, goes even further : he advises the praetor against conceding the action when the plaintiff is of a lower rank than the defendant. In view of the infamous nature of the action, the former could endanger the moral integrity of his opponent. This hierarchical relationship may be based on personal dependence (the freedman towards his master, the son towards his father), a social disparity of a political or public law nature (a person with a dubious reputation towards a former consul) or in the private sphere (a man who indulges in luxury or a profligate towards an opponent with exemplary morals).
How, then, to reconcile the respect due to some with the need to protect the victims of fraud ? How can we reconcile legal equality and social distinction ? Ulpian proposes a modification of the content of the formula for the action of dolus, moderating the terms on a case-by-case basis : for example, the word dolus, offensive to a higher-ranking defendant, is to be avoided, and it is better to mention bona fides (Book XI On edict, D. 4.3.9.5 and 11.pr). The analysis thus shifts from the fraudulent behaviour of one party to the symmetry of behaviour. Both solutions are equally effective, so that the modification does not imply that a higher-ranking person escapes his or her responsibilities : equality is preserved. However, by changing words, appearances are preserved, and with them the social hierarchy.
