Definition and translation of “dolo facit (agit), qui petit, quod statim redditurus est”
The Latin legal maxim dolo facit (agit), qui petit, quod statim redditurus est translates as: “He acts deceitfully (who acts), who demands something that he must immediately return.” This principle originates from Roman law and continues to hold significance in modern civil law, particularly in relation to asserting claims that are not made with genuine intent to obtain legal consequences or that are from the outset aimed at immediate restitution.
Historical origin and development
Origin in Roman law
The maxim is originally found in the Corpus Iuris Civilis, specifically in Ulpian (D. 50,17,206) in the Digest. It expresses a principle according to which abusive legal actions, especially fraudulent or deceitful lawsuits, should be dismissed.
Reception in the German-speaking legal sphere
With the reception of Roman law in Germany and Central Europe, this doctrine became a fixed part of general legal understanding and influenced the principle of good faith, which is enshrined in Section 242 of the Civil Code (BGB).
Legal significance and areas of application
Abuse of rights and good faith
The legal rule dolo facit (agit), qui petit, quod statim redditurus est states that abusive or fraudulent behavior exists if someone asserts a claim whose fulfillment he would have to immediately reverse. Such conduct constitutes a violation of the prohibition on abuse of rights (venire contra factum proprium).Case example: A creditor demands payment of a debt although he knows that due to an equivalent counterclaim of the debtor he would have to immediately return or offset the money received.
Application in procedural law
In the context of litigation, “dolo facit (agit), qui petit, quod statim redditurus est” particularly concerns cases where an action is obviously not aimed at final enforcement of rights, but rather at harassment or procedural delays. The courts recognize such lawsuits as abusive and therefore inadmissible or unfounded.
Connection with Section 242 BGB (good faith)
“Those who act against good faith cannot rely on their formal rights under German civil law.” This key provision is closely connected to the present maxim. It prevents abuse of rights to enforce claims, particularly when the plaintiff would be obliged to immediately return the obtained benefit.
Forms and examples from case law
Reversal and restitution
The maxim applies to restitution claims, such as in unjust enrichment law. A party that demands a benefit, even though there is no legal basis for the restitution or vice versa, is barred from its claim by this principle.Typical example: A buyer demands the return of a previously voluntarily paid amount, even though the contract still exists. Since the amount is lawfully owed, after repayment he would have to pay it again immediately.
Set-off situation
Another example concerns the set-off of mutual claims. Whoever demands a service, while knowing that the debtor can immediately present an equivalent claim for set-off, acts abusively according to this maxim.Example: Person A owes person B €100. At the same time, person B also owes person A €100. If now one party demands payment while an immediate offset is possible, the maxim applies.
Dogmatic classification and limits of the principle
Link to the objection of abuse
The doctrine of abuse of rights forms the dogmatic basis for applying the maxim. It is particularly invoked in disputes about performance lawsuits when such actions are manifestly pointless or constitute a waste of resources.
Limit: Legitimate personal interests
The maxim does not apply if the claimant has a legitimate personal interest in enforcing his right, for example to clarify the status of claims. Also, if the duty of return is not absolutely certain, the conduct can be regarded as permissible.
Position in international legal comparison
Continental European legal systems
In many continental European civil legal systems, the prohibition of abuse of rights derived from Roman law is a fundamental principle. Equivalent phrases or corresponding provisions can also be found in the legal systems of France, Italy, or Spain.
Common law
In the Anglo-American legal system, there is no direct equivalent, but similar concepts such as “abuse of process” or “equitable estoppel” are referenced to counter comparable cases of abuse of rights.
Practical relevance and significance for the defense against claims
Harassment and restitution lawsuits
In court proceedings and in extrajudicial defense against claims, the maxim serves as an objection to demands where immediate restitution threatens and the assertion of the claim thus appears to be in bad faith.
Strengthening legal peace
By preventing purely formal, empty assertion of claims, the maxim contributes to legal certainty and fair proceedings by limiting abusive lawsuits.
Summary
The legal rule dolo facit (agit), qui petit, quod statim redditurus est constitutes a central principle for the prevention of abuse of rights in civil law. Anyone who sues for a benefit they would have to immediately return acts deceitfully and cannot rely on their formal right. The maxim protects parties and the legal system from pointless litigation and helps enforce the principle of good faith in legal transactions. It has its roots in Roman law, is anchored in modern civil law, and continues to significantly influence the interpretation and application of civil law claim provisions.
Frequently asked questions
When does the scope of application for the phrase “dolo facit (agit), qui petit, quod statim redditurus est” arise in civil law?
The scope of application for the phrase “dolo facit (agit), qui petit, quod statim redditurus est” is especially relevant in civil law cases concerning performance disruption law and the law of unjust enrichment. The underlying idea is that anyone who sues for performance, despite knowing that they would have to immediately return it (for instance, because a restitution duty under Sections 812 et seq. BGB – unjust enrichment – exists), acts deceitfully or in bad faith. This concept applies mainly when asserting contractual claims for which a restitution claim already exists on the other side. The phrase serves to limit unfounded litigation rights from good faith (see Section 242 BGB). Frequent cases involve reversals following rescission, withdrawal, or revocation of a contract: If a party still demands the original performance although it is established that they would have to immediately return it due to a counter-right, such a dolo agit-exception arises. It should be noted that not only a return obligation but also an immediately due duty of return must exist. The claimant must not be entitled to delay the return. Furthermore, the case law requires awareness or constructive knowledge of the restitution duty on the part of the claimant.
What are the procedural consequences of the ‘dolo agit’ objection?
The so-called dolo agit objection has far-reaching implications in civil proceedings. It is an objection (“dolo agit exceptio”) raised by the debtor—as the defendant—against the claim. If successful, the objection leads to dismissal of the claim, as the plaintiff is barred from exercising their legal rights due to good faith (Section 242 BGB). In the proceedings, the defendant must present detailed facts showing that the plaintiff knows or should know about the duty of immediate return. Courts always examine whether an immediate return obligation and corresponding awareness on the part of the plaintiff actually exist. Fundamentally, the dolo agit objection can be raised at any time up to the last oral hearing, as it is not subject to preclusion.
What practical case scenarios are typical for “dolo facit, qui petit, quod statim redditurus est”?
Typical scenarios especially arise after contractual withdrawal, rescission, or other cases of reversal. A classic example is: The buyer demands delivery of the purchased item after successful rescission of the contract, even though the seller is already obliged to reverse the transaction. Similarly, a seller may insist on payment of the purchase price, even though it is established that the amount must be immediately refunded upon performance because of withdrawal or revocation. Another significant application is the double “performance restitution game” in unjust enrichment law: Here, a claimant might try to demand a benefit, even though as soon as that benefit is delivered, an immediate repayment claim would arise. In all these cases, the dolo agit rule requires dismissal of the claim to avoid pointless exchanges of performance and unnecessary costs.
How does the principle relate to Section 242 BGB (good faith)?
The phrase “dolo facit (agit), qui petit, quod statim redditurus est” is a specific manifestation of the principle of good faith under Section 242 BGB. It concretizes the prohibition of inconsistent behavior and limits the right to claim performance when enforcement would be utterly pointless or impermissible. The goal is to avoid formal assertion of rights where no legitimate interest remains. The dolo agit objection is thus directly based on Section 242 BGB and only applies if the claimant acts with knowledge of the immediate reversal. Application is rarely purely mechanical and must always be examined in the light of each individual case and the principles of good faith.
When does the dolo agit objection not apply?
The dolo agit objection does not apply if, despite the obligation to return, the claimant has a legitimate interest in demanding performance. This is the case, for example, if the counterclaim to restitution is not yet due or if there is disagreement between the parties about the existence of the reversal ground and asserting the claim is necessary to achieve legal certainty. The objection can also be denied if the claimant demands the counter-performance for his own security interests, or if the reversal has not yet been legally determined. Furthermore, it is excluded if the claimant did not and was not required to know about the immediate restitution obligation, or if the reversal is to take place not concurrently but in another temporal context.
What requirements must be fulfilled for the dolo agit objection to succeed?
Several requirements must be met in order to successfully assert the ‘dolo agit’ objection:
- There must be a claim asserted by the plaintiff that is substantively valid.
- At the same time, there must exist a due restitution claim on the defendant’s side, with the result that the plaintiff would have to immediately return what he has received.
- The plaintiff must have actual knowledge of the obligation to return or at least should have that knowledge.
- Finally, the plaintiff must not have a legitimate interest in enforcing the claim, for example to clarify contentious reversal issues.
Only when all elements are fulfilled does the prohibition of legal enforcement apply, and the claim is countered with the dolo agit objection.
Is there an equivalent in public law?
The rationale of the dolo agit objection can also be found in public law, particularly in cases involving the revocation and annulment of administrative acts and in law on restitution. Thus, the principle that nobody can enforce a claim whose result would immediately trigger the obligation to return the benefit can be applied analogously to administrative proceedings and restitution claims. In practice, however, it plays a lesser role in public law, since explicit rules often provide for orderly reversals. Nonetheless, some judgments by administrative courts confirm the transferability of the principle to public law situations.
