be no candid or sincere or straightforward or upright or honest man, but rather one who is shifty, sly, artful, shrewd, underhand, cunning, one grown old in fraud and subtlety. Is it not inexpedient to subject oneself to all these terms of reproach and many more besides?
XIV. If, then, they are to be blamed who suppress the truth, what are we to think of those who actually state what is false? Gaius Canius, a Roman knight, a man of considerable wit and literary culture, once went to Syracuse for a vacation, as he himself used to say, and not for business. He gave out that he had a mind to purchase a little country seat, where he could invite his friends and enjoy himself, uninterrupted by troublesome visitors. When this fact was spread abroad, one Pythius, a banker of Syracuse, informed him that he had such an estate; that it was not for sale, however, but Canius might make himself at home there, if he pleased; and at the same time he invited him to the estate to dinner next day. Canius accepted. Then Pythius, who, as might be expected of a moneylender, could command favours of all classes, called the fishermen together and asked them to do their fishing the next day out in front of his villa, and told them what he wished them to do. Canius came to dinner at the appointed hour; Pythius had a sumptuous banquet prepared; there was a whole fleet of boats before their eyes; each fisherman brought in in turn the catch that he had made; and the fishes were deposited at the feet of Pythius.
“Pray, Pythius,” said Canius thereupon, “what does this mean?—all these fish?—all these boats?”
“No wonder,” answered Pythius; “this is where all the fish in Syracuse are; here is where the fresh water comes from; the fishermen cannot get along without this estate.”
Inflamed with desire for it, Canius insisted upon Pythius’s selling it to him. At first he demurred. To make a long story short, Canius gained his point. The man was rich, and, in his desire to own the country seat, he paid for it all that Pythius asked; and he bought the entire equipment, too. Pythius entered the amount upon his ledger and completed the transfer. The next day Canius invited his friends; he came early himself. Not so much as a thole-pin was in sight. He asked his next-door neighbour whether it was a fishermen’s holiday, for not a sign of them did he see.
“Not so far as I know,” said he; “but none are in the habit of fishing here. And so I could not make out what was the matter yesterday.”
Canius was furious; but what could he do? For not yet had my colleague and friend, Gaius Aquilius, introduced the established form to apply to criminal fraud. When asked what he meant by “criminal fraud,” as specified in these forms, he could reply: “Pretending one thing and practising another”—a very felicitous definition, as one might expect from an expert in making them. Pythius, therefore, and all others who do one thing while they pretend another are faithless, dishonest, and unprincipled scoundrels. No act of theirs can be expedient, when what they do is tainted with so many vices.
XV. But if Aquilius’s definition is correct, pretence and concealment should be done away with in all departments of our daily life. Then an honest man will not be guilty of either pretence or concealment in order to buy or to sell to better advantage. Besides, your “criminal fraud” had previously been prohibited by the statutes: the penalty in the matter of trusteeships, for example, is fixed by the Twelve Tables; for the defrauding of minors, by the Plaetorian law. The same prohibition is effective, without statutory enactment, in equity cases, in which it is added that the decision shall be “as good faith requires.”{95} 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
