LITIS CAUSA MALO MORE PECUNIAM PROMITTERE: SULLA CONTRARIETA' AI BONI MORES DEL 'PATTO DI QUOTA LITE'.

The agreement, currently known in judiciary praxis as patto di quota lite, through which a lawyer undertakes the defence of a client with the understanding that he will receive as fee a part of the amount the latter will achieve in case of victory of the lawsuit, derives from Roman juridical experience. The institution of quota litis is often subject to unbending prohibitions: examples of such reaction of the legal system, even if with different gradation, are found in both the Swiss and Italian norms. On the one hand, in the Helvetian Confederation, both at cantonal and federal level, the pactum de quota litis has been always prohibited to protect the public interest so that the lawyer handling a lawsuit might be independent in his decisions and not forced by personal interests that somehow could undermine his neutrality. On the other hand, this institution in Italy has been subject to several reforms that sometimes have apparently produced a partial opening of the legal system but, in essence, have always maintained firm the principle of its unlawfulness; this, as emerges from the sentences of the Corte di Cassazione, aims to avoid the lawyer taking advantage of his influence to ascribe to himself the majority of the dispute and consequently does not guarantee a role of independence in regard to the lawsuit he is handling. After this initial comparative digression, the Roman sources which in all probability concern the illicit covenant, have been examined with exegetic method. A dubitative attitude is obligatory because the expression pactum de quota litis, continuously recalled in the juridical literature of every later time, is not a creation of the Roman people but of their medieval exegetes, glossators and commentators, who first created the expression we know nowadays. It is mostly a question of late classical juridical sources, in particular of two responsa of the jurist Ulpianus (D.50.13.1.12; D.2.14.53), a text taken from the Institutio Oratoria of the rhetor Quintilianus and a pair of constitutions of the emperor Constantinus (C.2.6.5 and C.Th.2.10.4), which show the blame that such agreement between the lawyer and his client (or sometimes between the procurator ad litem and his dominus litis too) provoked. Its contrariety to boni mores is understandable in these texts through expressions like malo more, non licet, abominanda negotiatio and illicita compendia. However, the ratio of this opposition to morality is not made clear; this issue has been pursued considering social and economic reasons that have marked the passage, from the unbreakability of the principle of gratuity of lawyer activity to provisions legally defined and certified by imperial constitutions. However, it was not possible to leave another issue out of consideration because of its strict relation and complexity within the doctrinal opinions that have been studied and compared in the present analysis. I refer to the institution of redemptio litis that, according to jurists of the XVI and XVII century (for instance Johann Schiller, Johann Brunnemann, Iacobus Curtius), was completely assimilable to the hypothesis of the so called patto di quota lite. I have attempted to take up a position following the literature of the last century about the subject (for instance Vittorio Scialoja and the up-to-date Mariano Scarlata Fazio and Gianni Santucci). According to their opinions there are two behaviours, although equally illegal, different as to content. Redimere litem generally means “taking on the risk of the lawsuit” against the payment of a fee (as D.17.1.6.7, D.17.1.7; C.2.12.15 and C.4.35.20 explain), by having recourse to the mechanism of trial replacement that made the transfer of credits and debts possible for a procurator in rem suam, but it assumes also the meaning of “purchasing a credit at low cost” to recover from the transferred debtor the whole nominal value (as in C.4.35.22, where the content of the lex Anastasiana is reported). In both cases speculation is dominant and both cases in point were not tolerated by the system of laws because considered opposite to morality. Certainly the redemptio litis could be used also to pay the lawyer (or the substitute in a trial), like the pactum de quota litis which shared the imputation of immorality, but in any case it was a different agreement in nature (transfer of contentious credit and not simple pactum) and in content (purchase of the whole trial position of the surrender and not of a part of the proceeds in case of victory of the lawsuit). The inseparable linkage between the technical contrivance by means of which the redemptio litis was carried out, the procuratio ad litem in rem suam, and the mandate have been the crucial points to elaborate the final considerations about the unlawfulness of such an agreement within the classical Roman legal and late classic experience.