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Unjustified Enrichment

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to have been part of the slave's peculium. Result: "condictio eo nomine [venditori] adversus [emptorem] competet, quasi res mea ad te sine causa pervenerit." Or, to come to the case involving unjustified enrichment by force of nature: the condictio could also be instituted, according to Ulpian, in respect of "ea, quae vi fluminum importata sum".4*

3. Enrichment by transfer

All the other special enrichment claims are characterized by the fact that the plaintiff tries to reclaim what he has transferred to the defendant. Broadly speaking, the condictio is granted if the purpose which this transfer was intended to attain has either been frustrated or is, for some or other reason, frowned upon by the community. In this specific function, the condictiones tied in with and supplemented the Roman contractual system.49 Thus, the main situations to be considered were the following.

(a)Transfer solvendi causa

The transfer between plaintiff and defendant has taken place solvendi causa; in particular, the plaintiff may have intended to discharge an obligation created either by stipulation or by a contract of sale. That this obligation did not in fact exist, was not, as a rule, of any consequence as far as the transfer of ownership from plaintiff to defendant was concerned. Mancipatio and in iure cessio were "abstract", anyway; and tradirio, though "causal",50 did not depend on the validity of the underlying stipulatio or emptio venditio. In other words: the fact that performance was rendered solutionis causa was in itself sufficient as a iusta causa traditionis.51 An exception existed only in so far as the vendor's performance was not regarded as solutio.52 As a result, therefore, a promisor who transferred ownership in either money or any other object, or a purchaser who paid the purchase price, lost their ownership on account of such a transfer, even if the stipulation or contract of sale were invalid.53 Thus, the rei vindicatio was of no avail, and a remedy was required to enable the promisor or

4M D. 12, 1, 4, 2. This case is interpreted differently by Kascr, RPr I, p. 595 (n. 23) and Liebs, Essays Honore, p. 171; ci\ also Santoro. (1971) 32 Aiinali Palermo 197 sqq.

44 This point has also recently been emphasized by Kupisch, op. cit., note 34, pp. 4 sqq., 9 sqq.

f1 Kaser, RPr I, pp. 416 sqq.

31 The reason for this lies in the historical origin of solutio as a specific transaction designed to release the debtor from his personal liability (supra, pp. 754 sqq.). Cf. generally Rabel, Gmndzii^e. p. 68; Max Kaser. "Zur 'iusta causa traditionis'", (1961) 64 BIDR 69 sqq.; cf. also Kupisch, op. cit., note 34, pp. 17 sqq.; Liebs, Essays Honore, p. 177. But sec now Robin Evans-Jones. Geoffrey MacCormack. "Iusta causa traditionis", in New

Perspectives in the Roman Law of Property, Hssays for Barry Nicholas (1989), pp. 102 sqq.

"■" Kaser, (1961.) 64 BIDR 77 sqq., 83. This exception was probably another relict of the old notion of sale as a transaction that was immediately executed (cf. supra, pp. 237 sq.).

53 Kaser. (1961) 29 TR 218 sqq.

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purchaser to claim retransfer of ownership. This remedy was the condictio indebiti. The vendor, on the other hand, who handed over the object of the sale, retained his ownership if the contract of sale turned out to be defective. Since he could use the rei vindicatio, he did not have to be protected by means of a condictio.

(b) Executed transactions

Where a contract of sale was concluded and executed at one and the same time (executed sale), the transfer could not be said to have been made solvendi causa: there was no pre-existing obligation which the performance was supposed to discharge. Thus, it was the causa emptionis, or causa venditionis, itself upon which the effect of the traditio depended; and, as a result, ownership did not pass if the contract of sale was in any way defective. Again, no condictio was required.54 The same applied where a transfer was made donationis causa or by way of datio dotis.55

(c) Transfer credendi causa

If a sum of money was handed over credendi causa (that is, as a loan for consumption), ownership remained with the lender if the contract of mutuum turned out to be invalid.56 Only consumptio nummorum on the part of the recipient could change the situation:" the rei vindicatio

was then replaced by a condictio; not, however, by one of those based on a transfer.58

(d) Datio oh rem

Not rarely did it happen that someone made a performance in order to elicit some form of counterperformance on the part of the recipient. Unless the recipient became bound to render such a counterperformance (that is, unless a contract had come into existence), the transferor required some form of protection, in case his expectations were disappointed. Being unable to enforce the counterperformance, he had to be able to reclaim his own performance and was therefore duly granted a condictio. Since his transfer was usually referred to as datio ob rem (transfer for a purpose envisaged),59 this particular form of

54We do not know what the position was if an (invalid) sale was immediately executed by way of mancipatio or in iurc cessio. Since these two forms of transfer of ownership were abstract, ownership must have passed, and a condictio (sine causa?: cf. Kupisch, op. cit., note 34, pp. 10 sq.) may have been available to the vendor. As Justinian eradicated mancipatio and in iure cessio, no sources have come down to us.

55Kaser, (1961) 64 BIDR 83 sqq.; Kupisch, op. cit., note 34, p. 20.

56Kaser, (1961) 64 BIDR 84.

57For details, see Wacke, (1976) 79 BIDR 49 sqq.

5W Cf. supra, p. 840.

59The datio ob rem is contrasted by Paulus and Pomponius to datio ob causam: cf. Paul. D. 12, 5, 1 pr. ("Omne quod datur aut ob rem datur am ob causam"); Pomp. D. 12, 6, 52 ("Damus aut ob causam aut ob rem . , . ob rem vero datur, ut aliquid sequatur"); cf. also

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condictio was called condictio ob rem. Rather confusingly, it also came to be referred to as condictio ob rem dati, ob causam datorum and causa data causa non secuta.60 It was the last name6' which Justinian decided to use in the Digest.

4. Condictio causa data causa non secuta

The condictio causa data causa non secuta62 derived its special significance from the fact that not every agreement was enforceable in Roman law. There was, as we have seen, a numerus clausus of contracts, among them only four consensual contracts. Thus, for example, if someone paid another a sum of money in order to make him emancipate a son, manumit a slave, or abandon a lawsuit,63 he had no means of enforcing the counterperformance that he had envisaged. None of these transactions could be classified as a sale, or hire, or partnership, or mandate; nor, of course, did the handing over of the money bring any of the four recognized real contracts into existence. Or take the case of an exchange transaction. If A gave В his sedan chair in order to obtain B's golden bracelet, his expectation might well be disappointed, for В was under no obligation to deliver the bracelet.64 Yet, if he failed to counterperform, В had no right to retain A's performance; after all, the sedan chair had been given to him ob rem, not as a present. "[O]b rem vero datur, ut aliquid sequatur" explained Pomponius and concluded "quo non sequente repctitio competit."65 If, on the other hand, the desired state of affairs had in fact come about (the other party had delivered the bracelet, emancipated the son, manumitted the slave, etc.), this right to reclaim the performance fell away: "Si ob rem . . . data sit pecunia, . . . causa secuta repetitio cessat."66 Both

Paul. D. 12, 6, 65 pr. For an analysis, see Schwarz, Condictio, pp. 117 sqq.; Honsell,

Riickabivicklung, pp. 73 sqq.; Francois Chaudet, Condictio causa data causa non secuta (unpublished doctoral en droit thesis, Lausanne, 1973), pp.89 sqq.On datio ob transactionem (mentioned, for instance, in Paul. D. 12, 6, 65 pr.. 1) and condictio ob transactionem, cf. Schwarz, Condictio, pp. 159 sqq., 257 sqq.; Sturm, Studi Sanfitippo, vol. Il l , pp. 629 sqq.

60 Reason: some late classical authors used the term "causa" in place of "res"; cf., e.g. Ulp. D. 12, 4, 1 pr.; Ulp. D. 12, 6, 23, 3; and the analysis by Liebs, Essays Honore, p. 173.

'' On which cf. Schwarz, Condictio, pp. 132 sqq.

62Literally: the action of debt arising where things have been given on a basis, which basis has failed to sustain itself; more freely: debt for non-materialization (tr. Birks, (1983) 36

Current Legal Problems 156).

63These are the examples mentioned by Ulpian, D. 12, 4, 1 pr. For a detailed list of cases of application of the condictio causa data causa non secuta, cf. Chaudet, op. cit., note 59, pp. 47 sqq.; cf. also Detlef Liebs, "Bereicherungsanspruch wegen Misserfolgs und Wegfall dcr Geschaftsgrundlage", 1978 Juristenzeihmg 698 sq.

64For details cf. supra, pp, 250 sqq.

"D. 12, 6, 52. For a detailed analysis of the requirements (datio, ob causam, causa non secuta), cf. Gluck, vol. 13, pp. 10 sqq.; Chaudet, op. cit., note 59, pp. 49 sqq.; cf. also De Vos,

Verrykingsaanspreekliklieid, pp. 10 sqq.

66 Ulp. D. 12, 4, 1 pr. Does this mean that, before the moment of causa secuta, the (first) performance could be reclaimed at any time and for any reason (in particular, because of a mere change of mind)? No, according to the traditional opinion: cf. Schwarz, Condictio pp. 266 sqq. Contra: Honsell, Riickabwickhmg, p. 74; Liebs, Essays Hotiore, pp. 172 sq.; cf. also the discussion by Chaudet, op. cit., note 59, pp. 66 sqq.

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rules were retained, even when actiones in factum (or praescriptis verbis) began to be granted to the party who had made the first performance, a development from which eventually Justinian's system of innominate real contracts emerged.67 Once he had handed over his sedan chair to B, A could now enforce counterperformance. But he retained the option of claiming back his own performance; for as long as В had not delivered the bracelet, it was still true to say that the state of affairs envisaged by A had not yet come about ("causa non secuta"). Effectively, therefore, the condictio causa data causa non secuta gave A a right of withdrawal from the contract.68 В had it in his hands, however, to terminate this state of pendency and to commit A to the contract, for the rule remained: causa secuta repetitio cessat. Nevertheless, the continued existence of the condictio69 was bound to undermine the binding character of innominate real contracts; and the remedy was thus destined to play an important role when, in later centuries, the exact confines of the principle of pacta sunt servanda were sought to be established.70

5.Condictio ob turpem (vel iniustam) causam

(a)Turpitudo accipientis dumtaxat

We have been proceeding from the tacit assumption that what the plaintiff sought to recover had been handed over for an honest purpose

67 For details, cf. supra, pp. 532 sqq.

6K If the condictio was brought on account of the fact that the person who had first performed had changed his mind, one often spoke of condictio ex paenitentia rather than condictio causa data non secuta (cf, e.g. Bartolus, Commentaria, ad D. 12, 4, 5 (Si pecuniam): "in contractibus innominatis, si ex una partc impletur, ex alia non: propter casum cessat condictio ob causam, quasi causa non sequuta: sed habet locum ex pocnitentia"); on the condictio ex paenitentia (which was just a subspecies of the condictio causa data causa non secuta), cf. Ulp. D. 12, 4, 3, 2 and 3; 12, 4, 5 pr. sqq. (particularly 12, 4, 5 pr., involving the case of "si pecuniam ideo acceperis, ut Capuam eas"); Gluck, vol. 13, pp. 20 sqq.; Schemer, Riicktrittsrecht, pp. 23 sqq.; Chaudet, op. cit., note 59, pp. 66 sqq.; Kaser, RPr II, p. 423; De Vos, Verrykingsaampreeklikheid, p. 10. Dogmatically, the ius poenitendi can be explained on account of the fact that the person who had first performed had not yet himself received the counterperformance. He could, therefore, not be sued by means of an aclio pracscriptis verbis (and was thus not bound to the innominate real contract), for that action was available only against the recipient of the first performance.

69Originally the condictio causa data causa non secuta was confined to cases where the first performance consisted in a datio ob rem (cases, that is, that were to become innominate real contracts of the type of either do ut des or do ut facias); cf. Schwarz, Condictio, pp. 137 sqq. By the time ofjustinian (if not already in classical law) an extension had taken place and the requirement of dare ob rem (as opposed to facere ob rem) had lost its technical significance. Thus, the condictio causa data causa non secuta could be instituted to reclaim any (first) performance under any form of innominate real contract. Cf. Chaudet, op. cit., note 59, pp. 51 sqq. On the recoverability of operac in general, see Ulp. D. 12, 6, 26, 12; von Liibtow, Condictio, pp. 51 sqq.; Werner Flume, "Der Wegfall dcr Bereicherung in der Entwicklung vom romischen zum geltenden Recht", in: Festschrift Jiir Hans Niedermeyer (1953), pp. 111 sqq.; DJ. Joubert, " 'n factum as Grondslag van 'n Verrykingsaksie", (1975) 8 Dejure 166 sqq.; Wolfgang Waldstein, "Zur Frage der condictio bei irrtumlicher Leistung nichtgeschuldeter operae", in: luris Professio, Festgabe Jur Max Kaser (1986), pp. 319 sqq.

70Cf. supra, pp. 578 sq.

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(datio ob rem honestam). If the performance had been such that its acceptance offended the traditional standards of honest and moral behaviour (datio ob turpem causam), the condictio ob turpem causam was applicable. It lay, for instance,71 against a person who had accepted money in order not to commit a crime (". . . dedi tibi ne sacrilegium facias, ne furtum, ne hominem occides")72 or in order to do what he was obliged to do in any event (". . . si tibi dedero, ut rem mihi reddas depositam apud te").73 The payment of a ransom to a kidnapper would be another case in point. Extortionary practices of this kind could, of course, not be condoned, and thus the transfer of the money could hardly be sanctioned by the legal system.74 As long as, in spite of the payment, the desired result did not ensue (the crime was nevertheless committed, the deposit still not given back, the hostage not released) it would not even have been necessary to introduce a new type of enrichment action; the condictio causa data causa non secuta would have done the job. The point about the condictio ob turpem causam was that it could also be used if the purpose for which the money had been given had in fact been accomplished (causa data causa secuta, so to speak).75 For even if the recipient did abstain from killing (to mention just the one example), this could by no means earn him the right to keep the money that he had extorted. Generally speaking, as one can see from the scarcity of case law reported in the Corpus Juris, the ambit of this particular enrichment claim was rather restricted. It was a subcategory of the condictio causa data causa non secuta, in that it also required a datio ob rem; yet, its success did not depend on the further requirement of "causa non secuta", but merely on the infringement of the boni mores on the part of the recipient. Justinian also allowed the recovery of dationcs ob iniustam (as opposed to turpem) causam;76 he did not, however, thereby substantially widen the scope of application of the remedy.77

71 On lul. D. 12, 5, 5, see David Daube, "Turpitude in Digest 12. 5. 5", in: Studies in

Roman law in Memory of A. Arthur Schiller (1986), pp. 33 sqq.

72Ulp. D. 12, 5, 2, pr.

73Ulp. D. 12, 5, 2, 1.

74Ownership of the money obviously passed despite the causa being turpis; cf. Kaser, (1961) 29 TR 220; idem, (1961) 64 BIDR 85; Kupisch, op. cit., note 34, pp. 13 sqq.; Liebs,

Essays Hotwre, pp. 174 sqq.

lr> Paul. I). 12, 5, 1,2: "Quod si turpis causa accipicntis merit, etiamsi res secuta sit, repeti potest"; lul. D. 12, 5, 5; Paul. D. 12, 5, 9 pr. For all details, see Schwarz, Condictio, pp. 169 sqq.; Honsell, RuckabwickUmg, pp. 80 sqq.; Dc Vos, Verrykingsaanspreeklikheid, pp, 20 sqq.; Liebs, Essays Honore, pp. 174 sqq.

76 Cf. the heading of the Digest title 12, 5. He thus included the general statement by Ulpian about enrichment ex iniusta causa (D. 12, 5, 6; on which see supra) in this title.

Ulp. D. 12, 5, 6 is the only text relating to the condictio ob iniustam causam. No case law has come down to us. It is probable that this condictio was tagged on to the condictio ob turpem causam as a result of Theodosius' Lex non dubium, which had turned every

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(b) Turpitudo utriusque

The range of cases in which a plaintiff could successfully bring the condictio ob turpem causam was further reduced by virtue of the famous "in pari turpitudine" rule. Where both the giver and the recipient had been guilty of morally reprehensible behaviour, there was no reason for the law to intervene. For though the recipient might not deserve what had been handed over to him, the giver does not deserve to be protected either. Under these circumstances, it is preferable to leave things as they are, rather than to assist one villain in his claim against the other; for in order to succeed, a plaintiff must always be able to demonstrate a better right than the defendant.78 This perception found its expression in the rule that where both parties are tainted by the evil, the position of the possessor is to be regarded as the stronger one: ". . . si et dantis et accipientis turpis causa [est], possessorem potiorem esse'1;79 or. as it was usually expressed in later centuries: in pari turpitudine-melior est causa possidentis. It was applied in a variety of cases involving crime and grave infringements of the moral code;80 mere illegality of the transfer that could not at the same time be qualified as "turpis", was not sufficient. Thus, for example, recovery was excluded where someone had given money ob stuprum (for illicit sexual intercourse)81 or, according to some older authors, where a person had paid a prostitute.82 The same applied where a thief had paid another in order to avoid being given away by him ("si dederit fur, ne proderetur")83 or where someone bribed a judge in order to pervert the course of justice ("si pecunia detur, ut male iudicetur").84 If, on the other hand, judgment had to be given in favour of the person who had

statutory prohibition into a lex pcrfecta (cf. supra, pp. 700 sq.); infringement entailed invalidity. "Ex iniusta causa apud aliqucm esse" was thus taken to mean that the recipient of a datio ob rcm had acted in breach of a statutory prohibition. The classical Roman lawyers, on the other hand, characterized notable breaches of statutory provisions (irrespective of whether they were perfect, less than perfect or imperfect) as turpis and would thus have granted the condictio ob turpem causam. Cf. Kaser, Verbotsgesetze, pp. 69 sqq.; Liebs, Essays Honore, pp. 174 sqq. The question of whether we arc dealing in D. 12, 5 with one or two kinds of (enrichment) actions is discussed by Gltick, vol. 13, pp. 50 sqq.; De Vos,

Verrykingsaanspreeklikheid, pp. 20 sqq.

7H Cf. also Honsell, Riickabwicklutig, pp. 88 sq. and the following passage from Faber's Rationalia in Pandectas, quoted by Honsell (n. 2): "Et tamen alterutrum evenire necesse est, ut vel is, qui turpiter accepit, retineat, aut qui turpiter dedit, condicat . . . minus tamen iniquum est, retentionem dari ei, qui accepit turpiter, quia iniquius et difficilius est dari actionem, quam retentionem: actio enim non datur, nisi iurc, retentio autem plerumque

occasione magis, quam iure."

79 Paul. D. 12, 5, 8; cf. also Ulp. D. 3, 6, 5, 1; Pap. D. 12, 7, 5; С 4, 7, 2 (Ant.).

H" Hans Hermann Seller, "§ 817 S. 2 BGB und das romische Recht", in: Festschrift fur Wilhelm Felgentraeger (1969), pp. 381 sqq., cf. also Honsell, Riickabwicklung, p. 86.

81Ulp. D. 12, 5, 4 pr. On the crime of stuprum generally, see Mommsen, Strajrecht, pp. 691 sqq., 694 sqq.

H2 Ulp. D. 12, 5, 4, 3: "Scd quod meretrici datur, repcti non potest, ut Labco et Marcellus scribunt. . . ."

MUlp. D. 12, 5, 4, 1.

m Paul. D. 12, 5, 3.

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paid the bribe anyway ("si dedi, ut secundum me in bona causa iudex pronuntiaret"),85 the solution was less clear. Traditionally, the condictio seems to have been granted in this case, presumably because the giver was regarded as less blameworthy than the judge, who accepted the money for doing what it was, in any event, his duty to do. An imperial constitution was required to decide that the giver, too, had committed an offence that was serious enough to warrant exclusion of the condictio (". . . sed hie quoque crimen contrahit (iudicem enim corrumpere videtur) et non ita pridem imperator nostcr constituit litem enim perdere").8(l Particularly interesting about the former of these two views is the fact that thejurists do not seem to have hesitated to evaluate and compare the degree of turpitude of both parties involved in the transaction and to decide in favour of the party who was less to blame.87 A similarly flexible approach to the in pari turpitudine rule appears to have prevailed in other cases. Thus, we hear of a woman who intended to marry her uncle and therefore gave him money as a dowry. The marriage (which eventually did not occur) would have had to be classified as incestuous; and since incest was regarded as a case of stuprum, the dowry had been given, strictly speaking, ob rem turpem. Nevertheless, Papinian allowed the woman to reclaim her money, for her behaviour was rather less obnoxious than that of most other persons who paid ob stuprum (". . . non enim stupri, sed matrimonii gratia datam esse").88

(c)Turpitudo solius dantis

The evil may taint the recipient alone ("turpitudo accipientis dumtaxat"; consequence: condictio ob turpem causam) or it may affect both the giver and the recipient ("turpitudo utriusque"; consequence (normally): no enrichment action). But, of course, it could also be only the giver who had infringed the boni mores ("turpitudo solius dantis'1).89 Such was the case, according to a strong body of opinion, where money was given to a prostitute. Traditionally, the condictio had been excluded on account of turpitudo utriusque;1-*' now ("nova ratione") it was held that only the giver was tainted. Reason: the recipient could only be blamed for being a prostitute; but being one, it was hardly fair to label the receipt of the money as turpis.91

*5Ulp. D. 12, 5, 2, 2. •* Ulp. D. 12, 5, 2, 2.

ю Seiler, Festschrift Felgentraeger, p. 386; De Vos, Verrykingsaanspreeklikheid, p. 23.

8K Pap. D. 12, 7, 5 pr.; and the interpretation given by Seller, Festschrift Felgentraeger,

pp.386 sqq.

юCf. the enumeration of the various possibilities in Paul. D. 12, 5, 1 pr. On turpitudo

solius dantis in general, see Honseli, Riickabwickluny, pp. 90 sqq. w> Ulp. D. 12, 5, 4, 3: cf. supra, p. 846, note 82^

". . . illam enim turpiter faccre, quod sit meretrix, non turpiter acciperc, cum sit meretrix": a rather sophistic reasoning. Seiler {Festschrift Felgentraeger, pp. 383 sq.) draws attention to the fact that prostitutes registered with the aediles did not fall under the

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6. Condictio indebiti

(a) Indebitum solutum

Though probably not the oldest of the Roman unjustified enrichment claims,92 the condictio indebiti became undoubtedly their most important species. We have already briefly sketched the function of this remedy; it served to retransfer indebitum solutum. A performance rendered with the object of fulfilling an obligation constituted indebitum solutum, if the obligation did not in fact exist. The transfer of Pamphilus was indebitum solutum if the debtor thought he owed either Pamphilus or Stichus, whereas, however, he actually owed Stichus.93 Where a person was under an alternative obligation (he owed either Stichus or ten), he could reclaim Stichus if he had delivered him without realizing that he could have paid the sum of ten instead.94 Furthermore, the condictio indebiti could also be brought if performance had been made in discharge of a debt which was valid at civil law but defeasible, ex iure praetorio, by an exceptio perpetua-95 A conditional debt remained indebitum, as long as the condition was not satisfied, and whatever had been given to discharge it could, therefore, also be reclaimed.96 An obligatio naturalis, on the other hand, excluded the condictio indebiti; for though he could not have forced the other party to render performance, the creditor had nevertheless received what was owing to him.97 All this is perfectly straightforward.98 Much more obscure are the particulars of the second main requirement of the

provisions of the lex Itilia de adulterhs and were liable (since the time of Caligula) to pay tax. Thus it may have appeared to be inappropriate to label as "turpis" the acceptance of remuneration for an activity which was not only officially tolerated, but from which the State derived an income; cf. also Gluck, vol. 13, p. 53 and Honsell, Riickabwicklung, p. 92. On the position of a meretrix in general, see also Max Kaser, "Rechtswidrigkeit und Sittenwidrigkeit im klassischen romischen Recht", (1940) 60 ZSS 135; Joseph Plescia, "The Development of the Doctrine of Boni Mores in Roman Law", (1987) 34 RIDA 304 sqq. The authors of the ius commune appear to have entertained a lively discussion on when exactly a person may be classified as meretrix. Thus, for example, an 18th-century compendium gave the following definition: "Meretrix est, quae passim et palam omnibus patet, et cujus turpitudo est publice venalis, sicut in lupanari vel in alio loco, sive cum quaestu sive sine quaestu, pudori suo non parcens, palam se prostituat"; the author then asks how many men a woman must have had in order to qualify as meretrix and reports the view adopted by the glossators: "Glossa requirit, ut plures quam 23.000 admiserit"; on which, in turn, Count von Kreittmayr, the father of the Codex Juris Bavarici Criminalis (1751), remarked that, under those circumstances, no person in the world could be regarded as a harlot any longer. For all this, see (1983) 2 RJ 302.

92Liebs, Essays Honore, pp. 168, 177.

93Pomp. D. 12, 6, 19, 3.

94lul. D. 12, 6, 32, 3.

95Ulp. D. 12, 6, 26, 3: "Indebitum autem solutum accipimus non solum si omnino non debeatur, sed et si per aliquam exceptionem perpetuam peti non poterat: quare hoc quoque repeti poterit, nisi sciens se tutum exceptione solvit."

™ Pomp. D. 12, 6, 16 pr.

97Afr. D. 12, 6, 38, 1; Ner. D. 12, 6, 41; Tryphon. D. 12, 6, 64.

98For further casuistry on "indebitum solutum", see Gluck, vol. 13, pp. 76 sqq.;

Buckland/Stein, pp. 541 sq.; Schwarz, Condictio, pp. 21 sqq.

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condictio indebiti: the plaintiff had to have made his performance in the mistaken belief that it was owing."

(b) Solutio per errorem

Questions surrounding this "error" requirement have been the subject of lively debates throughout the history of the ius commune;100 in fact, one can justly claim that we are dealing here with the single most disputed area of the Roman law of unjustified enrichment.101 Some of the more extreme interpolationists have even denied that error on the part of the person rendering performance was at all required in classical Roman law;102 even if he knew that what he gave was an indebitum, they claimed, he could demand its retransfer. Today one is inclined to reject these somewhat ruthless attempts to purge the classical sources—here as in many other contexts—of all subjective elements. Yet, on the other hand, it is also obvious that to some extent the compilers have indeed tampered with the sources that they found; they did not, however, succeed in eradicating all traces of the classical regime. A variety of texts within the Corpus Juris Civilis therefore seem to be in irreconcilable conflict with each other;103 and every analysis based upon such unreliable sources must thus of necessity contain some element of speculation. As a result of the research undertaken over the last three or four decades,104 the following picture, in broad outline, appears to have emerged.

In classical Roman law error on the part of the plaintiff was an essential element of the condictio indebiti. This is confirmed by too many sources to be disputed or explained away. We have already repeatedly referred to the famous passage in Gaius' Institutes in which the condictio indebiti is introduced in the following terms: "Is quoque

99 The defendant, incidentally, also had to have acted under the influence of error, for a person who accepted a performance, although he knew that it was not owing to him, committed theft: Scaev. D. 13, 1, 18; Ulp. D. 47, 2, 43 pr. and 1; cf. H.F. Jolowicz, Digest XLVIl. 2, De Furtis (1940), pp. XXV sqq.

100 Cf. the-detailed analysis by D.P. Visser, Die rol van dwaling by die condictio indebiti

(unpublished Dr. iur. thesis, Leiden, 1985), pp. 66 sqq.

For an even more dramatic comment ("one of the most notorious controversies in the field of Roman private law") cf. August Herrmann, "Beitrage zur Lehre vom Irrthum, Erster Beitrag", (1847) 3 (Neue Folge) Zeitsckrift Jiir Civilrecht und Prozess 87.

102 Cf., in particular, Siro Solazzi, "L'errore nella 'condictio indebiti' ", in: Scritti di diritto rotnano, vol. IV (1963), pp. 99 sqq.; idem, "Ancora dell'errore nella 'condictio indebiti' ", in: Scritti, vol. IV (1963), pp. 405 sqq.; idem, "Le 'condictiones' e l'errore", in: Scritti, vol. V (1972), pp. 1 sqq.

103Cf., for example, С 4, 5, 5 compared with C. 1, 18, 10 (both by Diocl. et Max., the one text from A.D. 293, the other from A.D. 294.).

104Cf. Schwarz, Condictio, pp. 17 sqq., 65 sqq.; Sven Erik Wunner, "Der Begriff causa und der Tatbestand der condictio indebiti", (1970) 9 Romanitas 463 sqq.; Harald Koch,

Bereicherung und Irrtum (1973), pp. 105 sqq.; Laurens C. Winkel, Error iuris nocetRechtsdwaling ah rechtsordeprobkem (1982), pp. 189 sqq.; H. Gaspart-Jones, "La 'condictio indebiti' et 1'erreur dans le droit de Justinien", in: Hommage a Rene Dekkers (1982), pp. 93 sqq.; Visser, op. cit., note 100, pp. 22 sqq.; idem, "Die grondslag van die condictio indebiti", (1988) 51 THRHR 492 sqq.; De Vos, Verrykingsaampreeklikheid, pp. 24 sqq.

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850

The Law of Obligations

qui non debitum accepit ab eo qui per errorem solvit, re obligatur."105 At the very outset of the Digest title 12, 6 this is confirmed by a fragment taken from Ulpian's commentary on the edict: "Et quidem si quis indebitum ignorans solvit, per hanc actionem condicere potest: sed si sciens se non debere solvit, cessat repetitio. "1()<s Yet it would probably not be quite correct to say that error was a (positive) requirement of the condictio indebiti, the implication being that the plaintiff had to prove it. It appears more likely that the plaintiff merely had to establish the fact of having rendered a performance, which constituted an indebitum solutum. The presence of an error could, under these circumstances, be presumed. It was up to the defendant to rebut this presumption, and this he did by demonstrating that the plaintiff had been aware of the non-existence of the debt."17 Thus, it was not so much the plaintiff's error which made the condictio indebiti applicable; it was rather his knowledge, at the time of rendering performance, which barred the claim.108 This onus of proof was one of the two essential points with regard to which Justinian changed the law.

". . . eum, qui dicit indebitas solvisse", he determined,ln<) "compclli ad probationes, quod per dofum accipientis vel aliquam iustam ignorantiae causam indebitum ab eo solutum, et nisi hoc ostenderit, nullam cum rcpetitionem habere."

Thus, he elevated error to a core requirement of the plaintiff's claim: it was the plaintiff who had to show that his performance had been based on "some just case of ignorance". But, on the other hand, he also made it clear that he was not prepared to take account of every kind of error. In fact, even the classical lawyers may well already have started to pay attention to issues of reasonableness in this regard.1"1 This idea was bound to appeal to the compilers, for it suited their desire to "ethicize" the law. But what they still required was some kind of criterion to determine under which circumstances a mistake could be regarded as unreasonable. They found it in the error iuris/error facti dichotomy, which had already been recognized by the classical lawyers'11 in one specific situation and which was now generally brought to bear on whether or not to grant the plaintiff his condictio indebiti. Ignorantia

i(l5 Gai. Ill, 91.

UKl D. 12, 6, 1, 1; cf. also Ulp. D. 12, 6, 26. 3.

107Cf., in particular, Schwarz, Condictio, pp. 96 sqq. An exception appears to have existed in the case of fideicommissa; cf. infra, note 111.

108Schulz, CRL, p. 616.

109Paul. D. 22, 3, 25 pr. (interpolated; cf. Schwarz, Condictio, pp. 107 sqq.).

1111 Cf. supra, pp. 604 sqq.. 606.

111 Cf., for example, С 4, 5, 7 (Diocl. et Max.); С 6, 50, 9 (Gord.); Paul. D. 22, 6, 9, 5. All these texts deal with a fideicommissum indebitum per errorem solutum; the heir had not realized that he could subtract the quarta Pegasiana. Fideicommissa were linked particularly intimately to good faith, trust and honour. The moral duty of the heir to comply with the wishes of the testator ("fidem praestare") was thus taken to prevail over his interest to assert his error iuris. For details, sec Fritz Schwarz, "Die Funktion des Irrtums bei Erfullung ganzlich oder teilweise nicht gcschuldeter Fideikommisse", (1951) 68 ZSS 266 sqq.; cf. also Winkel, op. cit., note 104, pp. 192 sqq.; Visser, op. cit., note 100, pp. 41 sqq.

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