causam in book 12.5 of the Digest. For to encroach on another person's right may, at least if it is done intentionally, be regarded as blameworthy behaviour.

Even if the reasoning of the law commission may only be guessed at, the association of the condictio ob turpem causam and ob iniustam causam under one title in the Digest was an important step. It provided the basis on which later jurists understood the law after the full text of the Corpus Iuris Civilis had been rediscovered in the Middle Ages. The starting point for their interpretation of iniusta causa was its association with turpis causa, and with the in pari delicto rule which was dealt with in the very same title. In the following chapter, an attempt will be made to explain why "iniusta causa" came to be understood as "illegal cause", and why the in pari delicto rule was expressly applied to it. <59>

E. CONCLUSIONS

The condictio ob turpem causam operated in cases where a transfer was made on a shameful cause outwith the fixed types of contracts. Examples given in the Digest refer to cases where the recipient demanded payment to prevent him from committing criminal or sacrilegious acts, or to cases where the transferor claimed back money which the recipient had extorted from him. The decisive criterion for granting recovery ob turpem causam was the turpitude involved on the side of the recipient; this being so, the condictio operated whether the immoral purpose had been achieved or not. Infringement of morals and of legal prohibitions could coincide especially where legislation protected morals. However, it was not the breach of legislation as such which was considered by the jurists concerning the question of recovery; they were silent on this issue. Decisive for the rules on the condictio ob turpem causam was the turpitude involved.

The in pari delicto rule barred recovery where both parties took part in the turpitude. Examples named in the Digest concern adultery, indecency, and criminal purposes. The bar to recovery was a procedural rule to solve the dilemma that a tainted pursuer comes to court and claims tainted gains from a tainted defender. This situation was conceived by the Roman jurists to be analogous to the situation where a pursuer claims possession of a thing to which the defender in possession has an equal right. Here, the rule was established that the pursuer had to present a stronger right of possession than the defender in order to succeed; where he could only present an equally strong right, the parties were in pari causa, and possession was accordingly left with the defender. Similarly, where both parties were equally to blame regarding the turpitudinous transfer of benefits, they were held to be in pari

causa: the pursuer, having transferred ownership of the benefits, could not present a stronger right to get them back than the defender to keep them. Where the turpitude was only on the side of the defender, the stronger right of the pursuer to have the benefits is based on the fact that he did not deliberately transfer ownership but was forced to do so by the tainted conduct of the defender. In that case, the benefits should clearly belong in the pursuer's patrimony; so recovery was granted ob turpem causam. Where the pursuer himself was to blame, however, the judge could not decide who, according to justice, should have the <60> benefits. Therefore, the judge did not alter the current state of possession but left the benefits with the current possessor.

The condictio ob iniustam causam was, in classical Roman law, not specially concerned with the recovery of illegal transactions. There is, furthermore, no indication that the in pari delicto rule was applied to cases ob iniustam causam. Rather, the condictio ob iniustam causam seems to have denoted cases where the defender has encroached upon another person's right and made gains therefrom. However, the link of the condictio ob iniustam causam with the condictio ob turpem causam and the in pari delicto rule in the Digest brought the two claims together and was one reason for the modern understanding of iniusta causa as denoting illegal transfers which are also barred by the in pari delicto rule. This theme will be developed in the next chapter.