!!Экзамен зачет 2023 год / The Law of Obligations

"Cum per venditorem steterit, quo minus rem tradat, omnis utilitas emptoris in aestimationem venit, quae modo circa ipsam rem consistit. "324

He then gives two examples to illustrate the type of interest that goes beyond this limit:

". . . neque enim si potuit ex vino puta negotiari et lucrum facere, id aestimandum est, non magis si triticum emerit et ob earn rem, quod non sit traditum, familia eius fame laboraverit: nam pretium tritici, non servorum fame necatorum consequitur"—

the disappointed purchaser of wine cannot claim his loss of profits, a vendor who failed to deliver grain cannot be held responsible for the damage that arose as a result of the fact that his slaves did not have anything to eat. Whether the limitation of the recoverable interest to the utilitas circa ipsam rem represents classical Roman law325 or whether the text has in its essential parts been corrupted by Tribonian,326 cannot be determined with any degree of certainty. Historically, in any event, it provided the starting point for the distinction between the interesse circa rem and extra rem that was introduced by the glossators327 and has, in one or other form, dominated the discussion for centuries.328 According to Accursius, for instance, only the direct loss (interesse circa rem) could be claimed in the case of what he termed a "non factum" (for example: failure to effect delivery); when it came to a malefactum, however (for example: delivery of a defective object), the vendor was liable for the full interesse extra rem (that is, consequential loss). This was an attempt to reconcile D. 19, 1, 21, 3 with Ulp. D. 19, 1, 13 pr.: here we find the vendor of a piece of cattle infected with a contagious disease being held liable not only for quanti minoris emptor empturus esset but for "omnia detrimenta, quae ex ea emptione emptor traxerit"—and that means for the damage the purchaser suffered on account of the fact that his other animals caught the infection and consequently died.

Of course, it is possible to distinguish these two cases on the basis that in the one a deficient merx was delivered, whereas in the other no delivery took place at all, and then to argue "peius est male tradere quam omnino non tradere".329 But there is another feature of Ulpian's text which is equally suitable as a starting point for dogmatic distinctions. The vendor of the cattle knew about the infection: "sciens retinuit et emptorem decepit". Paulus D. 19, 1, 21, 3, on the other hand, merely states "[c]um per venditorem steterit, quo minus rem tradat". Thus, it became increasingly popular to award interesse extra

324D. 19, 1, 21, 3.

325Arangio-Ruiz, Compravendita, pp. 232 sqq.; Medicus, Id quod interest, pp. 35 sqq., 321 sq.; Kupisch, (1975) 43 TR 16 sqq.; cf. also Honsell, Quod interest, pp. 7 sqq. (special case, not capable of generalization).

326Franz Heymann, "Haftung fur unmittelbaren und mittelbaren Schaden beim Kauf", in: Studi in onore di Pietro Bonfante, vol. II (1930), pp. 450 sqq.

327Lange, Schadensersatz und Privatstrafe, pp. 19 sqq.; also Erasmus, (1975) 38 THRHR 115 sq.

328Wieling, Interesse und Privatstrafe, pp. 26 sqq., 41 sqq.

329Gl. Non scrvomm ad D. 19, 1, 21, 3.

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rem only in cases of fraud.330 Pothicr was one of the authors who adopted this line of argument and combined it with his contemplation theory. In general, he said, the parties are deemed to have contemplated the damages which the creditor might suffer with respect to the thing which is the object of the contract (damni propter rem ipsam).331 When, however, it is the fraud of the debtor that gives rise to the claim for damages, liability extends to all damages in respect of any other property (dommages extrinseques), irrespective of whether the debtor could be presumed to have subjected himself to them or not; "car celui, qui comrnet un dol, s'oblige, velit, nolit, a la reparation de tout le tort que ce dol camera"\332 This is (of course) also the view of the French code civil.333 In Roman-Dutch jurisprudence and the German usus modernus the twofold division of interesse (circa rem or intrinsecum and extra rem or extrinsecum) lost much of its significance. The terminology became imprecise and was muddled up with other criteria. Some equated damnum extrinsecum with damnum remotum,334 others interesse extra rem and lucrum cessans.33^33'1 South African courts have sometimes even used the terms "extrinsic damages" and "intrinsic damages" in

330 Cf. e.g. Ulrich Huber, Pradectiones, Pars II, Lib. XIII, Tit. Ill, n. 11; cf. further §§ 285 sqq. I 5 PrALR, § 1324 ABGB; Rudolf von Jhering, "Das Schuldmomcnt im romischen Privatrecht", in: Vermischte Schriften juristischen Inhalts (1879), pp. 215 sqq., all differentiating the extent to which damages may be recovered according to the degree of the wrongdoer's fault. According to Gluck, vol. 4, p. 447, lucrum cessans may be claimed only in case of dolus (or culpa lata). In modern German law, full damages are recoverable in case of (any kind of) fault. There have, however, been tendencies to move away from this harsh all-or-nothing view; for a comparative overview, see Hans Stoll, "Die Reduktionsklausel im Schadensrecht aus rechtsvergleichender Sicht", (1970) 34 RabelsZ 481 sqq.

331 Traiie des obligations, n. 161. Example: If the vendor does not deliver the horse that he has sold, the purchaser may claim the sum he needed to spend in order to buy another horse; "fb]ut if this purchaser was a canon, who for want of having the horse that I had engaged to deliver to him, and not having been enabled to get another, was prevented from arriving at the place of his benefice in time to be entitled to his revenue; I should not be liable for the loss which he sustained thereby, although it was occasioned by the non-performance of my obligation." (trans. W.D. Evans).

Traite des obligations, n. 166.

333 Artt. 1150 sq. Even in case of "dol", however, recovery of damages is limited to those that are direct ("кие suite immediate et directe de Vinexecution de h convention"): art. 1151; Pothicr,

Traite des obligations, n. 167. This is not based, as Rabcl thought (WarenkauJ , p. 477), on the circa rcm/cxtra rem distinction, but serves to exclude those damages that have no "necessary relation" to the vendor's dol (Nicholas, FLC, p. 224); cf. the example discussed by Pothier, n. 167; further Wieling, Interesse and Privatstrafe, pp. 52 sqq. '334 Struve, Syntagma, Exerc. XLIV, Lib. XLII, Tit. I, V.

"5 Gluck, vol. 4. p. 447; Andreas Gail, cf. Erasmus, (1975) 38 THRHR 116; Wieling, Interesse und Privatstrafe. p. 117; cf. also Endemann, Studien, vol. II, p. 292.

336 A new line of argument was developed by Contius (Professor at Bourges during the 16th century) and Donellus, who stressed the need for a causal link between the damaging act and the loss suffered. Only the loss for which the act was a conditio sine qua non is recoverable (and thus constitutes the interesse circa rem): cf. Wieling, Interesse und Privatstrafe, pp. 45 sqq.; Erasmus, (1975) 38 THRHR 116; also Gluck. vol. 4, pp. 443 sqq. On causation (in Germany: "adequate" causation) as a device to limit liability, cf. Rabel, Warenkauf, pp. 486 sqq.; Treitcl, op. cit., note 169, nn. 91 sqq.; Wieling, Interesse und Privatstrafe, pp. Э28 sqq.

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order to refer to the (English) distinction between special and general damages.337

7. "Mare amplissimum, in quo pauci sine periculo navigarunt"

All in all, the rules and principles governing (and limiting) the recovery of (contractual) damages degenerated into one of the largest and most complex legal minefields of the ius commune.338 Petrus Rebuffus' wellknown "Arbor super interesse"339 gives some idea of the efforts that were made to accommodate the Roman sources within a comprehensive conceptual framework: on it we find no less than 48 subdivisions of the interesse. Such subdivisions were ultimately rendered superfluous with the advent, in the 19th century, of the "Differenztheorie".34<) Based on a misinterpretation of the Roman concept of "quod interest" ("what is in between"), it nevertheless had an immediate and lasting impact, for it satisfied the pandectists' desire for a clear conceptual formula, which appeared to reduce the problem to a simple mathematical operation without involving any value judgements.341 The man who so ingeniously read into the sources what suited contemporary legal science? It was Friedrich Mommsen, once again.342

"7 Lavery & Co. Ltd. v.Jungheittrich 1931 AD 156 at 174 sq.; Wliitjieid v. Phillips 1957 (3) SA 318 (A) at 329D-E; Shatz Investments (Pty.) Ltd. v. Kalovymas'\976 (2) SA 545 (A) at 550F551A. On "general" and "special" damages in English law. see MacGregor, op. cit., note 317, nn. 16 sqq.; in South African law Erasmus/Gauntlett, in: Joubert (cd.), The Law of South Africa, vol. 7 (1979), n. 11.

Coing, p. 438. Scaccia exclaimed "haec matcria est profundissima et longissima. et cst obscura sicut alia, quae sit in corporc juris, et amplectitur marc amplissimum, in quo pauci sine periculo navigarunt et proptcr ejus subjectam materiam turbatur totus mundus" (cf. Endemann, Studien, vol. II, p. 244); Anton Fumcus likened anybody venturing into this field of law to Daedalus: "Qui de eo quod interest, pro iure civili seripserunt, mihi videntur optimo iure Dedali nominandi. struxerunt enim multis ambagibus inextricablies vias, vcl potius pcrvias" (cf. Wieling, Interesse und Privatstrafe, p. 4; cf. further the quotations on p. 2).

"4 Reproduced in Lange, Schadensersatz und Privatstrafe, p. 30. The most important of these-—apart from the distinction of interesse circa rem and extra rem—was the threefold subdivision into interesse commune (market value of the res (concerned), interesse conventum (its agreed price) and interesse singulare (based on the atfectio of the particular plaintiff); it was derived from Paul. D. 9, 2, 33 pr. and Paul. D. 35, 2, 63 pr. For details, see

Lange, Scliadensersatz und Privatstrafe. pp. 22 sqq.; cf. also Wieling, Interesse und Privatstrafe, pp. 67 sqq.; Erasmus, (1975) 38 THRHR 14 sq. It was rejected earlier by Jacobus de Ravams, later by Molinaeus {Tractatus de eo quod interest, n. 12) and others, and it subsequently disappeared.

™ Cf. supra, p. 824.

iAl For a criticism of the Differenztheorie cf, e.g. Heinrich Honsell. "Herkunft und Kritik des Interessebegriffs im Schadenscrsatzrecht", 1973 Juristische Schuhmg 69 sqq.; Wolfgang Grunsky, in: Miinchener Kommentar, vol, II (2nd ed.. 1985), Vor § 249, n. 7.

542 Interesse, op, cit., note 283, pp. 3 sqq.; the French humanist, Franciscus Hotomannus, had, however, already defined the concept of interest in very similar terms some centuries earlier; cf. Wieling, Interesse und Privatstrafe, p. 18 sq.

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I. CONDICTIO

1. Indebitum solutum

A sells his horse to B. Some weeks later, he duly delivers the animal to the purchaser. When he sues him for the purchase price, the contract of sale turns out to have been invalid.

Obviously, under these circumstances, A must be able to recover the horse from B: for it would be blatantly unfair if В were allowed to keep what he has acquired without having to render counterperformance. A's claim can, however, be based neither on delict nor on contract; B, by accepting delivery of the animal, did not act unlawfully, and A, by making delivery, intended to discharge his own contractual obligation, not to create one on the part of В (to return the horse).1 Occasionally, A will still be able to institute the rei vindicatio. In modern French law, for example, it is the contract of sale that transfers ownership;2 if the sale is invalid, ownership remains with the vendor, and В merely acquires possession. Very often, however, the vendor can no longer avail himself of an actio in rem. In modern German law, the transfer of ownership constitutes a separate transaction (separate, that is, from the underlying contract of sale),3 which, moreover, has to be evaluated "abstractly": invalidity of the contract of sale does not, as a rule, affect the transfer of ownership.4 In Roman law, too, A would have lost his real right: horses were res mancipi, and transfer of (quintary) ownership therefore required either mancipatio or in iurc cessio. Both acts were abstract and remained valid irrespective of the fate of the obligatory transaction they were supposed to discharge.s

A special remedy is thus required, a remedy in personam and based on the fact that the purchaser has received what subsequently turned out to be "indebitum": a performance that was never owed to him and that he therefore has no right to keep. This remedy was instituted by the Roman lawyers and it is usually referred to as condictio indebiti. Over the centuries, it has become one of the cornerstones of our

1Cf. the argument advanced in Gai. Ill, 91 and Gai. D. 44, 7, 5, 3.

2Art. 1583 code civil.

3§У2УBGB.

4Cf. § 829 of the First Draft (E I) of the BGB; Andreas Wacke, in: Miinchener Komntentar, vol. IV (2nd ed., 1986), § 873. n. 20; Gerhard Kegel, "Vcrpflichrung nnd Vcrfiigung", in: Festschrift fur F.A. Mann (1977), pp. 57sqq.; Reinhard Zimmermann, "Sittcnwidrigkcit und Abstraktion", 1984 Jttristische Rundschau 48 sqq.

5Kaser, RPrl, pp. 413 sqq.

834

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modern law of unjustified enrichment. Whence the term, "condictio", to designate the claim?

2. "Si paret . . . dare oportere"

It must appear somewhat ironic that the origin of our law of unjustified enrichment (which is often regarded as a rather irregular branch of the law, providing for a more or less discretionary remedy in cases of inequitable hardship)6 should lie in the actiones stricti iuris of Roman law. One can even trace the name "condictio" back to the time when the formulary procedure was not yet known, but when the parties to the proceedings before the magistrate (in iure) had to make their assertions in prescribed and precisely set forms of words. A trial could be founded upon five different legis actiones, one of which was the socalled legis actio per condictionem.7 Its name is derived from "condicere", which means as much as "to give notice" ("Condicere autem denuntiare est prisca lingua").8 If, at the first appearance by the parties, the defendant denied the plaintiff's assertions that he owed him a sum of money, or a specific thing, the plaintiff "gave him notice" to appear again before the magistrate after 30 days.9 This period gave the parties an opportunity to settle their dispute; only if they failed do so was a judge appointed so that the proceedings could begin in earnest apud iudicem.

The most important characteristic, for our present purposes, of the legis actio per condictionem10 was its abstract nature. The substantive basis of the claim, its causa debendi, was never mentioned; what was referred to was the mere fact that a particular sum of money or a specific object was owing (the "dare oportere").11 When the formulary process with written formulae slowly superseded the legis actiones, it followed their model in many respects; after all, the Roman lawyers were always loath to disrupt the even flow of legal development more

6 Cf., for example, "Protokolle", in: Mugdan, vol. II, pp. 1182 sqq. {where restitution is said to rest solely on grounds of equity); BGHZ 36, 232 (235) ("Die Bereicherungsanspruche gehoren dem Billigkeitsrecht an und stehen daher in besonderen Masse unter den Grundsdtzen von

Treu und Glauben"—The unjustified enrichment claims are based upon equity and hence they are governed, specifically, by the principle of good faith). Otto von Gierke is reputed to have said that in viewing the law of unjustified enrichment one stood "at the threshold of the most holy" (cf. John P. Dawson, "Erasable Enrichment in German Law", (1981) 61 Boston University LR 276). Contra: Walter Wilburg, Die Lehre von der ungerechtfertigten Bereicherung nach asterreichischem und deutschem Recht (1934), pp. 18 sqq.; Zweigert/Kotz, p. 294 and many others. Cf. also Birks, Restitution, pp. 9 sqq., 22 sqq.

7For details, see Kaser, RZ, pp. 80 sqq.

8Gai. IV, 18; cf. also Okko Behrends, Der Zwolftafelprozess (1974), pp. 97 sqq.

9Gai. IV, 17 b.

10 Introduced by the lex Silia as far as certa pecunia, and by the lex Calpurnia, as far as omnis certa res was concerned: Gai. IV, 19. On the lex Silia, cf., most recently, Carlo Augusto Cannata, "Das faktische Vertragsverhaltnis oder die ewige Wiederkunft des Gleichen", (1987) 53 SDH I 299 sqq.

1 Cf. Gai. IV, 17 b.

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than was absolutely necessary.12 Thus, in particular, the intentio of the more modern successor of the legis actio per condictionem was also framed abstractly: "Si paret Nm Nm A° A° tritici Africi optimi modios centum dare oportere."13

Although the giving of notice had by now disappeared,14 the new remedy retained the name "condictio": condictio certae pecuniae or condictio certae rei, as the case might be. It was the prototype of an actio stricti iuris in classical Roman law: the judge merely had the choice to condemn in "decem milia" ("quanti ea res est tanta pecunia"), or to absolve. But since the standard formula did not refer to the causa debendi, the condictio turned out to be applicable to a broad variety of situations. Thus, at a comparatively early stage,15 it became the remedy by means of which promises in the form of stipulations for a certum were enforceable;16 for if В has promised A to pay ten thousand sesterces, it is indeed appropriate to say that В "ought to give" ten thousand sesterces to A. Also attributable to the "veteres" (i.e. the Republican jurists)17 is its application, in a delictual context, as condictio ex causa furtiva;18 for again, if a certain object had been stolen, it was perfectly apposite for its owner to allege that the thief must give it back to him. Somewhat later (though still before the year 76 в.с.)1 9 it was extended to the new informal loantransaction mutuum20 and, closely related to it, to obligationes

And ultimately, certain instances of unjustified retention

~ Sec generally Schulz, Principles, pp. 83 sqq. 13 Cf. Lend, EP, p. 240.

In all formulary claims, the plaintiff now had to notify the defendant, informally and extrajudicially, of the nature of the action to be brought against the latter ("editio actionis"): cf. Kascr, RZ, pp. 162 sqq.; Berger, ED, p. 450.

" For speculation as to the historical development, cf. Schwarz, Condiclio, pp. 281 sqq.; von Liibtow, Condictio, pp. 59 sqq., 85 sqq., 115 sqq.; Kaser, RPr\, p. 593; Fritz Sturm. "La condictio ob transactioncm", in: Studi in onore di Cesare Sanfilippo, vol. Ill (1983), pp. 631 sqq.; Detlef Liebs, "The History of the Roman Condictio up to Justinian", in: The Legal Mind, Essays for Tony Ноиогё(1986), pp. 165 sqq. 111 Cf. supra, pp. 89 sq.

17Cf. Tryphon. D. 13, 1, 20.

18Cf. infra, pp. 941 sq.

19When Cicero appeared for the wealthy actor Roscius against whom a condictio had been brought. Cicero, Pro Roscio comoedo, 5, 14 refers to three different bases for a condictio: pecuniae datio. expensilatio and stipulatio. For a discussion, cf. e.g. Schwarz, Condictio, pp. 281 sqq.

20Cf. supra, p. 153. According to Kaser, RPr I, p. 593, the condictio based on mutuum

may have been an offshoot of the condictio ex causa furtiva. Before being considered to be a contract, mutuum was possibly merely regarded as a factual act of handing over something; the refusal to pay back was taken to constitute an act of fraudulent appropriation. After mutuum came to be considered as a (real) contract, where ownership was to be transferred to the borrower, the condictio basically became a contractual action. The condictio ex causa furtiva survived as the only application of a condictio which could be brought by the owner. Contra: Licbs, Essays Honore, pp. 165 sqq.; cf. also already idem,

Kla^enkonknrrenz, pp. 98 sqq.

2 The entry ("expensum ferre"; hence expensilatio) by the creditor into his codex accepti et expensi, which gave rise to the obligatio litteris, was based on a fictitious loan; cf. supra, pp. 32 sq. (note 178).

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were regarded as sufficiently similar to these types of situations as also to be remedied by means of the condictio. This heralded the birth of the condictio as an unjustified enrichment action. Gaius emphasized its structural similarity with mutuum: "Is quoque qui non debitum accepit ab eo qui per errorem solvit, re obligatur", he wrote22 and proceeded to argue that the condictio with the pleading "si paret eum dare oportere" lay against such a person, precisely as if he had received the payment by way of a loan. This argument could, indeed, not be faulted at a time when obligationes re were taken to be based exclusively on rei interventio (or datio). By the time of Gaius, however, the consensual leg of mutuum was already far enough developed23 that the crucial distinction between condictiones based on mutuum and those based on unjustified retention had become obvious. To quote Gaius once again:

"[S]cd haec species obligations [i.e., the one arising from indebitum solutum] non videtur ex contraetu consistere, quia is qui solvendi animo dat magis distrahere vult negotium quam contrahere."24

3. Indebitum solutum and unjustified enrichment

If unjustified enrichment was not founded on contract, the question was bound to arise as to how it could be positively classified. In his Institutes Gaius appears to shirk the problem, but in another work of his, the so-called Res cottidtanae, we find an answer of a sort: together with a variety of other obligations that did not appear to fit into the neat "summa divisio" of contract and delict,25 he placed it in a third class of "obligationes . . . ex variis causarum figuris".26 Justinian, in his Institutes, devoted a special title to "obligation(es) quasi ex contraetu", in which he included the case of "is cui quis per errorem non debitum solvit".27 This settled the matter, as far as the ius commune was concerned: liability arising from unjustified enrichment was consistently classified as quasi-contractual.28 Even some of our modern

22Gai. Ill, 91.

23Cf. supra, pp. 156 sqq.

24Gai. Ill, 91.

25On which see supra, pp. 10 sqq.

2(1 Gai. D. 44, 7, 5, 3, read in conjunction with Gai. D. 44, 7, 1 pr.

27Inst. III, 27, 6.

28By Lord Mansfield (in Moses v. Macferlan [17601 2 Burr 1005) the systematizing conclusion that certain rcstitutionary remedies should be described as arising quasi ex contraetu was introduced into English law (cf. Peter Birks, "English and Roman Learning in Moses v. Macferlan", (1984) 37 Current Legal Problems 5 sqq.). It was the source of the "implied contract heresy" (Birks, Restitution, pp. 29 sqq. (83)), which became firmly engrained in the English common law via Blackstonc's Commentaries (Book HI, Chapter 9). For an analysis of the civilian tradition from which Lord Mansfield and Blackstone borrowed, cf. Peter Birks, Grant McLeod, "The Implied Contract Theory of QuasiContract: Civilian Opinion Current in the Century Before Blackstone", (1986) 6 Oxford Journal of Legal Studies 46 sqq. French authors tended to regard payment of an indebitum as

"promutuum"; cf. Pothier, Traite du central du pret de consumption, nn. 132 sqq. ("DM quasi-contrat appele promutuum"); Going, p. 495.

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838 The Law of Obligations

codes—among them, most notably, the French code civil,29—still perpetuate this tradition.

We have so far referred to indebitum solutum (condictio indebiti) and unjustified enrichment interchangeably. This is justifiable only as long as we confine our attention to Gaius' and Justinian's Institutes, for both of them do, indeed, deal only with this one form of enrichment liability. But this was merely a kind of pars pro toto treatment, suitable at best for an introductory textbook. The briefest glance into either Code or Digest will show us that the Roman lawyers recognized a variety of other "condictiones". Yet, so influential was the "institutional" abridgement, that writers and legislators of later centuries have sometimes exclusively focused their attention on the condictio indebiti. Again, the French code civil provides the most prominent example:

"Celui qui reqoit par erreur on sciemment ce qui ne hit est pas du s'oblige a le restituer a celui de qui il I ' a indument щи",

it states in art. 1376, thereby adopting, as it generally tended to, the views propounded by Robert Joseph Pothier.30

II.THE CONDICTIONES IN ROMAN LAW

1.The typology of condictiones: classical or post-classical?

What were the other "condictiones"? The Digest contains separate titles for the condictio causa data causa non secuta (D. 12, 4), the condictio ob turpem vel iniustam causam (D. 12, 5), the condictio sine causa (D. 12, 7) and the condictio furtiva (D. 13, I);31 the condictio indebiti is dealt with in D. 12, 6, the longest and most substantial title of them all.32 To what extent these categories of enrichment liability were shaped by the classical Roman lawyers, by post-classical jurisprudence or by Tribonian, is not entirely clear. It is obvious that the classical jurists already attempted to carve out certain typical situations in which they were prepared to grant the condictio. Yet, for them the condictio was still a uniform procedural institution, without specifically

Artt. 1376 sqq. code civil (sub titulo: "Des quasi-contrats").

f For details of the development, cf. Walter Lang, Der allgemeine Bereicherungsanspruch im franzosischen Recht vor und nach dem code civil (unpublished Dr. iur. thesis, Frankfurt, '1975}, pp. 40 sqq., 48 sqq., 61 sq.

" There was a further title (D. 13. 2), devoted to a condictio ex legc. It consisted of a single fragment, which said that if a new obligation were to be introduced and no provision made as to what kind of action one were to use. then "ex lege agendum est". The Codex contains a brief title (C. 4, 9) devoted to "de condictione ex lege et sine causa vel iniusta causa". On the condictio ex legc cf. Gluck, vol. 13, pp. 237 sqq.; Thco Mayer-Maly. "Das Gesetz als Entstehungsgrund von Obligationen", (1965) 12 RID A 444 sqq.; Kascr, RPr II,

p.424; Liebs. Essays Honore, p. 182.

32 The Code presents the condictiones in the following order: De condictione indebiti

(C. 4, 5), de condictione ob causam datorum (C, 4, 6), de condictione ob turpem causam (C. 4, 7), de condictione furtiva (C. 4, 8) and de condictionc ex lege et sine causa vel iniusta causa (C. 4, 9). For a comparison, in historical perspective, of the two systems presented in the Digest and the Code, see Liebs, Essays Honore, pp. 167 sqq.

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differentiated requirements. Thus it would be wrong to insist on the classicity of the condictiones indebiti, ex causa furtiva, etc. as such—that is, as separate legal institutions. Classical law, strictly speaking, did not recognize specific types of condictiones, but applied the condictio to a number of situations in which it was thought to be unfair to leave the plaintiff without redress. It was only in post-classical times, when the formulae fell away and the classical concept of an "actional law" ultimately broke down, that the term "condictio" in its original procedural sense was no longer meaningful. In vulgar law, it disappeared completely,33 and when Justinian revived it in his usual classicist spirit, its meaning had shifted: "condictio" had come to be a term of substantive law, and it was used to designate all those noncontractual and non-delictual claims, which the classical lawyers had been prepared to enforce by means of a condictio (in the old sense of the word). These claims were taken over, further developed, refined and systematized34 by the East-Roman school of jurists, and it is in this form that they were ultimately received into the Corpus Juris Civilis. All in all, they constitute "one of [the] most distinctive and important achievements [of Roman jurisprudence]",35 which has had a lasting impact on modern civilian systems.

We shall now deal with each of these "condictiones" (in the Justinianic sense) in turn.

2. Condictio ex causa furtiva

At a comparatively early stage, the condictio was applied in cases of theft; we shall return to the condictio (ex causa) furtiva, as it came to be dubbed, when we deal with furtum.36 In the present context, three observations appear to be apposite. Firstly, for the purposes of this specific claim, the "dare oportere" of the intentio of the condictio was not (yet) taken to imply a transfer of ownership. The thief was liable, even though the act of stealing as such did not deprive the original owner of his ownership and the thief could therefore be obliged only to retransfer possession. Secondly, it should be noted that theft (furtum) in Roman law was a very wide concept: much wider, for example, than the modern German crime by that name. Accordingly, the scope of the condictio ex causa furtiva was rather extensive and covered, inter alia,

33Ernst Levy, "West-ostliches Vulgarrccht und Justinian", (1959) 76 ZSS 11 sq.

34". . . not only cautiously but also not without subtlety", as Liebs, Essays Honore, p. 183, remarks. But cf. also Berthold Kupisch, Ungerechtfertigte Bereicherung; geschichtlkhe

Entwkklungen (1987), pp. 21 sqq. For a completely different evaluation, cf. Schulz, CRL, p. 611 (". . . the compilers have completely ruined the classical law. . . . [The Byzantine] law is one of the worst parts of Justinian's law; it has confused and irritated generations of lawyers and exercised an evil influence on continental codifications down to our times").

^Thomas, TRL, p. 326. 36 Cf. infra, pp. 941 sq.

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furtum usus and embezzlement.37 But (and this is the third point) it went even further than that. The condictio was granted even in cases that could no longer be classified as theft. Take, for instance, the following decision by Sabinus, approved by Celsus and reported by Ulpian:

"Sed et ei, qui vi aliquem de fundo deiecit, posse fundum condici Sabinus scribit, et ita et Celsus, sed ita, si dominus sit qui deiectus condicat: ceterum si non sit, possessionem eum condicere Celsus ait."38

Only movable property could be the object of theft.39 Nevertheless, the condictio was granted, in the present case, to a person who had been evicted from his land; that person did not even have to be the owner, for Celsus allowed him to bring the condictio in respect of his mere possession.40 Cases of that nature may well have been referred to as condictio "ex iniusta causa",41 to which Sabinus' generalizing statement was applicable that anything "quod ex iniusta causa apud aliquem sit, posse condici".42 But the condictio was made available even against a person who had acquired something through (as a modern German lawyer would put it)43 an innocent encroachment on somebody else's property or through the force of nature.44 If, for instance, a ward transferred a sum of money as a loan without his tutor's authority, he remained the owner of that money45 until the recipient had inseparably mixed it with his own. It was only as a result of this intermixture (referred to as "consumptio nummorum")46 that the ward lost ownership (and, with it, the rei vindicatio). "Consumpta pecunia condictionem habet", said Julian;47 the condictio (sine causa) compensated the ward for the loss of his real right. Or take the case reported by Africanus in D. 19, 1, 30 pr. in fine. A slave was sold, but before he was delivered he stole something from the vendor. After delivery, the purchaser in good faith consumed the goods, because he believed them

37Cf. infra, pp. 923 sq.

38D. 13, 3, 2.

39But cf. also p. 929 (note 56).

40This type of situation came to be known as condictio possessionis; cf. also Lab./Cass./Ulp. D. 47, 2, 25, 1 and Gai. II, 79 in fine (". . . condici tamen furibus et quibusdam aliis possessoribus possunt"); Liebs, Essays Honore, p. 170; Wolfram Pika, Ex causa jurtiva condkere im klassischen romischen Recht (1988), pp. 73 sqq.

41As Liebs, Essays Honore, p. 170 suggests.

42Ulp. D. 12, 5, 6. For a detailed analysis of this fragment, cf. Raimondo Santoro, "Studi sulla condictio", (1971) 32 Annali Palermo 189 sqq., 219 sqq. Cf. also Schwarz, Condictio, pp. 276 sq.; Honsell/Mayer-Maly/Selb, p. 353; contra, however, most recently, Pika, op. cit., note 40, p. 25 and many others before him.

43Cf. infra, p. 890.

44Emphasized particularly by Savigny, System, vol. V, pp. 523 sqq.

45Cf. Gai. II, 82.

46For details, see Andreas Wacke, "Die Zahlung mit fremdem Geld", (1976) 79 BIDR 49

sqq., 89 sqq., 124 sqq.; Sven Erik Wunner, "Rechtsfolgen der Konsumtion fremder

Sachen", in: Geddchtnisschrift jiir Wolfang Kunkel (1984), pp. 584 sqq.

47 D. 12, 1, 19, 1. Cf. Schwarz, Condictio, pp. 240 sqq.; Max Kaser, "Das Geld im romischen Sachenrecht", (1961) 29 TR 208 sqq.; Kupisch, op. cit., note 34, p. 10; but cf. also Wunner, Geddchtnisschrift Kunkel, pp. 589 sqq., 602 sq. Cf. further lav. D. 12, 1, 18, 1.

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